Mrs. Analia Abreu Pinti Vs. Miss Olinda De Menezes (Since Deceased), Now Represented by Her Administrator and ors. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - in answer to the charge of sub-letting, the appellant stated that the said estevam rodrigues was a good friend of the respondent-landlady and it was the respondent herself, who requested the appellant to permit estevam rodrigues and his family to occupy a part of the premises. the controller also held that the fact that the respondent had accepted the rent from 1977 till 1981 knowing full well that estevam rodrigues was also staying in the premises, proves beyond any shadow of doubt that estevam rodrigues has been inducted by the respondent herself. 51 of 1985 before the administrative tribunal, which allowed the appeal of the respondent on march 16, 1989. in reversing the order of the controller and allowing the application for eviction, what prevailed upon the tribunal is that before the institution of the eviction proceedings on behalf of the landlady, a lawyer's notice dated april 26, 1982 had been issued to the tenant clearly making out the ground of sub-letting without the consent of the landlady, but admittedly on behalf of the tenant, no reply was addressed to this notice. nadkarni that the alleged sub-tenant estevam rodrigues was inducted at the behest of the respondent landlady herself, we find that the tribunal has recorded a categorical finding that the appellant has failed to establish her version that she inducted estevam rodrigues on the request of the landlady. nadkarni further urged that as a constituted attorney for the tenant, the son of the tenant was well versed with the facts and, therefore, the tenant could not be faulted for not entering into the witness box. nadkarni urged that if the tenant acted in good faith to accede to the request of the landlady to accommodate her relation or friend or acquaintance into the premises for some time, then merely because the inducted person continued in the premises and no deduction in rent was sought, that by itself does not affect the case of the tenant. in the first place, the appellant has never tried to prove before the controller that prior to the induction of estevam into the premises, the relation between the family of the landlady and estevam being so good and cordial so as to even foist him in a part of the premises, which are already parted with in favour of the tenant. in this context, the failure of the tenant to reply to the notice assumes great importance. the burden of making good a case of sub-letting is, of course, on the appellants. if at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. rajendra kumar, air1990sc1208 ,but the said decision is clearly distinguishable on facts. there, the supreme court expressed that where the alleged sub-tenant was brother-in-law of the tenant and was also employed with him, mere user of kitchen and latrine in occupation of the tenant by the said brother-in-law would not mean that the tenant has transferred the exclusive right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of his brother-in-law, the alleged sub-tenant, so as to make the tenant liable for eviction. nadkarni urged that evidence clearly shows that the landlady was fully aware about the induction of estevam in the premises right from 1973, but still she continued to accept the rent without any protest for nearly eight years and this, according to mr. nadkarni placed strong reliance on the judgment of the supreme court in a. a perusal of the above provisions clearly show that when there was no previous consent in writing of the landlord for creation of sub-tenancy it shall be a ground for eviction in terms of section 13(1)(a) of the act. 14. in the light of these well established principles, what is required to be seen is not whether the landlord has accepted the rent with the knowledge of the breach on the part of the tenant but whether the landlord has consciously given up a statutory right of seeking a decree for eviction under the act. the above case is thus clearly distinguishable on its own facts.a.p. shah, j.1. this letters patent appeal is directed against the judgment and order of the learned single judge in writ petition no. 122 of 1989. the learned judge dismissed the writ petition of the appellant and confirmed the decree for eviction passed by the administrative tribunal on the ground of sub-letting under section 22(2)(b)(i) of the goa, daman and diu buildings ((lease, rent and eviction) control act, 1968 ('act', for short). before the learned single judge, three contentions were urged, namely(i) the alleged sub-tenant estevam rodrigues was inducted in part of the premises at the behest of the respondent-landlady herself and, therefore, there is a deemed consent for sub-letting;(ii) there was no sub-letting or parting of possession by the appellant in favour of estevam rodrigues; and(iii) there has been complete acquiescence on the part of the landlady inasmuch as she waited till 1982 to institute proceedings though estevam was in occupation from 1973.2. the learned single judge rejected the aforesaid contentions and ordered eviction. now these contentions are vehemently re-agitated before us by mr. nadkarni, learned counsel for the appellant, by placing reliance on certain supreme court judgments. before we deal with the submissions of mr. nadkarni, it is necessary to give a brief factual background of the case. the respondent-landlady filed proceedings for eviction of the appellant in the court of rent controller, north division, panaji, on several grounds. however, it is the common case that only ground urged and pressed was the ground under section 22(2)(b)(i) of the act for sub-letting part of the premises to one estevam rodrigues. in answer to the charge of sub-letting, the appellant stated that the said estevam rodrigues was a good friend of the respondent-landlady and it was the respondent herself, who requested the appellant to permit estevam rodrigues and his family to occupy a part of the premises. the appellant further stated that she allowed estevam rodrigues to occupy a room and a kitchen with a specific understanding that he would stay in that part for some time until he gets some other accommodation on hire. the appellant maintained that the said estevam rodrigues is not paying anything to her and in fact, his presence has become nuisance to the appellant. the appellant also alleged that in any event, the said estevam rodrigues is in the premises from the year 1973 admittedly and, therefore, the consent of the landlady is presumed to have been granted. in these circumstances, the appellant averred that there is no sub-letting as alleged and consequently, there is no contravention of clauses (3) and (5) of the lease-deed.3. the rent controller dismissed the respondent's application by an order dated april 26, 1985 on a finding that it is the landlady, who must have inducted estevam rodrigues in a part of the premises let out to the tenant. the controller accepted the appellant's version that estevam rodrigues was inducted on a specific request made by the respondent. the controller also held that the fact that the respondent had accepted the rent from 1977 till 1981 knowing full well that estevam rodrigues was also staying in the premises, proves beyond any shadow of doubt that estevam rodrigues has been inducted by the respondent herself.4. aggrieved by the order made by the controller, the respondent instituted eviction appeal no. 51 of 1985 before the administrative tribunal, which allowed the appeal of the respondent on march 16, 1989. in reversing the order of the controller and allowing the application for eviction, what prevailed upon the tribunal is that before the institution of the eviction proceedings on behalf of the landlady, a lawyer's notice dated april 26, 1982 had been issued to the tenant clearly making out the ground of sub-letting without the consent of the landlady, but admittedly on behalf of the tenant, no reply was addressed to this notice. the tribunal opined that it is difficult to believe that a tenant would remain quiet without replying to such allegation if the sub-tenant estevam rodrigues was inducted in the premises by landlady herself. secondly, the tribunal found that whereas the landlady led her own evidence by examining herself, the tenant did not choose to enter the witness-box and instead made her son to depose on her behalf. and lastly, the tribunal found that had the tenant's version been correct that estevam was inducted into the part of the premises at the behest of the landlady, the tenant would not condescend to paying the same rent of rs. 200/- originally settled but would have sought a reduction in rent for the loss of one room and a kitchen under the occupation of estevam rodrigues.5. in writ petition preferred by the appellant, the learned single judge affirmed all the findings recorded by the tribunal. the learned judge also rejected the plea of acquiescence which was raised for the first time in writ petition and in this view of the matter, the learned judge dismissed the petition.6 turning then to the first contention of mr. nadkarni that the alleged sub-tenant estevam rodrigues was inducted at the behest of the respondent landlady herself, we find that the tribunal has recorded a categorical finding that the appellant has failed to establish her version that she inducted estevam rodrigues on the request of the landlady. when the findings of fact recorded by the courts are supportable on the evidence on record, the writ court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted and supported the one reached by the courts below. mr. nadkarni, however, strenuously urged that the findings recorded by the tribunal are unsustainable in law. mr. nadkarni urged that the adverse inference drawn by the tribunal for not having replied to the notice to the landlady is uncalled for as under no law a party receiving a legal notice is obliged to give a reply. mr. nadkarni urged that if under the law, there is no such requirement, there is no question of drawing any adverse inference against the tenant. mr. nadkarni further urged that as a constituted attorney for the tenant, the son of the tenant was well versed with the facts and, therefore, the tenant could not be faulted for not entering into the witness box. mr. nadkarni also criticised the tribunal for holding against the tenant on the ground of not seeking any deduction in rent despite the induction of the sub-tenant in the part of the premises by the landlady herself. mr. nadkarni urged that if the tenant acted in good faith to accede to the request of the landlady to accommodate her relation or friend or acquaintance into the premises for some time, then merely because the inducted person continued in the premises and no deduction in rent was sought, that by itself does not affect the case of the tenant. mr. nadkarni pointed out that in her deposition the landlady admitted that she knew the family of estevam and visited them whenever she went to the suit premises. mr. nadkarni urged that the admission of the landlady coupled with the fact that she did not take action for merely 8 years is sufficient to draw a conclusion that the landlady herself was responsible for induction of estevam rodrigues.7. we do not find any merit in the contentions of the learned counsel. in the first place, the appellant has never tried to prove before the controller that prior to the induction of estevam into the premises, the relation between the family of the landlady and estevam being so good and cordial so as to even foist him in a part of the premises, which are already parted with in favour of the tenant. the fact that the landlady visited the family of estevam whenever she came to the suit premises does not necessarily show that the landlady has inducted estevam into the suit premises. another important factor, which militates against the case of the tenant is that if the landlady inducted estevam in the year 1973 with an understanding that such induction was going to last only for a short-while, why the tenant continued to suffer the premises (presence) of estevam in the premises without any protest to the landlady. the fact remains that the tenant did not make any protest against the continuance of estevam in the suit premises except the bare statement of the constituted attorney that an unregistered letter has been addressed to the landlady to pursuade estevam to leave the suit premises. in this context, the failure of the tenant to reply to the notice assumes great importance. similarly, we do not find any fault with the approach of the tribunal in drawing an adverse inference against the landlady for not entering into the witness box. it cannot be forgotten that the circumstances under which estevam was inducted were solely within the knowledge of three parties, namely, landlady, tenant and estevam and in this context, it is not known as to how the son of the tenant, who was of the age of 15-16 at the relevant time, could at all testify to such facts. in these circumstances, the findings of fact recorded by the tribunal and confirmed by the learned single judge are not amenable to reversal in this appeal.8. mr. nadkarni then sought to challenge the findings of the tribunal on the ground that there is no parting of possession by the appellant in favour of estevam, rodrigues. mr. nadkarni urged that there was not even a pleading by the respondent on the point of money consideration for the parting of possession nor any evidence has been led to show that the induction of estevam was for monetary consideration. mr. nadkarni placed heavy reliance on the judgment of the supreme court in dipak banerjee v. smt. lilabati chakraborti, : [1987]3scr680 . in our opinion, dipak banerjee's case on which reliance was placed by mr. nadkarni does not advance the case of the appellant any further. there, the question was whether the tenant has sublet two rooms in the premises to a tailor who is stated to have been established therein a tailoring business. the tenant denying the sub-letting contended that the tailor was allowed to occupy a part of the premises 'due to pity and charity' and that he was 'sewing in the house without any rent'. it would appear that the tenant also did some service for the landlord and the members of his family. however, the alleged sub-tenant not having entered the box, the plea of sub-letting had come to be accepted by the lower court. in the appeal before the supreme court, it was held that there was neither pleading nor evidence nor a specific finding on the question of exclusive possession of the alleged sub-tenant and that, therefore, one of the essential ingredients of a sub-lease was lacking. it was further held that providing of service could not also be construed as consideration for purposes of the rent acts and that, therefore, the second ingredient was also absent. the decision turned on the particular facts of the case. it is difficult to see how this decision renders any assistance to the appellant's case.9. it is no-where disputed by the appellant that estevam rodrigues is in exclusive possession of one room and kitchen out of the suit premises. the appellant's self-proclaimed inability to remove estevam from the premises shows that he has parted with the legal possession of the premises. as far as money consideration for parting of the premises is concerned, it is undoubtedly an important ingredient of sub-letting. the respondent specifically pleaded 'sub-letting'. the appellant while understood that pleading as to imply all the incidents of sub-letting including the element of 'rent' and specifically traversed that plea by saying that the alleged sub-tenant was not paying any consideration to the appellant. parties went to trial with full knowledge of the ambit of the case of each other. in the circumstances, it is not open for the appellant to make any grievance for lack of pleadings. if exclusive possession is established, and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. in rajbir kaur v. m/s. s. chokosiri and co., : air1988sc1845 , venkatachaliah, j., (as his lordship then was) speaking for the bench observed: 'such transactions of sub-letting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. it is not, unoften, a matter for legitimate inference. the burden of making good a case of sub-letting is, of course, on the appellants. the burden of establishing facts and contentions which support the party's case is on the party who takes the risk of non-persuasion. if at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. in the circumstances of the case, we think, that, appellants having been forced by the courts below to have established exclusive possession of the ice-cream vendor of a part of the demised-premises and the explanation of the transaction offered by the respondent having been found by the courts below to be unsatisfactory and unacceptable, it was not impermissible for the courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations.'when the appellant's explanation that sub-tenant was inducted at the behest of the landlady is found to be acceptable & there is no other explanation forthcoming from the appellant, no fault can be found with the finding of the tribunal that there was sub-letting of a part of the premises to estevam for monetary consideration. mr. nadkarni made an attempt to draw some support from the decision of the supreme court in m/s. delhi stationers and printers v. rajendra kumar, : air1990sc1208 , but the said decision is clearly distinguishable on facts. there, the supreme court expressed that where the alleged sub-tenant was brother-in-law of the tenant and was also employed with him, mere user of kitchen and latrine in occupation of the tenant by the said brother-in-law would not mean that the tenant has transferred the exclusive right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of his brother-in-law, the alleged sub-tenant, so as to make the tenant liable for eviction. therefore, the second contention of mr. nadkarni must be rejected.10. now coming to the last contention of mr. nadkarni that there is a waiver or acquiescence on the part of the landlady for not taking any action for nearly eight years and accepting the rent from the tenant with knowledge of the presence of the sub-tenant in the premises, it is necessary to state at the outset that the appellant has not pleaded either waiver or acquiescence in the written statement. in associated hotels of india ltd. v. s.b. sardar ranjit singh, : [1968]2scr548 , the supreme court held that 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. whether the party has waived statutory right of eviction or acquiesced to the breach committed by the tenant, is a mixed question of fact and law and, therefore, unless there is a specific pleading, it is not permissible to raise such issue. but mr. nadkarni urged that in the facts of the case, only irresistible inference is that the landlady has acquiesced to the induction of the sub-tenant. mr. nadkarni urged that evidence clearly shows that the landlady was fully aware about the induction of estevam in the premises right from 1973, but still she continued to accept the rent without any protest for nearly eight years and this, according to mr. nadkarni, amounts to a waiver of the statutory right under the act and alternatively mr. nadkarni says that this shows total acquiescence on the part of the landlady as far the ground of sub-letting is concerned. mr. nadkarni placed strong reliance on the judgment of the supreme court in a.s. sulochana v. c. dharmalingam, : [1987]1scr379 . mr. nadkarni also tried to draw support from the decision of the supreme court in d.c. oswal v. v.k. subbaiah and others, : air1992sc184 .11. under section 22(2)(b)(i) of the act, it is necessary for the tenant to obtain a 'written consent' of the landlord in order to avoid an eviction on the ground of sub-letting. the words used in the section are 'without obtaining the consent in writing of the landlord'. if the words were 'without consent of the landlord' it might mean without consent, express or implied and in that sense question of waiver may arise. the question of implied consent will not arise, if the consent is to be in writing. the supreme court while considering similar provision of the delhi rent control act, in shalimar tar products ltd. v. h.c. sharma, : [1988]1scr1023 , held that it was necessary for the tenant to obtain a consent in writing for sub-letting the premises. the mere permission or acquiescence will not do. the consent shall also be to the specific sub-letting or parting with possession. it was observed that the requirement of consent to be in writing was to serve a public purpose, i.e. to avoid dispute as to whether there was consent or not and that, therefore, mere permission or acquiescence is not sufficient. while noting that everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit & protection of the individual in his individual capacity, the supreme court further held that the requirement as to the consent being in writing was in the public interest and that, therefore, there cannot be any question of waiver of a right, dealing with the rights of the tenants or the landlord. the view taken in shalimar tar products ltd.'s case (supra) was followed in dulichand v. jagmender dass, : 1989(2)scale1331 . there, the supreme court reiterated that consent in writing of landlord of sub-letting or parting with possession is essential under section 14(1)(b) of delhi rent control act and there cannot be any implied consent or waiver by landlord.12. waiver is a question of fact, which depends on the facts & circumstances of each case. in the case of waiver of any provisions of the statute, it is necessary to prove that there was conscious relinquishment of the advantage of such provisions of the statute. in pulin beharilal v. mahadeb dutta, : [1993]1scr472 , the supreme court observed that the rent act is for the protection of the rights of the tenants but at the same time it does not permit the sub-letting by a tenant without the consent in writing of the landlord and this provision has been kept in public interest for the benefit of the landlords and the same can only be negatived by an act of conscious relinquishment of such right by the landlord. in that case, the landlord filed a suit for ejectment in city civil court at calcutta. the suit was based on the ground of default in the payment of rent and sub-letting. the trial court decided the question of default in the payment of rent in favour of the tenant but decided the question of sub-letting against him and as such decreed the suit. a division bench of calcutta high court consisting of n.c. mukherji and surendra mohan guha, jj., heard the appeal. guha, j., held that the plaintiffs had knowledge of assignment or sub-letting in favour of the sub-tenant much earlier than the last payment of rent in january 1975. in this view of the matter, guha, j., held that the rent having been accepted after the knowledge of sub-letting long before the determination of tenancy, the natural inference from this conduct would be that the plaintiffs had waived or dispensed with their right of forfeiture. guha, j., as such accepted the appeal and directed the dismissal of the suit. n.c. mukherji, j., disagreed with the aforesaid view of guha, j., and according to him the tenant's liability to eviction arose under the west bengal premises tenancy act, once the fact of sub-letting was proved. according to mukherji, j., a tenant under the act was under an obligation to pay rent to the landlord and there was no question of waiving the right of forfeiture by accepting of the rent by the landlord. in view of the difference of opinion between the two learned judges, the matter was referred to a third learned judge. mr. p.k. banerjee, j., the third learned judge by his order dated june 23, 1980 agreed with the view of n.c. mukherji, j., in appeal, the supreme court held that the view taken by guha, j., is not correct. in paragraph 4 of the judgment, kasliwal, j., speaking for the bench observed: 'a perusal of the above provisions clearly show that when there was no previous consent in writing of the landlord for creation of sub-tenancy it shall be a ground for eviction in terms of section 13(1)(a) of the act. even in case of creation of such sub-tenancy with the consent of the landlord in writing it was necessary to follow the further procedure prescribed under section 16(1) of the act. mere knowledge and/or acceptance of rent cannot defeat the landlord's right to get a decree for ejectment on the ground of sub-letting. if the view as contended on behalf of the appellant is accepted the provisions of both the above sections 13 and 16 would become nugatory. there is a clear mandate in section 13(1)(a) that the protection against eviction to the tenant shall not be a available in case the tenant transfers, assigns or sublets in whole or in part the premises held by him without the previous consent in writing of the landlord.'13. we may also refer to a recent judgment of the supreme court in shrinavas kasherlal palod v. vithal shivagir gosavi . there, the landlord sought eviction on the ground of change of user. it was contended that the landlord was aware of change of user & for a number of years he received the rent inspite of being aware of change and, therefore, the principles of acquiescence come into play and on that basis, suit should be dismissed. the appellate court rejected this plea holding that in a suit under the rent act, mere acquiescence would not bar the landlord for seeking the decree for eviction. in this context, the appellate court relied on a judgment of the bombay high court in kasturchand panachand doshi v. yeshwant vinayak sainkar, : air1980bom270 . the supreme court confirmed the view taken by the appellate court by rejecting the argument that the fact that the landlord received rents & that the change of user was there for a number of years should be taken into account in considering whether it is a mere acquiescence or whether it is a fact that there was no change of user at all. the supreme court held that a long use of the premises for the purposes other than the one for which it was originally let out cannot bar section 13(1)(a) of the bombay rent act being applied in a suit under the said act. in this context, the observations made by the learned judge (jahagirdar, j.,) in kasturchand's case (supra) are also worth noting. the learned judge observed that the rights & obligations of the landlords & the tenants must be found within the four corners of the rent act itself. the acquiescence or waiver does not save the tenant from the decree of eviction if he has used the premises for the purposes other than the one for which they were originally let out. the learned judge further observed that even assuming that the plea of acquiescence is available in order to acquire protection from a possible decree of eviction the evidence must be such that it should be reasonable to infer that the landlord not only acquiesced in the change of the purpose of the user but in fact concurred with the same.14. in the light of these well established principles, what is required to be seen is not whether the landlord has accepted the rent with the knowledge of the breach on the part of the tenant but whether the landlord has consciously given up a statutory right of seeking a decree for eviction under the act. in order to establish waiver or acquiescence, mere acceptance of rent or delay caused in taking action is not by itself sufficient but it is necessary to plead & prove that the landlord has relinquished or abandoned the statutory right to claim possession. no one can acquiesce in a wrong while ignorant that it has been committed & that the effect of his action will be to confirm. as far as the facts in the present case are concerned, the landlady has explained in her evidence that there was an assurance given by estevam that he would be vacating soon and she, therefore, did not take any action for some time. merely because she continued to accept the rent after she became aware of the unauthorised presence of the sub-tenant in the premises, it cannot lead to an inference that she consciously gave up her right to claim decree under the act.15. the reliance placed by mr. nadkarni on the judgment of the supreme court in a.s. sulochana's case (supra) is also misconceived. the above case relied on by the learned counsel for the appellant is altogether distinguishable. in that case the relevant provision for consideration was section 10(2)(ii)(a) of the tamil nadu buildings (lease and rent control) act, 1960. the undisputed facts in that case as observed in the judgment were that the father of the appellant landlord had granted a lease in favour of the father of the respondent tenant prior to 1952. the father of the appellant as also the father of respondent both had died and respondent was accepted as a tenant upon the death of his father in 1968. the suit for eviction on the ground of unlawful sub-letting was filed in 1970 by the appellant who had inherited the property from her father. admittedly, neither the appellant nor the respondent had any personal knowledge about the terms and conditions of the lease nor they had any personal knowledge regarding the circumstances in which the father of the respondent-tenant had created a sub-tenancy way back in 1952, 18 years before the institution of the suit. neither the appellant nor respondent had any personal knowledge as to whether or not the sub-tenancy was created with the written consent of the landlord 18 years back in 1952. on these facts it was held that there was nothing on record to show that the sub-letting which was made 18 years before the institution of the suit was in violation of the relevant provisions of law. there was no evidence direct or circumstantial on the basis of which it could be said that the lease did not confer on the father of the respondent the right to create a sub-tenancy, or, that it was done without written consent of the then landlord that is to say, the father of the appellant. in these circumstances, the supreme court held that the flouting of the law, the sin under the rent act must be the sin of the tenant sought to be evicted, and not that of his father or predecessor in interest. respondent inherited the tenancy, not the sin, if any, of his father. the supreme court observed that the law in its wisdom seeks to punish the guilty who commits the sin & not his son who is innocent of the rent law offence. the above case is thus clearly distinguishable on its own facts. it is further distinguishable on its own facts. it is further distinguishable because the sub-tenancy was created in 1952 long before the act which came into force in 1960. it is also required to be stated that in subsequent judgment of the supreme court, it has been held that the decision in a.s. sulochana's case turned on its own peculiar facts. (see pulin beharilal (supra).16. lastly, mr. nadkarni brought to our notice paragraph 6 from the decision of the supreme court in d.c. oswal's case (supra),which reads as follows :'6. counsel for the respondents does not dispute that from 1973 there has been change of use. the petition for eviction is of 1980. it follows that for seven years no objection was raised for change of use and for the first time when eviction was sought, conversion was made the second ground. in these circumstances, we are prepared to accept the submission advanced on behalf of the appellant that the landlords accepted the user to be also other than residential.'in our view, the decision in d.c. oswal's case has no application whatever to the facts of the present case. there, on appreciation of facts, the supreme court came to the conclusion that the landlords had accepted the user to be also other than residential. the question of waiver or acquiescence was neither argued nor considered by the supreme court. thus the last contention of mr. nadkarni also fails.17. in the result, the appeal is dismissed. however, there shall be no order as to costs.18. on the oral application of mr. nadkarni, interim stay to continue for a period of three months from today.