TMI Blog1967 (12) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... gned or otherwise parted with the possession of the whole or any part of the premises; or (ii) used the premises for a purpose other than that for which they were let; or (c) that the tenant without obtaining the consent of the landlord has before the commencement of this Act, - (i) sub-let, assigned or otherwise parted with the possession of, the whole or any part of the premises; or (ii) used the premises for a purpose other than that for which they were let; or . . . (k) that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government, or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situated; 2. The respondent constructed the building known as the Hotel Imperial, New Delhi, on land leased to him by the Secretary of State for India in Council under a perpetual lease deed dated July 9, 1937. By a deed dated August 18, 1939, he leased to the appellant the hotel premises together with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in a manner contrary to the conditions imposed on the plaintiff by the Government while giving him lease of the site of the tenancy premises ? 8. Is the defendant entitled to special cost ? 9. Whether the plaintiff is estopped or has waived his right to seek ejectment of the defendant on any of the grounds mentioned above ? If so, what and to what effect ? 10. Whether the defendant is entitled to sublet any part of the hotel premises even when there was a clause to the contra in the lease dated the 18th August, 1939, and in face of statutory provisions under the Rent Control Act (for reasons given in para 16 of the amended written statement) ? 4. A tenant holding premises under a subsisting lease is protected by the lease and needs no protection under the Rent Act. It was open to the appellant to contend that it was protected by the terms of the lease dated August 18, 1939, that the breaches, if any, of the conditions of the lease had been waived by the respondent and that the lease had not determined. But the appellant deliberately elected to seek protection under s. 13 of the Act only. The appellant's counsel made a formal statement in the trial Court that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was entitled to an unconditional decree for eviction on the ground of sub-letting mentioned in cls. (b)(i) and (c)(i). The appellant preferred an appeal to the High Court. The High Court agreed with all the findings of the trial Court, and dismissed the appeal. 6. The two Courts concurrently found that the appellant had sub-let several rooms, counters, showcases and garages. The two Courts found that the appellant had sub-let rooms to (1) Pan American World Airways, (2) Mercury Travels, India (Private) Ltd., travel agents, (3) Indian Art Emporium, dealers in curios and jewellery, (4) Shanti Vijay and Co., dealers in jewellery, (5) Roy and James, hairdressers, (6) Sita World Travels, travel agents and (7) Ranee Silk Shop, dealers in saris and curios. The businesses of the sub-lessees were not confined to the residents of the hotel. The letting to Pan American World Airways and Indian Art Emporium were before the commencement of the Act and the lettings to Mercury Travels, Shanti Vijay and Co., and Roy and James were after the commencement of the Act. Sita Travels and Ranee Silk Shop were inducted as tenants after the institution of the suit. The entrances to the rooms were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence of the terms on which the apartments were being occupied. The onus to prove sub-letting was on the respondent. The respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of the apartments for valuable consideration. The appellant chose not to rebut this prime facie evidence by proving and exhibiting the relevant agreements. The documents formed part of the appellant's case. The appellant had no right to withhold them from the scrutiny of the Court. In the absence of the best evidence of the grants, the Courts below properly inferred sub-lettings from the other materials on the record. 7. The test of exclusive possession, though not conclusive, is a very important indication in favour of tenancy, see Addiscombe Garden Estates Ltd. and Anr. v. Crabbe and Ors [1958] 1 Q.B. 513. The argument is that as the landlord is living in the premises, that fact raises the presumption that he intends to retain the control of the whole of the premises and that the occupation of the other parts is that of a lodger or inmate and not that of a tenant, and reliance was placed on Helman v. Horsham Assessment Committee [1949] 2 K.B. 335 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving regard to all these facts, we dismissed the application. 10. The hotel building constitutes premises within the meaning of s. 2(g) of the Act. It is because the hotel building constitutes premises that the appellant can claim protection from eviction under the Act. A room in a hotel is a part of the hotel premises. A sub-letting of a room in a hotel in contravention of cls. (b) and (c) of the proviso to s. 13(1) is a ground for eviction under the Act. Section 2(g) provides that 'premises' does not include a room in a hotel or lodging house. The sub-lessee of a room in a hotel is, therefore, not a tenant and cannot claim protection under S. 13 from eviction, nor can he ask for fixation of standard rent, see Associated Hotels of India Ltd. v. R. N. Kapoor [1960]1SCR368 . If the interest of the tenant of the hotel premises is determined, the sub-tenant to whom a room in the hotel has been lawfully sub-let becomes under s. 20 a direct tenant of the landlord. It may be that when the sub-tenant of a room in a hotel becomes a direct tenant under s. 20 he enjoys the protection of the Act because the room is no longer a room in a hotel. But that point does not arise and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in writing to sub-lettings of portions of the hotel to the persons mentioned therein. Moreover, the consent, if any, was to the sub-lettings made before 1949 and not to the sub-lettings made thereafter. It is not possible to infer from these letters a general consent to all sub-lettings. 14. It is argued that the respondent waived the requirement of consent to the sub-letting. Any sub-letting in breach of the provisions of clause (b) of the proviso to s. 13(1) is an offence punishable under s. 44. Assuming that the landlord can waive the requirement as to consent, it is not shown that the respondent waived it. 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 rights and of facts enabling him to take effectual action for the enforcement of such rights. See Dhanukdhari Singh v. Nathima Sahu (1907) 11 C.W.N. 848. It is said that the respondent knew of the sub-lettings as he frequently visited the hotel. It appears that he visited the hotel up to 1953 and he must have known of the occupation of R. N. Kapoor, Indian Art Emporium and Pan American World Airways. But he ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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