DULI CHAND (DEAD) BY L.RS.versusJAGMENDER DASS

                 DULI CHAND (DEAD) BY L.RS.
                                                                         A
                            v.
                      JAGMENDER DASS

                         DECEMBER 8, 1989

           [L.M. SHARMA AND V. RAMASWAMI, JJ.]                           B

       Delhi Rent Control Act, 1958-Section 14( 1)(b)-"Consent in
 Writing''-Jnterprecation of-Sub-letting-Written consent-Necessity
 for-Mere Permission or acquiescence would not do.

        The Respondent-landlord filed a petition under section 14(I)(b) C
  of the Delhi Rent Control Act 1958 for an order of eviction of the
  appellant tenant from a shop situate at G.T. Road, Delhi on the ground
  that the tenant Duli Chand had sub-let or parted with the possession of
  the said shop after the 9th of June 1952 to M/s Hira Lal Sri Bhagwan
  illegally and without the written consent.of respondent landlord. The
  contention of the appellant-tenant was that be had not sub-let or D
  parted with the possession of the shop in question. According to him
  Hiralal was his relative who died sometime prior to 1958 and that
. Sri Bhagwan was his son and the name oftbe business as M/s Hiralal Sri
  Bhagwan & Company was given in memory of the deceased Hira Lal. In
  reply, the Landlord-respondent had contended that it was true that Sri
  Bhagwan was the natural son of Duli Chand hut since be bad given him E
  in adoption to Hiralal, he had gone out of the family of the appellant
  and as such it was a clear case of sub-letting and parting with the
  possession of tne rented premises.

       The Rent, Controller, held that the land-lord had failed to prove
 parting with possession of the tenanted shop. On appeal by the land- p
 lord, the Rent Control Tribunal held that the tenant had parted with
 the legal possession of the premises and in that view ordered the eviction
 of the appellant-tenant under section 14(l)(b) of the Act. Thereupon the
 appellant-tenant preferred second appeal before the High Court. The
 High Court having affirmed the imding of the Tribunal that the
 appellant-tenant had parted with the possession of the premises in dis- G
 pute, dismissed the appeal. Hence this appeal by the tenant.

       Dismissing the appeal, this Court,

      HELD: Secticn 14(l)(b) requires a "Consent in Writing" of the
 landlord in order to avoid an eviction on the ground of sub-letting,    H

                                   465
    466         SUPREME COURT REPORTS                [ 1989] Supp. 2 S.C.R.

    assigning or otherwise parting with the possession of the whole or any
A   part of the premises. l472BJ

          Mere permission or acqniescence will not do. The romeo! shall also
    he to the specific sub-letting or parting with possession. The require-
    ment of consent to he in writing was to serve a public purpose i.e., to
B   avoid dispute as to whether there was consent or not. [473Cj

         If the words were "without consent of the landlord" it might
    mean without consent, express or implied and in that sense question of
    waiver may arise. The question of implied consent will not arise, if the
    consent is to he in writing. [473E]

c         In the instant case, though there is some evidence to show that the
    sign hoard M/s Hira Lal Sri Bhagwan was seen in the premises since
    1972 and the landlord had seen Shri Bhagwan sitting in the shop since
    the year 1968, there is no positive evidence to show when the landlord
    had come to know of Sri Bhagwan getting the exclusive possession and
D   doing business in the premises. [471G]

          Jagan Nath (deceased) through L.Rs. v. Chander Bhan & Ors.,
    [1988] 3 SCC 57; Lakshman Singh Kothari v. Smt: Rup Kanwar, [1962]
    I SCR 477; Bai Hira Devi & Ors. v. The Official Assignee of Bo'mbay,
    [1958] 1 SCR 1384; Associated Hotels of India Ltd., Delhi v. S.B.
E   Sardar Ranjit Singh, [1968] 2 SCR 548 and M/s Shalimar Tar Products
    Ltd. v. H.C. Sharma & Ors., [1988] l SCC 70, referred to.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1810
    of 1982.

F        From the Judgment and Order dated 30.3.1982 of th~ Delhi High
    Court in S.A.O. No. 204 of 1980.

          Ram Panjwani and Vi jay Panjwani for the Appellant.

          Avadh Behari Rohtagi and P.N. Gupta forthe,Respondent.
G
          The Judgment of the Court was delivered by

          V. RAMASWAMI, J. The tenant is the appellant. The respon-
    dent-landlord filed a petition under section 14(1)(b) of the Delhi Rent
    Control Act, 1958 (hereinafter referred to as 'the Act') for an order of
H   eviction of the appellant-tenant for a shop bearing No. 361 (Old No.
          DULi CHAND v. JAGMENDER IV. RAMASWAMI, J.]                467

25-A) Azadpur, G.T. Road, Delhi, on the ground that the tenant-Duli
Chand has sub-let or parted with the possession of the said shop after     A
9th day of June, 1952 to Mis Hira Lal Sri Bhagwan illegally and with-
out the written consent of the landlord. The main contention of the
tenant was that there was no sub-letting or parting withJhe possession
of the shop, that Hira Lal was a relative of the tenant who died some
time prior to 1958, that Sri Bhagwan is the son of the tenant, and that    B
the name of the business was given as Mis Hira Lal Sri Bhagwan in
memory of the deceased relative Hira Lal. He further pleaded that the
pos3ession of the shop is with the tenant. Some other defences like the
Respondent-petitioner was not a landlord, that he had no locus standi
to file the petition for eviction, and that the notice of termination of
tenancy was not valid, were taken in the written statement and they
were overruled and do not survive for consideration in this appeal. On     c
the main contention, the tenant has taken up the defence that Sri
Bhagwan is the son of the respondent and the name of the business
Mis Hira Lal Sri Bhagwan is given only in memory of the deceased
relative Hira Lal. A reply statement was filed by the landlord to the
effect that though Sri Bhagwan was the natural son of the tenant-Duli      D
Chand, he had been given in adoption to Hira Lal, that on such adop-
tion Sri Bhagwan had gone out of the family of the respondent and that
it was a clear case of sub-letting or parting with the possession of the
shop.

      On the facts and circumstances of the case, the question of sub-     E
letting did not arise but the case was considered on the dispute
whether the tenant had parted with possession of the shop. The tenant
never pleaded that he had obtained any written consent from the land-
lord for parting with possession. The only question, therefore, for
consideration in this case is as to whether the tenant had parted with
possession of the whole or part of the tenanted premises. The learned      F
Rent Controller held that the landlord had not proved parting with
possession of the tenanted shop by the tenant. On appeal by the land-
lord the Rent Control Tribunal held that the tenant had parted with
the legal possession of the tenanted premises and in that view ordered
the eviction of the tenant under section 14(1)(b) of the Act. The
second appeal filed by the tenant to the High Court was dismissed          G
confirming the finding of the Rent Control Tribunal that the tenant
had parted with possession of the tenanted shop.

     Section 14(1)(b) of the Act provides that the Rent Controller
may on an application made to him in the prescribed manner make an
order for recovery of possession of the .£r~mises on the ground- ·         H
    468        SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

               "(b) that the tenant has, on or after the 9th day of June,
A
               1952, sub-let, assigned or otherwise parted with th< posses-
               sion of the whole or any part of the premises without
               obtaining the consent in writing of the landlord."
                 •
    The parametric content and the meaning of the words "parted with
B   possession of the whole or any part of the premises" had come up for
    consideration in a quite number of cases including some of the deci-
    sions of this Court. It is enough if we refer to the latest judgment of
    this Court on this point. In Jagan Nath (deceased) through L.Rs. v.
    Chander Bhan and Others, [1988] 3 SCC 57, Mukharji, J. speaking for
    the Court held that:
c              "parting with possession meant giving possession to per-
               sons other than those to whom possession had been given
               by the lease and the parting with possession must have been
               by the tenant; user by other person is not parting with
               possession so long as the tenant retains the legal possession
D              himself, or in other words there must be vesting of posses-
               sion by the tenant in another person by divesting himself
               not only of physical possession but also of the right to pos-
               session. So long as the tenant retains the right to possession
               there is no parting with possession in terms of clause (b) of
               section 14(1) of the Act."
E
          The facts in this case as found by the Rent Control Tribunal
    which was accepted by the High Court are that the concern Mis Hira
    Lal Sri Bhagwan is the sole proprietary concern of Sri Bhagwan, that
    Sri Bhagwan has been carrying on that business in the premises in
    dispute, that Duli Chand-tenant had no interest in the business, that
F   Sri Bhagwan is in exclusive possession of the property, that tenant-
    Duli Chand works at another Shop, Mis Aggarwal Hardware and Mills
    Stores with his younger son, that there was no plea of concurrent user
    of the premises by the tenant nor there is any plea that Sri Bhagwan is
    a licensee, that occasionally the tenant-Dun Chand was seen sitting in
    the shop and that the tenant had not retained any control over the
G   same. These facts clearly support the finding of Appellate Tribunal
    and High Court that the tenant had parted with legal possession of the
    shop to the said Sri Bhagwan.

          The learned counsel for the appellant, however, contended that
    Sri Bhagwan was not the adopted son of Hira Lal and that by permit-
H   ting the son to carry on business it could not be stated that he had
           DULi CHAND v. JAGMENDER [V. RAMASWAMI, J.J                   469


parted with the legal possession of the premises. In this connection, he
                                                                               A
drew our attention to the decision of this Court in Lakshman Singh
Kothari v. Smt. Rup Kanwar, [1962] 1 SCR 477 wherein this Court had
held that in order that an adoption may be valid under Hindu Law
there must be a formal ceremony of giving and taking by the natural
parent and the adopted parent after exercising their volition to give
and take the boy in adoption and that such an evidence of a valid              B
adoption is not available in this case. The Appellate Tribunal and the
High Court have dealt with the evidence available in this case in detail
and came to the conclusion that Sri Bhagwan was adopted by Hira Lal.
It is not necessary for us to rely on the evidence available or the findings
as proof of a valid adoption under Hindu Law but the evidence and the
findings are enough to show that though Duli Chand and Sri Bhagwan
are father and natural son, it is not possible to invoke any presumption       c
that they constituted a Joint Hindu Family. It may also be mentioned
that in the written statement the tenant had not pleaded specifically
that he and Sri Bliagwan, constituted a Hindu Joint Famly, that they
are in joint possession, that either the business is joint family business
or Sri Bhagwan was permitted to use the premises for carrying on any           D
business as licensee remaining in joint possession. The evidence on
adoption is thus to be treated only relevant for the purpose of consi-
dering the question whether the tenant has not retained any control
over the premises and that he has parted with the possession, and we
do not think that the Courts below erred in relying on the same for this
purpose.                                                                       E

      At this stage we may dispose of another point raised by the
learned counsel in connection with the admissibility of certain
evidence in this case. In support of the case of the landlord that Sri
Bhagwan was adopted by Hira Lal he examined three witnesses, AW
2, AW 3, and AW 4. The first witness was an Inspector of House Tax.            F
According to this witness in the House Tax assessment register Sri
Bhagwan was shown as the son of Hira Lal and residing at 26 Sarai
Peepal Thalia, which was the residence of Hira Lal and not that of
tenant-Duli Chand. The next witness was an Upper Division Clerk of
the Excise Department. His evidence was to the effect that in the
licence issued under the Central Excise Act the father's name of Sri           G
Bhagwan was shown as Hira Lal. The other witness was Upper Divi-
sion Clerk in the Sales Tax Department and his evidence was that Sri
Bhagwan was an asses.see of the Department and as per the records in
his office the father's name of Sri Bhagwan was Hira Lal. The learned
counsel contended that these evidences were inadmissible under Sec-
tion 91 of the Evidence Act. Section 91 of the Evidence Act provides           H
     470         SUPREME COURT REPORTS               (1989) Supp. 2 S.C.R.

     that when the terms of a contract, or of a grant, or of any other
A disposition of property, have been reduced to the form of a document,
     and in all cases in which any matter is required by law to be reduced to
     the form of a document, no evidence shall be given in proof of the
     terms of such contract, grant or other disposition of property except
     the document itseH or secondary evidence of its contents in cases in
's   which secondary evidence is admissible under tbe provisions of Evi-
     dence Act. This Court has considered the scope of section 91 in Bai
     Hira Devi and Others v. The Official Assignee of Bombay, l19S8) 1
     SCR 1384 it was held therein:

                "The normal rule is tbat tbe contents of a document must
                be proved by primary evidence which is the document itself
c               in original. Section 91 is based on which is sometimes
                described as tbe "best evidence rule". The best evidence
                about tbe contents of a document is tbe document itself and
                it is the production of the document that is required by
                section 91 in proof of its contents. In a sense, the rule
D               enunciated by section 91 can be said to be an exclusive rule
                inasmuch as it excludes the admission of oral evidence for
                proving the contents of the document except in cases where
                secondary evidence is allowed to be led under the relevant
                provisions of the Evidence Act."

E          The evidence in this case is not with reference to the terms of
     CGntract or grant or any other disposition of property which has been
     reduced to the form of a document or a case in which the matter is
     required by law to be reduced in the form of a document but the
     evidence is to the effect that Sri Bhagwan has given his father's name
     as Hira Lal while claiming ownership to the House No. 26, Sarai
F    Peepal Thalia to the Municipality and similarly the evidence of the
     other witnesses were that while applying for a licence he had given his
     name as son of Hira Lal. The evidence may be worth nothing without
     production of the extracts from the property. register or the other
     books maintained by the departments. However, that does not make
     the evidence itseH inadmissible.
G
        The learned counsel for the appellant then contended that Sri
  Bhagwan had been carrying on business right from 1958 to the
  knowledge of the landlord and that therefore, the landlord shall be
  deemed to have waived his right to get order of eviction on the ground
  of parting with the possession under section 14(1)(b) of the Act. In this
H connection, the learned counsel for the appellant relied on the
          DULi CHAND v. JAGMENDER (V. RAMASWAMI, J.]                 471

evidence of the landlord and some of his witnesses. The landlord in his
evidence as AW 1 has stated that Sri Bhagwan has been to his A
knowledge sitting at the shop since the year 1968 that he has seen the
board of Mis Hira Lal Sri Bhagwan since 1972, and that he was resid-
ing in the same building behind the shop in dispute. AW 5 who is the
Uncle of the landlord who came to depose on behalf of the landlord in
his evidence had stated that the firm Mis Hira Lal Sri Bhagwan is · B
doing the business in premises since 1960-61. The tenant in his
evidence has stated that the firm Mis Hira Lal Sri Bhagwan is function-
ing in the disputed premises for the last 18 years. The Rent Controller
found that Shri Bhagwan was doing business in the said premises since
1962, i.e., after the death of Hira Lal. On the basis of this evidence the
learned counsel contended that the landlord was aware that Shri
Bhagwan was carrying on business for at least 16 years prior to the         c
filing of the petition for eviction and in the circumstance he shall be
deemed to have waived his claim for eviction under section 14(1)(b).
The learned counsel for the landlord, however, contended that the
landlord had not received the rent after he came to know of the parting
with the possession by the tenant that he was collecting rent till about D
1972 only from the tenant-Duli Chand, that the tenant defaulted in
payment of the rent subsequent to 1972, and the petition for eviction
was filed thereafter in 1976 and in such circumstances there could be
no question .of waiving of his right with knowledge of parting with
possession by tenant could arise in this case. He also contended legally
no such waiver could be pleaded on the language used in section E
14(1)(b) of the Act.

      In Associated Hotels of India Ltd. Delhi v. S.B. Sardar Ranjit
Singh, [1968] 2 SCR 548 this Court held that, a waiver is an intentional
relinquishment of a known right. There can be no waiver unless the
person against whom the waiver is claimed had full knowledge of his         F
right and of facts enabling him to take effectual action for the enforce-
ment of such right.

      In t.he present case, though there is some evidence to show that
the sign board Mis Hira Lal Sri Bhagwan was seen in the premises
since 1972 and the landlord had seen Sri Bhagwan sitting in the shop        G
since the year 1968, there is no positive evidence to show when the
landlord had came to know of Sri Bhagwan getting the exclusive
possession and doing business in the premises. In fact, since the ques-
tion of waiver has not been raised in this form in the courts below there
is no definite finding as to when the landlord came to know of such
parting with possession and Sri Bhagwan doing business in the pre-          H
    472         SUPREME COURT REPORTS                 I1989) Supp. 2 S.C.R.

A mises as the sole -proprietor of Mis Hira Lal Sri Bhagwan and whether
  he had received rent after such knowledge. We cannot, therefore,
  permit this point to be raised for the first time in this Court nor can we
  go into this question of fact. That apart section 14( l)(b) requires a
  "consent in writing" of the landlord in order to avoid an eviction on
  the ground of sub-letting, assigning or otherwise parting with the pos-
B session of the whole or any part of the premises. This Court consider-
  ing the need for obtaining a consent in writing under the provision, in
  Mis. Shalimar Tar Products Ltd. v. H.C. Sharma and Others, (1988) 1
  sec 70 quoted with approval the following passage from the judgment
  of the High Court in Delhi Vanaspati Syndicate v. Mis. Bhagwan Dass,
   Faquir Chand:
c               "Section 16 of the Act of 1958 holds the key to the interpre-
                tation of provisions of clause (b) of sub-section (1) of sec-
                tion 14 of this Act as well as of clause (b) of sub-section (1)
                of section 13 of the Act of 1952. It deals with restrictions on
                sub-letting. Sub-section (1) of section 16 makes sub-letting
D               lawful though it was without the consent of the landlord
                provided that the sub-letting has taken place before June 9,
                1952 and the sub-tenant is in occupation of the premises at
                the time when the Act of 1958 came into force. Sub-section
                (2) of section 16 reiterates the provisions of clause (b) of
                sub-section (1) of section 13 of the Act of 1952 and lays
E               down that the sub-letting after June 9, 1952 without obtain-
                ing the consent in writing of the landlord shall not be
                deemed to be lawful. It does not say that the requisite
                consent should be obtained before sub-letting the premises
                and the consent obtained after sub-letting-will not enure for
                the benefit of the tenant.
F
                However, sub-section (3) of Section 16 prohibits sub-
                letting of the premises after commencement of Act of 1958 ·
                without the 'previous' consent in wrjting of the landlord.
                The use of the word 'previous' in this sub-section shows
                that where it was the intention of the legislature that the
G               consent in writing should be obtained before sub-letting it
                said so specifically. The ab,ence of the word 'previous' in
                sub-section (2) shows that it was not the intention of the
                legislature that the consent in writing could be obtained
                before sub-letting. Before the Act of 1952 a tenant could
                successfully show acquiescence of the landlord in sub-
H               letting of escape forfeiture of tenancy. Since the absence of
           DULi CHAND v. JAGMENDERW. RAMASWAMI, J.]                     473

            consent in writing by a landlord for sub-letting gave rise to      A
            unnecessary litigation between a landlord and a tenant, the
            Act of 1952 required the consent of the landlord in writing
            after its commencement. The purpose seemed to be that
            the consent of the landlord evidenced by a writing would
            cut out litigation on this ground. After all a landlord could
            always agree to sub-letting either before or after sub-letting     B
            of the premises. For that reason no condition was laid down
            that such consent should be obtained before sub-letting the
            premises."

      In the aforesaid view it was held that it was necessary for the
tenant to obtain the consent in writing to sub-letting the premises. The       c
mere permission or acquiescence will not do. The consent shall also be
to the specific sub-letting or parting with possession. This Court
further observed that the requirement of consent to be in writing was
to serve a public purpose, i.e., to avoid dispute as to whether there was
consent or not and that, therefore, mere permission or acquiescence
will not do. While noting that everyone has a right to waive and to            D
agree to waive the advantage of a law made solely for the benefit and
protection c:>f the individual in his individual capacity, in the context of
the statutory provision. of the Delhi Rent Control Act, this Court
further held that the requirement as to the consent being in writing was
in the public interest and that, therefore, there cannot be any question
of waiver of a right, dealing with the rights of the tenants or landlord.      E
The words used in the section are "without obtaining the consent in
writing of~e landlord." If the words were "without consent of the
landlord" if·might mean without consent, express or implied and in
that sense question of waiver may arise. The question of implied con-
sent will not arise, if the consent is to be in writing.
                                                                               F
      The learned counsel for the appellant referred to a number of
decisions of the English Courts in support of his contention. We do not
think it necessary to refer to them in view of the direct decision of this
Court on this point.

      In the circumstances, there are no grounds to interfere with the         G
decisions of the courts below. This appeal is accordingly dismissed
with costs.

Y.Lal                                                   Appeal dismissed.