1. The facts which have given rise to this revision may be briefly stated as follows. On 1-4-1940 Sir Sobha Singh gave on lease to Messrs. The New Garage, Limited, New Delhi, show room No. 11 in the Scindia House, New Delhi & a garage behind enough for fixing two ramps). The rent was originally Rs. 250 a month but it had since been raised to Rs. 501-7 per mensem. In the lease deed marked Ex. D-1 it was agreed by the parties as follows:
'1. That the landlord agrees to let his show room No. 11 in the Seindia House, New Delhi, & a garage behind enough for fixing two ramps hereinafter called 'the property' & the tenant agrees to pay a monthly rent of Rs. 250 regularly in advance.
5. That the teuanoy (really the tenant) agrees to use the property as a motor show room & workshop. *****
On 37-4-1946 Sir Sobha Singh Bent a notice to the New Garage, Limited, stating that the occupation of show room No. 11 was without an existing lease & gave a notice to vacate the premises within six months from the receipt of the notice. This was under the Punjab Urban Rent Restriction Act & some time after thia Sir Sobha Singh gifted thia property to his sons, the resps. in this caae, & on 30 5 1947 another notice was sent by the sons to the lenant asking the latter to vacate on the following grounds: 1. That the show room had been used for a workshop which was against the terms of the lease deed, 2. that by their user the tenant was creating a nuisance for the other tenants; & 3 that the premises were being used against Govt. rules & bye laws. The tenant denied these allegations & on 1-8-1947 the landlords filed what they called a suit for ejectment alleging, that the deft. company was using the premises for a purpose other than the one for which they were let & were thus spoiling the entire premises. They were keeping the place dirty from inside as well as from outside & thus they were a constant source of nuisance to other tenants & that the use of the promises aa a workshop was in contravention Govt. rules & that the tenancy had come to an end because of tho notice of ejectment which had not been complied with.
2. The deft, company admitted the tenancy but pleaded that the premises were taken for running a motor workshop & had been so used ever since they had taken the premises on rent. They denied that their acts amounted to a nuisance or that the user was in contravention of Govt. rules. They also pleaded that the plffs. were estopped by their conduct for claiming ejectment. Upon this the Court framed the following issues:
1. Whether the suit premisea are being used for pur-poses other than for which they were let out?
2. Whether the user of the premises amounts tonuisance or annoyance to the neighbours of the saidpremises?
3. Has the deft, used the premises in a manner con-trary to any condition imposed by the Govt?
4. If the aforesaid issues are found in favour of the plff. can the deft, not be evicted?
5. iS the plff. estopped from suing on account of his conduct?
3. The trial Court held (1) that the premises could not be used for any purpose other than the one mentioned in the lease deed & the use of the premises as a workshop was unauthorized, (2) the user as a workshop did not amount to a nuisance & that there was no evidence that such a user was in contravention of Govt. rules or bye-laws & (a) by mere silence & acceptance of rent there could not be an estoppel. The suit was therefore, deoreed & ejectment ordered. Against this decree the deft company took an appeal to the Dist. J. Delhi, who-held (1) that tho parties did not intend that any part of the premises could bo used as a workshop, (2) that the premises were let for show room only & defts' use as a workshop contravenes Section 9, Delhi & Ajmer Merwara Rent Control Act 1947. (3) that mere silence was not sufficient to constitute estoppel & (4) that the user of the premises in contravention of the original purpose for which they were let was a continuous breach & therefore the tenant was liable to be ejected. On these findings, he dismissed the appeal & against this order the petitioners have come up in revision to this Court under rule 6 (1), Delhi Rent Control Procedure Rules, 1947, which were made by this Court under Section 14 (2), Delhi & Ajmer Merwara Rent Control Act, 1947.
4. Two points have been urged by the learned counsel for tho petitioners; (1) (a) that on a true interpretation of the terms of the lease deed tho intention of the parties was that the whole of the premises leased out could be used as a workshop.(1) (b) that tho terms of the lease deed were ambiguous & reading Clauses 1 & 5 together the intention was that the whole premises leased out to the petitioners could be used as a motor show room & workshop & the contention was that and' should be read as 'or' in its disjunctive sense;(2) that by his receiving rent after the landlord had become aware of the alleged contravention of the terms of the lease, the contravention, if any, had been waived. I shall discuss these points one by one.
5. (1) (a). I must frankly confess that the language of the lease deed is not very clear, if anything, it is obscure. The landlord had agreed to let show room No. 11 in the Soindia House & a garagt behind enough for fixing two ramps for the purpose of being used as a motor workshop & show room. It is possible to construe that show room No. 11 was to be used as a motor show room & a garage behind was to be used as a workshop but it would not be stretching the language of these two clauses unnecessarily if it was held that the whole premises could bo used for a motor show room or a workshop.
6. (1) (b). The subsequent user of these premi-ses from the year 1940 to 1946 which is clear from the statment of Sir Sobha Singh as P. w. 1 shows that Sir Sobha Singh had been passing by thia building practically every day after the lease was given & he had also been inside the building many times and that from the very beginning the property was not used as a show room although for the first three or four months. it was so used. It was later on being used for themanufacture of pumps and as a blacksmith's shop & for assembling of pumps although it is not clear whether any lathes had been put into this part of the premises or not and this went on for a year & along with this the motor repairing work continued which was being done on the pavement ourside the show room & they had been carrying on this work of repairing of motor cars ever since. In 1942 the Govt. acquired about half the portion of the premises but it was derequisi tioned after about two years. The other half portion continued to be used as a workshop during that period According to the statement of the deft. Sasrurker D.W. 1 they never sold any motor parts to the public & had not used the premises as a show room. He says that the premises were taken by him for running a workshop & not for a show room & from the beginning of the lease right up to date they had been using the premises as a workshop & during the war he was manufacturing stirrup pumpa. Soon after the date of the lease deed a ramp & an air compressor at a cost of about Ra. 2,500 were fitted in into a portion of the premises now in dispute But, this evidence of conduct can only be relevant if the terms of the deed itself are vague Under Section 92, proviso (6), Evidence Act, if a document is cbscurely framed cr if any of ita clauses contains a real ambiguity, evidence of the conduct of the parties is admissible to construe the document, & even if the intention of the parties to a document cannot be determined from the terms of the document with absolute certainty, the conduct of the parties during a long course of year is a very material element for consideration. As Munir has put it in bis Law of Evidence at page 680 :
'The subsequent court not of the parties to a document can be legitimately looked at under Section 92 proviso (6), Evidence Act, for the purpose of ascertaining o what pereons A things the expressions used therein were intended to apply. But if the terms of a document are not ambignous they cannot be controlled by evidence of the conduct of the parties, as it is only when the terms of a document are embiguous that evidence of conduct become receivable & no amount of noting by the parties can after or qualify words which are plain & unambiguous.'
7. (2) Coming now to the question of waiver, I would refer to a passage in Hill & Redman's Law of Landlord & Tenant p. 212 (1946 Edition) where it is said :
If the lessor is aware of a continuing breach & acquiesces in it for a lung period where for instance with full knowledge, he receives rent it will be presumed that he has either released the covenantor granted a licence for the user '
8. In Gibson v. Doeg, (1857) 115 R. R. 723 where the leaae contained a covenant on the part of the lessee that he would not, without the consent of the lesser, use, exercise, or carry on in the demised premises any trade or business whatsoever, nor convert the dwelling houses into a shop, nor suffer the same to be used for any other purpose than dwelling houses and one of the dwelling. houses was converted into a public house & agrocery shop, & the lessor, with full knowledge of it, for more than twenty years received the rent it was held that the user of the premises in their altered state for more chan twenty years, with the knowledge of the lessor, was evidence from which a jury might presume a licence. At p. 729 Pollook, C. B., observed :
'It is a maxim of the law of England to give effect to everything which appears to have been established for a considerable course of time, & to presume that what has been done has been done of right, & not in wrong. That, practically, has caused a series of trespass to constitute a right so that it might be said a rigbt has grown out of proceedings which are wrongful. But in truth, it is nothing more than giving effect to notorious & avowed acquiescence. No person would have permitted a covenant to be broken for more than twenty ytars, unless he was aware that it was broken as a matter of right.'
9. Hepworth v. Pickle, (1900) 1 ch 108 was a case of a vendor & purchaser. There, by a conveyance of 1874, a certain plot of land wap conveyed subject to a covenant that no dwelling house, shop, or other building to be erected on the land should at any time thereafter be used aa an inn, tavern, or beerhouse & shortly after the date of the conveyance beer and requisite spirits were sold in one of the houses ereuted on the land, & continued to be openly sold for upwards to bwenty-four years. In an action by a purchaser to rescind a contract for sale of that house on the ground of the existence of this restrictive covenant, in was held that it must be presumed from the uninterrupted user of the premises as a beerhouse for a length of time that there had been a waiver or release of the covennnt. Farwell, J. who followed Gibson v. Doeg, (1857) 115 R. B. 723 said :
'That if you find a long course of usage such as in the present case for twenty four jenra, which is wholly in-consistent with the continuance of the cevenant relied upon, the Court infers some legal proceeding which has put an end to that covenant in order to shew that the usage has been and is now lawful, & not wrongful.'.
He also relied upon a judgment of Romsr J in In re Summerson; Downte v. Summerson, (1900) 1 ch. 112 where a summons w a takes out in an action by a purchaser or certain leasehold premises asking that she might be discharged from her purchase. The premises, together with other premises, were held under a lease from the cor-poration of Newcastle, which contained a clause of forfeiture if the premises should at anv time be used aa an inn, alehouse, or spirit shop. It appeared from the evidence that the prprnises had with the knowledge of the corporation been printer ruptedly used as a public, house for upwards of thirty years, & were so used at the time of the sale. Homer, J., also relied on Gibson v. Doeg (supra), and held that the house could not be prevented from being used as a public-house, nor could the lease be determined on account of a breach of a covenant.
10. A question may, however, arise what is the effect of continuing breaches of covenant. In Foa's General Law of Landlord & Tenant (1947Edition) at p. 639 there is a passage which runs as follows :
'Where the breach is of a continuing nature e. g., in the case of a covenant to repair, to insure, to cultivate, or to use the premise only in a particular manner any of the foregoing acts will waive the forfeiture only down to the time at which it affirms the tenancy to exist: i. e., in the case of accepting rent, down to tha time at whioh the rent falls due.'
& dealing with this matter Hill & Redman's Law of Landlord & Tenant contains a passage which says at p. 212:
'A covenant restricting the user of premises is a continuing covensant, & there is a new breach every day while the premies ace used in violation of it; but the lessor may waive the covenant in part, eo as to allow of the carrying on of a particular trade '
11. Mr. Bishan Narain for the petitioners relied on a passage from Foa's General Law of Land-lord & Tenant p. 223 which is as follows:
'Where there is positive covenant, e. g.. to carry on the business of a public-house or hotel, an injunction will not b granted to restrain its breaoh, for this would be equivalent to making an order requiring the tenant to carry on the specified business; & this holds good even if the covenant be negative in form.'
Reliance was also placed by the learned counsel on Hebbert v. Purshas, (1871) L. B. 3 P. C. 605 at p. 650, but that was a case which held that con-duct could be used for the purpose of showing the con ect meaning of a document. That again would depend on whether the document in this case is or is not of an ambiguous nature.
12. Mr. Shamsher Bahadur in reply has placed strong reliance on Willmott v. Barber, (1860) 15 Ch. D 96 where Fry, J., held at page 105 that there are five requisites necessary to constitute acquiescence which will deprive a man of his legal rights which are: (1) mistake as to legal rights, (2) expoenditure of money for doing of some act on the faith of his mistaken belief; (3) the possessor of the legal right muet know of the existence of his own right which is inconsistent with the right claimed by the plaintiff; (4) the possessor of the legal right must know of the plff's mistaken btlief of his right & (6) the possessor of the legal right must have encouraged the plff. in his expenditure of money or in the other acts which he must have done either directly or by abstaining from asserting his legal right. Several other cases were cited by the learned counsel.
13. The points which arise in this case are of some importance (1) What was the exact inten. tion of the parties to the deed of lease? (2) whether there is any ambiguity or obscurity & if so, whether the evidence which has been led in this case is admissible to show the true meaning of the words? (3) Whether the facts proved in this case constitute a waiver sufficient to take the cast out of Section 9 of the Delhi & Ajmero Merwara Rent Control Act if facts necessary to make that section applicable have been established? (4) Whether there is a continuing breach & what is the effect of the receipt of rent on this breach? AsI have said, these are questions of some import-ance & should be decided by a Division Bench, I would direct that the papers may be placed before my lord the Chief Justice and if he approves, the matter may bo placed before a Division Bench.(Order by the Division Bench)  Kapur J.--By my order dated 20-10-1949 I referred this case to a Division Bench for deci-sion on four questions which I had mentioned therein.
15. It is unnecessary for mo to recapitulate the facts which have given rise to the present petition for revision. The dispute is between a landlord Sir Sobha Singh or his successors in-title, his sons, & the New Oarage, Limited. The first point which requires our consideration is what was the exact intention of the parties to the deed of lease. In other words, whether the worda of els. 1 & 5 as given in the lease deed Ex. D. 1 arc ambiguous and obscure of the language 13 quite clear. After hearing learned counsel, I am of opinion that the words are not ambiguous, Intbe lease deed Clauses 1 & 6 are as follows:
'1. That the landlord agrees to 1et his show room No. 11 in the Seindia House, New Delhi, & a garage behind enough for fixing two ramps hereinafter calltd 'the property' & the tenant agrees to pay a monthly rent of Rs. 250 regularly in advance.'
'6. That the tenancy (reilly the tenant) agrees to use the property as a motor show room and workshop.....'
As I read the words of these clauses the expressions are not couched in that clear language which one should have expected & indeed as I said in my referring order there may even be some obscurity, but after having heard arguments of the learned counsel and the interpretations which both the parties have tried to put on it, I am of the opinion that on a true interpretation of the terms of the lease the intention of the parties was that the whole of the premises leased out to the tenant could be used as a workshop or a show room without any distinction.
16. Even if we were to hold as indeed it was my opinion at one time that the language was ambiguous and for the purpose of interpretation it was lacking in clarity, on the evidence whioh has been led, I am of the opinion that reading Clauses l & 5 together along with the evidence of Sir Sobha Singh P. w. 1 and Basrurker D. W. 1 the intention appears to have been that the whole premises whioh was leased out to the petitioners could be used as a motor thow room & workshop & as a matter of fact it was never intended that the premises in dispute should be used for the purpose of a show room Only and nothing else.
17. It has been stated by Sir Sobha Singh it) his evidence that the only business of the defts. was that of a repair workshop & nothing else, but he has added that this 'hall' was let out for being used as a show room & 'some of the motors aro being repaired outside ..... the show room on the public pavement.'In cross-examination he stated:
'It is not separately stated in the agreement as to which portion is to be used for the workshop and which for the show room .....It was however, expresslyagreed between the parties that the show room will be used a show room & the garage will be used as a workshop.'
As against this Basrurker D.W. l has stated that the premises were taken by him for running the workshop & not for a show room & that the defts. did not deal in cars whether new or second hand & their business was only of repairs. If this was the state of affairs, it is very unlikely that there could have been any agreement by virtue of which it was agreed between the parties that the premises would be used as claimed by the pltf. in the present case. I am fortified in this opinion of mine by the fact that ever since these premises were taken, i. e., from April 1940 right up to the date that Basrurker gave evidence the premises had been used as a workshop. Not only this, immediately after the lease was taken, a ramp and air compressor were installed at a cost of about Rs. 2500 and according to Sir Sobha Singh himself he used to pass by this building practically every day after the lease had been given & had also been inside the premises & that from the very beginning the property had been used not as a show room although it is added that for the first three or four months it was so used. According to both the pltfs & the defts. the premises were used for the manufacture of pumps & as a blacksmith's shop and for assembling of pumps although whether there were any lathes or not has not been very clearly established & this went on for about a year as also the repairing of motor cars. In the year 1942 the Govt. requisitioned about half the portion of premises in dispute & after two years it was derequisitioned but the other half continued to be used as a workshop during that period & all this time rent was being accepted by Sir Sobha Singh from the defendants. Now, this is the evidence of conduct, which if the terms of the lease deed are ambigu us would baeome relevant under Section 92, proviso 6, Evidence Act, which is admissible for the purpose of construing the document. The conduct of the parties during the long course of years is in my opinion a material element for consideration andsubsequent conduct of the parties which I have mentioned above when used for the purpose of ascertaining the meaning of the expressions used, lead to no other conclusion but this that the whole of the property, i. e., the show room No. 11 and the garage was io be used as a show room & workshop and that no portion of the premises in dispute was earmarked for any one purpose or the other.
18. Even if it were to be held that the premises were let as contended for by the pltf.'s, i.e., show room No. 11 for the purpose of show room & garage at the back for the purpose of workshop there has, in my opinion, been a waiver in this case. It is the law as it is given in Hill & Red. man's Law of Landlord & Tenant (1946 Edition) p. 212:
'If the lessor is aware of a continuing breach and acquiesces in it for a long period where, for instance, with fall knowledge, he receives rent it will be presumed that he has either released the covenant or granted a licence for the user.'
and at p. 422 there is another passage in the same book which deals with waiver or forfeiture. Itruns as follows:
'It is at the option of the lessor whether he will take advantage of a forfeiture or not, & if he elects not to do so the forfeiture is waived. Such election may be either express or implied, & it is implied when the lessor, after the cause of for feiture has come to his knowlege, does any act whereby he recognises the relationship of landlord & tenant as still continuing.'
In Gibson v. Doeg, ((1857) 115 R. R. 723) the lease contained a covenant on the part of the lessee that he would not, without the consent of the lessor, use ..... in the demised premises any trade or business whatsoever nor, convert the dwelling houses into a shop, nor suffer the same to be used for any other purpose than dwelling house & one of the dwelling houses was converted into a public house and a grocery shop & the lessor, with full knowledge of it, for more than 20 years received the rent, it was held that the user of the promises in their altered state for more than twenty years, with the knowledge of the lessor, was evidence from which a jury might presume a licence. I need not quote here the observations of Pollock C. B., at p. 729. They are given in my referring judgment.
19. In Green's case, (1582 1603) 78 (1582 1603) 78 E. R. 269 it was held that if a lessor receives a rent arrear by any act affirming the lessee's possession, it bars his right of re-entry for non-payment on the day it was due.
20. In Griffms v. Tomkins, (1880) 42 L. T. 359 the defts. held certain premises of the pltfs. for a term of years under a lease whereby the lessees covenanted not to carry on any trade, profession or business without the licence or consent in writing of the lessor & the lease contained a power of re-entry upon breach of the covenant. The lessees made some alterations in the premises & part of the new building was occupied by two of the defts. as plumbers, & they carried on that business. There was however, no written licence or consent of the lessor but rent was paid as usual by the lessees after the commencement of the business with the lessor's knowledge of this use of the premises. Soon after, the pltfs. took proceedings to recover the land on the ground of forfeiture by a continuing breach of the covenant & it was hold that the receipt of rent was a sufficient waiver of the breach. It was observed by Cockburn C.J., as follows :
'There therefore, was as I say, a double waiver first, by receipt of the rent, and secondly, by calling, with her sanction, upon the tenant, the lessee, to do the repairs specified by the surveyor. Now the receipt it is true was only in respect of the rent which had accrued due up to Mishselmas of the year 1877, & the tenant, the lessee,continued of course in possession & as tenant in occupation up to the time the action was brought, which was upon the 12th Jan. There, therefore, was an interval between the 29th September & the 13th January the day the writ was issued in the action, during which it may be said that there was a continuing breach, which tendered the lease liable to forfeiture. But I cannot help thinking that, where a lesser with full knowledge that a Breach of this particular description haa been committed waives the forfeiture by a distinct acceptance of rent accruing due after the forfeiture that amounts not merely to a waiver of the past breach, but to a licence to continue the breach in future.'
The learned Chief Justice further adds :
''I think it would be monstrous it it were otherwise it would amount to this : that the lessor, with a full knowledge that the thing had been done which was pro-hibited by the lease & upon which a forfeiture was to accrue if it was done, might continue as long aa it suited his purpose to receive his rent, & so waive the forfeiture up to the time that rant was received, & then, when it suited in his purpose upon a change of circumstances, turn round on the tenant & say 'Although I have allowed you thus by implication to suppose that I was licensing what you were doing, I now take advantage of it & turn yon out of what is to you a beneficial lease'.'
There the rent had been received for a very small period. In the case now before us the landlords have continued to receive rent & have been condoning the breach of the covenant for a period of about 7 years. In my referring order I have referred to other eases & I need not give them in detail again. They were Hepworth v. Pickle (1900) 1 Ch 108, Downte v. Summer son, (1900) 1 ch, 112 Mr Bishan Narain also relied on a passage from Foa's General Law of Landlord & Tenant p. 228 which is as follows :
''Where there is a positive covenant, e. g , to carry on the business of a public house or hotel, an injunction will not be granted so restrain its broach, for this would be equivalent to making an order requiring the tenant to carry, on the specified business; & this holds good even if the covenant be negative in form '
He also relied on Hebbert v. Purshas, (1871) L. r. 3 P C. 605 at p. 650. That I have already dealt with in my referring order & I need not do so again. Another case whioh the learned counsel relied upon is Sayers v. Collyer, U885) 28 ch. p. 103. That was a ease in which a building estate was laid out in a number of lots, whioh were purchased by different persons, each of whom Covenanted with the vendors & with the purchasers of the other lots not to build a shop on his land, or to use his house as a shop or to carry on any trade therein. One of the purchasers began using his shop as a beershog & on action Was brought to restrain him from breaking his covenant & for damages The pltf. in that case had known for three years of the user of the house as a beershop & had as matter of fact himself bought beer at the shop. It was held that the pltf had lost the right to enforce his covenant through big acquiescence in the proceedings of the deft. Bowen L. J. at p. 108, observed :
'The true ground for our decision is that the pltf.'s conduct amounts to acqui-scence. He has no right to come here for an injunction after the way in whioh he has behaved towards the deft.'
Although this is a case whioh relates to owners of two plots of land & does not deal with the rights of landlord as against his tenant, but the principle of acquiescence is quite clear & if the pltf has allowed the deft, to do a certain act in breach of the covenant for some period he is not entitled to make a complaint with regard to that breach. The learned counsel also relied on Official Trustee of Bengal v. W. G. Bowden, 30 C. W. N. 199 where a tenant had sub-let a pars of the premises in breach of the terms of the lease & the landlord had accepted rent with knowledge of such breach. It was held that this was a waiver of the forfeiture & the tenant could not be ejected It was also held that the breach in that case which was without the written consent was only & technical breach of the covenant & that the subsequent receipt ot rent was a complete waiver.
21. Taking the facts proved in this case to be that the premises were let to a person whose sole business was repairing of motor cars, that a ramp and air compressor were put up in the premises soon after the grant of the lease; that pumps were being manufactured in these premises & were being assembled; that the landlords were aware of the alleged breach that has taken place and was taking place & had continued to receive rent without any kind of objection having been raised for a period of at least six years they can lead only to one conclusion and that is that even il there was a breach of the covenant, it was waived and the landlords have released the covenant or granted a licence for the user.
22. As against this, the learned Advocate who appeared for the pltfs. landlords submitted (1 that the terms of the lease should be interpreted to mean that the show room was given for user as a show room & the garage for workshop & that as two Courts had found that there was a breach of the covenant & that the conduct of the pltfs. did not constitute waiver, sitting in revision we should not interfere with that finding. His argument really was that according to the interpretation put on the words 'satisfying itself that the decision made in any case under the Act according to law' the High Court should not interfere with the findings of the learned Dist J. unless came to the conclusion that the finding of the Dist. J. was such whioh 'no Judge acting judicially could reasonably reach.' For thia argument he relied on three cases Rajeshwur Vishwanath v. Dash-rath Narayan. A. I R (30) 1943 Nag. 117 which was a case under the Provincial Small Courts Act and on Sunderdas v. Tara Singh, AIR (31) 1944 sind 168 and B. N. W Rly. v Firm Manorath Bhagat etc., A. I. B. (12) : 1925 ALL. 172. With due deference to these judgments, I am unable to agree that this Court can only interfere if it finds that the conclusions of the learned Dist J. in cases under the Delhi, & Ajmer Merwara Rent Control Act are manifestly perverse or unreasonable. To find out whether an order is inaccordance with law or not, would, in my opinion, mean to give a decision whether she conclusions of law are correct or not. In other words, if the High Court comes to the conclusion that the decision of the learned Judge is contrary to law it would be its duty to interfere. Indeed, the power given tinder Section 100 Civil P. C , in second appeals seems to be less that the power of inter-ference given under the Delhi & Ajmer Merwara Rent Control Act of 1947. At any rate in the present case it had to be de'ermined what is the true meaning of the clauses of the rent deed & that being a question of interpretation of a document of title would bo open to interference by this Court even under Section 100, Civil P C. (See Dhanna Mal v. Moti Sagar, 8 Lah. 578).
23. The next question to be decided is question No. (4) of my referring order which is what is the effect of receipt of rent on a continuing breach of covenant. Mr. Bishan Narain for the petitioners in this case submitted relying on Griffin v. Tomkins (supra), that the landlord having accepted rent with full knowledge of the breach (alleged) must be presumed to have waived the forfeiture & the waiver is not only of the past breach but also gives a licence to continue the breach in future. In Foa'a General Law of Landlord & Tenant at p. 639 there is a a passage which I have quoted in my referring order & the gist of which seems to be that waiver of forfeiture by accepting rent will only be up to the time at which the rent falls due & in the passage occurring in Hill & Redman's Law of Landlord & Tenant at p. 212 it is said that there is a now breach every day by the user of the premises in a manner contrary to restrictive covenants ''but the lessor may waive the covenant in part, so as to allow of the carrying on of a particular trade.' But, in my opinion, in a case the facts of which are as they are in Griffin v. Tomkins (supra), if there is a condonation by waiver of a forfeiture for past acts that would also give a licence for future acts. The learned Advocate for the respts. drew our atten. tion to a passage at p. 256 of vol. 20 of Halsbury's Laws of England, Hailsham Edn., where it is said:
'There is a continually recurring cause of forfeiture and receipt of rent ..... is only a waiver of the forfeiture incurred up to the date when the rent was due, .... & the lessor is not precluded from taking advantage of the breach containning since such date.'
He also relied on Penton v. Barnett, (1898) 1 Q. B. 276 which was a case where the breach was of the covenant to repair & it was held that claim for rent did not affect the right to possession in respect of non-repair after the date when the rent fell due. This in my opinion is not applicable to the facts of the present case. -What happened exactly in that case was that there was a breach of the covenant to repair. Then the plff. brought his action for possession and in this ha claimed a quarter rent due for the previousquarter. This claim was held not to be a waiver offorfeiture.
24. In Doe D. Ambler v. Woodbridge, (1629) 33 R. R. 203 a suit for ejectment was brought for a forfeiture for using roome in house in a prohibited manner. This was held to be a continuing breach & the landlord was cot precluded from taking advantage of the forfeiture, provided the user continued after the receipt of rent. But, even there it was observed;
'The conversion of a house into a shop is a breach complete at once, and the forfeiture thereby incurred is waived by a subsequent acceptance of rent.'
but the learned Judges went on to say that as the covenant provided that the rooms 'shall not be used for certains purposes' there was a new breach every day of which the landlord could take advantage. That was a case of a negative covenant which may or may not apply to the facts of the present case.
25. This brings me to a consideration of Section 9.
(1) (b) which runs as follows:
'9. (1) Notwithstanding anything contained in any contract, no Court shall pass any decree in favour of a landlord, or make any order, in favour of a landlord whether in execution of a decree or otherwise, evicting any tenant, whether or not the period of the tenancyhas terminated, unless it is satisfied either.
(b) that the tenant without the consent of the landlord, has whether before or after the commencement of this Act.
(i) used the premises for a purpose other than that for which they were let, orThe effect of this is what if it is proved that by consent of the landlord a premises has been used for purposes other than for which they were let, a landlord will not have the right of ejectment, the consent may, in my opinion, be other express or implied & therefore, Section 9 (1) (b) would be defeated by waiver on the part of the landlord if it is proved that by his past conduct he has consented to a particular breach of the covenant with regard to user of the premises. In the pre-sent case then as I have held that the landlords knew of the breach of the covenant & user & with that knowledge had been receiving rent the case will not be any different from that what it was in Crifjin v. Tomkins (supra) and Section 9(1) (b) should not be applicable to the facts of the present case.
26. I am, therefore, of the opinion that the four questions referred to us should be answered as follows: (1) On a true construction of the terms of the lease the ictention of the parties wan that the whole of the premises leased out could be used as a workshop; (a) Even if there is any ambiguity in order to find out the mean-ing of the terms evidence of conduct is admissible & on the evidence which has been led the conclusion is the same as under point (1); (8) By acceptance of rent the landlords had waived the breach of the terms of the covenant and were not entitled to eject the tenant and such acceptance of rent was not only condonation ofbreaches in the past but was a licence for breaches in the future; (4) Even if ib is continuing breach the waiver of forfeiture along with the provisions of Section 9 (1) (b) would prevent a successful proceeding by the landlords of ejecting the tenant.
27. For the reasons given above, I am of the opinion that the learned Dist. J. was in error in ordering the ejectment of the defta. In the result the order of the Courts below is set aside & this petition is allowed with costs throughout.
28. I agree.