JUDGMENT Sudhindra Mohan Guha, J: 1. This is a tenant's appeal. 2. The appellant was a tenant under the respondents at a monthly rent of Rs. 50/- per month according to Bengali Calendar in respect of one shop room at 75 Surendra Nath Banerjee Road, Calcutta. The tenancy was determined by a notice to quit dated 6th Jaistha 1382 B.S. with effect from the end of Ashar, 1382 BS. The appellant was said to be a defaulter and to have sub-let or assigned the tenancy in whole to one Sujoy Kumar Das Gupta in the year 1970 without the previous written consent of the landlords. Hence the suit. 3. The suit was contested by the tenant on written statement. The sufficiency and validity of the notice to quit was questioned. The default in payment of rent was denied. The landlords were said to have purchased the suit property with full knowledge of the facts and conditions existing on the date of the purchase. Sujoy Kumar Das Gupta was said to have been taken as a partner in the business and the landlord, were said to have waived their right and have acquiesced in the tenant's said action. It was further pleaded that the landlord, were estopped from contending that there was no previous written consent of the land lords. 4. Sri S. Ahmed the learned Judge, Bench 3, City Civil Court decreed the suit on 12.6.79. The tenancy was found to have been determined by a valid notice the tenant was found not to be a defaulter but found to have assigned or transferred the tenancy in favour of Sujoy Kumar Vas Gupta without the con sent of the landlords and as such not protected. 5. Being aggrieved by the said Judgment and decree the tenant defendant has come in appeal. 6. Mr. Abhijit Kumar Banerjee, the learned Advocate for the appellant contends that the assignment or sub-letting as found by the learned Court below was with effect from the date of Deed of Assignment, that is, 1st day of June, 1974 (Ext.G), and the landlords having received rent for the month of Poush. 1381 B S. on the 31st day of January 1975 must be presumed to have waived such assignment. 7. Mr. 1381 B S. on the 31st day of January 1975 must be presumed to have waived such assignment. 7. Mr. S.C. Das Gupta, the learned Advocate for the respondents on the other hand contends that the respondents had knowledge of such assignment or sub-letting for the first time from the date of receipt of the letter dated 15th September, 1975 Ext. 1 and thereafter no rent from the appellant had been accepted. According to Mr. Das Gupta, under the circumstances the question of waiver, would not arise at all. 8. The burden of proof of knowledge, is on one who relies upon a waiver and such knowledge must be plainly made to appear. Dhanukdhari Singh Vs. Nathima Sahu 11 CWN 848 at 853. Thus the onus is on the appellant to show the date when the respondents had knowledge of such sub-letting. Mr. Banerjee points out at the outset that it is clearly stated in the plaint that Sujoy Kumar Das Gupta was inducted as a sub-tenant in the year 1970. Then Mr. Banerjee refers to the evidence of P.W.1 Javdev Dutta, an employee of the plaintiffs, who states that the plaintiff, purchased the suit property on 27th September 1973 and Sujoy Kumar Das Gupta told them that he had purchased the shop as well as the tenancy and they had such information or knowledge after the service of the letter of adornment (vide Ext A dated 27th September 1973) Thus it was abundantly clear that the plaintiffs had knowledge of transfer of the shop room in suit in favour of Sujoy Kumar Das Gupta sometimes after their purchase of the premises at 75, Surendra Banerjee Road. It is faintly argued by Mr. Das Gupta, the learned Advocate for the respondents that the plaintiffs had knowledge of Sujoy's possession sometimes after their purchase on 27.9.73, that is on receipt of the letter, Ext. 1 dated 15th September 1975, It is not the evidence of P.W.1 of course that they had such knowledge on 15th September, 1975. In the circumstances the date of knowledge of sub-letting cannot be extended till 15th September 1975. The inevitable conclusion is that the plaintiffs had knowledge of assignment or sub-letting in favour of Sujoy Kumar Das Gupta much earlier than the last payment of rent on 31st January 1975. 9. In the circumstances the date of knowledge of sub-letting cannot be extended till 15th September 1975. The inevitable conclusion is that the plaintiffs had knowledge of assignment or sub-letting in favour of Sujoy Kumar Das Gupta much earlier than the last payment of rent on 31st January 1975. 9. Next question would be whether the forfeiture of lease in favour of the appellant was waived by acceptance of rent from him. 10. Mr. Banerjee refers to the Rent Acts by R.E. Meggary 10th Edition, page 276, wherein it is stated that the consent need not precede the assignment or sub-letting, it suffices if given at any time before the proceedings. Further, acts by the landlord which amount to "a negation of any objection" to the assignment or sub-letting, such as the acceptance of rent from the tenant for over four months with knowledge of sub-letting are a sufficient "consent" for this purpose. 11. It is argued by Mr. Banerjee that the landlords accepted rent from the tenant after assignment in favour of Sujoy on 1.6.74 (corresponding to Jaistha 1381 B S.) up to the month of Poush, 1381 B.S. as such consent to sub-letting must be presumed. 12. Next Mr. Banerjee in support of his argument of waiver of the forfeiture refers to Wood fall's "The Law of Landlord and Tenant" By Lionel A Blundell, 25th Edition page 996. As to waiver of forfeiture it is stated-Courts of law always lean against forfeitures, therefore whenever a landlord means to take advantage of any breach of covenant or condition so that it should operate as a forfeiture of the lease, he must take care not to do anything which may be deemed an acknowledgement of the continuance of the tenancy, and so operate as a waiver of the forfeiture. 13. It is further contended by Mr. Banerjee that the landlords having failed to take any action from June 1974 to 11th December 1975 must be presumed to have acquiesced the act and that although impeachable becomes unimpeachable in equity. Reference is made to Kerr on "Fraud and Mistake" by S.E. Williams 6th Edition, page 435. 14. Mr. Banerjee then in support of his arguments refers to two decisions -namely in the case of Downie v. Turner & Ors, reported in (1951) All ER 416 and that of Wright & Bowers v. Arnold, reported in (1946) 2 All ER 616. 15. 14. Mr. Banerjee then in support of his arguments refers to two decisions -namely in the case of Downie v. Turner & Ors, reported in (1951) All ER 416 and that of Wright & Bowers v. Arnold, reported in (1946) 2 All ER 616. 15. The decisions in the case of R.G. Barnhart and J.B. Green Shields & Ors. reported in Moore's P.C. Vol IX, p.18 Raja Madhusudan Singh and Rooke reported in 24 IA 164, Baburam Beg v. Madhab Chandra Pollay, reported in 40 ILR 565, Shantinath S. Ghongade v. Rajmal Uttam Chand Gugale, reported in AIR 1979 Bombay 269, cited by Mr. Benerjee are not relevant for the enquiry, as though Sujoy Kumar Das Gupta had been possessing the suit property before the date of acquisition of title by the respondents on 27.9.73, but not as a sub-tenant. Mr. Banerjee also towards the end of his arguments does not press the point that Sujoy had been inducted as sub-tenant in 1970 that is before the purchase made by the plaintiffs. 16. Mr. Das Gupta in reply contends that the forfeiture resulted under the provisions of the statute and acceptance of rent would not operate as a waiver. He refers to the decision reported in Kartick Chandra Das & Ors. v. Gangaditta Murarka, reported in AIR 1956 Calcutta 120 : 59 CWN 827. 17. The term "waiver" generally connotes some kind of voluntary and intentional relinquishment or abandonment of a known, existing legal right. It depends on the conduct of parties. A party may forego its rights under a contract or under the provisions of a statute. 18. Mr. Banerjee refers to the English Law, discussed above. It would not be out of place to mention the American Law on the subject. "The doctrine of the waiver can be invoked when the Constitutional or statutory power or guarantee of a fight is not conceived in public interest or when it does not affect the jurisdiction of the authority infringing the said right. But if the privilege conferred or the right ereated by the statute is solely for the benefit of the individual he can waive it. But if the privilege conferred or the right ereated by the statute is solely for the benefit of the individual he can waive it. But even in those cases, the Courts invariably administered a caution that having regard to the nature of the right some precautionary and straingent conditions should be applied before the doctrine is invoked or applied" Basheshwar Nath v. Income-tax Commissioner, AIR 1959 SC 149 at 177. 19. As to the principle applied in this land it is said that as a general rule, rights relating to procedure and remedy are subject to waiver. but if a rights, is so fundamental in its nature as to be regarded by the State as vitally integrated in immemorially established process of the administration of justice, it cannot be waived by any one. There is also the maxim cuilibet licet renuntiare juri pro se introducto - which means anyone may waive or renounce the benefit of a principle or rule of law that exists only for his protection. 20. In answer to the question whether there can be waiver against the statute we may refer to "Maxwell" on the Interpretation of Stature by P. Sc. J. Langan 12th Edition, p. 328. It is stated that everyone has a right to waive and agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. 21. 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. Associated Hotels of India Ltd. v. Ranjit Singh AIR 1968 SC 933 at 937. 22. A Division Bench of the Punjab High Court in Messrs New Garage Ltd. v. Sardar Khushwant Singh, reported in AIR 1952 Punjab 82 held, "If the lessor is aware of a continuing breach of the lease and acquiesces in it for a long period, where for instance with full knowledge he receives rent, it will be presumed that he has either released the covenant or granted a licence for the user." 23. Such was also the view of Patna High Court. Such was also the view of Patna High Court. A Division Bench of that Court in the case of Ranchhod Lodha v. Madhabi Kanji, reported in AIR 1974 Patna 211 was of the opinion that plaintiffs withdrawing delayed rent deposits, constitutes waiver of right to get defence struck off. Apart from the English cases cited by Mr. Banerjee we may refer to the decision in the case of Muspratt v. Johnson, reported in (1963) 2 All ER 339. In this case even after knowledge of unlawful sub-letting the landlord did not take any steps but continued to accept rent from the tenant, it was held that the landlord should be deemed to have waived the unlawful sub-letting. But in this case Lord Denning, M.R. further adds that in these Rent Act cases, there is not a waiver of an unlawful sub-letting from the mere acceptance of rent, but there has to be such a decree of acquiescence that a consent to a sub-letting can be inferred. 24. In the instant case there is sufficient evidence from which waiver can be inferred. The evidence goes to show that on the very day of acquisition of title by the respondents they came to know that the showroom in question was in exclusive possession of Sujoy Kumar Das Gupta. In fact it is stated in the plaint that he was in possession since 1970. 25. In the case of Mahasukrai Ramrichapal v. Kishori Charan Law, reported in 81 CWN 376, the respondent filed a suit for ejeectment and mesne profits on the ground of violation of the provisions of clauses (m), (o) and (p) of S.108 of the Transfer of Property Act. According to the terms of the tenancy, the appellant was not to make any addition or alteration to the premises without the consent of the respondent in writing The appellant was said to have constructed a pacca temple and two sheds with pucca walls etc. with C.I. roof on the suit premises. The plea of waiver was not taken in defence, only during the arguments it was contended that by acceptance of rent the landlord had waived the right of forfeiture. In this case My Lord N.C Mukherji and B.C. Ray, JJ. with C.I. roof on the suit premises. The plea of waiver was not taken in defence, only during the arguments it was contended that by acceptance of rent the landlord had waived the right of forfeiture. In this case My Lord N.C Mukherji and B.C. Ray, JJ. held that the present case was governed by the provisions of the West Bengal Premises Tenancy Act and that a statutory tenant was required to pay or deposit rent and by acceptance of that rent the landlord had not waived his right of forfeiture. 26. With due respect to their Lordships I am of the view that it can not be laid down that the principle of waiver in no circumstances is applicable to a tenant governed by the provisions of the West Bengal Premises Tenancy Act, There are facts and circumstances, as in the present case the principle is well applicable. Moreover it is not the case that the landlords accepted rent or withdrew deposit of rent after toe termination of tenancy. In this case rent had been accepted after the knowledge of sub-letting long before the determination of tenancy. The natural inference from their conduct would be that they had waived or dispensed with their right of forfeiture. 27. In the result in my opinion the appeal should be accepted and the plaintiffs suit should stand dismissed. N.C. Mukherji, J: I had the opportunity of going through the judgment just delivered by My Lord. The facts have been stated in details by His Lordship. I agree with the finding arrived at by his Lordship that the date of knowledge of subletting cannot be extended till 15th September 1975 and that the inevitable conclusion is that the plaintiffs had knowledge of assignment of sub-letting in favour of Sujoy Kumar Dasgupta much earlier than the last payment of rent on 31st January, 1975. Next, His Lordship dealt with the question whether the forfeiture of lease in favour of the appellant was waived by acceptance of rent from him His Lordship is of opinion that it cannot be laid down that the principle of waiver under no circumstances, is applicable to a tenant governed by the provisions of West Bengal Premises Tenancy Act. Next, His Lordship dealt with the question whether the forfeiture of lease in favour of the appellant was waived by acceptance of rent from him His Lordship is of opinion that it cannot be laid down that the principle of waiver under no circumstances, is applicable to a tenant governed by the provisions of West Bengal Premises Tenancy Act. In the present case, rent had been accepted after the knowledge of subletting long before the determination of the tenancy and as such, according to His Lordship the natural inference from their conduct would he that they had waived or dispensed with their right of forfeiture. I cannot agree with the proposition of law as laid down by His Lordship in my opinion, S.13(1)(a) is a ground for eviction of a tenant by a landlord. If a tenant transfers, assigns or sublets in whole or in part the premises held by him without the previous consent in writing, he is liable to ejectment. In this case, it has been proved that the tenant has sublet without the previous consent of the landlord. It has been proved that the landlord having come to know about the subletting accepted rent from the tenant. Under the West Bengal Premises Tenancy Act, 1956 a tenant has been given some protection against eviction. If the tenant sublets, the protection ceases, The tenants liability to eviction arises, once the fact of subletting is proved In order to avail of the provisions of S.13(1)(a), it is sufficient if the fact of subletting without the written consent of the landlord is proved. A tenant under the West Bengal Premises Tenancy Act is under an obligation to pay rent to the landlord so long the tenancy is not determined. Even after the termination of tenancy, he is required to pay to tile landlord or deposit in Court or with the Rent Controller the sum equivalent to monthly rent month by month. That being the position, it cannot be said that the landlord by accepting rent waives the right of forfeiture. Exactly on this point, myself sitting. Even after the termination of tenancy, he is required to pay to tile landlord or deposit in Court or with the Rent Controller the sum equivalent to monthly rent month by month. That being the position, it cannot be said that the landlord by accepting rent waives the right of forfeiture. Exactly on this point, myself sitting. with B.C. Ray, J. in the case of Mahasukrai Ramrichpal v. Kishori Charan Law, reported in 81 CWN 376, have held that in a case governed by the West Bengal Premises Tenancy Act, a statutory tenant is required to pay or deposit and by acceptance of that rent the landlord does not waive his right of forfeiture. I do not find any reason to differ from the finding arrived at by us in the above case. In my opinion, therefore, the appeal should be dismissed. July 25, 1980 N.C. Mokherji J: In this matter, there was a difference of opinion on a' point of law between myself and S.M. Guha, J. and as such the matter was placed before the learned Chief Justice for necessary orders. The appeal was assigned to P.K. Banerjee, J. by the learned Chief Justice. P.K. Banerjee J. delivered judgment on 23.6.80. In view of the judgment delivered by P.K Banerjee J. this appeal is dismissed. There will be no order for costs in this appeal. Verbal prayer for stay of operation of the order is made. The same is refused. Appeal dismissed.