R.D. Jahagirdar, J.
1. This is a petition under Article 227 of the Constitution of India challenging the decree of eviction passed against the petitioner by the Court of Small Causes at Bombay in R.A.E. Suit No. 777/5781 of 1967 and confirmed by the Appellate Bench of the same Court in Appeal No. 463 of 1975. A somewhat curious development took place during the course of this litigation and that needs to be mentioned.
2. The suit was originally filed by two plaintiffs in the year 1967 against the petitioner on various grounds, one of which was that the petitioner has committed a breach of the condition of the tenancy by providing accommodation in the suit premises to persons who are called the paying guests. The suit premises consist of four rooms and a kitchen in a building situated on Plot No. 127-A at Bandra in Bombay. It may be mentioned at this stage that the suit premises were originally tenanted by one Noel D'Souza, the son of the present petitioner. After his death and with the concurrence of his brothers, the tenancy of the suit premises was transferred to the present petitioner. The petitioner was recognised as the tenant of the suit premises on the same terms and conditions subject to which the said Noel D'Souza had held the said tenancy. By a document, which has been called an indenture, made on 2nd of February, 1959 between the two plaintiffs and the said Noel D'Souza, it was provided that the tenant would not keep paying guests, licensees or caretakers in the flat without the previous consent of the owners. This was clause 4 in the said document. Similarly, Clause 10 of the said document had provided that the tenant would not sublet, assign, underlet or part with the possession of the flat or any part thereof without he previous consent in writing of the owners.
3. In the suit the allegation of the plaintiffs was that the petitioner has, contrary to the condition of the tenancy laid down in the abovementioned documents, kept paying guests in the suit premises. It was also alleged that she had from time to time sublet the suit premises to others. By his judgment and order dated 28th of February, 1975 the learned trial Judge decreed the suit on the ground that there was a breach of the condition relating to the prohibition of taking paying guests in the suit premises. At this stage it may be mentioned that the second plaintiff died in the year 1970 during the pendency of the suit. Against the decree so passed, the petitioner preferred an appeal, being Civil Appeal No. 463 or 1975, during the pendency of which the first plaintiff, namely Domnic John D'Souza, also expired. The present respondent being the daughter of the original plaintiffs has prosecuted these proceedings as their heir and legal representative.
4. The appeal which had been preferred was barred by time. A petition to this Court under Article 227 of the Constitution was preferred by the petitioner and that was Special Civil Application No. 577 of 1977. I have been informed that at the hearing of the said special civil application the parties came to an agreement whereby the respondent agreed to consent to the condonation of delay in the filing of the appeal before the Appellate Bench of the Court of Small Causes and the petitioner agreed to consent to an amendment of the respondent's suit for adding one more ground for eviction of the petitioner---that ground being the reasonable and bona fide requirement of the premises by the respondent for her own use and occupation. Though, therefore, the trial Court had already disposed of the suit on the ground of the breach of the condition as mentioned in section 12(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as 'the Bombay Rent Act,', the plaint was allowed to be amended and fresh evidence was recorded in the trial Court on the question of the reasonable and bona fide requirement of the suit premises by the respondent.
5. This was a sort of a second stage of the hearing of the suit and after considering the evidence which was thus brought on record the learned trial Judge again held in favour of the respondent that she required the suit premises reasonably and bona fide for her own use and occupation. This he did by his judgment and order dated 29th of July, 1980 by which he also held that greater hardship would be caused to the respondent if a decree for eviction were refused than the hardship that would be caused to the petitioner if a decree for possession were passed. No point was raised by either party in the trial Court, either in the pleading or otherwise, that a decree for part of the premises would equalise the hardship between the parties. The appeal, which had been in the meantime admitted after condonation of delay and was pending, was taken up for final hearing and in the hearing of the appeal of the fresh finding given under section 13(1)(g) of the Bombay Rent Act relating to the bona fide and reasonable requirement of the suit premises by the respondent was also examined. The Appellate Bench of the Court of Small Causes by its judgement and order dated 30th of September, 1980 dismissed the appeal, thus confirming the decree of the Court of first instance on both the grounds. It is this order of the Appellate Bench of the Court of Small Causes which confirmed the decree of the Court of first instance that is the subject-matter of challenge in this petition.
6. Two grounds have been urged in support of this petition and for contending that the decree passed by the courts below is contrary to law. Mr. Paranjpe, the learned Advocate appearing in support of the petition, has in the first place contended that the provision in the indenture relating to the prohibition against the taking of paying guests in the suit premises is not a condition of tenancy at all and, therefore, its breach would not entail a decree for eviction. He also contended that if it is held that the said provision is a condition of the tenancy, then that condition is not consistent with the provisions of the Bombay Rent Act. A necessary corollary of this submission is that the breach of such a condition, which is not consistent with the provisions of the Bombay Rent Act, will not invite a decree for eviction under the said Act.
7. It must be stated at the outset that the question as to whether the provision relating to the prohibition against accepting paying guests in the suit premises amounts to a condition or not was not raised in either of the two courts below. This point has also not been mentioned in the petition. Indeed, in the initial stage of his argument Mr. Paranjpe had not dwelt upon this point at all. However, since this point is on the verge of a point of law, I have allowed the same to be developed and argued. For the purpose of substantiating his argument that such a provision which is contained by way of a covenant in an agreement does not amount to a condition, the breach of which will attract the consequences of eviction from the suit premises. Mr. Paranjpe relied upon certain paragraphs in Halsbury's Laws of England, Third Edition Volume 23. In particular, he relied upon paragraph 1290 of the said volume wherein the distinction between covenants and conditions has been the subject-matter of exposition. He also referred me to paragraph 1390 of the same volume wherein it is mentioned that the lease will be determinable without an express proviso for re-entry, if the event specified in a condition, subject to which the term was created, happens. It is Mr. Paranjpe's contention that a particular provision in a lease can amount to a condition only if the breach of that condition provides for a re-entry. It had been mentioned in the same paragraph namely 1390, that if, however, the clause, which is put forward as termination the term, constitutes only an agreement on the part of the tenant to do or not to do a specific act and not a condition the landlord cannot re-enter for a breach of it except under an express proviso for re-entry. The argument which has been advanced at some length consists of two parts. One part of the argument is that a provision cannot amount to a condition if it does not provide for re-entry; on the other hand it is also contended that though there is no need for an express proviso for re-entry the lease will be determinable if the event specified in a condition happens. These two parts are not totally reconcilable.
8. Further reliance has also been placed by Mr. Paranjpe on certain passages in Woodfall's Law of Landlord and Tenant, Twenty-Eighth Edition, Volume 2, where propositions similar to those found in Halsbury's Laws of England are mentioned. After considering the passage both in Halsbury's Laws of England and Woodfall's Law of Landlord and Tenant, it is clear to me that a proviso need not necessarily provide for re-entry in order that it should amount to a condition. Even if there is a provision in an agreement subject to which a person enters the demised premises, it will amount to a condition of tenancy. If but for that agreement no tenancy could have been created then that provision will have to be held to be a condition of the tenancy.
9. Apart from this, the English law on the condition of tenancy as propounded in Woodfall's and Halsbury's books cannot be imported wholesale into the Indian law, especially into the law which is codified under the Rent Acts. The Transfer of Property Act itself is a codified law as far as India is concerned and if one examines the provisions of Chapter V of the said Act it will be easily noticed that the words such as term, condition etc., do not occur in so far as the tenancies are concerned. On the other hand, section 108 of the Transfer of Property Act talks of the rights and liabilities of the lessor and the lessee. The obligations created by any agreement between the lessor and the lessee must necessarily be held to be conditions of the tenancy, If, therefore, the petitioner had obliged herself, while accepting the tenancy after the death of her son, not to keep paying guests in the suit premises, that obligation must be held to be a condition of the tenancy. That there was a similar obligation on her son when he accepted the tenancy in the year 1959 is clearly evident from the record of this case. I have already referred to the indenture dated 2nd of February, 1959 which specifically forbade him from accepting paying guests in the suit premises. In Ismail Dada Bhamani v. Bai Zuleikhabai, XLVI Bom.L.R. 244, to which I will be making further reference shortly, it has been held in effect that an obligation which is to be discharged under the terms of the tenancy is a condition of the tenancy. I must, therefore, proceed to reject the contention of Mr. Paranjpe that the prohibition against accepting paying guests in the suit premises in the instant case does not amount to a condition of the tenancy as mentioned in section 12(1) of Bombay Rent Act.
10. Before I proceed to consider the next argument of Mr. Paranjpe that the condition in the instant case is not consistent with the other provisions of the Bombay Rent Act and, therefore, breach of the same will not warrant a decree for eviction, I must make a brief reference to the legislative history of this particular provision. In the Bombay Rent Act of 1939, an analogous provision is to be found in section 11, which was in the following terms :---
'No order for ejectment ordinarily to be made if rent paid at allowable rate.
(1) No order for recovery of possession of any premises shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by his Act and performs the other conditions of the tenancy ..... ' (Emphasis provided).
The proviso to sub-section (1) of section 11 is not relevant for the purpose of the present discussion and I, therefore, do not refer to the same. The Bombay Rent Act of 1939 was replaced by the Bombay Rents, Hotel and Lodging House Rates (Control) Act of 1944, section 9 of which corresponded with section 11 of the 1939 Act. The said section 9 was in the following terms :---
'No ejectment ordinarily to be made if rent paid at allowable rate.
(1) The landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, rent to the full extent allowable by this part and performs the other condition of the tenancy ..... ' (Emphasis provided).
11. The provision contained in section 11 of the 1939 Act came for interpretation by this Court in Ismail Dada Bhamani v. Bai Zuleikhabai, 46 Bom.L.R. 244, to which I have already made a reference above. The question that arose in Ismail Dada's case was whether performing the other conditions of the tenancy necessarily implied refraining from doing certain things. On page 261 of the report, Kania, J., (as he then was) pointed out that two questions arose for consideration on the words in the said section; Whether the words 'perform the conditions' covered only the positive covenants under which the tenant had to do an act, or whether they covered the negative covenants also. After covering the field of case law which had been built up on the subject, the learned Judge had no difficulty in holding that the word 'perform' covered a negative covenant and the contention urged before him that the word 'perform' in section 11 did not cover a negative covenant was unsound. It is thus clear to me that even if a covenant is included as a term of the tenancy that would amount to a condition within the meaning of section 12(1) of the Bombay Rent Act of 1947 as it amounted to a condition within the meaning of section 11 of the 1939 Act. On this basis I have already rejected earlier the argument of Mr. Paranjpe that the obligation undertaken by the petitioner not to accept paying guests in the suit premises does not amount to a condition within the meaning of section 12(1) of the Bombay Rent Act.
12. When one now proceeds to the examination of section 12(1) of the Bombay Rent Act of 1947, one cannot fail to notice a slight variation in the language used in this section as compared to the analogous sections in the Acts of 1939 and 1944. Section 12(1) of the Act of 1947 mentions 'and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act'. The obligation on the tenant to observe and perform the other conditions of the tenancy is limited to the extent that the said conditions are consistent with the provisions of this Act. In other words, under the present law if a particular condition is inconsistent or is not consistent with the other provisions of the Rent Act, then a breach of that condition will not invite a decree for eviction. The question for consideration, therefore, is whether the condition which is now found to be incorporated in the tenancy of the petitioner, namely that she will not allow paying guests to be accommodated in the suit premises, is consistent or not with the other provisions of the Bombay Rent Act.
13. In support of his contention that the said condition is not so consistent, Mr. Paranjpe relied upon a judgment of this Court in West End Hotel v. Manu Subedar, LXXV Bom.L.R. 228. The facts of this case disclose that the tenants had been burdened with an obligation to effect and maintain at their cost an insurance in the joint names of the lessors and lessees on all equipments and the articles provided by the lessees in the sum of rupees four lakhs. The said obligation also provided that insurance was to be effected in the same company in which the lessors have insured the demised premises. A necessary part of this obligation was that the lessees were to pay the premium in that behalf and to produce the premium receipts for the inspection of the lessors from time to time. The short question before the Court in West End's case was whether this condition, which amounted to an obligation of the tenant to pay a sum over and above the rent which he has to pay under the provisions of the Bombay Rent Act, was consistent with the provisions of the Bombay Rent Act. The learned Judge had no difficulty in noticing that the obligation imposed upon the lessees to pay any sum other than the standard rent as permissible under the provisions of the Bombay Rent Act was inconsistent with provisions of the said Act. Section 18 of the Bombay Rent Act specifically prohibits the landlord from recovering any charges such as fine, premium or other like sum or deposit or any consideration other than the standard rent or the permitted increases in respect of the leased premises. But Mr. Paranjpe wants to rely upon certain observation made by Vaidya, J., in the said judgment which are to be found on page 231 of the report :
'Moreover, I am inclined to hold that when the section says 'conditions of the tenancy in so far as they are consistent with the provisions of the Act', it is not open to the Court to read the word 'consistent' as including any condition which is 'not inconsistent' with the provisions of the Rent Act. It may be that one of the meanings of the word 'consistent' is in certain circumstances 'not inconsistent'. But in the context of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which was enacted to give protection to tenants against the arbitrary, oppressive, unusual or strange conditions and terms of tenancy being imposed by the landlords in areas where there was scarcity of accommodation, it must be held that the word 'consistent' in section 12(1) means nothing more or less than being consistent.
14. I have with the able assistance of Mr. Paranjpe tried to understand the full implication of the above paragraph to be found on page 231 of the report. In all logical reasoning there is a principle called the principle of excluded middle. Either a provision is consistent or it is not consistent. The observations on page 231, on which Mr. Paranjpe relied, are in my opinion not determinative of the question involved in the interpretation of section 12(1) of the Bombay Rent Act. On the facts of the case before Vaidya, J., it was crystal clear that the obligation which had been imposed upon the tenant was so patently inconsistent with section 18 of the Bombay Rent Act that the meaning of the words 'consistent', 'not consistent' and 'inconsistent' was not necessary to be the subject matter of any discussion. It is difficult to see how what is not consistent is not inconsistent. It is not necessary for me to go into a discussion on the semantics of these words any further because, in my opinion, this question has been conclusively decided by a decision of the Supreme Court in Haji Suleman Haji Ayub Bhiwandiwala v. Narain Sadashiv Ogale & others, Civil Appeal Nos. 880 to 887 of 1964 decided on 3rd May, 1967, unreported.
15. It may be mentioned at this stage that the judgment in Haji Suleman's case, referred to above, was brought to the attention of Vaidya, J., in West End Hotel's case, but unfortunately the most relevant parts of that judgment do not seem to have been brought pointedly to the attention of Vaidya, J., in that case. This judgment is unfortunately unreported. It is rather surprising that this judgment, which decides an important question of law under section 12(1) of the Bombay Rent Act, has remained unreported. If this judgment had been given in recent times, when there is competitive reporting by Law Journals of even compromise orders, orders given at admission stage and orders and judgments which purely turn on facts, this judgment would definitely have been reported. A certified copy of the judgment has been made available to me by Mr. Parikh appearing for the respondent and I have also called from the record of this Court the papers of Civil Revision Applications Nos. 143 to 149 of 1962 against the judgment in which the appeals in the Supreme Court had been filed. In this record a copy of the judgment certified to be the true copy is also available.
16. The facts in Haji Suleman's case were that the tenants were using the open spaces around the demised premises which were shops, in breach of the condition which required that these open spaces should be kept open and should not be used for any other purpose. Indeed, the condition was that the open spaces should be used as open spaces and in no other manner. It was found as a finding of fact that the shopkeepers tenants had been keeping several things on the open spaces. The question was whether they were guilty of the breach of a condition of tenancy. It was urged before the Supreme Court on behalf of the tenants that the proper construction of Clause (2) of the lease, which imposed that obligation, was that unless the encroachment resulted in interference with the use of the open spaces as a passage there could be no breach of the said clause. It was also argued that the evidence was that there was no such interference. The learned Advocate appearing for the tenants before the Supreme Court submitted that the said Clause (2) and the terms of the earlier compromise decree did not constitute conditions of tenancy and that they amounted to personal obligations and, therefore, the lessees' remedy was one in damages and not eviction. This argument now sounds familiar to me because that is the one which was advanced by Mr. Paranjpe before me. The Supreme Court rejected this argument in the following terms :---
'We are not impressed by these arguments. Clause (2) of the lease in clear language provides that the open space below the said awning was not to be used except as an open space and no goods or things were to be placed or stored therein which would interfere with its use as an open space.'
17. Proceeding further, another limb of the argument, namely regarding the consistency between the conditions of the tenancy and other provisions of the Bombay Rent Act, was examined. That argument was put up before the Supreme Court by the learned Advocate appearing for the tenants by contending that unless it was found that the tenants failed to perform the conditions of the tenancy and further that such conditions were not inconsistent with the provisions of the Bombay Rent Act, the tenants could not be deprived of the statutory protection under section 12(1) of the Act. The elaboration of the argument was that a condition in the lease that its breach would result in eviction was inconsistent with the provisions of the Act unless such a condition was in respect of matters enumerated in section 13. After carefully considering the judgment, I notice that the argument was that there must be a condition of the tenancy and that condition must be consistent with a stated provision in the Rent Act and thereafter they must be consistent with each other. It is only in such a case that a breach of the condition would deprive the tenant of the protection under section 12(1). If there is a condition in the tenancy but there is no corresponding provision stated in the Rent Act, then the question of examining the consistency would not arise at all and in such a case the question of the breach of the condition meriting an order of eviction does not arise at all. This argument was rejected by the Supreme Court in the following words :---
'It is difficult to appreciate how a condition of the tenancy that part of the demised premised shall be used as an open space and forbidding its use in a manner contrary to its being an open space can be said to be inconsistent with the provisions of the Act. No specific provision of the Act was shown to be inconsistent with such a condition. The contention, however, was that a condition which provided that its breach would result in a right in the landlord to evict the tenant is necessarily inconsistent with the provisions of the Act. We are not prepared to accept such a wide proposition. The argument was that section 13 of the Act lays down certain circumstances under which alone a landlord can sue for eviction, that those circumstances are exhaustive, that a condition of tenancy, the non-performance whereof deprives the tenant of his status of irremovability must be in respect of the circumstances set out in section 13 only and that conditions other than those would be inconsistent with the provisions of the Act. Such a construction, in our view, is not warranted.'
Proceeding further, it is observed as follows :---
'It is, therefore, impossible to say that it is only when circumstances set out in section 13 arise that a landlord can evict a tenant and that eviction on the ground of failure to perform the conditions of tenancy would not deprive the tenant of the protection under section 12(1). Such a reading of the two sections would be contrary to the objects underlying the two provisions.'
18. It is thus clear to me that a condition the breach of which would deprive the tenant of the protection under section 12(1) is consistent with the provisions of the Rent Act even if it is not inconsistent with any other provision of the Rent Act. It is not necessary that there should be a provision corresponding to the condition in the tenancy and thereafter both must be consistent with each other. This legal position must emerge on a proper reading of the Supreme Court judgment in Haji Suleman's case. The decree passed by the courts below on the ground that the petitioner is guilty of the breach of the condition, which is consistent with the condition of tenancy, must, therefore, be upheld.
19. Arguments have also been advanced challenging the finding of the two courts below on the issues arising under section 13(1)(g) and 13(2) of the Rent Act. The respondent had asked for the possession of the suit premises on the ground that one of her sons is already married and a separate room is required for him. Another son is also grown up and for the family which is thus expanding additional accommodation is required. Abundant evidence has been led in support of this claim by the respondent and that evidence has commended itself to both the courts of facts which have given a concurrent finding in favour of the respondent. The said finding is purely a finding of fact not amenable to interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution.
20. Some detailed arguments were also advance on the question of what is for brevity's sake called the comparative hardship, a question arising under section 13(2) of the Bombay Rent Act. In this regard also I notice that the learned trial Judge has discussed the evidence in great details in several paragraphs of his judgment. He has noticed that the petitioner has been most of the time staying outside the suit premises. The petitioner herself has not stepped into the witness box to depose to the hardship that would be caused to her if a decree for possession were passed. However, the petitioner's daughter-in-law has deposed and has given reasons as to why the petitioner could not stay in her flat which is undoubtedly much bigger than the suit premises. Each one of the reasons given by the daughter-in-law of the petitioner has been meticulously examined by the trial Court and has been rejected. Looking to the conduct of the parties and the position in which the petitioner's son and daughter-in-law have been placed, the learned trial Judge came to the conclusion that alternative accommodation is available to the petitioner and, therefore, no hardship, let alone greater hardship, would be caused to her if a decree for possession were passed. This finding has been confirmed by the Appellate Bench of the Court of Small Causes. Mr. Paranjpe criticised the judgment of the Appellate Bench by contending that as a final Court of facts the Appellate Bench ought to have examined the entire evidence in details and given reason for accepting or rejecting every piece of the evidence which had been brought on record. It is impossible to subscribe to this criticism levelled by Mr. Paranjpe against the judgment of the Appellate Bench. It is no doubt true that the Appellate Bench is a final Court of facts and, therefore, must examine the evidence and come to its own conclusions. But where the Appellate Bench agrees with the conclusions arrived at by the Court below it, I do not see that there is any obligation upon the Appellate Bench to reproduce every piece of evidence and then make comments upon the same. Nevertheless, in the instant case, I notice that the evidence on the comparative hardship has been admirably summarised by the Appellate Bench which has concurred with the conclusions arrived at by the Court of first instance. I do not see any error, let alone an error of law or of jurisdiction, in the approach adopted by the Appellate Bench. The decree which is passed by the courts below also on the ground under section 13(1)(g) read with section 13(2) of the Bombay Rent Act, therefore, deserves to be upheld.
In the result, this petition must fail. Rule is discharge with costs.
21. The decree, however, shall not be executed before 28th February, 1982 if the petitioner files in this Court on or before 21st December, 1981 an affidavit:
i) affirming that she is in occupation of the suit premises and no other person is in possession as a licensee or sub-tenant or in any other capacity :
ii) giving an undertaking to this Court that she will give vacant and peaceful possession of the suit premises to the respondent on or before 1st March, 1982; and
iii) gives a further undertaking that she will not induct any other person in the suit premises in any capacity whatsoever.
In case the affidavit as aforesaid is not filed before the date mentioned above or in case there is a breach of the undertaking given in Clause (iii) above, the decree shall become executable forthwith. The petitioner will also be liable for contempt of Court or for perjury as the case may be.