TMI Blog1959 (2) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ew building which was riot far from Fida Ali Villa . The appellant had four sub-tenants, three of them also shifted to the new premises which were let to the appellant by the respondent. Although it was disputed, the courts below have found that they occupied the same position qua the appellant. The 4th, a Bohri, was fixed up by the respondent in some other place. There was some dispute as to the date when these new premises were let to the appellant, the appellant alleging that they were let on July 1, 1948, and the respondent that they were let on June 1, 1948. The trial Court found that they were let on June 1, 1948. The terms of the lease are contained in a document dated June 7,1948, which is a letter in Marathi written by the respondent to the appellant and contains the following terms as to sub-tenancy: In the shops in the old chawl which are with you you have kept sub-tenants. We are permitting you to keep sub-tenants in the same manner, in this place also . The parties were not agreed as to the correctness of the translation of this term. The submission of the appellant was that the word 'sub-tenant' should be in the plural and of the respondent that it sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in s. 13(1)(e) was for the protection of his rights which he was entitled to waive. The courts below have held that the tenancy by the letter of June 7,1948, was a new tenancy and not a continuation of the old and that the sub-tenants were tenants of the appellant and not licensees of the respondent and in this Court no serious argument was addressed on these points. The previous tenancy was of a different building called I Fida Ali Villa' which came to an end when the appellant vacated those premises and entered into a new agreement of lease in regard to the premises in dispute. There ,as no privity between the respondent and the sub-tenants of the appellant and they could not be termed his licensees. These contentions are without substance and have rightly been rejected. It was then argued that under s. 15 of the Act there is no prohibition against a contract of sub-letting, the non- obstante clause being confined to other laws. The section when quoted runs as follows:- Notwithstanding anything contained in any law it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But s. 15 expressly prohibits subletting and therefore a contract to the contrary cannot neutralise its prohibitory effect. The non-obstante clause of the two sections, s. 10 of the Act of 1944 and of s. 15 of the Act therefore cannot be said to have the same effect. The respondent's suit for ejectment was brought under s. 13(1)(e) which provides: Notwithstanding anything contained in this Act (but subject to the provisions of section 15), a landlord shall be entitled to recover possession of any premises if the Court is satisfied (e) that the tenant has, since the coming into operation of this Act, sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein ; . It was contended that s. 13(1)(e) had to be read separately and not in conjunction with s. 15 of the Act. The section itself makes it quite clear that it is subject to the provision of s. 15 and the two sections must therefore be read together. The appellant pleaded that under the agreement between him and the' respondent he was entitled to sub-let the premises. Such an agreement, in our opinion is void because of the provisions of s. 15 of the Act and s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 13(1)(e) is a provision for the protection of private rights of the landlord and unless there is in the Act itself any provision to the contrary such rights as far as they were personal rights may be parted with or renounced by the landlord. In other words the right of the respondent to sue for ejectment on the ground of subletting being a personal right for his benefit, the landlord must be taken to have waived it as by an express contract he had allowed the tenant to sub-let and consequently he could not evict the appellant under s. 13(1)(e) of the Act. The plea of waiver was taken for the first time in this Court in arguments. Waiver is not a pure question of law but it is a mixed question of law and fact. This plea was neither raised nor considered by the courts below and therefore ought not to be allowed to be taken at this stage of the proceedings. But it was argued on behalf of the appellant that according to the law of India the duty of a pleader is to set up the facts upon which he relied and not any legal inference to be drawn from them and as he had set up all the circumstances from which the plea of waiver could be inferred lie should be allowed to raise and argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gality are void on grounds of public policy. Whenever an illegality appears, whether from the evidence given by one side or the other, the disclosure is fatal to the case. A stipulation of the strongest form to waive the objection would be tainted with the vice of the original contract and void for the same reasons. Wherever the contamination reaches, it destroys . This, in our opinion, is a correct statement of the law and is supported by high authority. Field, J., in Oscanyan v. Winchester Arms Company ((1881 103 U.S. 261 ; 26 L. Ed. 539.) quoted with approval the observation of Swayne, J., in Hall v. coppell (7 Wallace 542.)- The principle is indispensable to the purity of its administration. It will not enforce what it has forbidden and denounced. The maxim Ex dolo malo non oritur actio, is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Wherever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralise its effect. A stipulation in the most solemn form, to waive the objection, would be tainted with the vice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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