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Bhabhutmal Rikhbaji Sharma and anr. Vs. Manubhai Madhavji Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR242
AppellantBhabhutmal Rikhbaji Sharma and anr.
RespondentManubhai Madhavji Patel and ors.
Cases ReferredIn Chunilal Vithaldas v. Mohanlal Patel
Excerpt:
- - the learned civil judge on appreciation of the evidence-oral as well as documentary-adduced by the parties, upheld the claim of the landlord for vacant possession of the premises on four grounds: 3 kishor bhabhutmal under section 124 of the bombay police act would expose the original tenant bhabhutmal to a decree of eviction under section 13(1)(e) of the rent act, as in his opinion, the said clause would not apply in case of business premises, and also because the conviction under the bombay police act, section 124, is merely for the failure of the accused to explain his possession of the suspected articles and has nothing to do with the use of the premises. in submission of the learned advocate of plaintiff-landlord, restrictive covanants in the rent note in the question enjoining.....b.k. mehta, j.1. broadly three substantial questions of law of general importance arise in these two civil revision applications - one at the instance of the original defendant-tenant against decree of eviction and another at the instance of the original plaintiffs-landlord against the fixation of standard rent-referred to us by p.d. desai j. the questions as formulated by us are as under:(1)whether the restrictive covenants of the contractual tenancy would continue to operate to the prejudice of the tenant on determination of the contractual tenancy,?(2) whether breach of conditions of tenancy prohibiting the change of the purpose of the user of the premises, even partly, would expose the tenant to a decree of eviction de hors section 13 of the bombay rent hotel and lodging house rates.....
Judgment:

B.K. Mehta, J.

1. Broadly three substantial questions of law of general importance arise in these two civil revision applications - one at the instance of the original defendant-tenant against decree of eviction and another at the instance of the original plaintiffs-landlord against the fixation of standard rent-referred to us by P.D. Desai J. The questions as formulated by us are as under:

(1)Whether the restrictive covenants of the contractual tenancy would continue to operate to the prejudice of the tenant on determination of the contractual tenancy,?

(2) Whether breach of conditions of tenancy prohibiting the change of the purpose of the user of the premises, even partly, would expose the tenant to a decree of eviction de hors Section 13 of the Bombay Rent Hotel and Lodging House Rates Control Act, 1947 (hereinafter known as 'the Rent Act')?

(3) Whether the conviction of a person residing with a tenant of business premises, for the use of the premises for illegal purposes would expose die tenant to eviction decree under Section 13(1)(c) of the Rent Act.

These questions arise under the following circumstances:

2. The original defendant No. 1 Bhabhutmal Sharma was a tenant of the shop premises bearing Municipal No. 109-14 in Ward No. 10 in City of Navsari on terms and conditions contained in the Rent Note of November 28, 1967, which has been determined by afflux of time on expiry of period of 11 months for which the Rent note was executed. The original plaintiff-landlord Manubhai Madhavji Patel, who died during the pendency of the appeal before the learned Assistant Judge, filed two suits against the defendant-tenant Bhabhutmal Sharma in the Court of Civil Judge (Jr. Division) Navsari being Regular Civil Suit No. 212/70 and No. 292/70. Regular Civil Suit No. 212/70 was filed against defendant-tenant Bhabhutmal Rikhabaji Sharma only for permanent injunction restraining him from putting up wooden partition on the demised premises and, therefore, for preventing him from putting a permanent structure in the premises, Regular Civil Suit No. 292/70 was filed against three persons, namely, 1. tenant Bhabhutmal Sharma, 2. his son Kishorkumar Bhabhutmal Sharma and 3. Kishorkumar Sohanlal Sharma for recovery of the vacant possession of the premises on as many as six grounds. Shortly stated the grounds on which the eviction was prayed for were:

1. The defendant-tenant being in arrears of rent for more than prescribed period.

2. Ualawful sub-letting by the tenant.

3. Breach of condition of the contractual tenancy prohibiting the change of user.

4. Conviction of Kishorkumar Bhabhutmal Sharma for storage of stolen property.

5. Erection of permanent structure; and

6. Defendants being guilty of conduct amounting to nuisance and annoyance.

Tenant Bhabhutmal had made an application in the Court of the Civil Judge (J.D.) Navsari being Misc. Civil Application No. 90/70 for fixation of the standard rent. Both the suit were principally resisted by the defendant-tenant. The learned Civil Judge on appreciation of the evidence-oral as well as documentary-adduced by the parties, upheld the claim of the landlord for vacant possession of the premises on four grounds:

1. Unlawful sub-letting of the premises by the defendant No. 1 to defendant Nos. 2 and 3.

2. Breach of the condition of the tenancy prohibiting change of user.

3. Conviction of Kishorkumar original defendant No. 3 under Section 124 of the Bombay Police Act; and

4. conduct of the defendants amounting to nuisance or annoyance to the adjoining neighbours.

The learned Civil Judge, however, did not find the tenant to be a defaulting tenant in arrears of rent which render him liable to eviction. He also disagreed with the plaintiffs-landlord that any permanent structures have been put up on the premises. He found the contractual rate of the rent at Rs. 125/- per month as standard rent. He, therefore, granted a decree for eviction directing the defendants-tenants to hand over vacant and quiet possession of the premises by his judgment and decree of December 31, 1973 since he had consolidated both the suits and the Civil Misc. application. He, however, dismissed the suit of the landlord for permanent injunction.

3. The defendant-tenant Bhabhutmal and his son Kishorkumar carried the matter in appeal in the Court of District Judge of Valsad at Navsari by Regular Civil Appeal No. 17/74. In the course of the hearing of the appeal before the Assistant Judge, at Navsari, the plaintiff-landlord did not press his grievance as to the tenant being in arrears of rent or about erection of peimanent structure. The plaintiff-landlord had also not preferred any appeal against refusal by the trial court to grant permanent injunction. The learned Assistant Judge on reappraisal of the evidence on record of the trial Court disagreed with the findings of the learned Civil Judge that there was unlawful sub-letting of the premises. He also found himself unable to agree with the learned Civil Judge that conviction of original defendant No. 3 Kishor Bhabhutmal under Section 124 of the Bombay Police Act would expose the original tenant Bhabhutmal to a decree of eviction under Section 13(1)(e) of the Rent Act, as in his opinion, the said Clause would not apply in case of business premises, and also because the conviction under the Bombay Police Act, Section 124, is merely for the failure of the accused to explain his possession of the suspected articles and has nothing to do with the use of the premises. The learned Assistant Judge also disagreed with the finding of the Civil Judge that the de fendants were guilty of conduct amounting to nuisance and annoyance to the adjoining neighbours. He, however, agreed with the finding of the learned trial Judge that there was a breach of condition of the contractual tenancy prohibiting the change of user which as agreed to by and between the parties, under the rent note was for the purpose of carrying on business and that he was not entitled to carry on any other business activities and because there was a specific prohibition against use of the premises for residential purposes. In the opinion of the learned Assistant Judge, since these conditions of the contractual tenancy were not inconsistent with any of the provisions of the Rent Act the embargo on the right of the landlord to recover possession under Section 12(1) was lifted and, therefore, the learned trial Judge was perfectly justified in granting decree of eviction as he did. He, therefore, confirmed the decree granted by the trial Court. However, as regards the standard rent, on reappraisal of evidence he was of the opinion that the rate of rent should be Rs. 75/- per month instead of Rs. 125/- as decreed by the trial court. With this modification as to the rate of the standard rent, appeal of the defendant-tenant was dismissed with the result that the original defendant Nos. 1 and 3 preferred Civil Revision Application No. 133/76 against the decree of eviction while the original plaintiff-landlord preferred Civil Revision Application No. 396/76 against the fixation of the standard rent.

4. These matters reached hearing before P.D. Desai J. After hearing for some time the learned Advocates representing the parties, he felt that substantial questions of Jaw arise in this matter and, therefore, he thought it fit to refer the entire matter to a larger bench. That is how these matters have come before us.

5. At the time of the hearing of these revision applications, Mr. Desai, the learned Government Pleader appearing on behalf of the petitioner-tenant urged the following four contentions:

1. On determination of a contractual tenancy the terms and conditions thereof would be extinguished and the restrictive covenants, if any, in the contractual tenancy would not continue to operate to the prejudice to the tenant; and therefore, the injunction in the rent note between the parties hereto against the change of user would not operate to the prejudice of the petitioner-tenant and could not consequently be enforced by the landlord.

2. Since the restrictive covenants in the present rent note prohibiting the change of the purpose of the user of the premises being inconsistent with the provisions contained in Section 13(1)(a) and 13(1)(k) of the Bombay Rent Act, its breach would not expose the petitioner-tenant to eviction in view of the protection granted under Section 12(1) of the Bombay Rent Act.

3. In any case, assuming that the restrictive covenants prohibiting the change of user can be enforced by the landlord, since there is a partial change of the user, the learned Assistant Judge had committed an error of law in confirming the decree of eviction.

4. In any case, on recognised principles of interpretation of document the restrictive covenants of the rent note in question do not prohibit the partial change of user and, therefore, also the Assistant Judge has exceeded his jurisdiction in confirming the decree of eviction.

These contentions were sought to be repelled on behalf of the plaintiff-landlord by urging that what is protected under the Bombay Rent Act is merely the right of a tenant to retain the possession of the premises after contractual tenancy has been determined. The moment a tenant fails to pay the rent and fails to observe or perform the other condition of the tenancy, the embargo placed on the right of the landlord to recover possession is lifted, irrespective of the consideration whether the landlord is entitled to recover possession under Section 13 or not, and the tenant is liable to be evicted under Section 12(1) of the Rent Act. In submission of the learned Advocate of plaintiff-landlord, restrictive covanants in the rent note in the question enjoining the tenant to use the premises only for one kind of business and for no other business purposes and simultaneously prohibiting him from using for residential purposes cannot be said to be conditions inconsistent with any provisions in the Rent Act, particularly the provisions contained in Section 13(1)(a) and 13(1)(k) and, therefore, in view of the finding of fact made by both the courts below that there was substantial change of user of the premises inasmuch as the tenant was using the major portion of the premises for his residential purposes, the decree of eviction as affirmed by the learned Assistant Judge was perfectly legal and valid. According to the learned Advocate of the plaintiff-landlord, inhibition of the restrictive covenant is total and the partial change of the user cannot absolve the tenant of the consequences ensuing from the breach thereof.

6. It is in these context of rival contentions that we have to determine whether the decree of eviction as affirmed by the learned Assistant Judge was according to law or not. It is accomatic to say that the Bombay Rent Act merely protects the right of tenant to retain possession after the determination of the contractual tenancy and against increasing the rent beyond the prescribed limits. The Bombay Rent Act has not defined when the landlord will have a right to possession. The right to possession is to be spelled out from the provisions of the Transfer of Property Act. It will ensue only when a contractual tenancy is determined. A landlord will have thereafter right to recover possession because when a contractual tenancy is determined as provided under Section 111 of the Transfer of Property Act, a tenant is under obligation to handover the vacant and quiet possession of the premises in question. A landlord will have., therefore, right to recover possession of determination of the tenancy. It is at that stage that the Rent Restriction Act intercepts and for that matter the Bombay Rent Act prescribed different conditions under which a landlord can recover possession of the premises from a tenant. In other words, the right of a leant to retain possession is protected till the provisions of the Rent Act permits a landlord to recover possession on certain specified contingencies arriving. Vide Bhaiya Punjalal Bhagwanddin v. Dave Bhagwat prasad Prab-Kuprasad : [1963]3SCR312 . It is also a settled position of law that on determination of contractual tenancy the rights of a tenant under the terms and conditions thereof are extinguished. On determination of the lease, unlesss the tenant acquires right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute alone Section 12(1) of the Bombay Rent Act merely recognises his right to remain in possession till he complies with the requirements of the said sub-section. Vide Anand Nivas Private Ltd. v. Anandi Kalyanjfs Pedhi and Ors. : (1964)ILLJ47SC . It is, therefore, difficult in view of the established legal position as enunciated by the Supreme Court in the aforesaid two decisions to agree with the learned Advocate appearing for the tenant that the restrictive covenants of the contractual tenancy would not enure for the benefit of the landlord and, therefore, would not continue to operate to the prejudice of the tenant after the determination of the lease. On plain reading of Section 12(1) of the Bombay Rent Act, this position is inescapable. Shah J. speaking on behalf of the majority court in Anand Nivas (P.) Ltd. (Supra) put this position beyond spell of doubt when he expressed the opinion of the Court on plain reading of Sub-section (1) of Section 12 of the said Act in following terms:

Section 12(1) of the Act merely recognises his right to remain in possession so long as he pays or is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy, but not the right to enforce the terms and conditions of the original tenancy after it is determined.

In other words, all the restrictive covenants - positive as well as negative -enjoins the tenant to do acts of commission and omission would continue to operate against the tenant but he would not be entitled to enforce the terms and conditions of the original tenancy in his favour. We have, therefore, to reject the first contention of Mr. Desai for the tenant that the restrictive covenants in the present rent note enjoining the petitioner-tenant to use the premises only for the business in metal scrap and not to use it for any other business and also obliging him not to use the premises for residential purposes would not continue to operate after the determination of the tenancy in the present case by afflux of time. We will shortly refer to the nature of the restrictive covenants which could be enforced by the landlord even after the determination of the contractual tenancy, when we will deal with the second contention.

7. We will deal with second and third contention together since they are interconnected and urged in alternative by Mr. Desai for the tenant. The restrictive covenants are contained in Clauses 9 and 10 of the rent note effected between the parties on S.Y. 2014, Kartak Vad-11 corresponding to November 28, 1967 which is placed on the record of the trial court at Ex. 86. The material Clauses which are relevant for the present purposes of this revision are to be found in Clauses 9 and 10 of the said rent note. They read when translated into English as under:

9. We have to use the aforesaid premises for sale and purchase of utensils scrap and no other business is to be canied on the said premises without your con sent in writing.

10. We have not to use the said premises for our residence, nor we have to store any inflammable articles or such articles which will cause nuisance to the adjoining neighbours therein.

It has been found by the learned Assistant Judge in paragraph 23 of his judgment that the premises were used for the residence and business purpose was rendered subsidiary since 10 to 11 persons were residing in the suit premises. The learned trial Judge had also found in paragraph 40 of his judgment that there was a change of user since it was mainly used for residence and partly for business as found from uncontroverted evidence. We have, therefore, to examine in the first instance as to whether the restrictive covenants set out above were conditions not consistent with the provisions of the Bombay Rent Act. The learned Assistant Judge was of the opinion that since there is no provision inconsistent with the said two restrictive covenants in the Bombay Rent Act, the tenant has rendered himself liable to eviction by committing the breach of the said covenants. Mr. Desai urged that these two conditions contained in Clauses 9 and 10 of the rent-note are clearly inconsistent with the provisions contained in Section 13(1)(a) and 13(1)(k) of the Bombay Rent Act. He also urged that unless the landlord is able to make good one of the ground prescribed under Section 13 which would entitle him to a decree of eviction, he cannot recover possession from the tenant on the ground that there is a breach of condition and, therefore, the tenant should be evicted under Section 12 of the Bombay Rent Act. In other words, it was contended in the first place that the decree of eviction can follow only if the landlord is able to establish that he is entitled to a decree for eviction under any of the grounds mentioned in Section 13(1)(a) to (1) of the Bombay Rent Act. In support of this contention, reliance has been sought to be placed on the decision of the Division Bench of the Bombay High Court in Mahalinga Bandappa Lakhannavar v. Venkatesh Woman Karnataki (1956) 59 B.L.R. 227, where the Division Bench speaking through Vyas J. while negativing the contentions urged on behalf of the landlord that mere non-payment of the rent would expose the tenant to eviction, observed as under:

It is important to bear in mind that Section 12 provides that in certain circumstances the landlord shall not be entitled to recover possession, whereas Section 13 says that the landlord shall be entitled to recover possession upon his satisfying the Court as to certain matters. The language of Section 12 is negative and it negatives the right of a landlord to claim possession so long as the tenant fulfils certain conditions, while the language of Section 13 is positive and it affirms the right of a landlord to ask for possession provided he fulfils certain conditions to the satisfaction of the Court. That being so, we are of the view that the absence of grounds disentitling the landlord from claiming possession would be no ground entitling him to ask for possession. If he wants to ask for possession, his case must fall under Section 13. and it would not be enough to base it upon the absence of grounds which would disentitle him under Section 12 from claiming possession.

We are unable to agree with Mr. Desai since he is reading more than what is stated in the paragraph which we have extracted above. It is no doubt true that Section 12 of the Bombay Rent Act provides that no ejectment ordinarily is to be granted, if tenant pays or is ready and willing to pay standard rent and permitted increases, and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of the Bombay Rent Act. It is equally true that Section 13 provides when landlord is entitled to recover possession. We have to read Sections 12 and 13 together since they provided a scheme under which a landlord would be entitled to recover possession from the defaulting tenant after the tenancy is terminated. Even though the tenant may be ready and willing to pay the rent and observes and performs the conditions consistent with the provisions of the Act, the Court may grant a decree of eviction if the landlord is able to make any of the grounds specified in Section 13 of the Bombay Rent Act. The interpretation canvassed by Mr. Desai may result into an absord situation such as the landlord suing for the possession of the premises on the ground of non-payment of rent, may not be entitled to decree for possession. In that case since this is not one of the grounds specified in Section 13, the landlord would have no right to recover possession if the interpretation canvassed by Mr. Desai is accepted.

8. In Civil Appeal Nos. 880 to 887/64, Haji Suleman Haji Ayub Bhaiwandiwala and Anr. v. Narayan Sadashiv Ogale and Ors. the Supreme Court was concerned with a restrictive covenants contained in an indenture of lease of January 29, 1936 granted by the Municipal Corporation to the predecessor-in-title of appellants in perpetuity, determinable, however, as prescribed therein. Clause (2) containing the said restrictive covenant enjoining the lessee not to use or permit to be used such portion of the land thereby demised as shall be for the time being unbuilt upon for any purpose whatever other than as an open spaceand not to place or store or permit to be placed or stored upon the land for the time being unbuilt upon or any part thereof any article or thing whatsoever which may interfere with the use of such an open space. Clause 13 of the said indenture of lease authorised the Corporation to re-enter upon the said premises or any part thereof in the event of the lessees commiting breach of the said conditions and covenants. The appellants who acquired the lease-hold rights in the said property filed eviction suits against the respondents who were the tenants of the shops since they had made encroachment contrary to what was provided in Clause (2) and thereby jeopardised the said lease. The suits ended in a compromise, whereby the tenants agreed and undertook to remove the said encroachments and also not to make any encroachment and obstruction in future or keep any articles in the said open passage which would be objectionable to the Municipal Corporation and which would render the lessees open to the risk of being prosecuted or of the said lease being forfeited. Notwithstanding the said compromise, the said encroachments were continued. These encroachments consisted of platforms projecting into the said open space in shops concerned. The appellants were, therefore, required to file three suits against the tenants in Small Causes Court, Bombay. The trial court found that there was a breach of the restrictive covenant contained in Clause 2 of the said indenture of lease and, therefore, granted eviction. The appellate Bench of Small Causes confirmed the decree of the trial court. The High Court of Bombay reversed the decree of eviction as it was of the opinion that the findings of fact were contrary to the weight of evidence and based on conjecture and guess work; that the Small Causes Court, and the appellate bench had misdirected themselves in construing the covenant contained in Clause (2) so as to include isolated incident of encroachment as its breach. In Appeal to the Supreme Court at the instance of the landlord, it was, inter alia, contended on behalf of the tenant that the trial court committed a jurisdictional error since a tenant could not be deprived of statutory protection under Section 12(1) of the Act, unless it was found that he failed to perform the conditions of the tenancy and that such conditions were not inconsistent with the provisions of the Act. It was contended on behalf of the tenant that the restrictive covenants in the lease in question before the Supreme Court was ex-fade inconsistent with the provisions of the Act unless such condition was in respect of the matters enumerated in Section 13 of the Bombay Rent Act. Rejecting these contentions Shelat J. speaking for the Court held as Under:

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. He argued that Section 12 was subject to Section 13, that is, that Section 13 was exhaustive of the matters on proof whereof by' a landlord a tenant can be evicted. If a condition in a lease does not relate to any one of those matters, its breach cannot result in deprivation of the statutory protection under Section 12(1). Such a breach would be of a condition inconsistent with the provisions of the Act. Section 12(1) no doubt confers the status of irremovability upon a tenant so long as he performs the conditions of the tenancy. In Vora Abbasbhai's case (supra) payment of standard rent was considered to be one such conditions. If payment of such rent is considered to be a condition, the non-performance of which deprives the tenant of the status of irremovability, it is difficult to appreciate why breach of the other conditions, viz. the use of part of the demised premises in a particular manner, cannot have the same result. But the contention was that such a condition, the breach of which is claimed to take away the protection, must be consistent with the provisions of the Act. The objects of the Act are to preven.t landlords from extorting excessive rents and evicting tenants by taking undue advantage of scarcity of accomodation. It is difficult to appreciate how a condition of the tenancy that part of the demised premises 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 condition. The contention, however, was that a condition which provides 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 irrevocability 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. Sections 12 and 13 deal with different topics and have different objects. Whereas Section 12(1) seeks to clothe a tenant with the cloak of statutory protection against eviction so long as he performs the conditions of his tenancy, Section 12 provides that notwithstanding that protection, the landlord can sue for eviction provided he establishes any one of the circumstances set out in that section. For instance notwithstanding the fact that a tenant performs the conditions of tenancy and is ready and willing to pay the standard rent and is therefore protected under Section 12(1), if a landlord establishes that he requires the premises bona fide he can by virtue of Section 13 sue for and obtain a decree for eviction. The two Sections seek a compromise between the necessities of tenants and landlords. 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.

The decision in Artizans, Labourers and General Dwellings Co. Ltd. v. Shitaker illustrates a case where a condition can be inconsistent with the Act and its non-performance therefore would not result in deprivation of the statutory protection. It was there held that the tenant's covenant to give up the premises to the landlord at the expiration of the tenancy would not enable the landlord to obtain eviction.

We, therefore, cannot agree with Mr. Desai, when he contended in the first place that Section 13 is exhaustive and unless the case comes within any of the grounds specified in Section 13, the landlord would not be entitled to recover possession. In view of the aforesaid decision of (he Supreme Court, he therefore submitted that the restrictive covenants contained in Clauses 9 and 10 as set out hereinabove, are clearly inconsistent with the provisions contained in Section 13(1)(a) and 13(1)(k) of the Bombay Rent Act and, therefore, its breach would not remove the protection granted to the tenant under Section 12. Section 13(1)(a) provides to the effect that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has commited any act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act, 1882. Section 108 of the Transfer of Property Act provides for the rights and liabilities of lessor and lessee. Clause (o) of Section 108 provides that 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, for permit another to use, the property for a purpose other than that for which it was leased, or feel 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 other act which is destructive or permanently injurious thereto. This Clause enjoins a tenant to use the demised premises 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 commit any other Act which would amount to waste. Section 13(1)(k) on the other hand entitles a landlord to recover possesion if the tenant has for a continuous period of six months without reasonable cause immediately proceeding the date of the suit had nos used the premises for the purposes for which they were let. Section 13(1)(a), therefore, provides for the consequences for change of user while Section 13(1)(k) provides for consequences for non-user for specified period without reasonable cause. It was, therefore, contended on behalf of the plaintiffs-landlord that the restrictive covenants contained in Clause 10 in the rent note with which we are concerned, prohibiting the change of user from that of business to residence is wholly consistent with the provisions contained in Section 108(o) of the Transfer of Property Act and, therefore, its breach would certainly invite the consequences of eviction. It is no doubt true that to change the nature of the use of the premises would amount to waste. However, if the different user is not injurious to the premises, it is merely a technical waste and is not actionable under the English Law. The law in India appears to have been settled by the decision of Privy Council in U Po Naing v. Burma Oil Co. A.I.R. 1929 Privy Council 108. It was an appeal from the decision of the Rangoon High Court in Burma Oil Co. Ltd. v. U Po Naing A.I.R. 1927 Rangoon 201. The appellant before the Privy Council was original plaintiff, who sued for compensation for the use by the respondents of a quantity of gas which had been taken by the respondent from a certain oil-well site of which they were in possession under a lease granted by the appellant-plaintiff. The appellant has obtained lease from the Government of Burma. He had a right to ween the oil from the said wells. The plaintiff in his turn, leased out to the defendant-Company the said sites and the right to ween the oil therefrom for a period of 25 years. By Clause (2) of the indenture of lease it was provided that during the period of lease the said oil-well sites and the grants for the same shall be made over to the possession of the lessees and the said possession shall not be withdrawn by the lessor. The defendant-Company proceeded to sink wells for the purpose of obtaining oil which was not obtained in commercial quantity, but they could found gas from the said wells. The Company gave up search for oil and started using the gas for their own purposes in and about the neighbourhood of the site. The plaintiff filed suit claiming compensation for the three years of use of gas so taken. The trial Court granted the decree for compensation. The appellate court reversed the decision and held that the plaintiff could not claim compensation for the use of the gas by the defendant-Company since right to oil did not include the gas. A contention based upon the provisions of Section 108(o) of the Transfer of Property Act was urged before the Judicial Committee of the Privy Council that the defendant Company being lessee of the property could not use the property for a purpose other than it was leased. The Judicial committee negatived this contention in terms and held as under:

In their Lordships' judgment it is not necessary exhaustively to discuss the limits of that provision, but there seems to be nothing inconsistent with its terms in the use of gas which is necessarily set free by reason of the sinking of the oil well for the respondents' own purposes without doing any damage or any injury to the property leased For those reasons their lordships are of opinion that the appeal fails and should be dismissed with costs.

This decision of the Privy Council has been digested by Mulla on Transfer of Property Act, 6th Edition, at page 728. Under the caption 'diversion to a different use' it has been observed as under:

If such different user is not injurious to the premises it is technical waste and not actionable under English law.... The law under this Clause is probably the 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 ween 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 properly leased.

9. In Mahmad Umar Abdul Rahim Narmavula and Ors. v. Shah Manilal Gokaldas (a firm) and Ors. 9 G.L.R. 104, the learned Single Judge of this Court (N.K. Vakil J.) has taken the view that having regard to the provisoes of Section 108(o) of the Transfer of Property Act, a change of user in the absence of a contract to the contrary, would not result in giving a cause of action for evicting the tenant unless it further proved that it is either destructive or permanently injurious to the property or its produce in the eye of law.

10. A contrary view has been taken by A.A. Dave J. in Abdulahed Moulvi Abduhamd and Ors. v. lulamahmed Gulamnabi Bardoliwala and Ors. : AIR1975Guj1 , A.A. Dave J. has referred to the decision of the Privy Council at page 14. A.A. Dave J. disagreed with the decision in Mahmad Umar Abdul Rahim v. Shah Manilal Gokaldas (a firm) (supra) and held that since various sub-clauses in Clause (o) of Section 108 of the Transfer of Property Act are disjunctive and not conjunctive, the view of Vakil J. in Mahmad Umar Abdul Rahim (supra) could not be agreed to that change of user in order to entitle the landlord to possession must necessarily result in waste. A.A. Dave J. then referred to the decision of the Privy Council in U Po Naing (Supra) and observed that the Privy Council has not laid down as a principle that unless the breach of condition resulted in damage or injury to the property leased, the lessee would not be entitled to recover possession on the ground of breach of the terms and conditions. We are of the opinion with respect to the learned Single Judge, that the Privy Council has in terms rejected the contention urged on behalf of the lessor that lessee could not have used the property for the purpose other than for which it was leased because in their Lordship's judgment change of user was perfectly justified since it would not cause any damage or injury to the property leased. The view which we are taking is also supported by the observation of the learned Commentator on Mulla's Transfer of Property Act, 6th Edition, which we have extracted above. We are, therefore, of the opinion that the view of the learned Single Judge in Abdulahed Moulvi's case (Supra) : AIR1975Guj1 that mere change of user ex facie would entitle to a landlord to recover possession under Section 108(o) of the Transfer of Property Act or for that matter under Section 13(1)(a) of the Rent Act is not correct and we are in respectful agreement having regard to the decision of the Privy Council with the view of Vakil J. in Mahmad Umar Abdulrahim Narmavala's case 9 G.L.R. 104. We have gone into this aspect that the breach of the restrictive covenants prohibiting the change of user per se would not entitle a landlord to recover possession unless it results in substantial injury or damage to the property leased for the purpose of appreciating his contention that the restrictive covenants in the rent note with which we are concerned in this revision are inconsistent with the provisions contained in Section 13(1)(a) of the Rent Act. The argument of Mr. Desai is that mere breach of the restrictive covenants would not entitle a landlord to recover possession because otherwise it would be enforcing condition against a tenant which is inconsistent with the provisions contained in Section 13(1)(a) of the Bombay Rent Act. It was further urged that it was equally inconsistent with the provisions contained in Section 13(1)(k) which entitles a landlord to recover a possession provided he is able to satisfy the Court that the tenant has for a continuous period of more than six months immediately preceding the date of the suit failed to use the premises for the purposes for which they were alloted without reasonable cause. This provision contained in Section 13(1)(k) is clearly inconsistent with the restrictive covenants contained in relevant Clauses of the rent note with which we are concerned. If the tenant failed to use premises for the purposes for which it has been let even for a period of one month, he would expose himself to eviction under the restrictive covenant without having regard to any cause which prevented him from using the premises in question for the said period. Under Section 13(1)(k) it is obligatory upon the landlord to satisfy the Court that the tenant has failed to use the premises for the purposes for which it has been Jet for the prescribed period of more than six months and that too without reasonable cause. In our opinion, therefore, Mr. Desai was right when he contended that the restrictive covenants contained in Clauses 9 and 10 of the rent note with which we are concerned, are clearly inconsistent with the provisions contained in Section 13(1)(a) as well as 13(1)(k) of the Bombay Rent Act. If that contention is right the decree for eviction could not have been passed for merely breach of such condition and, therefore, the landlord was not entitled to recover possession for the breach of the said covenants. Mr. Desai also attempted to persuade us that the restrictive covenants contained in Clause 9 which enjoins the tenant not to use the premises for any business other than sale or purchase of the utensils or utensils scrap is more than in the nature of personal obligation rather than a condition of contractual tenancy.

11. In Ramchand Molumal and Anr. v. Tahilram Dwarkadas and Ors. 1977 All India Rent Control Journal P. 41 a similar view was taken by S.H. Sheth J. In that case S.H. Sheth J. was concerned with the restrictive covenant under which the tenant agreed that he will not make any additional or alternations in the shop premises without prior permission from the landlord. The learned Single Judge found a conflict between the said term of the rent note and provision contained in Section 13(1)(b) of the Bombay Rent Act. The learned Judge was of the opinion that having regard to the scheme contained in Section 13(1) which provided for circum stances under which a lendlord can recover possession of the premises, a provision in the nature of the restrictive covenant as one with which he was concerned, would go contrary to the explanation to Clause (b) of Section 13(1) which excludes certain structure from the class of permanent structures and, therefore, would not justify decree of eviction. In the opinion of the learned Single Judge, that particluar term of of tenancy was ineffective since it covered the same field which the explanation to Clause (b) of Sub-section (1) of Section 13 covered. He, therefore opined that the said term of the contractual tenancy could not be given effect to.

12. In Kantilal Popatlal v. Dharamshi Zinabhai A.I.R. 1951 Saurshtra 84, the Division Bench of the Saurashtra High Court held that a condition in the rent note whereby the tenant agreed to give up possession at the end of the term of the tenancy was invalid since it was inconsistent with those mentioned in Section 13 of the Act, under which it was obligatory for the Court to inquire whether any specified ground was established or not. We are in respectful agreement with the view of the learned Single Judge of this Court in Ramchand Motumal (supra) and with that of Division Bench in Kantihl Popatlal (supra). The learned Government Pleader then urged that restrictive covenants contained in Clause 9 of the Rent note with which we are concerned prohibiting the tenant from carrying on business other than that of sale and purchase of utensils or utensil scrap without previous permission in writing of the landlord was more than in the nature of personal obligation and, there fore, it could not be enforced. He submitted that the covenants of a contractual tenancy which are more in nature of personal obligation on the part of the tenants and which do not relate to the property demised under a lease cannot be enforced against the tenant. He invited our attention in this connection to a decision of the learned Single Judge of Bombay High Court in Rustom K. Amuyan v. Manu Subedar (1969) 72 B.L.R. 264, where the Court had taken the view that an agreement between the landlord and the tenant not to permit any other per son from doing the same business as tenant in the premises has no connection with the tenancy as such and cannot be enforced by way of an injunction. The learned Single Judge of Bombay High Court has in sup port of his view relied on the decision in R.M.R. Housing Society v. Combs 1 All E.R. 16.

13. On behalf of the plaintiff-landlord our attention has been invited to two decisions of the learned Single Judge (Coram: J.M. Sheth J.) of this Court. In Kanlilal Ishwarlal Shah v. Dr. Mukundari Keshavlal 14 G.L.R. 224, the Court was concerned with the breach of the restrictive covenants of similar nature. The rent note contained a term that in the common passage kept for the tenants no articles or goods were to be placed. Both the courts at the instance of tenant, the learned Single Judge of-this Court found that the covenant in question was touching the mode of enjoyment of the premises and hence it was a condition of tenancy and not a personal obligation, the breach of which would render the tenant liable to be evicted. Another decision in Nathubhai Vamalidas and Ors. v. Ramanlal Panubhai and Ors. (1976) 17 G.L.R. 468 where the tenant was under obligation to use the electric energy only for the house-hold purpose and it was not to be used for running a machine by the motive power or in any other manner. Both the courts below have concurred (sic) file tenant had committed a breach of the terms of the tenancy, but refused to grant the decree for possession since notice as contemplated under Section 114A of the Transfer of Property Act for remedying the breach had not been given. In appeal at the instance of the plaintiff, the learned Single Judge (Coram: J.M. Sheth J.) held that since there was a breach of the terms of the conditions in as much as the electrical A energy was used for running a machine by the motive power and also because the premises have been used for the purposes other than the residential, the tenant was liable to be evicted. In R.M.R. Housing Society Ltd. v. Combs 1951 All England Law Reports 16, the Court of Appeal was of the opinion that a Clause in a Rent note providing that the tenancy was conditional on the tenant being and remaining in the employment of a third party and that the determination of that employment from any cause whatsoever should terminate the tenancy was mere an obligation which was purely personal and collateral to the tenancy agreement and was, therefore, not a condition of tenancy within para (a) of Schedule I to the Act of 1933. We are of opinion that contention of Mr. Desai is well founded. In order to be a condition or an obligation of a tenancy it must be an obligation arising out of the tenancy and relating to the subject matter of the tenancy. As observed by Singleton L.J. in R.M.R. Housing Society Ltd. (Supra) the obligation must be one binding on the tenant as a tenant and not merely something binding on him as an individual. Sir Raymond Evershed M.R. also opined that the condition of the tenancy must mean an obligation which is binding on the tenant as such that is in his capacity as a tenant, as distinct from an obligation which was purely personal and collateral to the tenancy agreement. In other words for successful enforcement of a condition of a contractual tenancy prescribed on the part of the tenant it must be one arising out of tenancy and relating directly to the use of the demised premises. It must have nexus with the tenancy. The obligation which has been prescribed by the restrictive covenant contained in Clause 9 that though the tenant is entitled to use the premises for business purposes, namely of sale and purchase of utensils or untensils scrap, he cannot carry on any other business without written permission of the landlord, is in our view a negative obligation which is purely personal and collateral to tenancy. Such covenants which are not arising out of tenancy or which have no relation with the tenancy or reasonable and prudent use of the demised premises and which are more in nature of personal obligation on the part of tenant such as was the case before the Bombay High Court in . (supra) are not enforceable since they do not constitute the terms and conditions of the tenancy. We are, therefore, of the opinion that the restrictive covenant contained in Clause 9 of the Rent note with which we are concerned in so-far as it prohibited the tenant from carrying on any business other than that of utensil scrap without permission of the landlord is purely an obligation collateral to the tenancy and personal in nature and, therefore, not enforceable. So far as the restrictive covenant contained in Clause 10 of the Rent note is concerned, we are of the opinion that it is inconsistent with the provisions contained in Section 13(1)(a) and 13(1)(k) of the Bombay Rent Act. We are of the opinion that this aspect of the problem was not pointed out to the learned Single Judge in Nathubhai Vamnm-alidas v. Rumania 17 G.L.R. p. 468 where the learned Single Judge observed that prohibition against such change of user from residential to any other purpose was a condition consistent with the provisions contained in the Rent Note. We are, therefore, however, do not want to say that the decision of the learned Single Judge is not correct because he had also granted a decree of eviction on the ground that there was a breach of condition of tenancy in as much as the tenant had used the electrical energy for an industrial purpose which he has prohibited under the Rent note since there was no provision under the Rent Act which can be said to be inconsistent with such a condition. The decision of the learned Single Judge in Kantilal Ishwarlal v. Dr. Mukundrai 14 G.L.R. 227 is consistent with the decision of the Supreme Court in floji Suleman Haji Ayub Bhiwandiwala and Anr. v. Narayan Sadashi Ogale (supra) because the restrictive covenant related to the use of the demised premises and arising out of the tenancy. We must, therefore, agree with Mr. Desai that the decree of eviction confirmed by the learned Assistant Judge on the ground of breach of condition of contractual tenancy was against law. We must also agree with him when he critised the affirmation of the decree of eviction by the Assistant Judge that in any case the partial change of user would not attract consequence of eviction. In support of his contention he relied on the decision of the Calcutta High Court in Indralcke Studio Ltd. v. Smt. Santi Debi and Ors. : AIR1960Cal609 where the Division Bench of Calcutta High Court held it to be a settled law that in the absence of a specific provision to the contrary, a part transfer or part assignment of a lease does not amount to be a breach of condition or covenant against alienation or assignment and does not entail a forefeiture on that ground. We agree with the learned Government Pleader that the court generally lean against the forefeitures and such restrictive covenants operating to the prejudice of the tenant are strictly construed.

14. In Sant Rum v. Rajinder Laf A.I.R. 1918 S.C. 1601 the Supreme Court was concerned with such a partial change of user, where a Harijan cobbler was a lessee of a small portion of a shop in a Simla. He put a portion thereof to a residential use. There was no rent note prescribing any restrictive covenant. However, the High Court inferred that the lease being of a shop the purpose must be held to be commercial and Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 entitled the landlord to a decree for eviction since the tenant used the building for the purpose other than for which it was leased. On that context the Division Bench of the Supreme Court speaking through Krishna Iyer J. reminded itself of the following well recognised rules of interpretation in construing the deeds and statutes.

In drafting it is not enough to gain a decree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. (vide Lux Gentium Lex-Then and Now 1977 p. 7).

We have, therefore, to find it out whether in Clause 10 of the rent note with which we are concerned that the injunction against the change of user is expressed in such precise and unambiguous terms which will not leave a person in misunderstanding even though he may be trying to read in bad faith. On reading Clause 10 of the said rent note, we cannot say that the agreement between parties has been expressed in clear and precise terms so as to prohibit the tenant from using a pat t of the premises for the residential purposes. No doubt it has been stated therein that he would not use the said property for residential purpose. The prohibition against change of user of the property has not been expressed in precise terms so as to warn any person reading the Clause that even the partial change of user would exposing lo the consequence of eviction. Unless the injunction is expressed in such an absolute terms, it is difficult for any person reading Clause or more so, for a tenant who was earning his livelihood from the business of utensils or utensils scrap to anticipate that even the partial change of user would jeopardise the tenancy. It is a common ground that in the front portion of the premises the same utensil business is being carried on by the tenant. The learned advocate on behalf of the plaintiff-landlord urged that the major portion of the terms has been put to residential use and, therefore, it is predominant use for residence. We do not think that so far as the present case is concerned, this would make any material change because we are unable to agree with the learned Advocate of the landlord that these are valid conditions of the contractual tenancy or in any case are clear and precise enough so as to prohibit even the partial change of the user. The Supreme Court in Sant Ram's case (Supra) reminded the courts that the rent legislation was intended to protect the tenants from unreasonable eviction and is, therefore, loaded a little in favour of that class of beneficiaries and the court should bear in mind the purpose of legislation while reading and construing the documents regulating the relations between the landlord and the tenant. We are, therefore, of the opinion that it cannot be said that the partial change of user would constitute the breach of the restrictive covenants contained in Clause 10 of the present Rent note and, therefore, entail consequences of eviction It should be noted that there is as a matter of fact no breach of Clause 9 since it prescribed an obligation if at all, enforceable against the change of nature of business without the permission of the landlord.

15. The learned Advocate of the plaintiff-landlord, however, tried to support the decree of eviction on the ground that the defendant No. 3, who is a son of the original defendant-tenant has been convicted for an offence under Section 124 of the Bombay Police Act by the learned Sessions Judge Bulsar, at Navsari and, therefore, the original defendant No. 1 tenant has rendered himself liable to be envicted under Section 13(1)(c) of the Bombay Rent Act. Section 13(1)(c) so far as material for the purpose of this revision provides in effect that the landlord shall be entitled to recover possession of any premises if the court is satisfied that the tenant or any person residing with the tenant has been guilty of conduct which is nuisance or annoyance to the adjoining or neighbouring occupiers, or has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes. The learned Assisi ant Judge, could not persuade himself to grant eviction on this ground as was done by the learned trial Judge because he was of the opinion that this ground could he pressed in to service only in case of residential premises and not in case of business premises. The learned Advocate for the landlord joins issue on this point. Apart from this question, we are of the opinion that this Clause cannot be pressed in service successfully on behalf of the landlord since in the present case the defendant No. 3 who is residing with the original tenant-defendant No. 1 has been convicted for an offence under Section 124 of the Bombay Police Act. It should noted that the defendant No. 3 was prosecuted in the court of J.M.F.C. Bulsar at Navsari for having committed offences punishable under Sections 411 and 414 of the I.P. Code. The learned Magistrate convicted him of the said offences against which the defendant No. 3 went in appeal before the Court of Sessions at Navsari. The learned Sessions Judge, Navsari reversed the order of conviction made by the Judicial Magistrate First Class, Navsari under Section 411 and 414 of the I.P. Code, but instead of that he convicted the defendant No. 3 under Section 124 of the Bombay Police Act for possession of property of which no satisfactory account could be given. Section 124 of the Bombay Police Act reads as under:

Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property frudulentJy obtained, shall, if he fails to account for such possession or to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees or with both.

The gist of the offence is failure on the part of the person charged to satisfactory account for the possession of the property which is reasonably believed to be stolen property or fraudulently obtained. Having regard to the tenor of Section 13(1)(c), it is not enough to prove merely the conviction either of the tenant or any person residing with him. But it is necessary that the premises in question in respect of which possession is sought for has been used in furtherance of the illegal activities or for purposes of committing crime. The court of Appeal in Section Schneiders and sons Ltd. v. Abrahams 1925 1 K.B. 301 was concerned with a similar provision contained in Section 4 of the Rent and Mortgage Interest Restrictions Act, 1923. The tenant who was convicted for receiving at the demised premises some cloth material knowing the same to be stolen or unlawfully obtained. In that context, the court of appeal held that the tenant, having made use of the premises in order to commit the crime of which he had been convicted, had been 'convicted of using the premises for an illegal purpose' within the meaning of Section 4 of the Act of 1923. Banks L.J. emphasised that it is necessary to show that the tenant has taken advantage of his tenancy of the premises and of the opportunity they afford for committing the offence. He also observed that mere fact of a crime being committed on the premises would not constitute a user of the premises by the tenant for an illegal purpose; for example, if the tenant was convicted of an assault upon some one who happened to be on the premises in the occupation of (he tenant, and if that were the only evidence, the tenant cannot be rendered liable to be evicted. But if he used the premises as a coiner's den or as a deposit for stolen goods, a single instance of such user seems would be quite enough to satisfy the language of the statute. We are, therefore, of the opinion that unless it can be established that the tenant or any person residing with him has been convicted of using the premises or allowing the premises to be used for illegal purposes, no decree of eviction can be granted. In other words, the user of premises must have facilitated the commission of illegal or immoral activities. In the present case, the gist of the offence with which the defendant No. 3 who was a son of the original tenant and, therefore, residing with him was for his failure to explain satisfactorily the possession of the property which was reasonable to be believed to be stolen or fradulently obtained. Merely because property was found from the premises would not entail consequences of eviction. In other words, in order to attack second portion of Clause (c) it is not enough that the tenant has been convicted of a crime with which the premises has nothing to do beyond merely being the scene of its commission, as observed by Scrutton L.J. in S. Schneiders and sons Ltd. (Supra). The conclusion of the learned Judge that no decree of eviction can be granted under Section 13(1)(c) therefore, be affirmed for the reasons stated hereinabove.

16. That takes us to the Civil Revision Application filed by the landlord against the fixation of the standard rent. It is entirely a question of fact. The learned Assistant Judge found that there was no prior letting in the present case. He, therefore, addressed himself as to what was the value of the land and the costs of the construction. On perusal of the entire evidence, he found the value of building was to the tune of Rs. 15014-40. In the opinion of the learned Assistant Judge 6% return on the value of the property should be considered to be a reasonable return and, therefore, he concluded that Rs. 900/= per year would be the return to which the landlord was entitled. He, therefore, fixed the standard rent at Rs. 75/- per month. In Chunilal Vithaldas v. Mohanlal Patel (1966) 69 Bombay law Reporter p. 26, the Supreme Court was concerned with the question of what should be the standard rent and, therefore, reasonable return on the total investment of a cinema theatre. Shah J. speaking in the court stated as under.

What rate of return in respect of the landed property may be regarded as reasonable in determining the standard rent under Section 11 of the Act depends upon certain variable factors. Normal-expected yield from immovable property in the locality, return from alternative investments, municipal arid other charges, the use to which the property is to be put, its condition, repairs it heeds to keep it in tenantable condition and a host of other related circumstances must enter into the determination.

17. It is, therefore, a question of fact depending on the different factors enumerated by the Supreme Court. No evidence has been led on behalf of the landlord to show that 6% return was inadequate. In the circumstances, therefore, was do not find any justifying reasons to interfere with the order of the learned Assistant Judge fixing the standard rent at the rate of Rs. 75/- per moth equivalent to 6% return on the investment in the property in question.

18. The result is that, therefore, the Civil Revision Application of the tenant being Civil Revision Application No. 133/76 is allowed and the decree of eviction as affirmed by the learned Assistant Judge is set aside. The Revision Application of the landlord being Civil Revision Application No. 396/76 is dismissed. The landlord shall pay the costs in both these revision applications to the tenant.

19. Mr. Vyas for the plaintiff-landlord at this stage makes an oral application of grant certificate tinder Article 133(1) of the Constitution for enabling the plaintiff-landlord to file appeal in the Supreme Court against the decision in Civil Revision Application No. 133/76 filed by the tenant. We are of the opinion that the Revision Application filed by the tenant involves substantial questions of law of general importance which is our opinion are required to be decided by the Supreme Court. The question of construction of such type of restrictive covenant with the provisions of the Rent Act and, their nature as to whether they are personal obligation of the tenant arises in many cases. We, therefore, grant certificate in Civil Revision Application No. 133/76 as prayed for. There should be no order as to costs so far as this revision application is concerned.


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