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Mahmad Umar Abdul Rahim Narmavala and ors. Vs. Shah Manilal Gokaldas, (a Firm) and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1968)9GLR104
AppellantMahmad Umar Abdul Rahim Narmavala and ors.
RespondentShah Manilal Gokaldas, (a Firm) and ors.
Cases Referred and Phoenix Mills Ltd v. M.H. Dinshaw
Excerpt:
- - the claim of the applicants is based (in section 13(1)(a) of the bombay rents, hotel and lodging house rates (control) act, 1947 (hereinafter referred to as 'the act') which lays down that notwithstanding anything contained in the act but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the court is satisfied that the tenant has committed any act contrary to the provisions of clause (o) of section 108 of the transfer of property act, 1882. clause (o) of section 108 of the transfer of property act inter alia provides that the lessee must not use, or permit another to use, the property for a purpose other than that for which it was leased. but he strong urged that such is not the case here. on this finding of mine itself,.....n.k. vakil, j.1. the applicants before me in this civil revision application had filed a suit in the court of small causes at ahmedabad being civil suit no. 3039 of 1958 against the present three opponents for taking possession of the suit premises from them. opponent no. 1 is a firm and opponent no. 2 is the owner thereof. opponent no. 3 is also afirm. the case of the plaintiffs was that the first two opponents had passed a rent-note on the 31st of march 1955 in respect of the suit premises. the monthly rent fixed was rs. 61-12-0. the suit was filed for eviction on various grounds but all these need not be stated for the purpose of deciding this civil revision application. suffice it to say that amongst those grounds, plaintiff claimed the possession on the ground of his bona fide.....
Judgment:

N.K. Vakil, J.

1. The applicants before me in this Civil Revision Application had filed a suit in the Court of Small Causes at Ahmedabad being civil suit No. 3039 of 1958 against the present three opponents for taking possession of the suit premises from them. Opponent No. 1 is a firm and opponent No. 2 is the owner thereof. Opponent No. 3 is also afirm. The case of the plaintiffs was that the first two opponents had passed a rent-note on the 31st of March 1955 in respect of the suit premises. The monthly rent fixed was Rs. 61-12-0. The suit was filed for eviction on various grounds but all these need not be stated for the purpose of deciding this Civil Revision Application. Suffice it to say that amongst those grounds, plaintiff claimed the possession on the ground of his bona fide personal requirement and also on the ground that the defendants were not using the said property for the purpose for which it was let and that opponent No. 3 was using it as a godown for storing goods of himself and others and was storing and permitting to store therein bales of paper, cement, craft papers etc. and that the said shop was not being used for the purpose of cloth business; that opponent No. 3 has another premises on the first floor of the building situated in the same line and was doing his business there. The suit was contested by all the three opponents and they denied all the allegations. Inter alia they have stated that the property was leased to opponent Nos. 1 and 2 more than 25 years ago; that they had taken the suit property on lease for their cloth business but they had closed cloth business about 20 years ago and had thereafter sub-let the suit premises to opponent No. 3 and that the applicants knew about the said fact right from the beginning and that the opponent No. 3 was a sub-tenant and had been using the property for storing his goods; that only for the purpose of the admission of the plaintiffs' title, the plaintiffs had got the rent-note executed by opponents and 2 in the year 1955; that the suit premises were not taken for the first time on lease in 1955. They denied that the plaintiffs required the suit premises for their personal use and they also contended that they will suffer greater hardship if the decree were to be passed than the plaintiffs if the decree were not to be passed. They have made a further contention of waiver and acquiescence. The trial Court raised various issues amongst them were the issues:

(1) Whether the premises are reasonably and bona fide required by the plaintiffs for occupation by themselves?

(2) Whether greater hardship would be caused by passing a decree for eviction than by refusing to pass it?

(3) Whether the premises are being used for a purpose other than that for which they were let?

On all these issues, the trial Court held against the plaintiffs and dismissed the suit. Being aggrieved by the said decision, the applicants filed an appeal in the City Civil Court, Ahmedabad being Civil Appeal No. 13 of 1962. In the appellate Court the following three points were raised for decision having regard to the points made out by the parties before it.

(1) Whether the lower Court erred in holding that the premises were not reasonably and bona fide required by the plaintiffs for their occupation?

(2) Whether the lower Court erred in holding that the plaintiffs were not entitled to an order of ejectment on the ground that the premises were used for a purpose other than that for which they were let?

(3) Whether the Lower Court erred in holding that greater hardship would be caused to the plaintiffs by refusing an order of ejectment than by granting the same?

2. Mr. S.B. Vakil, the learned Advocate for the applicants has not raised before me any contention that the finding of the Courts below on the point of bona fide and reasonable personal requirement of the plain tiffs and the relative hardship, are erroneous. Therefore these points do not arise for my consideration. The contentions submitted by Mr. Vakil are in relation to the challenge as regards the findings of the Courts below which refer to the claim of the plaintiffs to recover possession on the ground that the premises were used for a purpose other than that for which they were let. The claim of the applicants is based (in Section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as 'the Act') which lays down that notwithstanding anything contained in the Act but subject to the provisions of Section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has committed any act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act, 1882. Clause (o) of Section 108 of the Transfer of Property Act inter alia provides that the lessee must not use, or permit another to use, the property for a purpose other than that for which it was leased. As mentioned, the allegation of the applicants was that the suit premises which was let to the opponents 1 and 2 under the rent-note of 1955 for it being used as a shop, was used for a different purpose by the opponent No. 3 and that was for storing materials that is to say as a godown.

3. The first submission of Mr. Vakil is that the appellate Court has erroneously construed the rent-note and therefore has come to a wrong conclusion that the user of the premises by opponent No. 3 for the purpose of a godown or for storing stocks of cloth is covered by the purpose mentioned in the rent note and therefore the property was used by the tenants not for a purpose other than for which it was leased. It was argued that under the rent-note Ex. 48 dated 31st March 1955 passed by opponents 1 and 2, the suit premises were let for the only purpose of conducting a shop (|SH Wl Hi!) and not using as godown. The use of the premises as a shop is different from the use as a godown for storing material. It is established that opponent No. 3 is using the said premises only for storing cloth and is using a different next-door premises for conducting his business. Therefore, there is a clear change of user of the suit premises by opponent No. 3. Such user cannot be said to be for the purpose as mentioned in the rent-note. The appellate Court has, therefore, erred In holding that the premises were not used for a purpose other than the one shown in the rent-note. Now, before I proceed to discuss this submission, it will be expedient to refer to some facts which are held to be proved and which cannot be challenged in this Court. It is further to be noticed that the suit was tried by the Court of Small Causes and therefore, whatever record of evidence exist are only notes of the learned Judge and not the full evidence as such recorded by the Court. Therefore, the finding of facts made by the trial Court cannot be challenged on the ground that they are made on no evidence. Now the material points of facts to be noted for the purpose of this submission are that the learned trial Judge has found on the question of fact from the evidence led before him that the premises are in the possession of defendant No. 3 since last 23 or 24 years and that they are used as a cloth godown to the knowledge of the landlord who had continued to accept rent from the tenants, Further more, there is evidence on the record that the premises were let to opponents Nos. 1 and 2 for the purpose of their cloth business and uses the suit premises since about 23 to 24 years to store cloth bales and other materials relating to his business of selling cloth. On behalf of the opponents it is urged that the purpose of running a shop or use of the premises for conducting a shop for cloth business, necessarily includes the; concept of use for storing also. The use of any premises for cloth business necessarily includes the idea of it being used also for the purpose of storing the stock relating to that business. The opponent No. 3 has been using the suit premises for storing materials for cloth business. Therefore, it cannot be said that the premises are used for a purpose other than the one for which it was let. Mr. Vakil on behalf of the applicants conceded that when the premises are let for doing cloth business, in other words when it is let for using it as a cloth business, it would be reasonable to hold that the lessee can incidentally use the premises also for storing his goods and the idea of incidental storing the goods can be said to be included in the purpose for which the premises are let. But he strong urged that such is not the case here. In the present case, the opponents are noising the premises as a shop at all and it is being used as a godown simpliciter In my view, the controversy lies in a very narrow compass. As rightly conceded by Mr. Vakil, the business of selling cloth necessarily implies the concept of storing of goods required for such business The purpose, therefore, for which the premises are let has admittedly or the other aspect may have to be emphasised so far as the use of the premises are concerned depending upon the nature of the business and the exigency of using larger and larger space for the one or the other use It may become necessary to use more and more space for storing this reason to its logical end, if for want of space and as a matter of this reason to its logical end if for want or space and as a matter of and 'sale'. Now it is easy to conceive that one convinience, if the tenant decided to use some other nearby premises to actually sit there for carrying the sale, and continued to use the suit premises sollly for storing the goods for that business, can it be said that he is not using it for the purpose of carrying on his business in cloth Storing of goods is at its worse an essential part of the purpose for which it was rented. The opponent No. 3 has been using the premises for storing only for his business of selling cloth. There is yet another important fact kept in mind while considering this aspect in this case that when the rent-note was taken by the applicants on 31-3-1955 from opponents Nos. 1 and 2, the applicants knew that as a matter offact their premises were in the possession of opponent No 3 and further that they were being used by him only for the purpose of storing cloth for his business of selling cloth. Knowing all this the words 'for conducting a shop' are used. If it were intended that the premises would not be used for storing cloth, objection would have been raised by the applicants and it would be reasonable to expect that a definite clause prohibiting user for storing cloth would have been insisted upon and included in the rent-note. These facts, I am refering to for the purpose of lowing hat the expression could not have been intended to be used in a narrow meaning which is tried to be ascribed by the applicants as one of the basis for evicting the opponents from the suit premises. It is premises to have regard to the actually existing facts in order to give a correct construction to the particular expression used in a given document. In my view, therefore, having regard to the facts and circumstances established and conceded in this case, the phrase used in the rent-note has to be widely interpreted and it cannot be said that the user of the said Premises, as a place of storing goods in relation to a cloth business is not a purpose contemplated by the rent-note namely the purpose of using it as a premises for carrying on cloth business. The Courts below, therefore, have not erred in rejecting this contention of the applicants. On this finding of mine itself, the suit of the applicants and this revision application must fail but as other points have also been fully argued and as they were also raised before the appellate Court and decision has been given thereon, it will be proper for me to deal with them.

4. The next submission on behalf of the applicants is that the appellate Court has wrongly construed Clause (o) of Section 108 which has led to the conclusion that even if it is assumed that there is a change of purpose, it would be actionable only if it is destructive or permanently injurious to the rented premises and that no such proof has been given by the applicants. It will be necessary to reproduce the opening part of Section 108 and Clause (o) thereof for the purpose of the discussion of this contention.

108. Rights and liabilities of lessor and lessee. In the absence of a contract or local usage to the contrary, the lessor and lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:

xx xx xx xx(B) Rights and Liabilities of the Lessee

xx xx xx xx(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any ether act which is destructive or permanently injurious thereto:xx xx xx xx

Mr Vakil contended that the expression at the end in Clause (o) ' which is destructive or permanently injurious thereto' is intended to govern only the words 'commit any other act' and not the specific acts enumerated in the clause which preceded the words 'any other act'. The earlier expressions namely: (a) 'for a purpose other than that for which it was leased' (b) or fell or sell timber (c) pull down or damage buildings (d) or work mines or quarries not open when the lease was granted' are self-contained and independent and neither of them is qualified by the expression 'which is destructive or permanently injurious thereto'. He further urged that the rules of grammar would not permit reading the said last expression with the said earlier expressions. Argued Mr. Vakil, therefore that if it is proved that the tenant uses or permits another to use the property for a purpose other than that for which it was leased, there is a breach of the prohibition and it is not then necessary to further establish that the use for the other purpose is destructive or permanently injurious to the property to make the act actionable as the appellate Court has held. In the submission of Mr. Vakil, the appellate Court was also wrong in its view that the overall object of the provision is to prove injury or waste to the property of the lessor and its product if any. According to him, the main underlying object is to lay down an obligation on the tenants and the emphasis is on keeping the tenant tied down to his contract. The first part of Clause (o) accordingly lays down that the tenant will make use of the property as a person of ordinary prudence would use his property but the second part provides that though as a prudent owner he may be entitled to change the purpose for which it was let yet he must not do so and only use it for the purpose for which it was let, thus tying him down to the term of the contract. The sub-sequent prohibitory expressions and the enumeration of the acts which the tenant must not do, only provides the code for constructs of the demise in the absence of specific covenant in the demise.

5. On the other hand Mr. Nanavaty, the learned Advocate appearing for opponent No. 3 submitted that the interpretation placed by me appellate Court is correct. The overall purpose of Clause (o) is to see that the tenant does not cause waste to the property of the lessor and the last expression 'which is destructive or permanently injurious thereto is intended to qualify also the specified prohibited acts and not on the words 'any other act'. He urged that in any case, even if it is held that the last expression does not actually qualify the specific acts prohi bited, that last expression of Legislative intent that only the acts which are injurious or destructive are prohibited to be done by the tenant.

6. It is true that though the construction that is tried to be put by Mr Vakil cannot be ruled out as frivolous or improbable, I am of the view that having regard to the object behind the provision and its language it cannot be accepted for reasons that I will presently give. Section 108 deals with the rights and liabilities of lessor and also lessee and I the opening part of the section is as I have already mentioned hereinabove. But at this stage what I would only like, to specifically note is that the Legisla-has used the words 'rules next following.' So it means that the Legislature has tried to provide certain statutory rules for the purpose of the rights and liabilities of the lessor and the lessee in the three parts. The first provides that the lessee may use the property and its products as a person of ordinary prudence would make use of his own property. In this rule, Legislature has included the general right of the lessee to make use of the property and its products, if any, for all purpose for which an owner is entitled to use. But at the same time it creates a general liability to make use of it as a prudent owner would make use of his property. But after laying down this general rule of rights and liabilities of the lessee, the Legislature further intends to lay and down in the second part of the clause some further fetter by stating specific liabilities or restrictions on the general right given by the first part of the clause. The Legislature has provided that in any case the lessee (i) must not use or permit to be used the property for which it was leased; (ii) must not fell or sell timber belonging to the lessor, (iii) must not pull down or damage buildings belonging to the lessor; (iv) or must not work mines or quarries not open when the lease was granted. These are all the specific fetters placed by the second part of the clause but the Legislature is not content to leave the matter there, and intends to further protect the interest of the owner and therefore in the third part provides a further restriction and lays down that over and above those specific acts mentioned hereinabove, the lessee shall not do any other act also that is destructive or permanently injurious to the property. In my view, it does appear that the general and common thread of purpose or intention that runs in all the three parts of the clause is the protection of the property and the products thereof belonging to the lessor against waste. The first part provides that the use should be as of a prudent owner, implict in it is the purpose of protection to property. Second part prescribes some specific kind of user of the property and its products only to protect the interest of the owner with a view to see that the property or the product is not either totally destroyed or permanently injured and the last post provides that even acts other than those which are not specified but which are destructive or permanently injurious to the property or its products must not be done. A close examination of the provisions of Clause (o) therefore indicate that they are intended to adopt in substance the principle of law under the English law to prohibit the tenant from committing what is known as voluntary waste. The following commentaries given in Six Mulla's Transfer of Property Act, Fifth Edition, page 717 are useful.

Waste.--Waste is said to be voluntary, i.e. doing an act which is destructive of the premises; or permissive, i.e. an omission to make necessary repairs. The liability for permissive waste arises out of the obligation under Section 108(m) to keep the property, in a good condition subject to fair wear and tear. The clause deals with voluntary waste and imposes a liability similar to that imposed upon bailees by Sections 151 and 154 of the Indian Contract Act. An act which a person of ordinary prudence using, his own property would commit is not waste although it damages the property. Thus where a warehouse wasd amaged by the weight of the goods placed in it, and the user was reasonable having regard to the class of building, the lessee was not liable.

Then later on the following commentaries are to be found:

Diversion to a different use.--The lessee may not use the property for a purpose other than that for which it was leased, for it is waste to change the nature of the premises. If this were done by structural alterations, it would involve demolition and reconstruction which is expressly forbidden by this and the next clause. But a different user may be waste even if it does not involve structural alterations. Thus a house let for residential purposes may not be used as a shop by the exhibition of goods therein without structural alteration. If such different user is not injurious to the premises it is technical waste and not actionable under English law, and in the case last cited an injunction was refused on the ground that no substantial injury had been done. The law under this clause is probably the same, for the last-words of the sub-section seem to indicate that the different user referred to is injurious, In U Po Naing v. Burma Oil Co. land was leased with the right to win oil from it, The lessees sank oil wells but the wells yielded not oil but gas which the lessees used for their own purposes. The Privy Council held that they were entitled to do so without doing any damage to the property leased.

But Mr. Vakil urged that Clause (o) as it stands and particularly that part with which we are most concerned namely prohibition against change of user, can hardly be said to be enacted for the purpose of preventing waste to the property of the lessor or its products if any because change in user may not necessarily result in any waste at all and in some cases they may be even beneficial. Therefore, when the Legislature introduced this prohibition as a fetter on the right of the tenant to use property even as a prudent owner would use, it is intended to be an absolute prohibition and not qualified by any idea of preventing waste to the property of the lessor and the purpose is only to keep the tenant tied down to his covenant in the lease. I am unable to agree with the submission of Mr. Vakil. It is no doubt true that the Legislature does intend by this provision as regards diversion to a different use to create a fetter on the right of the tenant, but still the question remains whether it is intended to be an absolute fetter or prohibition and for what purpose. This intention of the Legislature is to be gathered by reading the Clause (o) as a whole. The thing to be noticed is that this prohibition is bracketed or thrown together with other specific provisions of fetter created on the right of the lessee to use the property as a prudent owner would use, namely not to fell or sell timber, nor to pull down or damage buildings and not to work mines or quarries not open when the lease was granted. All these acts if done would most likely be destructive and permanently injurious to the property of the lessor or products thereof. When therefore, Legislature has coupled this prohibition regarding the diversion to another use with the group of other prohibited acts, which acts are such that if done are most likely to cause waste, it would be reasonable to infer that the Legislature intends that it takes its colour from that group of acts. It would also not be wrong to infer that when the Legislature after laying down the specific fetters on the right of the lessee, when it proceeded to also prohibit the doing of other acts, it provided that these other acts are those which are destructive or permanently injurious to the property or its product, mat qualifying clause indicate the intent and purpose of the Legislative in creating the prohibition as regards the doing of these various acts specified as also other acts not specified. Therefore in my judgment the kind of prohibition against the doing of all these acts specified and unspecified, intended by Section 108(o) is indicated by the words 'destructive or permanently injurious thereto'. The fact that Section 108(o) which prohibits the lessee from using the property for a purpose other than that for which it was leased, has associated this prohibition with acts which are destructive or permanently injurious to property or its product, indicating that the kind of change of user which is intended to be prohibited is the one which would be destructive or permanently injurious to property or its product.

7. However Mr. Vakil in order to support his construction and to say that the one I am inclined to accept is not the correct one, further urged that it cannot be said that all the prohibited specified acts grouped together other than the change of purpose are necessarily such as are destructive or permanently injurious to the property or its product. He particulurly drew my attention to the act of selling timber. He argued that if timber were to fall down naturally and if it is sold by the lessee, it cannot be said that the act of the lessee is destructive or permanently injurious to the lessor's property or the product thereof. It may be injurious to the right of the lessor to take that timber but that is not what is prohibited by this clause. The argument is fallacious. It is conceded that felling of timber, is an act of waste; the words 'or sell were added by the amending Act of 1929 to make it clear that the lessee is also prohibited from selling standing timber so as to prevent felling of it even by the vendee. Obviously therefore, this prohibition is also intended to stop waste to the product of the property of the lessor.

8. It is true that the words 'but he must not use, or permit another to use, the property for a purpose other than that for which it Was leased' if strictly and literally interpreted isolated from the rest of the clause, may mean what Mr. Vakil wants us to accept. But I have already pointed out that it cannot be isolated from the rest of the provisions of the said clause. As indicated above, the change of user may not always be prejudicial to the lessor's interest, on the contrary may even be beneficial. Could it then be the intention of the Legislature that the mere fact of the change of user by the lessee should result in total deprivation of all his rights as regards the property leased. In my view, that could not be the intention of the Legislature. 'The provision is made to provide for both the liabilities as well as the rights of the lessee. If there is a positive covenant in the lease that the lessee shall not use for any other purpose, then as a consequence of breach of such a covenant the lessee may render himself liable to be deprived of all his rights under the lease. But here, this provision does not contemplate such a situation. When a statutory provision which if strictly or literally interpreted is likely to lead injustice, it is open to the Court to act upon the view that such a result could not have been intended by the Legislature. It is a well known rule of construction that the literal construction is not to prevail if it is opposed to the intention of the Legislature as apparent from the statute and if the words are sufficiently flexible of other construction, by which that intention be better effectuated. As a result, I do not accept the construction put by Mr. Vakil and hold that having regard to the provisions of Section 108(o) a change of user in the absence of a contract to the contrary, would not result in giving a cause of action to the plaintiff for evicting the tenant unless it is further proved that it is either destructive or permanently injurious to the property or its product in the eye of law. The Courts below have found that there is no such case made out.

9. Then I go to the question of waiver and acquiescence as the applicants have also challenged the finding of the Lower Appellate Court that the plaintiffs' suit is barred by principles of waiver and acquiescence also. Mr. Vakil contended that the finding of waiver and acquiescence is a mixed question of law and fact. Whether there is waiver or acquiescence is necessarily a question of legal inference on established facts. Therefore, it is open to him to agitate this question before this Court also and he is not bound by the finding of the Courts below. There is no doubt that this is so. Now as regards the facts established we have again to turn to the finding of facts as noted by the trial Court in the judgment for reasons that I have already stated and in paragraph 9 of his, judgment, this is what the learned Judge has found: 'The premises are in the possession of defendant No. 3 since the last 23 or 24 years and are being used by him as a cloth godown to the knowledge of the land-lord who has continued to accept rent from the tenant. The rent-note Ex. 48 was executed only for the purpose of obtaining an acknowledgment from the tenant about the justification for increase in rent. The premises were used by defendant Nos. 1 and 2 as a shop but the landlords have for a very long period, allowed them to be used as a warehouse, having impliedly consented to such user, and have accepted rent with knowledge of such user and cannot contend that there has been a change of user.' This last part of the finding of the learned Judge is the inference arising from the facts but there is no doubt that the facts established are that the applicants knew that the opponent No. 3 was a sub-tenant of the suit premises for a long period of about 23 to 24 years and further that they knew that opponent No. 3 was using those premises as a godown. But Mr. Vakil argued that all this prior conduct and facts established of the tenants as well as the landlords, are irrelevant for deciding this contention. In his submission, when the opponents passed the lease in 1955 in favour of the landlords, it created a fresh contract between the parties and what the plaintiffs are complaining is the use of these premises after the contract was entered into which use, according to the landlord, is not the one for which the premises were let by the rent-note of 1955. The lease was for a fixed period, in the first instance for less than a year. Under the terms, he could not have taken any action against the lessee and after that period was over and when the lessees were tenants holding over, a very short period had passed, less than about two years and mere delay in exercising the right by the lessor would not amount in law to any waiver or acquiescence. There must be some conscious act on the part of the landlord established which should prove that having applied his mind that he had a right to proceed against the tenant, he waived that right or acquiesced into the wrong act of the tenant. Reliance is placed by Mr. Vakil on two Bombay decisions viz, Narayan v. State of Bombay LIX Bom. L.R. 532 and Phoenix Mills Ltd v. M.H. Dinshaw & Co. XLVIII Bom. L.R. 313. In XLVIII Bom. L.R. it was decided that the law with regard to waiver is to be found in Section 63 of the Indian Contract Act, 1872. No agreement between the parties is necessary for the purpose of attracting the application of the section. A promisee can only dispense with the performance of the promise by a voluntary conscious act. It must be an affirmative act on his part. A mere omission to assert his rights or insist upon his rights cannot amount to a dispensation within the meaning of that section. In LIX Bom. L.R. 532 similarly it was decided that waiver is a matter of intention and can be either express or implied. Whether it is one or the other, it must be deliberate in the sense that the party waiving a right should after applying his mind to the matter decide to abandon the right. In order to infer a waiver some positive act on the part of the party which is supposed to have waived is necessary. A mere delay in doing a particular act or in raising a particular objection would not of itself justify an inference of waiver. The legal position no doubt is what this decision lays down but the inference which arises under this principle of law necessarily depends upon the facts of each case. The special facts of the present case have therefore to be kept in mind. The facts are that even before the rent-note, the use to which the said property was put was for a godown or a storing place for his goods by opponent No. 3 and that too for a long number of years of about 23 to 24 years. It is further established that these facts were within the knowledge of the landlords. They continued to accept rent; never objected to the user made by opponent No. 3; not only that but when they actually took a document in 1955 from opponents Nos. 1 and 2, there is no insistance even to stop that user, or to include a clause which would make that user against their wish a breach of the positive covenant of the demise. Instead of taking any steps at that juncture to exercise their right under Section 13(1)(a) of the Act read with Clause (o) of Section 108 of the Transfer of Property Act, they took this rent-note and even thereafter they did nothing for about three years. So for all these years before the document, they did not take any steps to enforce their right. At the time when they took the document in 1955, they were in full knowledge of the fact that opponent No. 3 was making use of the property which was a use different from the one for which it was let out to opponents Nos. 1 and 2, yet they did not take any action and on the contrary took a document of lease without taking any objection to the user of the property. Under these circumstances, in my view this act of taking this lease, amounts to an overt act. It is impossible to accept that at the time when they actually took this document and when they were aware of the fact that the property was being used for a purpose other than that for which it was leased, they had not applied their mind to the fact as to whether they should exercise their right or not. Therefore, in my view, this document does constitute an overt act which would indicate the fact that the lessors, though they knew about this user did not want to exercise their right of evicting the present opponents from the suit premises on the ground of the premises being used for a different purpose. I, therefore find that the Courts below were not wrong when they held that the suit of the lessor was barred under the principles of waiver and acquiescence.

9.1. Mr. Nanavaty, the learned Advocate for the opponent No. 3 apart from supporting the judgment of the appellate Court on the point discussed hereinabove, raised before me one more contention which, as it was likely to go to the root of the matter, I allowed him to agitate. The submission as made by him is that it is an established position on the evidence and is almost accepted by the plaintiffs that defendant No. 3 is in possession as a sub-tenant for the last 25 to 30 years. Under these facts, the opponent No. 3 would be a tenant under Section 5(11) of the Act. If he is the tenant, then opponents 1 and 2 are the landlords of opponent No. 3. Consequently the opponent No. 3 is a statutory tenant entitled to use and enjoy the property as law permits him, and when any one tries to enforce the right as landlord, under Section 13(1)(a) of the Act, that right will have to be construed with regard to these special facts. According to Mr. Nanavati in a suit against opponent No. 3, any one who tries to evict him under Clause (a) of Section 13(1) of the Rent Act, the question would arise whether opponent No. 3 is using the premises not for the purpose it was let to him but for a different purpose. In short, the argument was that opponent No. 3 himself becomes a tenant within the meaning of the Rent Act and he being in possession and use of the suit property right from the beginning as a godown, there was no case whatever against him for any change of user of the premises rented to him. That his landlords were opponents Nos. 1 and 2 and not the applicants. The applicants were landlords of opponents Nos. 1 and 2 only. Under these circumstances, not only the suit against opponent No. 3 would fail, but the suit against opponents Nos. 1 and 2 would also fail because when they entered into the contract with the landlord in 1955, if at all it is a contract, then the opponents Nos. 1 and 2 had no right to affect the statutory rights which had already accrued to him and that opponents Nos. 1 and 2 had not voluntarily allowed any change of user subsequent to the date of the lease of 1955. Therefore, there was no cause of action even against opponents 1 and 2. As I have come to the conclusion that on the points agitated and decided by me, the present applicants cannot succeed, I do not think it proper or necessary to enter into a discussion on this point raised by opponent No. 3 for the first time in this Civil Revision Application and I have also not therefore heard Mr. Vakil in reply on this contention raised by opponent No. 3.

10. As a result of this train of reasoning and the conclusions that I have reached, this Civil Revision Application must fail and is dismissed with costs. Rule discharged.


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