Appeal No 1249 of 1967
Appeal from the judgment and decree dated July 21 1967 of the Delhi High Court in Regular First Appeal No 166 D of 1965
AK Sen Rameshwar Nath P L Vohra and Mahinder Narain for the appellant
Bishan Narain Radhey Mohan Lal and Harbans Singh for the respondent
The Judgment of the Court was delivered by Bachawat J
This appeal arises out of a suit for ejectment instituted by a landlord against a tenant
It is common case that the suit is governed by the provisions of  the Delhi and Ajmer Rent Control Act 1952 Act No 38 of 1952 hereinafter referred to as the Act
The material provisions of section 131 of the Act are as follows  13
1 Notwithstanding anything to the contrary contained
in any other law or any contract no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant including a tenant whose tenancy is terminated  Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied bthat the tenant without obtaining the consent of the landlord in writing has after the commencement of this Act isub let assigned or otherwise parted with the possession of the whole or any part of the premises or 550 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 isub let assigned or otherwise parted with the possession of the whole or any part of the premises or iiused the premises for a purpose other than that for which they were let or kthat 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 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 fittings and furniture for a term of 20 years commencing on September 15 1939
On January 28 1958 the respondent instituted the present suit alleging that in breach of the express conditions of the lease dated August 18 1939 the appellant sub let portions of the premises and made unauthorised additions and alterations in the premises that on such breaches he was entitled to determine the lease and he did so by notice in writing dated January 6 1958
He claimed eviction of the appellant on the grounds mentioned in cls
b c and k of the proviso to section 131 of the Act
The appellant filed its written statement on April 3 1958 denying most of the material allegations in the plaint
The appellant also pleaded that the respondent had waived the breaches if any of the conditions of the lease by accepting rents with knowledge of such breaches and particularly by accepting rent on or about January 3 1958
On April 24 1958 Sri P L Vohra counsel for the appellant made the following statement before the trial Court  The plaintiff can seek ejectment of the defendant only under section 13 of Act 38 of 1952
In case the 551 plaintiff succeeds in establishing the liability of the defendant for ejectment on any of the grounds given in section 13 of the Rent Act the defendant would not seek any protection under the terms of the lease deed dated 18th August 1939 executed between the parties as regards the period of lease fixed therein
 Having regard to the pleadings and statement of counsel the Court settled the following issues on May 12 1958  1
Whether the defendant had sublet assigned or otherwise parted with possession of any part of the suit premises before the commencement of Act 38 of 1952  2
If so was the same done with express or implied consent of the plaintiff  3
Whether the defendant had sublet assigned or otherwise parted with possession of any part of the suit premises after the commencement of Act 38 of 1952  4If so was the same done with the prior consent in writing of the plaintiff  5Whether the defendant has used the tenancy premises for a purpose other than that for which they were let  6
Whether the defendant has caused substantial damage to the tenancy premises  7
Whether the defendant notwithstanding previous notice has been
using and dealing with the tenancy premises 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  10Whether 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  A tenant holding premises under a subsisting lease is pro tected by the lease and needs no protection under the Rent Act
It was open to the appellant to contend that it was protected by 552 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 section 13 of the Act only
The appellant s counsel made a  formal statement in the trial Court that the appellant would not seek any protection under the terms of the lease deed as regards the period of the lease fixed therein
The Court accordingly settled the ten issues
Issue No 8 was not pressed
All the other issues relate to thegrounds of eviction mentioned in cls
b c and k of theproviso to section 131 of the Act
Issue No 9 raises the question of waiver of the respondent s right to seek ejectment on those grounds
Thus the only questions in issue between the parties was whether the appellant was entitled to protection from eviction under section 13 and whether any ground for eviction under the Act was made out
The case was tried and decided on this footing
We have come to this conclusion after a close examination of the pleadings particulars statement of counsel issues and the judgment of the trial Court
No issue was raised on the question whether the breaches of the express conditions of the lease had been waived by the respondent and whether the lease was still subsisting
The appellant sought to raise this plea in the High Court and also in this Court Having regard to the deliberate stand taken by the appellant in the trial Court the appellant cannot be allowed to raise the plea at a later stage
The lease determined by efflux of time on September 15 1959
Had the appellant taken the plea that the lease had not determined by forfeiture on the date of the institution of the suit it is possible that the respondent might have filed another suit for ejectment of the appellant immediately after September 15 1959
Because of the stand taken by the appellant it was not necessary for the respondent to file another suit
This appeal must be decided on the footing that the lease had determined by forfeiture on the date of the institution of the present suit
The respondent is entitled to a decree for eviction if any of the grounds mentioned in cls
b c and k of the proviso to section 131 is made out
The trial Court answered issue No 5 in the negative
With regard to all the other issues the trial Court found in favour of the respondent and held that the grounds of eviction mentioned in cls
b1 ci and k were proved
With regard to the ground of eviction mentioned in cl
k the trial Court held that the appellant was entitled to relief on certain conditions
The trial Court however held that the respondent was entitled to an unconditional decree for eviction on the ground of sub letting mentioned in cls
bi and ci
The appellant preferred 553 an appeal to the High Court
The High Court agreed with all the findings of the trial Court and dismissed the appeal
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 in the main corridor of the hotel on the ground floor
The concurrent finding is that the occupants were given exclusive possession of the rooms occupied by them
The appellant did not retain any control and dominion over the rooms
It is possible that the keys of the apartments were sometimes left at the reception counter but the evidence on this point was not convincing
It was not a condition Of the grants that the keys would be left at the reception counter or that the duplicate keys would be retained by the appellant
The occupants were at liberty to take away the keys if they liked 
The occupants availed themselves of the services of the hotel sweeper for their own convenience
The appellant retained control of the corridor but it is common case before us that the entrance to the corridor was open day and night
The occupants paid monthly sums to the appellant as the consideration of the sub leases
The consideration though described as license fee was in reality rent
The portion occupied by Roy and James has an interesting history
It was formerly sub let to R N Kapoor
In Associated Hotels of India Ltd vs R N Kapoor1 this Court held by a majority on a construction of the grant to R N Kapoor that he was a lessee and not a licensee
Roy and James began to occupy this portion of the premises from February 1955
According to the appellant the agreements with Roy and James Mercury Travels and Shanti Vijay and Co were in writing
The appellant produced several documents in Court at an early stage of the suit
The appellant s case was that these documents were the relevant agreements
According to the respondent the documents were not genuine and the real agree 1 196 1 SCR 36F 554 meats were being withheld
The stamp auditor noted on the documents the deficiency in stamps and penalty leviable on them on the footing that they were lease deeds
The appellant did not contest this note nor paid the penalty and deficiency as directed by the trial Court
The surprising feature of the case is that the appellant did not attempt to prove any of the documents
Where the agreement is in writing it is a question of construction of the agreement whether the grant is a lease or a license
It was for the appellant to prove the written agreements and the Court could then construe them
The appellant has not brought before the Court the best and the primary evidence 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 bad 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
The test of exclusive possession though not conclusive is a very important indication in favour of tenancy see Addiscombe Garden Estates Ltd and Anr
vs Crabbe and Ors1 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 vs Horsham Assessment Committee2 and the cases referred to therein
Those cases consider what constitute rateable occupation
In the case last cited Denning L J said that a person who is regarded as a lodger for rating purposes need not necessarily be a lodger for the purposes of the Rent Restriction Acts while Evershed LJ seems to have expressed a contrary opinion
Normally an occupier of an apartment in a hotel is in the position of a licensee as the hotel keeper retains the general control of the hotel including the apartment
But it is not a necessary inference of law that the occupier of an apartment in a hotel is not a tenant
Where as in this case the hotel keeper retains no control over the apart ment the occupier is in the position of a tenant
In Halsbury s Laws of England Vol 23 article 1028 p 433 the law is accurately summarised thus A lodger who has no separate apartment is only a licensee and even though he has a separate apart 1  525
2 555 ment he has not in law an exclusive occupation and is therefore in the position of a licensee if the landlord retains the general control and dominion of the house including the part occupied by the lodger but if in fact the landlord exercises no control over that part the occupier is a tenant
The occupier does not however become a lodger merely by reason of the fact that the landlord resides on the premises and retains control of the passages and staircases and other parts used in common
 On the question whether the occupier of a separate apartment in a premises is a licensee or a tenant the test is has the landlord retained control over the apartment  The fact that the apartment is a room in a hotel may lead to the inference that the hotel keeper retains the general dominion of the en tire hotel including the apartment and that the occupier is in the position of a lodger or inmate
But the inference is not a necessary inference of law
Where as in this case the best evidence of the rant was withheld from the scrutiny of the Court the inference was rightly drawn that the occupiers were tenants
At the hearing of this appeal the appellant moved an appli cation for reception of the documents as additional evidence
The genuineness of the documents was disputed by the respondent
In the Courts below the appellant made no attempt to prove these documents
We found no ground for directing a new trial
Having regard to all these facts we dismissed the application
The hotel building constitutes premises within the meaning of section 2g 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 section 131  is a ground for eviction under the Act
Section 2g 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 section 13 from eviction nor can he ask for fixation of standard rent
see Associated Hotels of India Ltd vs R N Kapoor1
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 sublet 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 section 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 need not be decided
Because a room in a hotel is not 1  556 premises it does not follow that the room is not a part of the hotel premises or that a sub letting of the room is not a contravention of cls
b and c of the proviso to section 131
The Courts below concurrently found that the sub lettings after the commencement of the Act were made without obtaining the consent of the landlord in writing and the sub lettings before the commencement of the Act were made without obtaining the consent of the landlord either orally or in writing
We are not inclined to interfere with this concurrent finding
It is said that by the lease deed dated August 18 1939 the respondent impliedly consented to this sub letting
Clauses 21 and 22 of the lease are in these terms 21
That the lessee shall not be entitled to either transfer or sub lease the premises or any part thereof to any other party without the written consent of the lessor and on such transfer both the transferee and the lessee shall be liable for the payment of rent to the lessor and responsible to deliverpossession of the building and equipments in the same condition as when taken
22That the lessee will use the premises only for the purpose of running a first class hotel
 It is aid that for the purpose of running a first class hotel it was necessary to sub let the apartments
It is impossible to accept the contention
A hotel keeper may run a first class hotel without sub letting any part of it
Clause 21 clearly provided that the lessee shall not sub lease the hotel premises or any part thereof
In the teeth of cl 21 it is impossible to read in cl 22 an implied consent to sub letting
Reliance is placed on the correspondence passed between the Land Development Officer New Delhi and the respondent bet ween April 1948 and February 1949 for establishing that the respondent gave written consent to the sub lettings
The Land and Development Officer was then complaining of the occupation of portions of the premises by Pan American World Airways and other persons
By his letters dated November 4 1948 and February 23 1949 the respondent requested the Land and Development Officer to regularise the matter adding that in an first class hotels counters of air lines and show rooms of jewellery and curios were always provided
These letter do not amount to a consent 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
557 It is argued that the respondent waived the requirement of consent to the sub letting
Any subletting in breach of the provisions of cl
b of the proviso to section 13  1 is an offence punish able under section 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 vs Nathima Sahu1
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 came to know of the other lettings in January 1958 only
Moreover the precise nature of the grant was never communicated to the respondent
The Courts below rightly held that the respondent did not waive his right to evict the appellant on the  rounds mentioned in cls
b and c of the proviso to section 13 1
We are therefore satisfied that the respondent is entitled to evict the appellant on the ground of sub letting of the rooms
The Courts below held that the appellant had also sublet several counters show cases and garages to various persons
We express no opinion on the question whether there was any sub letting of the counters show cases and garages
The sublettings of the rooms are sufficient grounds of eviction tinder cls
b and c of the proviso to section 131
Clause 2v of the head lease granted by the Government to the respondent provided that the respondent would not without the previous consent in writing of the Chief Commissioner
Delhi or a duly authorised officer erect or suffer to be erected on any part of the demised premises any building other than the buildings erected there on the date of the lease
The appellant had due notice of the conditions of the head lease
Notwithstanding such previous notice the appellant dealt with the premises in a manner contrary to the conditions imposed by cl 2 v
The Courts below found that contrary to this condition the appellant made several unauthorised constructions without obtaining the requisite consent
To give one illustration the appellant admittedly constructed a room 16 ft 6 in X 19 ft 6 in
with RCC slab and brick masonry walls
This newly constructed room was let to Shanti Vijay and Co
On the ground of unauthorised construction of this room alone it must be held that the appellant in contravention of cl
k of the proviso to section 13 1 notwithstanding previous notice dealt with the premises in a manner contrary to 1  852
558 a condition imposed on the respondent by the Government while giving him a lease of the land on which the premises are situated
The notice of the conditions imposed by the head lease was sufficient notice for the purposes of cl
The ground of eviction under cl
k was thus made out
The Courts below also held that the appellant caused substantial damage to the premises
We express no opinion on it and this question is left open
It follows that the respondent is entitled to evict the appellant on the grounds mentioned in cls
b i c i and k of the proviso to section 131
In the result the appeal is dismissed with costs
The execution of the decree is stayed for a period of six months from today
The appellant through Mr A K Sen gives an undertaking that the appellant will hand over to the respondent on the expiry of six months vacant possession of the entire hotel premises except the portion in the possession of sub lessees
YP Appeal dismissed


Summary:
The respondent landlord of a hotel filed a suit for eviction of his tenant appellant under section 131 proviso b and c of the Delhi and Ajmer Rent Control Act 1952 on the allegation that the appellant had sub let several rooms
These occupants were doing business which were not confined to the residents of the hotel
The occupants were given ex clusive possession of the rooms occupied by them
The appellant did not retain any control and dominion over these rooms
It was not a condition of the grants that the keys would be left at the reception counter or that the keys would be retained by the appellant
The occupants were at liberty to take away the keys if they liked
The occupants availed themselves of the services of the hotel sweeper for their own convenience
The appellant retained control of the corridor but the entrance to the corridor was open day and night
The occupants paid monthly sums to the appellant as the consideration of the sub leases
The appellanttenant denied the allegations and pleaded that the respondent landlord had waived the breaches if any
The suit was decreed which the High Court in appeal maintained HELD  The landlord was entitled to the decree for eviction
558 B On the question whether the occupier of a separate apartment in a premises is a licensee or a tenant the test is has the landlord retained control over the apartment Normally an occupier of an apartment in a hotel is in the position of licensee as the hotel keeper retains the general control of the hotel including the apartment
But it is not a necessary inference of law that the occupier of an apartment in a hotel is not a tenant
A hotel keeper may run a first class hotel without sub letting any part of it
Where as in this case the hotel keeper retained no control over the apartment the occupier was in the position of a tenant
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 prima facie evidence by proving and exhibiting the relevant agreements
553 D 554 C D F H 555 C 556 E Under section 2g 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 section 13 from eviction nor can he ask for fixation of standard rent
But because a room in a hotel is not premises it does not follow that the room is not a part of the hotel premises or that a sub letting of the room is not a contravention of cls
b and c of the proviso to section 131
555 F G 556 A Associated Hotels of India Ltd vs R N Kapoor 19601 SCR 368 followed
Addiscombe Garden Estates Ltd  Anr
vs Grabbe and Ors
and Helman vs Horsham Assessment Committee 1949 2 KB 335referred to
549 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
Assuming that the landlord can waive the requirement as to consent it was not shown that the respondent waived it
It is said that the respondent knew of the sub lettings as be frequently visited the hotel up to 1953 and he must have known of the occupation of some of the occupants
But he came to know of the other lettings in 1958 only
Moreover the precise nature of the grant was never communicated to the respondent
557 B D Dhanukdhari Singh vs Nathima Sahu  referred to