NATHUBHAI VAMALIDAS v. RAMANLAL PENUBHAI — 1975 DIGILAW 38 (GUJ)

J. M. SHETH, J. ( 1 ) THIS is a revision petition filed by the original plaintiffs against the judgment and decree passed by the learned Extra Assistant Judge Surat in Regular Civil Appeal No. 10 of 1969 dismissing the appeal with costs and confirming the decree of the trial Court in Regular Civil Suit No. 8 of 1966 dismissing the plaintiffs suit for possession dated 30 1968. ( 2 ) BOTH the Courts below have recorded a concurrent finding that the defendants have committed a breach of the terms of the tenancy. The trial Court further found that on account of the acceptance of the rent after coming to know of the breach of the terms of the tenancy the plaintiffs have waived the breach. Furthermore notice as contemplated by sec. 114-A of the Transfer of Property Act for remedying the breach or repairing the breach having not been given the plaintiffs were not entitled to get a decree for possession on the ground of a breach of the terms of the tenancy. It was further found by that Court that the plaintiffs were even estopped from claiming such a relief of possession on that ground. ( 3 ) THE appellate Court in the appeal reached the conclusion that there was no waiver of such breach of the term of the tenancy. Further more the breach being a continuing breach waiver would be only for the past breach. The appellate Court recorded a finding that the landlord came to know about the breach sometime in February or March 1965 Rent was accepted thereafter upto August. 1965. Thereafter also the breach is continued. There is therefore no waiver of future breach. But according to the learned appellate Judge provisions of the Transfer of Property Act were not abrogated by the provisions of the Act. It was therefore incumbent upon the landlords to give notice as contemplated by sec. 114-A of the Transfer of Property Act. That having been admittedly not given plaintiffs were not entitled to possession. The learned appellate Judge in para 20 of his judgment in terms observes:in absence of notice under sec. 114-A of the Transfer of Property Act the plaintiffs are not entitled to get the possession of the suit premises on the ground that the tenants had committed the bleach of the term of the tenancy But for the want of notice under sec. 114-A of the Transfer of Property Act the plaintiffs are not entitled to get the possession of the suit premises on the ground that the tenants had committed the bleach of the term of the tenancy But for the want of notice under sec. 114-A of the Transfer of Property Act I would have granted the possession of the suit premises to the plaintiffs on the ground of breach of the term of the tenancy. ( 4 ) MR. S. N. Shelat appearing for the petitioners-landlords has contended that the petitioners were not claiming the relief of possession of the suit premises on the ground of forfeiture of the tenancy during the subsistence of the term of the tenancy Admittedly tenancy was a monthly tenancy and the tenancy has been validly and legally determined by valid notice to quit Ex 75 dated 10-12-1965. Tenancy can be determined by any of the modes referred to in sec. 111 of the Transfer of Property Act. In the instant case contractual tenancy has been determined under clause (h) of sec. 111 of the Transfer of Property Act. It is not a case where the landlords want to determine the tenancy by forfeiture as contemplated under sec. 111 (g) of the Transfer of Property Act. That being the position under the ordinary law that contractual tenancy having been validly and legally determined the landlords are entitled to get the possession of the suit premises from the opponents tenants. An embargo has been placed by the provisions of the Act on the right to recover possession unless the landlords are entitled to get possession under the Act. ( 5 ) SEC. 12 (1) of the Act (Bombay Rent Control Act) which is material for our purposes reads. 12 A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases if any and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of this Act. MR. Shelat in view of the clear provisions of sec. MR. Shelat in view of the clear provisions of sec. 12 (1) of the Act submitted that in the instant case the embargo placed upon the right the landlord to recover possession is lifted and the tenant has lost his right of statutory protection as he has not fulfilled the condition viz. observing and performing the other conditions of the tenancy. The terms and conditions which have not been fulfilled and observed are taking electric connection and using electrical energy for the purposes of running a bobbin machine. Condition of tenancy was that the electric connection was to be taken only for the purpose of household purposes i. e. domestic purposes (residential purposes) and not for running machine Furthermore another condition agreed upon was that the suit premises were to be used only for residential purposes and not for any other purpose. ( 6 ) MATERIAL portion of rent note Ex. 73 dated 17-3-1957 is set out in Gujarati to understand the rival contentions urged at the Bar. It reads. VALI Jo Sadarhu Milkatma Hamo Electric Light Leva Mangta Hoiye to Te Fakt Ghar Vaprash Mate Light Nu Fitting Leva Jaruri Tamari Sahini Jarur Pade to Te Tamare Aapvi Sahi Parantu Fakt Ghar Vaprash Mate Light Nu Connection Karavvanu Chhe Ane Motive Power Thi Machine Vigaire Sancha Mate Lightno Upyog Karvano Nathi Parantu Fakt Ghar Vaprash Matej Light No Vaprash Karwano Chhe. Second material condition reads: sadarhu Milkatno Fakt Rehtan Na Makan. Tarike Upyog Thato Avelo Chhe Temaj Upyog Karvano Chhe. THE English rendering of it would be that the landlords agree to give the signature if it is necessary for taking electric connection in the suit premises which is to be taken only for the household purposes. The said electric connection is to be taken only for the use of household purposes and the electric energy is not to be used for the purposes of running machines with motive power and it is to be used only for the house hold purposes i. e. domestic purposes. It is further stipulated that the use the suit premises is being made only for the purposes of residence and it is to be so used. Admittedly additional electric connection has been taken for running a single phase motor with which the bobbin machine is run in the suit premises. It is further stipulated that the use the suit premises is being made only for the purposes of residence and it is to be so used. Admittedly additional electric connection has been taken for running a single phase motor with which the bobbin machine is run in the suit premises. Averments made in this behalf in the plaint are admitted by the defendants in their written statement. Commissioners report Ex. 10 also shows that there were found several machines referred to therein. One of them was a bobbin machine run by electricity. There was an electric motor for the same. There was a pern machine. There was a khol machine. Dimensions are also given therein. The front room was practically occupied by machines. ( 7 ) MISS V. P. Shah appearing for Mr. S. B. Vakil for the opponents tenants has tried to urge that really there was no breach as it was a single phase half Horsepower electric motor connection. It was not a three phase electric connection so that it could be said that the machine was run with motive power The two Courts below have in terms found about the breach of the term of the tenancy. It is a finding of fact. Even apart from it there is no substance in this argument advanced by Miss V. P. Shah. ( 8 ) IT is significant to note that there was a standard rent application registered as Rent Application No. 269 of 1957 filed by the tenants wherein they entered into a compromise. One of the consent terms was that for getting electric connection application has to be given to the electricity company. For that the consent of the opponents landlords in that case was necessary and it was to be given by them. But the petitioners in that application had to use that electric energy only for the household purpose and it was not to be used for running a machine by the motive power or in any manner and in case they used electric energy for any purpose other than the household purposes it will be deemed that there is a breach of the term of the tenancy and the landlords will be entitled to get possession of the suit premises. In view of these terms in the rent note and the consent terms in particular the electrical energy having been used for the purposes other than domestic purposes by running electric motor and with the help of it by running a bobbin machine there is a clear breach of the term of the tenancy. The two Courts below have therefore committed no error of law or fact in reaching the conclusion that the tenants committed breach of that term of the tenancy. Furthermore the suit premises were to be used only for the purposes of residence. Part of the suit premises having been used for the purposes of running machines and for the purposes other than residential purposes there is breach of another term of the tenancy. There is a breach of both these terms of the tenancy. That finding arrived at by the two Courts below in that behalf is fully justified on the evidence on record. No material evidence has been over looked. There is no misreading of evidence. ( 9 ) THE question which therefore arises for consideration is whether the tenants have lost their statutory protection under the Act on account of non observing and non performing the aforesaid conditions of the terms of the tenancy. There is nothing in the provisions of the Act which would indicate in any manner that the aforesaid terms of the tenancy are inconsistent with the provisions of the Act. The landlords had got a right under the general law to recover possession of the suit premises the contractual tenancy having been determined by a legal and valid notice to quit as contemplated under sec. 106 of the Transfer of Property Act. The embargo placed upon the right of the landlord in view of the provi- sions of the Act is lifted as the tenants were entitled to protection under the Act only if they observed and performed the other conditions of the tenancy which were not inconsistent with the provisions of the Act. The tenants having lost their statutory protection on account of non observing and non-performing the aforesaid two conditions of the tenancy in view of the provisions of sec. 12 (1) of the Act the landlords in my opinion are entitled to recover possession of the suit premises. The tenants having lost their statutory protection on account of non observing and non-performing the aforesaid two conditions of the tenancy in view of the provisions of sec. 12 (1) of the Act the landlords in my opinion are entitled to recover possession of the suit premises. Sec. 114-A of the Transfer of Property Act cannot have any application in a case like the present case when the landlords do not want to recover possession of the suit premises on account of the forfeiture of the lease. That being the position there cannot be any question of relief against forfeiture as contemplated under sec. 114 of the Transfer of Property Act. Mr. Shelat is right in these submissions of his. He is supported by several decisions of this Court. ( 10 ) IN SHAH AMBALAL CHHOTALAL V. SHAH BABALDAS DAHYABHAI 3 GUJARAT LAW REPORTER 625 AT PAGE 629 a Division Bench of this Court has observed:under sec. 111 of the Transfer of Property Act there are various modes of determination of lease available to a landlord. Once a lease is determined by any one of such modes except by forfeiture under clause (g) of sec. 111 a landlord under the ordinary law of landlord and tenant becomes entitled to recover possession and the tenant cannot resist the landlords claim for possession. On the other hand under sec. 114 of the Transfer of Property Act where a lease of immoveable property has been determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee if at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrears together with interest thereupon and the costs of the suit or gives such security as the Court thinks sufficient for making such payment within fifteen days the Court has the discretion in lieu of making an order for ejectment to pass an order relieving the lessee against forfeiture and thereupon the lessee holds the property leased as if the forfeiture had not occurred. But the relief against forfeiture for non-payment of rent contemplated by sec. 114 applies only to a case where the lease has been determined under clause (g) of sec. 111 of the Transfer of Property Act and not where it has been determined under clause (h) of that section namely by a notice to quit the property leased. But the relief against forfeiture for non-payment of rent contemplated by sec. 114 applies only to a case where the lease has been determined under clause (g) of sec. 111 of the Transfer of Property Act and not where it has been determined under clause (h) of that section namely by a notice to quit the property leased. At page 630 relevant observations made are:. . SEC. 114 of the Transfer of Property Act also recognises this principle by providing for relief against forfeiture for non-payment of rent while other cases of forfeiture are dealt with in sec. 114-A of the Transfer of Property Act. The Court in such a case grants relief to the lessee by putting him on terms to make full compensation to the lessor i. e. by asking him to pay all rent in arrears with interest and full costs of the lessors suit. But a distinction should always be borne in mind between the determination of tenancy under clause (g) of sec. 111 and the determination of tenancy under clause (h) of that section by giving a notice terminating the tenancy. In a case falling under clause (g) of sec. 111 the right of forfeiture is exercised while the tenancy is still subsisting: while in a case falling under clause (h) of sec. 111 the lease is determined by a notice to quit. The lease is no more subsisting and therefore no question of relief against re-entry by forfeiture can arise. ( 11 ) IN RATILAL BALABHAI NAZAR V. RANCHHODBHAI SHANKERBHAI PATEL 9 GUJARAT LAW REPORTER 48 a Division Bench of this Court has in terms approved the aforesaid observations in Shah Ambalal Chhotalals case (supra ). It is observed:. . . IT is clearly laid down in this decision that where a landlord has determined the tenancy of a tenant otherwise than under clause (g) of sec. 111 of Transfer of Property Act and the tenant is not entitled to claim the protection of any sub section of sec. 12 of the Rent Act the right of the landlord under the ordinary law of landlord and tenant to recover possession of the premises from the tenant on the termination of the tenancy must prevail and the tenant cannot resist the landlords claim for possession and the Court has no discretion to refuse to grant a decree for possession to the landlord. ( 12 ) IN PINJARE KARIMBHAI DEDUBHAI V. SHUKLA HARIPRASAD MANISHANKAR 3 GUJARAT LAW REPORTER 529 Bhagwati J. (as he then was) at pages 554 and 555 has observed:. . . THERE are various modes by which the tenancy of the tenant can be deter mined by the landlord. These modes are set out in sec. 111 of the Transfer of Property Act which is the statute which embodies the ordinary law of landlord and tenant. One of the modes of termination of tenancy is forfeiture and that is provided in sub-sec. (g) of sec. 111 of the Transfer of Property Act. Now forfeiture can only be of an existing term which would continue but for the forfeiture then the tenant breaks an express condition which provides that on breach thereof the landlord may re-enter or the tenant renounces his character as such by setting up a title in a third person or by claiming title in himself or the tenant is adjudicated as insol vent and the lease provides that the landlord may re-enter on the happening of such event; and in any of these cases the landlord or his transferee gives notice in writing to the tenant of his intention to determine the tenancy the tenancy is said to be determined by forfeiture. The landlord is thus given the right to forfeit the existing term of tenant if certain conditions are fulfilled. The principle of relief against forfeiture is also the subject matter of statutory enactment in India and is to be found in sec. 114 and 114-A of the Transfer of Property Act. One thing is clear that the jurisdiction is to relieve the tenant against forfeiture of an existing term which would continue but for the forfeiture. There can be no scope for the exercise of the jurisdiction to relieve against forfeiture in cases where the tenancy is not deter mined by forfeiture. If the tenancy is for instance determined by a notice to quit the interest of the tenant in the premises comes to an end and the landlord is entitled to recover possession of the premises from the tenant. In such a case there is no scope for the application of the doctrine of relief against forfeiture for there is obviously no forfeiture to be relieved. The principle underlying the doctrine of relief against forfeiture cannot apply in such a case. In such a case there is no scope for the application of the doctrine of relief against forfeiture for there is obviously no forfeiture to be relieved. The principle underlying the doctrine of relief against forfeiture cannot apply in such a case. There cannot therefore be anything like relief against forfeiture in a case where the tenancy of the tenant is determined by the landlord by a mode other than forfeiture. It is this fundamental principle which must be borne in mind in considering whether there is any jurisdiction in the Court apart from the provisions of the Rent Act to grant relief against dispossession to the tenant in cases where the landlord has determined the tenancy of the tenant by any mode other than forfeiture. IT is clear that under the ordinary law of landlord and tenant as soon as the landlord determines the tenancy of the tenant by any mode other than forfeiture the landlord is entitled to recover possession of premises from the tenant and the tenant cannot possibly resist the landlords claim for possession. It was for this reason that the Rent Act was put on statute book. The avowed purpose of enacting the Rent Act was to afford protection to the tenant against dispossession by the landlord. The tenant was under the ordinary law of landlord and tenant at the mercy of the landlord once his tenancy was determined by the landlord by any mode other than forfeiture. The legislature therefore placed certain restrictions on the right of the landlord to recover possession of premises from the tenant. One such restriction was imposed by sub-sec. (1) of sec. 12 which enacted that so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of the tenancy the landlord cannot recover possession of the premises from the tenant. At page 556 it is observed:. . THE legislature thus by enacting the provisions contained in sub-sees. (1) (2) and (3) (b) of sec. 12 and the Explanation to that section placed certain restrict tions on the right of the landlord to recover possession of premises from the tenant and provided certain safeguards to the tenant against dispossession by the landlord. . THE legislature thus by enacting the provisions contained in sub-sees. (1) (2) and (3) (b) of sec. 12 and the Explanation to that section placed certain restrict tions on the right of the landlord to recover possession of premises from the tenant and provided certain safeguards to the tenant against dispossession by the landlord. These provisions made an inroad on the right of the landlord under the ordinary law of landlord and tenant to recover possession of premises from the tenant on the determination of the tenancy. The result therefore is that even though under the ordinary law of landlord and tenant the landlord is entitled to recover possession of the premises from the tenant on the tenancy coming to an end by any of the modes mentioned in sec. 111 of the Transfer of Property Act the tenant can successfully resist the landlords claim for possession if he can bring his case with in the four corners of any of these provisions. These provisions confer a status of irremovability on the tenant subject to the conditions set out in these provisions. This status of irremovability is commonly referred to as statutory tenancy for the tenant who claims to retain possession of premises after the determination of his tenancy by virtue of the protection afforded by these provisions of the Rent Act is not a tenant in the sense in which the term tenant is understood under the ordinary law of landlord and tenant but he has personal right conferred by the statute to remain in possession of premises so long as he complies the provisions of the statute. . At page 566 he has observed:. . . . I therefore take the view that in a case where the tenancy of the tenant is determined by any mode other than forfeiture the tenant in order to be entitled to protection from dispossession must bring his case within the four corners of the Rent Act. ( 13 ) IN KANTILAL ISHWERLAL SHAH V. DR. MUKUNDRAI KESHAVLAL PARIKH 14 GUJARAT LAW REPORTER 227 I had an occasion to consider a similar question. It is observed:in view of sec. ( 13 ) IN KANTILAL ISHWERLAL SHAH V. DR. MUKUNDRAI KESHAVLAL PARIKH 14 GUJARAT LAW REPORTER 227 I had an occasion to consider a similar question. It is observed:in view of sec. 12 (1) of the Rent Control Act it is evident that the tenant whose contractual tenancy has been determined is entitled to a statutory protection if he satisfies the condition that he observes and performs the other conditions of the tenancy provided they are consistent with the provisions of the Rent Contro Act If the tenant has disentitled himself to the protection under the Rent Contro Act the embargo placed upon the landlords right to recover possession does not survive. THE rent note in the instant case contained a term that in the common passage kept for the tenant no articles or goods were to be placed. Such common passage was meant for the passage of the tenants including the present petitioner. It was not meant for storing his goods. There was express condition that he had not to Store or Place any goods thereon and he has committed a breach of that term. Such a covenant is touching the mode of enjoyment of the premises and hence the condition of the tenancy and not a personal obligation. Such a breach is in respect of a particular mode of enjoyment in connection with the subject matter of the demised premises Therefore such a breach would be a breach of the other condition of the tenancy contemplated by sec. 12 (1) of the Rent Control Act. DESPITE the provisions of sec. 12 of the Rent Control Act giving protection to the tenant who pays the rent or is ready and willing to pay the rent and observes and performs other conditions of the tenancy a landlord is entitled to get possession from him if he satisfies the Court that his case falls within any of these clauses of see. 13 of the Act. It does not mean that even if a tenant is not in a position to claim protection under sec. 12 of the Act in view of his breach of the terms of other conditions of the tenancy the landlords right to recover possession accrues only if he is able to bring his case within one of the clauses (a) to (1) of sec. 13 of the Act. 12 of the Act in view of his breach of the terms of other conditions of the tenancy the landlords right to recover possession accrues only if he is able to bring his case within one of the clauses (a) to (1) of sec. 13 of the Act. The landlords right to possession flows from the provisions of general law on account of the determination of contractual tenancy. At page 230 I have observed in para 5:mr. B. R. Shah has submitted that admittedly in the instant case no notice as contemplated by sec. 114-A of the Transfer of Property Act was given and consequently the landlords were not entitled to get a decree for eviction on the ground of breach of a term of the tenancy. If we refer to sec. 114-A of the Transfer of Property Act it is clear that those provisions will not be attracted in the instant case. After referring to those provisions it is observed:it is significant to note that in the instant case the lease in question has not been determined on account of forfeiture for a breach of an express condition as contemplated by sec. 114-A of the Transfer of Property Act. Contractual tenancy can be determined by adopting any of the modes referred to in sec. 111 of the Transfer of Property Act. In the instant case the mode adopted is not one contemplated by clause (g) of sec. 111 but is one contemplated by clause (h) of sec. 111 of the Transfer of Property Act. Contractual tenancy has thus been determined by adopting the mode contemplated by clause (h) of sec. 111 of the Transfer of Property Act. Under the general law therefore the landlords are entitled to get possession from the tenant. This decision completely supports Mr. Shelats submissions. ( 14 ) IN NANAVATI JAYANTILAL CHUNILAL V. SHAH ASHABHAI MAHIJIBHAI 15 GUJARAT LAW REPORTER 675. Dave J. has observed:. . . IN order to claim possession under the Rent Control Act the case of the landlord should fall either under sec. 12 (1) or sec. 13 (1) of the Rent Control Act. If there is a breach of conditions of tenancy the tenant no doubt would lose the pro tection of the Act as stated in sec. 12 (1 ). . IN order to claim possession under the Rent Control Act the case of the landlord should fall either under sec. 12 (1) or sec. 13 (1) of the Rent Control Act. If there is a breach of conditions of tenancy the tenant no doubt would lose the pro tection of the Act as stated in sec. 12 (1 ). In that case it would be open to the landlord to determine the tenancy by giving a notice and then obtain a decree for eviction against him. ( 15 ) IN MOOL CHAND V. ISHWARLAL AIR 1974 RAJASTHAN 163 Kan Singh J. has at pages 165 and 166 observed:. . THE protective provisions contained in sec 13 of Rajasthan premises control of Rent and Eviction Act (17 of 1950) are with a view to help the tenants who have been considered a weaker section in society in comparison to the land lords. Nevertheless the restrictions or protection being made available only on fulfilling certain essential conditions it shall be necessary for the party claiming the benefit of such restriction to show that his case is covered by such restrictions and that he has not done anything which disentitles him from the protection Clause (f) of sub-sec. (1) of sec. 13 of the Act lays down a condition that would disentitle the tenant from claiming the protection of the Act. To my mind the general law is that once a tenancy has been determined in accordance with the pro visions of sec. 111 of the landlord is entitled to evict the tenant who after the determination of the tenancy is no longer a tenant. it is only the provisions of the Rent Control Legislation that step in on the determination of the tenancy and by fiction of law the tenant becomes a statutory tenant but so far as the protection under sec. 13 is concerned the tenant must fulfil the conditions thereof and should not be found to have done anything which disentitles him from the protection of sec. 13. Viewed in this light. I am afraid it was not necessary for the landlord to have served a notice of forfeiture under clause (g) of sec. 111 of the Transfer of Property Act on the tenant. It is further observed:if the lease were not determined in accordance with clause (h) of sec. 13. Viewed in this light. I am afraid it was not necessary for the landlord to have served a notice of forfeiture under clause (g) of sec. 111 of the Transfer of Property Act on the tenant. It is further observed:if the lease were not determined in accordance with clause (h) of sec. 111 of the Transfer of Property Act by serving a notice under sec. 106 of that Act then without there being a proper notice of forfeiture the landlord would not be able to evict the tenant but once a lease has been determined by a notice under sec. 106 of the Transfer of Property Act and it is also found that the tenant has done some thing which disentitles him from claiming the protection of the Act as in the present case by renouncement of his character as a tenant and by denial of the landlords title then I do not understand why a notice or forfeiture would still be required. The provisions of sec. 13 are not controlled or restricted by the provisions of the Transfer of Property Act. Though the provisions of the Act are in addition to and not in derogation of any other law on the subject it cannot be overlooked that sec. 13 begins will a non obstante clause and it has to prevail over other analogous provisions elsewhere. sec. 28 to my mind only means that the Act is in addition and not in derogation of any law on the subject namely that its provisions do not amend repeal supersede or otherwise affect any other provisions but in spite of that so far as the applicability of sec. 13 is concerned it Will prevail over any other provision. I am therefore unable to accept the contention of the learned counsel that notice of forfeiture under sec. 111 (g) of the Transfer of Property Act was still required when there was a determination of tenancy under clause (h) of sec. 111 by a notice under sec. 106 of the Act ( 16 ) MISS Shah has strongly relied upon the observations made by the Supreme Court in BRIJ KISHORE V. VISHWA MITTER AIR 1965 SUPREME COURT 1574 She has submitted that even in a case where the tenancy has been determined by adopting the mode contemplated under clause (h) of sec. 106 of the Act ( 16 ) MISS Shah has strongly relied upon the observations made by the Supreme Court in BRIJ KISHORE V. VISHWA MITTER AIR 1965 SUPREME COURT 1574 She has submitted that even in a case where the tenancy has been determined by adopting the mode contemplated under clause (h) of sec. 111 of the Transfer of Property Act landlord is bound to give a notice as contemplated under sec. 114-A of the Transfer of Property Act to give an Opportunity to the tenant to remedy the breach. It is only if such notice is given and the tenant does not avail of that opportunity to remedy the breach the tenant would be disentitled to claim protection under the Act. Miss Shah has contended that the provisions of the Act were for the benefit of the tenant and they were not to curtail the rights of the tenant which the tenant had under the ordinary law of the landlord and tenant. In my opinion this argument has no substance. Under the ordinary law of landlord and tenant tenant had no right to remain in possession of the property on the determination of the contractual tenancy by a valid notice to quit. Landlord by determination of such tenancy gets right to recover possession. Rent Act steps in and gives protect to the tenants provided their case falls within the provisions of the Act In view of the provisions of sec. 12 (1) of the Act statutory protection available to the tenant is lost by his not performing and observing other Conditions of the tenancy. The Supreme Court in the aforesaid decision had to consider the provisions of Delhi Rent Control Act (59 of 1958 sec 57 (2) proviso 1 and sec. 14 (11) of that Act and Delhi and Ajmer Rent Control Act (38 of 1952) sec. 13 (1) proviso clause (k ). It is in context of the wording of those two provisions that the following observations have been made by the Supreme Court:the first proviso to sec. 57 (2) of 1958 Act must be read harmoniously with the substantive provision contained in sub-sec. 13 (1) proviso clause (k ). It is in context of the wording of those two provisions that the following observations have been made by the Supreme Court:the first proviso to sec. 57 (2) of 1958 Act must be read harmoniously with the substantive provision contained in sub-sec. (2) and the only way of harmonising the two was to read the expression shall have regard to the provisions of this Act as merely meaning that where the new Act has slightly modified or clarified the previous provisions these modifications and clarifications should be applied. These words did not take away what was provided by sub-sec. (2) and ordinarily the old Act would apply to pending proceedings. In substance therefore where in the 1958 Act there is a radical departure from the 1952 Act the 1952 Act will continue to apply to pending proceedings but where the present Act had slightly modified or. clarified the previous provisions these modifications and clarifications should be applied. SEC. 114-A of Transfer of Property Act gives power to Court to give relief to the tenant against forfeiture where it holds that the landlord did not give reasonable time to the tenant to remedy the breanch. In such case it can dismiss the suit as not maintainable. It is true that sec. 114-S would not in specific terms apply to cases of ejectment on the ground specified in clause (k) to the proviso to sec. 13 (1) of the 1952 Act but it was somewhat analogous to forfeiture on breach of an express condition of a lease for it also required previous notice to the tenant before the suit is filed it cannot be said that the 1952 Act forbade the Court from granting relief where the offending structures were removed by the tenant even during the pendency of the suit for ejectment. What is reasonable time within which the breach should be remedied is always a question of fact and it would have been possible for the Court in a suit based on clause (k) of the proviso to sec. 13 (1) to give relief against forfeiture in a proper case where the tenant had removed the offending structure before the suit was filed or even during the pendency of the suit if reasonable time was not allowed in the notice contemplated by clause (k) of the proviso to sec. 13 (1 ). 13 (1) to give relief against forfeiture in a proper case where the tenant had removed the offending structure before the suit was filed or even during the pendency of the suit if reasonable time was not allowed in the notice contemplated by clause (k) of the proviso to sec. 13 (1 ). Therefore when sub-sec. (11) of sec. 14 of 1958 Act gave power to the Controller to give relief to the tenant under conditions mentioned therein it was in fact clarifying what the Court could do under the 1952 Act on the analogy of sec. 114-A of the Transfer of Property Act and also modifying it slightly. IT is thus evident that even the Supreme Court has in terms stated that the provisions of sec. 114-A of the Transfer of Property Act will not apply. But in the Delhi Rent Act itself there has been a provision of giving notice prior to filing of a suit in such a case. It indicated that such provisions were intended to be complied with and the Court was entitled to grant relief and the tenant would not be evicted without being given an opportunity to remedy the breach It is significant to note that relevant sec. 13 (1) of 1952 Act ran as follows:13 Notwithstanding anything to the contrary contained in any other law or any contract. no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant including a tenant whose tenancy is terminated): provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied xxxx xxxx xxxx (k) that the tenant has whether before or after the commencement of this Act caused or permitted to be caused substantial damage to the premises or not with standing previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situated;. Sub-sec. (11) of sec. 14 of the Act of 1958 ran as follows:14 No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub-sec. Sub-sec. (11) of sec. 14 of the Act of 1958 ran as follows:14 No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub-sec. (1) if the tenant with in such time as may be specified in this behalf by the Controller complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct. IT is in view of these provisions and particularly that even in the old Act giving of notice was necessary that the aforesaid observations were made. So far as our Act is concerned it is in terms stated in sec. 12 that the landlord will not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the 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 Act. It is therefore obligatory upon the tenant to perform and observe the conditions of the tenancy provided they are not inconsistent with the provisions of the Act to claim protection. There is no such provision in our Act that in case of such breach any previous notice has to be given prior to the filing of the suit to enable the tenant to remedy the breach. In view of that position the aforesaid observations made by the Supreme Court cannot be of any assistance. ( 17 ) I am therefore of the opinion that the two Courts below have committed an error of law in reaching the conclusion that the landlords are not entitled to get possession of the suit premises even though the tenants had committed a breach of the terms of the tenancy and the contractual tenancy had been validly determined in view of the fact that notice under sec. 114-A of the Transfer of Property Act for remedying the breach was not given by the landlords to the tenants. The contractual tenancy having been determined under clause (h) of sec. 114-A of the Transfer of Property Act for remedying the breach was not given by the landlords to the tenants. The contractual tenancy having been determined under clause (h) of sec. 111 of the Transfer of Property Act the tenants had merely the statutory protection which tenants lost on account of non observing and non performing the other conditions of the tenancy under sec. 12 (1) of the Act. Therefore the embargo that was placed upon the right of the landlords was lifted and the tenants became disentitled to statutory protection on account of the non-performance of the other conditions of the tenancy. ( 18 ) MISS Shah in view of the aforesaid position has tried to support the decree passed by the appellate Court on the ground that there was really waiver of the breach of the conditions of tenancy. Miss Shah has invited my attention to the finding recorded by the appellate Court that the landlords came to know about the breach in question in February or March 1965 and that was on the basis of evidence of one of the landlords Kirtikumar and a son of landlady Kamalaben examined at Ex. 67. The learned appellate Judge has accepted his evidence. That witness has stated:. . . . . . . . . I first saw machines in suit house in February March 1965 when I last visited suit house. My clerk informed about installation or machines. It is also an admitted position that thereafter rent has been accepted till August 1965 It cannot therefore be gainsaid that even after coming to know about the breach of the term of the tenancy the landlords have accepted the rent till then. Miss Shah has invited my attention to sec. 112 of the Transfer of Property Act which reads: a forfeiture under sec. 111 clause (g) is waived by acceptance of rent which has become due since the forfeiture or by distress for such rent or by any other act on the part of the lessor showing an intention to treat the lease as subsisting. . . She has further relied upon the fact that suit notice Ex. 78 has been given on 10-12-1965 determining the tenancy. It therefore meant that the contractual tenancy was subsisting till then. It is significant to note that the present landlords purchased the property in question by sale-deed Ex. 101 dated 23-9-1965. . . She has further relied upon the fact that suit notice Ex. 78 has been given on 10-12-1965 determining the tenancy. It therefore meant that the contractual tenancy was subsisting till then. It is significant to note that the present landlords purchased the property in question by sale-deed Ex. 101 dated 23-9-1965. Notice regarding attornment of tenancy Ex. 74 is dated 27-9-1965. In view of these notices also Miss Shah has submitted that there was waiver of the breach of the terms of the tenancy by the landlords meaning thereby the predecessor-in-title of the present plaintiffs. The appellate Court has reversed the finding of the trial Court regarding the waiver and has reached the conclusion that there is no waiver. It is significant to note that the very witness Kiritkumar whose evidence was pointed out to me by Miss Shah has in terms in his evidence Ex. 67 stated:. . . I asked Hasmukhlal (tenant) as to with whose permission he had installed machines and electric motor. He told me that he had temporarily installed them there and he was to remove them at his other place. IT has also come out that the previous landlords did not take immediate action as they were selling the property to the present plaintiffs. It is significant to note that even after this witness whose evidence has been accepted by the appellate Court had pointed out to the tenants regarding the breach the tenants promised to remedy that breach. Admittedly that breach was not remedied even on the date of the suit and subsequent to it; the breach continued. The learned appellate Judge has found that breach being a continuing breach the landlords would be entitled to possession as even if there was a waiver it would be waiver of past breaches. He did not pass a decree for eviction on the ground that the tenants would not lose such protection unless there was compliance with the provisions of sec. 114-A of the Transfer of Property Act; the landlords having not given such a notice the landlords suit for possession cannot be decreed. ( 19 ) MISS Shah has contended that the breach in question cannot be said to be a continuing breach the moment the electric connection was taken for running a bobbin machine and started working with that electric supply breach was complete. ( 19 ) MISS Shah has contended that the breach in question cannot be said to be a continuing breach the moment the electric connection was taken for running a bobbin machine and started working with that electric supply breach was complete. This submission of her is in my opinion devoid of any merits. The obligation undertaken by the tenants was not to use electrical energy for any purposes other than domestic purposes. It was not to be used for running any machine. Furthermore? the use of the house in question was to be made only for the residential purposes. In my opinion in such cases the breach would be a continuing breach. Every use of such electrical energy for the purpose other than household purpose and every use of the house for the purpose other than residential purpose will amount to a continuing breach. ( 20 ) MISS Shah in support of her submission has relied upon the decision of the Supreme Court in BALAKRISHNA SAVALRAM PUJARI WAGHMARE V. SHREE DHYANESHWAR MAHARAJ SANSTHAN A. I. R. 1959 SUPREME COURT 798. In that decision the Supreme Court had to consider the question of limitation. At page 807 it is observed:it is then contended by Mr. Rege that the suit cannot be held to be barred under Article 120 (of the Limitation Act 1908 because sec. 23 of the Limitation. Act applies; and since in the words of the said section the conduct of the trustees amounted to a continuing wrong a fresh period of limitation began to run at every moment of time during which the wrong continued. Does the conduct of the trustees amount to a continuing wrong under sec. 23 ? That is the question which this contention raises for our decision. In other words did the cause of action arise die in diem as claimed by the appellants ? In dealing with this argument it is necessary to bear in mind that sec. 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete there is no continuing wrong even though the damage resulting from the act may continue. If however a wrongful act is of such a character that the injury caused by itself continues then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury injury. It is only in regard to acts which can be properly characterised as continuing wrongs that sec. 23 can be invoked. Thus considered it is difficult to hold that the trustees act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants rights though the damage caused by the said decree subsequently continued. It is further observed:. . . WHERE the wrongful act complained of amounts to ouster the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of sec. 23 in such a case. In the instant case every such user will result in a fresh breach. It is a clear case of a continuing breach. In Mullas Transfer of Property Act 1973 Edition at page 759 under the caption subsequent breaches the learned Author states: waiver of past breaches does not preclude the lessor from enforcing a forfeiture when the same or another condition is subsequently broken. When the breach is of a continuing nature. the same rule applies and the continuance of the breach after the waiver will justify a forfeiture. . ( 21 ) MR. When the breach is of a continuing nature. the same rule applies and the continuance of the breach after the waiver will justify a forfeiture. . ( 21 ) MR. Shelat has relied upon the statement made in Halsburys Laws of England 3 Edition Volume 23 in para 1398 at page 673:where the breach of covenant which gives the right of re-entry is a continually breach there is a continually recurring cause of forfeiture and receipt of rent or the levying of distress is only a waiver of the forfeiture incurred up to the date when the rent was due or the distress was levied and the landlord is not precluded from taking advantage of the breach continuing since that date. ( 22 ) IN WOLFE V. HOGAN 1949 (1)AII ENGLAND LAW REPORTS 570 at page 575 Denning L. J. has observedlet me illustrate that from the common law doctrine as to waiver of forfeiture. A breach of covenant not to use premises in a particular way is a continuing breach. Any acceptance of rent by the landlord after knowledge only waives the breaches up to the time of the acceptance of rent. It does not waive the continuance of the breach thereafter and notwithstanding his previous acceptance of rent the landlord can still proceed for forfeiture on that account. Indeed in the case of a continuing breach the acceptance of rent after knowledge is only a bar to a claim for forfeiture if it goes on for so long on or is accepted in such circumstances that it can be inferred that the landlord has not merely waived the breach but has also affirmatively consented to the tenant continuing to use the premises as he has done. ( 23 ) IN CITY and WEST MINISTER PROPERTIES (1934) LTD. V. MUDD 1958 ALL ENGLAND TAW REPORTS 733 the aforesaid observations of Denning L. J. have been quoted at page 742 by Harman J. and observed:i cannot think that anything proved here amounts to a release by the landlord of his rights. He knew indeed that the tenant was using the property to sleep in but I do not think that he knew more than that At that he was willing to wink but I am unable to find a release of the covenant or an agreement for a new letting. In my judgment therefore the plea of waiver fails. He knew indeed that the tenant was using the property to sleep in but I do not think that he knew more than that At that he was willing to wink but I am unable to find a release of the covenant or an agreement for a new letting. In my judgment therefore the plea of waiver fails. THERE remains the so called question of estoppel. This in my judgment is a misnomer and the present case does not raise the controversial issue of CENTRAL LONDON PROPERTY MUST LTD. V. HIGH TREES HOUSE LTD. (1946) (10) (1956) 1 ALL ENGLAND LAW. REPORTS 256 ). This is not a case of a representation made after contractual relations; existed between the parties to the effect that one party to the contract would not rely on his rights ( 24 ) I am therefore of the opinion that the learned appellate Judge has rightly reached the conclusion that this being a case of a continuing breach even though the rent was accepted till August 1975 after coming to know of the breach there was no waiver. At the most there may be waiver of past breaches. Landlords were entitled to avail of the benefit of the breach if that breach continued which was a continuing breach. ( 25 ) MISS Shah has strongly relied upon the observations made by the Division Bench of Punjab High Court in M/s. NEW GARAGE LTD. V. KHUSWANT SINGH AIR 1952 PUNJAB 82. It is observed at page 87 in para 21:taking the facts proved in this case to be that the premises were let to a person whose sole business was repairing of motor cars that a ramp and air compressor were put up in the premises soon after the grant of the lease; that pumps were being manufactured in these premises and were being assembled; that the landlords were aware of the alleged breach that had taken place and was taking place and had continued to receive rent without any kind of objection having been raised for a period of at least six years they can lead only to one conclusion and that is that even if there was a breach of the covenant it was waived and the landlords have released the covenant or granted a licence for the user. IT is significant to note that the aforesaid observations have been made in the context of the facts found in that case that such user had been started right from the commencement of the tenancy and it having been continued for a period of six years without any objection whatsoever. In the instant case the running of machine with the help of electrical energy was started sometime in December 1963 and it came to the knowledge of the land words as found by the learned appellate Judge sometime in February or March 1965 Kiritkumars evidence which has been accepted as reliable evidence by the learned appellate Judge reveals that defendant Hasmukhlal was told about it and he promised to remove them. Furthermore Kiritkumar has stated that they did not take immediate action as the sale was in contemplation. In sale-deed Ex. 101 passed by the plaintiffs predecessor-in-title there is clear mention about the said breach of the terms of the tenancy and in terms it is stated that on account of such breach of the terms of the tenancy the rights which the landlords got for recovery of possession are also transferred to the vendee. In the notice also this position has been reiterated. It cannot therefore be said in the circumstances of the case that the landlords had waived the future breaches and they had released the tenants from the covenant in question. The observations made in the aforesaid English decision WOLFE V. HOGAN (SUPRA) Indeed in the case of a continuing breach the acceptance of rent after knowledge is only a bar to a claim for forfeiture if it goes on for so long or is accepted in such circumstances that it cannot be inferred that the landlord has not merely waived the breach but has also affirmatively consented to the tenant continuing to use the premises as he has done cannot be pressed into service. Similarly the observations made in the aforesaid decision of the Punjab High Court also cannot be pressed into service. In view of the aforesaid facts it cannot be said that a licence was created in favour of the opponents tenants viz. that they were released from the covenant and they were entitled to use the suit premises for the purposes other than residential purposes and they were entitled to use the electrical energy for the purposes other than household or domestic purposes. that they were released from the covenant and they were entitled to use the suit premises for the purposes other than residential purposes and they were entitled to use the electrical energy for the purposes other than household or domestic purposes. The result is that the plaintiffs landlord are entitled to get possession of the suit premises in view of the position that the tenants have lost the statutory protection on account of non-performance and non-observance of the aforesaid condition. ( 26 ) THE result is that the revision petition succeeds. .