ivil Appeal No 331 of 1978
From the Judgment and Order dated 391976 of the Cal cutta High Court in Appeal from Original decree No 407 of 1974
B Sen AK Verma and section Suikumaran for the Appellants
Tapash Chandra Ray and HK Puri for the Respondents
The Judgment of the Court was delivered by SHARMA J
This appeal by special leave arises out of a suit filed by the appellants for eviction of the respondent tenant hereinafter referred to as the Corpora tion from certain premises on Lalbazar Street Calcutta on the ground of sub letting
The City Civil Court Calcutta decreed the suit but on appeal by the tenant Corporation the Calcutta High Court reversed the judgment and dismissed the suit
Admittedly the defendant Corporation was inducted as a tenant under a registered deed of lease dated 2341948 for a period of three years from 151948
After expiry of the period in 1951 the Corporation continued in possession and by holding over became a month to month tenant
The premises consists of a big room described as room No 3 along with a small room for the use of a Darwan porter staying there as guard
The big room was from time to time leased out by the tenant Corporation in portions to differ ent subtenants and in 1960 the landlord brought a suit registered as Ejectment Suit No 978 of 1960 for the evic tion of the Corporation on several grounds including sub letting
In the meantime West Bengal Premises Tenancy Act 1956 had been enacted and the provisions of section 131a which are in the following terms were relied on by the parties section 13
Protection of tenant against evic tion
1 Notwithstanding anything to the contrary in any other law no 635 order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds namely a where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers assigns or sub lets in whole or in part the premises held by him     3
The tenant Corporation contended that it was permit ted to create sub leases under clause 6 of the lease docu ment which is quoted below and it cannot therefore be accused of sub letting without the consent of the landlords That the lessees shall use the demised prem ises as office in connection with their busi ness and shall be entitled to sublet the portion which may not be used by them
 It was asserted on behalf of the tenant Corporation that all the subtenants had been inducted in the premises in question in pursuance of the aforesaid permission and before the expiry of the lease period in 1951
The City Civil Court decided the issue n favour of the tenant Corporation on the ground that all the sub tenancies had been created within the period covered by the lease deed and before coming in force of the West Bengal Premises Tenancy Act 1956
The suit was held to be not maintainable also on the ground that a legally valid notice terminating the tenancy had not been served on the tenant
The suit was thus dismissed on 308
1962 by the judgment Ext
B2 4
The present suit was filed in 1972 alleging that the tenant Corporation has without the consent of the land lords created fresh sub tenancies in the premises in favour of other sub tenants after the dismissal of the earlier suit
The case is that after the original lease exhausted itself by efflux of time and otherwise also came to an end by the landlords  notice terminating it the general permis sion under clause 6 of the lease deed mentioned above also disappeared
Alternatively the appellants have contended that even assuming that the term in clause 6 continues to bind the parties it does not authorise the respondent Corporation to sub let the entire premises
The dominant purpose of the lease was actual user by the tenant itself for the purpose of running its office and clause 6 permitted it to sub let 636 only such portion which was left unused as surplus
The appellants have also alleged default of payment of rent but the plea has been rejected by the trial court and has not been pressed before us
The suit was defended by the respondent Corporation contending that as held in the earlier suit the defendant was and is entitled to grant sub tenancies and the plain tiffs  case is fit to be dismissed
Reliance was placed besides the plea of res judicata on the language of clause 6 which according to the defendant continues to bind the parties
The City Civil Court rejected the defendant s case of res judicata and agreeing with the plaintiffs on the question of sub letting decreed the suit
It held that a number of sub tenants who were in possession of the premises at the time of the earlier suit have been substituted later by another set of sub tenants after the coming into force of the Act
The learned Judge also agreed with the plaintiffs that the entire premises was let out to sub tenants which was not consistent with the terms of the permission as mentioned in clause 6
The Court holding that the tenant had violated the provisions of the 1956 Act passed a decree for eviction in favour of the plaintiffs
The tenant Corpo ration appealed before the Calcutta High Court
The High Court disagreed with the City Civil Court on the interpretation of clause 6 of the lease deed and held that by reason of the judgment in the earlier suit the present suit was barred by the rule of res judicata
The appeal was accordingly allowed and the suit dismissed
Mr B Sen the learned counsel appearing in support of the appeal contended that since large portion of the disputed property was sub let to fresh sub tenants after the institution of the earlier suit of 1960 there was no scope for applying the doctrine of res judicata to the present litigation
He inter alia argued that having regard to the change in the law brought about by the 1956 Act and special ly in view of the provisions of sections 13 14 and 16 the appellants are entitled to a decree
The factual position is that there are 16 sub ten ants as mentioned in Annexure B to the plaint who are occu pying the disputed room now
Out of them 5 had been inducted before the 1960 suit and were parties thereto as was right ly pointed out by the respondent Corporation in its applica tion dated 17121973 for amendment of the written state ment
The other 11 sub lessees were let in after the earli er suit when the 1956 Act was in force
The question is whether the creation of these sub tenancies violated the provisions of the Act
637 In the earlier suit all the sub lesses were inducted during the period the lease was operative ie much before the present Act was passed
The question of violation of the provisions of the present Act therefore did not arise there
It follows that so far this issue is concerned the earlier judgment can not operate by way of res judicata
The main question which remains to be decided is whether in the circumstances the plaintiffs  case based on alleged violation of the Act can be accepted
section 14 enjoins that after the commencement of the Act no tenant shall without the previous consent in writing of the landlord sub let the whole or any part of the premises held by him as a tenant or transfer or assign his rights in the tenancy or in any part thereof
According to Mr Tapas Ray the learned counsel of the respondent Corporation clause 6 of the lease deed which continued to bind the parties by reason of the Corporation holding over must be treated to contain the necessary consent of the appellants
As has been seen earli er this clause granted a general permission to the tenant to induct a sub tenant
Can such a provision in general terms satisfy the requirements of the Act Or as has been suggested on behalf of the appellant the consent contem plated by the Act has to be specific in regard to each sub lease 10
section 13 protects a tenant from eviction except on the grounds enumerated therein and one of the grounds in clause a of sub section
1 is in the following terms a where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers assigns or sub lets in whole or in part the premises held by him The language of Ss 13 and 14 by itself does not resolve the issue
However the provisions of section 16 which is quoted below clearly indicate that permission to the tenant to sub let in general terms can not be deemed to be consent for the purposes of Ss 13 and 14 section 16 Creation and termination of sub tenan cies to be notified 1 Where after the commencement of this Act any premises are sub let either in whole or in part by the tenant with the previous consent in writing of the landlord the tenant and every sub tenant to whom the premises are sub let shall give notice to the landlord in the prescribed manner of the creation of the sub tenancy within one 638 month from the date of such sub letting and shall in the prescribed manner notify the termination of such subtenancy within one month of such termination 2 Where before the commencement of this Act the tenant with or without the consent of the landlord has sub let any premises either in whole or in part the tenant and every sub tenant to whom the premises have been sub let shall give notice to the landlord of such sub letting in the prescribed manner within six months of the commencement of this Act and shall in the prescribed manner notify the termination of such sub tenancy within one month of such termination 3 Where in any case mentioned in sub section 2 there is no consent in writing of the landlord and the landlord denies that he gave oral consent the Controller shall on an application made to him in this behalf either by the landlord or the sub tenant within two months of the date of the receipt of the notice of sub letting by the landlord or the issue of the notice by the sub tenant as the case may be by order declare that the ten ant s interest in so much of the premises as has been sub let shall cease and that the subtenant shall become a tenant directly under the landlord from the date of the order
The Controller shall also fix the rents payable by the tenant and such sub tenant to the landlord from the date of the order
Rents so fixed shall be deemed to be fair rent for purposes of this Act
 It is plain from the above that the Act contemplates that while one sub tenant may be evicted another may continue in the premises as a tenant directly under him depending on the circumstances
We are therefore of the view that previous consent in writing of the landlord with respect to each sub letting separately is essential and a general authority to the tenant in this regard will not be suffi cient in law
Our view is supported by the observations in Ms Shalimar Tar Products Ltd vs HC Sharma and Others   a case arising under the Delhi Rent Control Act
An examination of Ss 141b 16 17 and 18 of the Delhi Rent Control Act would show that the two Acts West Bengal Act and the Delhi Act are similar so far the present question is concerned
In the present case since it is not suggested on behalf of the respondent that consent of the appellants was obtained specifically for each of the sub tenancies the respondent Corporation 639 must be held to have violated section 14
The appellants have thus established the ground mentioned in section 131a and are entitled to succeed
None of the sub tenants has been impleaded in the present suit but as it is not the case of the tenant Corpo ration that any of them had sent any notice to the plain tiffs the suit so far the present respondent is concerned can not fail on the ground of their non impleading
However the sub tenants can not be bound by the finding in this suit that they have failed to serve a notice as prescribed by the Act on the plaintiffs and will be entitled to be heard if and when the plaintiffs seek their eviction
So far the sub tenants who had been inducted in the premises earlier and were parties to the 1960 suit may have still a better claim on the strength of the decree in their favour and may insist that they would be entitled to continue in possession as tenants directly under the plaintiffs
For the reasons mentioned above the decision of the High Court is set aside and the decree of eviction passed by the City Civil Court against the respondent Corporation is restored
The appeal is accordingly allowed with costs throughout
PSS Appeal allowed


Summary:
The appellant firm was allotted contracts for manufac ture and sale of liquor for the year 1959 and for the subse quent periods from 11
1960 to 3131961 for Rs256200 and Rs471900 respectively by the MP Govt
who also charged 7 12 over the auction money as mahua and fuel cess
As writ petitions challenging the government s right to charge this 7 12 were pending in the MP High Court the Govt
announced that it would continue to charge it and the question of stopping it was under consideration of Govt
whose decision would be binding on the contractors
The appellant firm paid for the above contracts a total extra sum of Rs5460600
On 2441959 the MP High Court in Surajdin vs State of MP declared the collection of 7 12 as illegal
Even after this decision the Govt
continue to charge 7 12 extra money
Again on 3181961 the High Court of Madhya Pradesh in NK Doongaji vs Collector Surguja decided that charg ing of 7 12 by the Govt
above the auction money was illegal
Appellants came to know of this decision only in or about September 1962
On 17101964 the appellants gave a notice under section 80 CPC to the Govt
of Madhya Pradesh requesting for the refund of Rs5460600
failing which a suit for recovery would be filed and later they instituted a civil suit in the court of additional District Judge Jabalpur on 24121964
The Govt
resisted the suit inter alia on the ground of limitation
The Trial Court held that the suit was barred by 597 limitation and dismissed it
The High Court also dismissed the appeal
The appellants then came up in appeal by special leave
While allowing the appeal and remanding the suit to the Trial Court for decision on merits
This Court HELD Nul ne doit senrichir aux depens des autres  No one ought to enrich himself at the expense of others
This doctrine at one stage of English common Law was remedied by indebitatus assumpsit  which action lay for money  had and received to the use of the plaintiff 
It lay to recover money paid under a mistake or extorted from the plaintiff by duress of his goods or paid to the defendant on a consider ation which totally failed
On abolition of indebitatus assumpsit  courts used to imply a promise to pay which however in course of time was held to be purely fictitious
601G 602A Courts is England have since been trying to formulate a juridical basis of this obligation
Idealistic formulations as aequum et bonum  and natural justice  were considered to be inadequate and the more legalistic basis of unjust enrichment is formulated
The doctrine of unjust enrich ment  is that in certain situations it would be unjust  to allow the defendant to retain a benefit at the plaintiff s expense
The relatively modern principle of restitution is of the nature of quasi contract
But the English law has not yet recognised any generalised right to restriction in every case of unjust enrichment
602H 603B The principle of unjust enrichment requires first that the defendant has been enriched  by the receipt of a benefit secondly
that this enrichment is at the expense of the plaintiff and thirdly that the retention of the enrichment be unjust
This justified restitution
Enrichment may take the form of direct advantage to the recipient wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved
603C 603D There is no doubt that the suit in the instant case is for refund of money paid by mistake and refusal to refund may result in unjust enrichment depending on the facts and circumstances of the case
604D Though there is no constitutionally provided period of limitation for petitions under Article 226 the limitation prescribed for such suits has been accepted as the guide line though little more latitude is available in the for mer
604F For filing a writ petition to recover the money paid under a mis 598 take of law the starting point of limitation is three years is prescribed by Article 113 of the Schedule to the Indian and the provisions of section 171c of the Act will be applicable so that the period will begin to run from the date of knowledge of the particular law where under the money was paid being declared void and this could be the date of the judgment of a competent court declaring that law void
609B Moses vs Macferlan  at 1012 Sin clair vs Brougham  Fibrosa Spolka vs Fair bairn Lawson     Sales Tax Officer vs Kanhaiya Lal  Ms Budh Prakash Jai Prakash vs Sales Tax Officer Kanpur  Kiriri Cotton Co Ltd vs Ranchhoddas Keshavji Dewani  D Cawasji  Co vs The State of Mysore  Anr   Madras Port 7rust vs Hymanshu Inter national  Shri Vallabh Glass Works Lid
vs Union of India   Commissioner of Sales Tax UPv
Ms Auriaya Chamber of Commerce Allahabad   Sales Tax Officer vs Budh Prakash Jai Prakash 1954 5 STC 193 Salonah Tea Co Ltd  Ors
vs Superin tendent of Taxes Nowgong  Ors
   Atiabari Tea Co Ltd vs State of Assam   Khyerbari Tea Co Ltd vs State of Assam   Loong Soong Tea Estate s case decided on July 10 1973 Suganmal vs State of MP AIR 1965 SC 1740 Tilokchand Motichand vs HB Munshi  referred to