Holding

Consent under Section 11(4)(i) must be a positive, unambiguous act; mere inaction or silence does not amount to implied consent.

Summary

The appellant, P. John Chandy & Co., was the tenant of premises originally let in 1949 and had sub-let the property on several occasions, including after the Kerala Buildings (Lease and Rent Control) Act, 1965 came into force. The landlord, John P. Thomas, sought eviction under Section 11(4)(i) of the Act, alleging sub‑letting without his consent. The trial court held that no consent had been given, while the Rent Control Appellate Authority inferred implied consent from the landlord’s long‑standing inaction and acceptance of rent. The Kerala High Court set aside the appellate order, ruling that consent under the statute must be a positive act and that mere silence or inaction does not amount to implied consent. On appeal, the Supreme Court affirmed the High Court, holding that the landlord’s inaction cannot be read as consent and that the appellate court’s finding based on a selective reading of evidence was invalid. Consequently, the appeal was dismissed and the eviction order stood.

Issues considered

Whether the landlord's inaction and acceptance of rent constitute implied consent under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
Whether the term 'consent' in the statute requires a positive act as opposed to mere acquiescence.
Whether the appellate authority's finding based on a partial appreciation of the witness statement is legally valid.
Whether sub‑leases created before the commencement of the Act are relevant to the liability under Section 11(4)(i).

Legislation cited

Kerala Buildings (Lease and Rent Control) Act, 1965s. 11(4)(i), s. 20

Subjects

implied consentsub‑lettingleaserent controlKerala Buildings Actlandlord‑tenantevidentiary appraisalacquiescence vs consenteviction

Judgment

. P. JOHN CHANDY AND CO. (P) LTD. A
v.
JOHN P. THOMAS

APRIL 29, 2002

[D.P. MOHAPATRA AND BRIJESH KUMAR, JJ.] B

Kera/a Buildings (Lease and Rent Control) Act, 1965: Section 11 (4)(i).

Rent control-Sub-letting-Eviction petition-Tenant taking plea of
implied consent due to inaction on the part of landlord-Held, consent C
envisaged by Section Jl (4}(i) means consent with some positive act which
may lead to inference of conferring right on the tenant to sub-let-Mere
inaction not sufficient to amount to implied consent on the part of landlord-
Distinction between 'Acquiescence' and 'Consent '-What is.

Evidenc~Appreciation of-Statement ofwitness-Trial Court appraising
D
whole statement including cross-examination and recorded a finding-Finding
of appellate court based on part ofstatement in examination-in-chief-Rest of
the statement ignored by appellate court-Held finding of appellate court not
a valid finding.
E
Words and Phrases:

Words 'consent'-'confer'-Meaning of in the context of Section JJ(4)
(i) Kera/a Buildings (Lease and Rent Control) Act, 1965.

" In an eviction petition filed by respondent-landlord against the F
appellant-company on the ground of sub-letting without the consent of former
the tenant did not deny the fact of sub-letting. Sub-tenancies were created
before and after coming into force of the Kerala Buildings (Lease and Rent
Control) Act, 1965. However, it was pleaded that the sub-leases were created
within the knowledge of respondent-landlord and his predecessor-in-interest.
As no objection was raised at the time of creation of sub-leases it must be G
presumed that landlord had consented to the sub-letting. In his evidence one
of the former Directors of appellant-company CPW-2 stated that negotiations
of rental arrangements took place in his presence and arrangement of letting
included sub-letting.

549
H
550 SUPREME COURT REPORTS [2002] 3 S.C.R.

A The trial court allowed the petition of the landlord holding that there
was no consent of the landlord for sub-tenancies created by the appellant-
company. It considered and appraised the whole statement of CPW-2 and
recorded a finding that his statement was unwc;irthy of credence and it could
not be clearly made out from his statement that consent for subletting was
B accorded.·

Appeal preferred by tenant was allowed by Appellate-Authority. It
placed reliance on the statement of CPW-2 by merely referring to a part of
his statement in examination-in-chief and held that though the sub-leases were
coming down since long within the knowledge of the landlord yet no objection
C was raised for 32 years. Thus from this conduct it must be inferred that the
landlord had consented to the sub-letting. It further held even assuming that
there was specific stipulation in the contract of tenancy prohibiting sub-letting,
the landlord by acceptance of rent must be deemed to have waived his right
to claim eviction on the ground of sub-letting.

D Revision preferred by landlord was allowed by Kerala High Court
holding that the sub-leases were created in contravention of Section 11(4)(i)
of the Act. High Court found that the tenant failed to establish that in terms
of lease it was entitled to sub-let the accommodation. Mere inaction or failure
on the part of the landlord to initiate any action in the matter was held not
E to amount to conferment of right on the tenant under the lease to sub-let.

Against the decision of High Court tenant preferred appeal before this
Court.

Dismissing the appeal, the Court

F HELD: 1. There is no reason to interfere with the order passed by the ~.
High Court setting aside the orders of the appellate authority and upholding
the orders of the trial court, refusing to draw any inference of implied consent
on the ()asis of inaction of conduct of the landlord. (560-G)

G 2. The consent as envisaged under Section 11(4)(i) of the Kerala
Buildings (Lease and Rent Control) Act, 1965 would mean consent with some
positive act which may lead to inference of conferring right on the tenant to
sub-let the premises and mere inaction would not be sufficient to amount to
implied consent on the part of the landlord. (560-H; 561-A)

H 3. A perusal of Section 11(4)(i) clearly indicates that the landlord can
P. JOHN CHANDY AND CO. (P) LTD. v. JOHN P. THOMAS 551
claim possession of the building from the tenant in case of sub-letting by the A
tenant without the consent of the landlord, in case the lease does not confer
on the tenant a right to sub-let The provision provides for "conferment" of
right on the tenant to sub-let accommodation. That is to say, so as to be entitled
to sub-let, the tenant must be granted that right to do so, by the landlord.
The expression 'confer' is pointer to something done overtly and explicitly. B
Conferring indicates some positive action in giving something, may be some
right or privilege to another person. It is in this background that the word
'consent' as occurring in clause (i) of sub-section (4) of Section 11 is to be
seen. The word 'consent' as used in cl. (i), sub-section (4) of Section 11 of the
Act when read in the background of the word 'confer' in the latter part it
will only mean that consent has to be with some positive action on the part of C
the landlord so that the tenant can be said to have had the authority to sub-
lease his lease rights. Mere silence may not be enough. [558-A-C; 559-G]

Law Lexicon by P. Ramanatha Iyer 2nd Edn. Reprint 2000, referred to.

4. The consent of the landlord should be in a positive way, clear cut D
and without ambiguity since otherwise right to sub-let is only to be conferred
, on the tenant by the landlord in the lease itself. It can reasonably be expected
that a right which is otherwise to be conferred by having such a condition in
the lease itself, consent, in absence thereof, preferably be in writing and in
case it is not so, it is to be clear cut without any ambiguity or shadow of doubt E
The conduct of the landlord which has been mainly taken into account on
the point of implied consent is his inaction for a long time despite the
knowledge of the fact of sub-letting by the tenant to other persons. Inaction
for a period of 32 years as indicated by the appellate authority is incorrect.
Nonetheless it can be said that there has been inaction on the part of the
-' landlord for some years is not 32 years. But inaction in every case does not F
necessarily lead to an inference of implied consent or acquiescence. For implied
consent there has to be something more than mere inaction or lack of initiative
on the part of the landlord. [558-D-G; 559-F]

Hirata/ Kapur v. Prabhu Choudhary, AIR (1988) SC 852 and Ran! Saran G
v. Pyare Lal and Anr., AIR (1996) SC 2361, referred to.

Comp'1Enie Francaise de Talevision v. Thorn Consumer Electronics Ltd.
(1978) RCP"735; Bramer Vulkan Schiffbau und Maschinenfabrik v. South India
Shipping Corpn. (1979) 3 All ER 194 Franks and Bartlett Co. Ltd (1980) 1 All
ER 356, referred to.
H
552 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Words and Phrases Legally Defined Vol. I 3rd Edn. p.27, 314, referred
to.

5. Drawing inference from the facts established, is not purely a question
of fact. It is always considered to be a point of law in so far it relates to
inferences to be drawn from the finding of fact. Finding of fact in the present
B case is that after the lease was given to the appellant in the year 1949 sub-
tenancies had been created apart from in the year 1949 itself, in the years
1971, 1972 and 1974. Liability of the tenant to hand over possession on
account Of sub-letting, to the landlord, came into existence by virtue of
Section 11(4)(i) of the Act. Therefore, for the purposes of the above said
C provision sub-tenancies created before the enforcement of the Act may not
have any relevance. The tenancies created after 1965 in the years 1971, 1972
and 1974 would clearly be subject matter of incurring the liability of the
tenant to hand over the possession to the landlord. The statement of CPW-
2 about sub-letting in the year 1949 has no bearing on the merits of the
present case. The Kerala Building (Lease and Rent Control) Act, 1965 came
D into force in the year 1965. There is no statement in respect of the sub-
tenancies created after the Act came into force. In this context the observations
made by the appellate court that no objection was taken by the landlord for ;.
the last 32 years is not correct. The respondent had served a notice on the
appellant-tenant in 1981 which is a period of 10 years from 1971 and 7 years
E from 1974. [557-B-D]
6. For proper appraisal of evidence, a Court must consider the whole
statement. Cross-examination constitutes an important part of the statement
of a witness and whatever is stated in the examination-in-chief, stands tested
by the cross-examination. The trial court in its judgment has referred to
F specific parts of the statement of CPW-2 in cross-examination. Such a finding '-
recorded after appraisal of the whole statement would not be negated by ... .;
appellate court without recording cogent reasons for doing so. The finding of
the appellate court about the statement of CPW-2, basing it on picking some
part of the statement, ignoring the rest of it, cannot be treated to be a valid
G finding. It may. rather amount to misreading of the statement or basing a
finding ignoring the major and more important part of the statement. Such
a finding is vitiated in law and, therefore, not sustainable at all. The High
Court has rightly ignored it and acted according to the finding recorded by
0
the trial court. [555-G-H; 556-A-B]

H Ubaida v. Damodaran, [1999] 5 SCC 8, distinguished.
P. JOHN CHANDY AND CO. (P) LTD. dOHN P. THOMAS [BRIJESH KUMAR, J.] 553
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3158 of A
2002.

From the Judgment and Order dated 26.6.200 J of the Kerala High
Court in C.R.P. No. 2572 of 1992.

P.N. Misra, Romy Chacko and Anil Kumar Sinha for the Appellant. B
Gopal Subramanium, S. Sukumaran, Ms. Divy Nair and Ramesh Babu
M.R. for the Respondent.

The Judgment of the Court was delivered by
c
BRIJESH KUMAR, J. Leave granted.

The appellant in this appeal has impugned the judgment and order
dated 26.6.2001 passed by the Kerala High Court, allowing the civil revision
preferred by the respondent-landlord, setting aside the appellate order and
holding that the Rent Controller was justified in passing an order of eviction D
of the tenant-appellant under Section 11 (4) (i) of the Kerala Buildings (Lease
, And Rent Control) Act, 1965.

The facts which do not admit of dispute are that the accommodation in
question originally belonged to the grand father of the present respondent, E
who died in the year 1953. It came down to the father of the respondent who
also died some time 1976. The property ultimately came to the respondent.
In the year 1949 Shri P. George, grand father of the respondent rented out
the premises to the appellant-company which was sub-let to different sub-
tenants from time to time. The respondent gave notice to the appellant on
17.11.1981 to terminate the sub-lease arrangements but the tenant failed to F
comply with the notice. Ultimately John P. Thomas-respondent filed RCP
No.16 of 1982 in the Court of Rent Controller, Kottayam. The eviction was
sought on the ground that the appellant-tenant had transferred his rights
creating sub-leases in favour of several persons without the consent of the
landlord. One of the sub-tenants had even been running a printing press in G
the premises whereas according to the case of the landlord the premises were
let out to the appellant for its use as an office and godown. The petition was
contested but the fact of sub-letting was not denied. On the other hand, it was
pleaded that one sub-lease was created initially in 1949 itself when the premises
were taken by the appellant on rent which fact was within the knowledge of
the grand father and the father of the respondent as well as that of the present H
554 SUPREME COURT REPORTS [2002] 3 S.C.R.

A respondent. Admittedly, a few more sub-leases were created in 1970s. Nobody ....
ever objected to the same. It could thus well be presumed that the landlord
had consented to the sub-letting which was within their knowledge. There
does not seem to be any document of lease. The appellant also produced one
CPW2 in evidence who had been one of the Directors of the appellant Co.
from 1946 to 1960. According to him, negotiations of rental arrangement
B took place in his presence and the arrangement of letting included sub-letting
as well.

The Rent Controller on consideration of the evidence adduced by the ...
parties as well as other material on the record came to the conclusion that
c there has not been any positive conferment of right upon the appellant to sub-
let or transfer the rights under the lease. While appreciating the evidence, the
trial court observed that in so far the evidence of CPW2 is concerned, in
cross-examination he has stated that there was no document of lease and had
no knowledge whether any decision was taken by the Board of Directors of
the Company in regard to the tenancy or the terms thereof. He also stated that
D terms of rental arrangement were not discussed and there was no evidence on
record which may have been kept in the records of the company regarding
the same nor he remembered what happened in 1949. The trial court
considering other parts of his statement as well found that his evidence was
..
unworthy of credence and that of an interested person and observed "therefore
I dis-believe CPW2 and render his evidence as unreliable". The petition thus
E
filed by the respondent landlord was allowed holding that there was no consent
of the landlord for sub-tenancies created by the appellant.

The tenant filed an appeal before the Rent Control Appellate Authority,
Kottayam. The appeal was allowed by order dated February 21, 1992. The
F appellate court recorded a finding to the effect "in the absence of any evidence
either oral or documentary the terms of tenancy have to be gathered from th~
long course of conduct of the parties ever since commencement of the tenancy
.... ...
in 1949". The appellate court considering the facts and circumstances that the
sub-lease was coming down since long within the knowledge of the landlord
and they having never raised any objection, by their conduct it could be
G inferred that the landlord had consented to the sub-letting. The appellate
court then also referred to the statement of CPW2 who was formerly one of
the Directors of the appellant company and was related to the parties and·
according to whom the rent arrangement was made in his presence which
enabled the tenant-appellant to sub-let the premises. The appellate court
H ultimately held that having regard to the long course of conduct of parties it
P. JOHN CHANDY AND CO. (P) LTD. v. JOHN P. THOMAS [BRIJESH KUMAR,!.) 555
was satisfied that contract of tenancy allowed sub-letting by the tenant. It A
further observed "even assuming that there was specific stipulation in the
contract of tenancy prohibiting sub-letting, the landlord by acceptance ofrent
must be deemed to have waived his right to claim eviction on the ground of
sub-letting"

Aggrieved by the order passed by the appellate authority the respondent B
preferred a revision under Section 20 of the Kerala Buildings (Lease And
Rent Control) Act, 1965. The revision was allowed as indicated earlier holding
that the sub-leases were created in contravention of Section 11 (4)(i) of the
Act. The revisional court found that the tenant failed to establish that in terms
of lease they were entitled to sub-let the accommodation. Mere inaction or C
failure on the part of the landlord to initiate any action in the matter would
not amount to conferment of right on the tenant under the lease to sub-let nor
waiver of the right of the landlord to get the premises vacated could be
inferred.

Dealing first with the point of lease arrangement in 1949 with consent D
to sub-let, it may be noticed that it is principally based on the oral evidence
of CPW2. Undisputedly there is no written lease deed nor conditions of lease
have been reduced in writing. According to CPW2 he had been the Director
of the appellant-company during the period starting from 1946 to 1960. He
was making the statement obviously more than 30 years of the lease E
arrangement with the appellant in 1949. We find that the trial court has
considered and appraised the whole statement of CPW2 including his cross-
examination on the basis of which the trial court recorded its finding that his
statement was unworthy of credence and it could not be clearly made out
from his statement that consent for sub-letting was accorded to the tenant.
The statement of CPW2 has been annexed along with the counter-affidavit F
filed by the respondent. The learned appellate authority tried to place reliance
on the statement of CPW2 merely referring to a part of his statement in
examination-in-chief. For proper appraisal of evidence, a Court must consider
the whole statement. Cross-examination constitutes an important part of the
statement of a witness and whatever is stated in the examination-in-chief, G
stands tested by the cross-examination. Tue trial court in its judgment has
referred to specific parts of the statement of CPW2 in cross-examination.
Such a finding recorded after appraisal of the whole statement would not be
negated by the appellate court without recording cogent reasons for doing so.
The finding of the appellate court about the statement of CPW2, basing it on
picking some part of the statement, ignoring the rest of it, cannot be treated H
556 SUPREME COURT REPORTS [2002] 3 S.C.R.
-
I

...
A to be a valid finding. It may rather amount to misreading of the statement or
basing a finding ignoring the major and more important part of the statement.
Such a finding is vitiated in law and, therefore, not sustainable at all. In our
view the High Court has rightly ignored it and acted according to the finding
recorded by the trial court. The learned counsel for the respondent has referred
to a case reported in [1999] 5 SCC. 645 Ubaiba v. Damodaran where it has
B been held that even though revisional power under Section 20 of the Kerala
Buildings (Lease and Rent Control) Act, 1965 may be wider than that under
Section 115 CPC but it does not entitle the court to re-appreciate the evidence
and substitute its own conclusion in place of the appellate authority. The
proposition of law as laid down in the above-noted decision cannot be in
C dispute but in the present case we find that the trial court had recorded its
finding after appraisal of whole statement including the cross-examination of
the witness whereas the appellate court took a different view ignoring the
major part of the statement of the witness, particularly made in the cross-
examination which was specifically referred to by the trial court in its order.
Such a finding as recorded by the appellate court certainly leans to be a
D perverse finding. The decision in the case of Ubaiba (supra) would be of no
help to the appellant on the facts of the present case.

Yet another fact which attracts the attention of the Court is that CPW2
had made the statement about sub-letting some time in the year 1949. It will
E have no bearing on the merits of the present case. The Kerala Buildings
(Lease and Rent Control) Act, 1965 came into force in the year 1965. Sub-
tenancies have also been created, after coming into force of the Act, in the
years 1971, 1972 and 1974. There is no statement of CPW2 in respect of
these sub-tenancies. He could not say anything about the terms of sub-lease
arrangement. In this background perhaps more stress has been on the point
F of implied consent based on inference drawn from the conduct of the parties.
According to the appellate court the implied consent of the landlord for sub-
letting would be inferable on account of the fact that there has been inaction
on the part of the landlord for a very long time and they raised no objection
whatsoever in the last 32 years against the sub-tenancy created by the tenant-
G appellant. Yet another circumstance relied upon against the landlord is that
he had been accepting the rent all the time even though having knowledge
of the sub-tenancy. Therefore, implied consent on the part of the landlord is
legally inferable and the landlord would be taken to have waived his right to
take any action in the matter for evicting the tenant.

H The finding of the appellate court which has not been accepted by the
P JOHN CHANDY AND CO. (P) LTD. v. JOHN P. THOMAS [BRIJESH KUMAR, J.] 557

High Court takes us to consider the point of implied consent due to inaction A
on the part of the landlord to take any steps for eviction of the tenant. Before
considering the relevant provision so as to have proper appreciation of the
point, it is observed that drawing inference from the facts established, is not
purely a question of fact. It is always considered to be a point of law in so
far it relates to inferences to be drawn from the finding of fact. Finding of B
the fact in the present case is that after :he lease was given to the appellant
in the year 1949 sub-tenancies had been created apart from in the year 1949
itself, in the years 1965, 1971, 1972 and 1974. So as to have a clear factual
position it may be indicated that liability of the tenant to hand-over possession
on account of sub-letting, to the landlord, came into existence by virtue of
Section 11 (4) (i) of the Kerala Buildings (Lease and Rent Control) Act, C
1965. Therefore, for the purposes of the above said provision sub-tenancies
created before the enforcement of the Act may not have any relevance. The
tenancy is created after 1965 in the years 1971, 1972 and 1974 would clearly
be subject-matter of incurring the liability of the tenant to hand over the
possession to the landlord. In this context the observations made by the
appellate court that no objection was taken by the landlord for the last 32 D
years is not correct. The respondent had served a notice on the appellant-
.. tenant in 1981 which is a period of 10 years from 1971 and 7 years from
1974. It is in so far factual position and finding of inaction for 32 years on
the part of the landlord is concerned.
E
We may now turn to the question of implied consent in the background
of the relevant provision.

Section 11 (4) (i) of the Kerala Buildings (Lease and Rent Control)
Act, 1965 reads as under:
F
11 (4) (i). A landlord may apply to the Rent Control Court for an
order directing the tenant to put the landlord in possession of the
building,

(i) if the tenant after the commencement of this Act, without the
consent of the landlord, transfers his right under the lease or sub-lets G
the entire building or any portion thereof if the lease does not confer
on him any right to do so;

Provided .............. "

A perusal of the relevant provision as quoted above clearly indicates that the H
558 SUPREME COURT REPORTS [2002] 3 S.C.R.

A landlord can claim possession of the building from the tenant in case of sub-
letting by the tenant without the consent of the landlord, in case the lease
does not confer on the tenant a right to sub-let. The provision provides for
"conferment" of right on the tenant to sub-let the accommodation. That is to
say, so as to be entitled to sub-let, the tenant must be granted that right to do
so, by the landlord. The expression 'confer' is pointer to something done
B overtly and explicitly. The meaning of the word ·confer' as indicated in the
Law Lexicon by P. Ramanatha Aiyar 2nd Ed. Reprint 2000 at Page 381
means "to give". "Conferring is an act of authority ............... men in power
confer". It is therefore clear that the conferring indicates some positive action
in giving something, may be some right or privilege to another person. It is
C in this background that the word ·consent' as occurring in clause (I) of sub-
s.(4) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act
1965 is to be seen. According to the said provision if the lease does not
"confer" a right on the tenant to sub-let, he cannot do so without the consent
of the landlord. If he does so after coming into force of the Act, he would
be liable to be evicted and the possession be given to the landlord. On
D reading of the whole provision proposition of implied consent, in such cases,
would not be readily acceptable. The consent of the landlord should be in a
positive way, clear cut and without ambiguity since otherwise right to sub-
let is only to be conferred on the tenant by the landlord in the lease itself. It
can reasonably be expected that a right which is otherwise to be conferred by
E having such a condition in the lease itself, consent, in absence thereof,
•'

preferably be in writing and in case it is not so, it is to be clear cut without
any ambiguity or shadow of doubt. The conduct of the landlord which has
been mainly taken into account on the point of implied consent is his inaction
for a long time despite the knowledge of the fact of sub-letting' by the tenant
to other persons. The period of32 years as indicated by the appellate authority
F is incorrect as discussed earlier. Nonetheless it can be said that there has been
inaction on the part of the landlord for some years if not 32 years. But
inaction in .every case does not necessarily lead to an inference of implied
consent or acquiescence. In this connection we may refer to Words and
Phrases Legally Defined Vol. 1 Third Ed. Page 27 where we may first see ·-'
G what has been said about Acquiescence. It is as follows:
"Mere inactivity on the part of a defendant is not to be construed as
acquiescence in delay by the plaintiff. "sleeping dogs, in th~ form of
sleeping plaintiffs, need not be aroused by defendants from their
slumbers" (per Roskill LJ in Compagnie Francaise de Television v.
H Thorn Consumer Electronics Ltd, [1978] RCP 735 at 739]; Bremer
P. JOHN CHANDY AND CO. (P) LTD. v. JOHN P. THOMAS [BRIJESH KUMAR,J.] 559

Vulkan Schiffbau and Maschinenfabrik v. South India Shipping A
Corporation, (1979] 3 All ER 194 at 198, per Donaldson J."

It may also answer the observation of the appellate court that the landlord by
inaction is to be taken to have. waived his right to take any action against the
tenant.
B
A distinction has also been drawn between 'Acquiescence' and
'Consent'. It is in relation to a dispute between a landlord and a tenant and
we again refer to Words and Phrases Legally Defined Vol.l Third Ed. Page
314

"[The Landlord and Tenant Act, 1954, S.23(4) is concerned with a C
situation where an immediate landlord or his predecessor in title has
'consented' to a breach of covenant, or the immediate landlord has
acquiesced in it.] 'I agree .. that in the context of Section 23(4) of the
" Act, whatever consent or acquiescence may mean in different contexts,
in that context 'consent' is put in plain antithesis to 'acquiescence', D
and that, therefore, if something falls within the description
y 'acquiescence', it is not consent. The difference which is pointed out
between the two in this context is that 'consent' involves some
affirmative acceptance, not merely a standing by and absence of
objection. The affirmative acceptance may be in writing, which is the
clearest obviously; it may be oral; it may conceivably even be by E
conduct, such as nodding the head in a specific way in response to
an express request for consent. But it must be something more than
merely standing by and not objecting. 'Bell v. Alfred Franks & Bartlett
Co. Ltd., (1980] I All ER 356 at 362. C.A. per Megaw LJ."

The above observations though no doubt made in reference to particular F
provision, yet they throw some light on the question of implied consent that
there has to be something more than mere inaction or lack of initiative on the
part of the landlord. In context with the above, we fmd our view reinforced
on the meaning and import of the word 'consent' as used in Cl.(i), sub.s.(4)
of Section 11 of the Act when read in the background of the word 'confer' G
in the latter part it will only mean that consent has to be with some positive
action on the part of the landlord so that the tenant can be said to have had
the authority to sub-lease his lease rights. Mere silence may not be enough.

Learned counsel for the respondent has placed reliance upon a decision
of this court reported in AIR 1988 S.C. 852 Hirata/ Kapur v. Prabhu H
560 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Choudhury. The tenant in this case seems to have sub-let a part of his tenancy
to a Trust which started its activities from the premises of which landlord
may also have been aware. The tenant had also started paying the rent by two
cheques one in his name and another cheque of the Trust. The rent so tendered .
was duly accepted by the landlord. In some correspondence which took place
between the tenant and the landlord, the Trust was not accepted as a sub-
B tenant. It was held by this Court that merely by the fact that the cheque of
the Trust was being accepted as a part of the amount of rent and the fact that
landlord may have the knowledge of the fact that the Trust was using part of
the premises would not lead to any implied inference or consent of sub-lease
in favour of the sub-tenant. For this conclusion no doubt the letters of the
C landlord had also been referred to by which sub-tenancy was not accepted by
the landlord yet the fact remains that Court did not come to the conclusion
that before writing of those letters it was to be taken a case of sub-tenancy
by conduct. The fact is that knowledge of possession or a part of the
accommodation with the Trust. and the acceptance of the part of the rent by
cheque from the Trust were not considered conclusive of an inference of
D consent for sub-tenancy. Yet another case relied up.on by the learned counsel
for the respondent is reported in AIR (1996) SC 2361 equivalent to [1996]
-
II SCC 728, Ram Saran v. Pyare Lal and Anr. In this case also the tenant
surrendered his tenancy rights in favour of a registered Society without consent
of the landlord. The landlord had also started accepting the rent tendered by
E the tenant in the name of the registered society. It was held that no inference
of authorised sub-tenancy could be drawn nor inference of implied consent
and it was held that the landlord was not estopped from seeking evict.ion on
the ground of unauthorised sub-letting. The conduct of the landlord in
accepting the rent from the society was held to be of no consequence. We
have already observed earlier that the inference drawn from findings of fact
F is a legal question. It would not amount to interfering or substituting the
finding of fact by the revisional court. Hence the decision in the case of
Ubaiba (supra) relied upon by the learned counsel for the appellant would
not be of any assistance to it.

G In view of the discussion held above, we find no reason to interfere with
the order passed by the High Court setting aside the orders of the appellate
authority and upholding the orders of the trial court, refusing to draw
any inference of implied consent on the basis of inaction or conduct of the
landlord. The consent as envisaged under Section 11 (4) (i) of the Kerala ' }

'
Buildings (Lease and Rent Control) Act 1965, would mean consent .with some
H positive act which may lead to inference of conferring right on the tenant to

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J
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P. JOHN CHANDY AND CO. (P) LTD. v. JOHN P. THOMAS [BRIJESH KUMAR, J.] 561
•
sub,let the premises and mere inaction would not be sufficient to amount to A
implied consent on the part of the landlord.

In the result, the appeal is dismissed. However, there would be no order
as to costs.

T.N.A. Appeal dismissed. B