Judgment :- The appeal is against the judgment of at learned judge of this Court, decreeing the plaintiff's suit for a permanent injunction restraining the defendants from conducting the'Viruthikulangara Wine Stores' in the plaint schedule building or from using the building for any purpose other than that for which it was let, viz. for conducting a gold trade. The trial court, the Munsiff of Kottayam dismissed the suit. The Appellate Judge viz, the Subordinate Judge, Kottayam decreed the suit; and the learned judge in Second Appeal, sustained the judgment and decree of the lower appellate court. He, however, grant d leave to appeal, which had occasioned this further appeal: 2. The judgment of the learned judge was on 31st January, 1977, and leave to appeal was granted the same day on oral request of the appellants herein. The learned Advocate General appearing for the plaintiff-respondent raised the preliminary objection that the appeal is not maintainable. Under S.5(iii) of the Kerala High Court act, 1959 an appeal shall lie to a Bench of judges, from a judgment of a single judge, in the exercise of appellate jurisdiction, in respect of a decree or order made, in the exercise of appellate jurisdiction by a subordinate court, if the judge who passed such judgment, certifies that the case is a fit one for appeal. This is the provision of law under which the above appeal is preferred, The Civil Procedure Code Amendment Act.104 of 1976 came into force on 121977. S.100A was added to the Civil Procedure Code by S.39 of the Amending Act. The section is as follows: "100A. No further appeal in certain cases. Notwithstanding anything contained in Letters Patent for any High Court or is any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single judge of a High Court no further appeal shall lie from the judgment, decision or order of such Single Judge is such appeal or from any decree passed in such appeal." The reference to the 'Letters Patent' in the above provision is to Clause (15), of the Madras Letters Patent, and to similar provisions in the Letters Patents of the two other Presidency High Courts of Bombay and Calcutta. These provisions in substance, authorise a further appeal from the decision of a Single Judge in Second Appeal, with the leave granted orally by the judge who heard and decided the case. Chapter V, S.97 (1) and (2) of the C.P.C. Amendment Act 1976, referred to earlier, reads: "97. Repeal and savings (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. (2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) has taken effect and without prejudice to the generality of the provisions of S.6 of the General Clauses Act, 1897, " Clause (n) of S.100A of the Civil Procedure Code introduced by Act 104 of 1976 provides: "S.100A (n). S.100A, as inserted is the principal Act, by S.38 of this Act, shall not apply to or affect any appeal against the decision of a single judge of a High Court under any Letters Patent which had been admitted before the commencement of the said S.38; and every such admitted appeal shall be disposed of as if the said S.38 had not come into force." Reference may also be made to R.43 Clause (4) of the Rules of the High Court of. Kerala, framed under Art.225 of the Constitution, S 122 of the C.P.C. and all other enabling provisions The said rule provides that where an application for leave to appeal is granted, the applicant shall present the appeal together with a copy of the order granting the application within thirty days from the date of the order. 3. In the light of the above provisions, the learned Advocate General argued that while the general principle is that a right of appeal is substantive right and therefore would remain unaffected by any amendment or now legislation made during the pendency, and before the final conclusion, of a litigation started before it, unless it is made so expressly or by necessary implication, such an intension had been indicated by the Amending Act 104 of 1976. This was sought to be inferred from the provisions of S.100A, which barred any further appeal from the judgment of a Single Judge passed in Second Appeal. The argument was sought to be reinforced by clause (n) of S.100A under which the only exception against the ban created by S.100A was in respect of any appeal against the decision of a Single Judge of the High Court under any Letters Patent which had been admitted before the commence meat S.38 (1-2-77). The argument proceeded that an appeal under S.5 of the High Court Act was 'practically the same as, or equivalent to, an appeal under the Letters Patent referred to in clause (nOof S.100A; so understood, the exemption was only in respect of such an appeal which had been admitted before the commencement of S 38 It was contended that the mere granting of leave to appeal on 11 1 1977 would not amount to 'admitting' the appeal, that the appeal had still to be filed, and before this could be done, on 1 21977 Act 104 of 1976 had become law and the ban against further appeals from the Second Appeals had become operative. So ran the argument. 4. We think that the argument of the learned Advocate General involves many assumptions and extensions, not warranted by the terms of the Statute. The ban against further appeals from Second Appeals imposed by S.100A of the Act, is on its language, and in the light of well settled principles and judicial decisions, only prospective, and not retrospective. The judgment of the learned judge was delivered on 31-1-1977; and leave to appeal further was also granted by the judge on the same day. Whether leave was granted or not, a vested right of appeal accrued in favour of the appellant to carry up the matter in further appeal; this vested right has not been affected either expressly or by necessary implications by the terms of S.100A. It is enough to refer to the judgment of the Supreme Court in Garikapati Veeraya v. N. Subbiab Choudhry & Others (AIR. 1957 SC. 540 ). In Para.15 of the said judgment reference was made to two well known cases, one of the Calcutta High Court, and the other of the Madras High Court. In the Calcutta case. Sadar Ali v. Dalimuddin (ILR. 56 Calc. 512 1928 Calc. 1957 SC. 540 ). In Para.15 of the said judgment reference was made to two well known cases, one of the Calcutta High Court, and the other of the Madras High Court. In the Calcutta case. Sadar Ali v. Dalimuddin (ILR. 56 Calc. 512 1928 Calc. 640) it was held by a Full Bench that clause (15) of the Letters Patent as it originally stood, which permitted a further appeal from a judgment in Second Appeal even without the leave of the Single Judge, governed the position of an appeal, decided prior to the amendment of the Letters Patent making the leave of the judge necessary, and was in no way affected by the amendment. To the same effect was the decision of the Madras Full Bench in Vasudeva Swamiar in Re (ILR 52 Mad. 361 = AIR. 1929 Mad. 381). A Full Bench of this Court in Lakshmi Amma alias Echuma Amma v. Devassy (1970 KLT. 204 at 213 para 9) has followed and restated the same principle. S.100A of the CPC. introduced by the Amending Act 104 of 1976, would not, therefore, affect the vested right of further appeal against the Second Appeal judgment which accrued to the appellant on 31-1-1977. Indeed, in pursuance, of that right, leave to appeal bad also been granted by the learned judge on 31-1-1977. 5. There is no merit in the learned Advocate General's contention based; on the exemption from the ban imposed by S.100A of the CPC., granted by clause (n) thereof, only in respect of Letters Patent appeals admitted before the Amending Act came into force. For the one thing, clause (n) of S 100A containing this exemption has itself no operation to appeals under the High Court' Act, but is limited only to appeals tinder the Letters Patent; and we section warrant to stretch the language of the clause, or by a process of analogy, to include appeals under the High Court Act. That apart, it is a strange process of reverse reasoning to try to spell out what is included in the ban under S.100A, by demarcating what has been excluded from it. If appeals under the High Court Act from pending proceedings have not been included at all under the ban, it is no good pointing to the exemption clause to indicate that it can operate only in respect of such appeals. If appeals under the High Court Act from pending proceedings have not been included at all under the ban, it is no good pointing to the exemption clause to indicate that it can operate only in respect of such appeals. (roped in by a process of extension) only after they had been admitted, and not to appeals in respect of which leave had been merely obtained. Counsel for the appellant submitted that there was no question of admission for as appeal against Second Appeal, for which leave had; been granted for which the Advocate General rejoined that it had at least to be filed and mere obtaining of leave would not suffice. We find no merit in the preliminary objection raised by the learned Advocate General. We overrule the same and proceed to deal with the case on its merits. 6. Ext. Al dated 111962 was the lease deed in respect of the plaint schedule building (room) rented out to the 1st defendant by the plaintiff's, father on a monthly rent, of Rs. 90, for conducting trade in gold. The premises were not to be sub let or transferred without the permission of the landlord. The evidence is that subsequent to Ext. Al, in addition to the gold trade, a trade in clocks, watches and electrical goods was also being carried on in the building without objection by the lessor. On 10 31974 a partnership deed was executed between the Ist defendant and defendants 2 and 3. A fresh business in wine stores (foreign liquor) was started in the name and style of "Viruthikulangara Wine 'Stores". Immediately thereafter, on 5-4-1974, the suit for a permanent injunction which has given rise to this appeal was filed, The application for interim injunction was not allowed. We have traced the course followed by the suit through the various stages till it has reached us. 7. Ext. Al contains a clause that the premises were to be used for gold trade It contained a clause that if the rent (Rs. 90/- per month) is defaulted or for any other reason request for surrender of possession is made, the premises should be surrendered on fifteen days notice. 7. Ext. Al contains a clause that the premises were to be used for gold trade It contained a clause that if the rent (Rs. 90/- per month) is defaulted or for any other reason request for surrender of possession is made, the premises should be surrendered on fifteen days notice. Before the learned judge, the case for injunction was rested on S.108(o) of the Transfer of Property Act, which is as follows: "108; In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following or such of them as are applicable to the property leased: - [a] to [n] x x x x [o] the lessee may use the property and its products [if any] as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use. the property for a purpose other than that for which it was leased, or fell or sell, timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto." The Section recognises the paramountcy of the contract between the parties, of local usage, and subject to these, provides for certain rights and liabilities. Therefore the argument of the learned Advocate General on behalf of the landlord was that the contract Ext. Al, itself, contained a prohibition against conducting wine store in the building. If this were to be found against he rested his case on two different parts of S.108(o), viz., (1) that the tenant had used or used or permitted another to use the property for a purpose other than that for which it was leased and (2) that he had committed an act, destructive or permanently injurious thereto. The learned judge recorded that there was no prohibition or negative covenant in Ext Al, In Para.28 of his judgment, differing from the conclusion of the lower appellate court, the learned judge found that it cannot be said from the terms of Ext. The learned judge recorded that there was no prohibition or negative covenant in Ext Al, In Para.28 of his judgment, differing from the conclusion of the lower appellate court, the learned judge found that it cannot be said from the terms of Ext. Al that the building was leased for conducting the gold trade alone and that the inference of any negative covenant not to use it for any other purpose, as done by the lower appellate court, would not be justified. The learned judge rested his conclusion that the plaintiff was entitled to an injunction on the ground that the use of the building for wine store was itself objectionable and that the provisions of S.108(o) should be extended to meet the requirements of the situation disclosed (vide Para.28). In Para.29, he stated that the balance of convenience was again in favour of the plaintiff, as she suffered more injury than the defendants. The reason for the learned judge's conclusion that there was an injury as contemplated in S.108(o) of the Transfer of Property Act is to be found in Para.25 to 27 of the judgment. There the learned judge referred to the plaint allegation that the plaintiff being a Muslim lady was being put to much ridicule and shame by members of her community on account of the use of her building for conducting wine stores, as it offends the religious feelings of her community. The building, it was said, got a bad reputation by reason of the purpose for which it was used. The learned judge took judicial notice of the campaign at the national level for the introduction of prohibition throughout India, and of the fact that one million signatures are being obtained from women in the State of Kerala, to stop the evil of drinking. Observed the learned judge: "That drinking is a vice is an acknowledged fact, recognised by all religions. For the purpose of this case, I do not think it necessary to probe into the holy scriptures. The Holy Quran has very strongly condemned the use of liquor and has characterised it as devil's deed. The prophet of Islam has also through various sayings condemned the use of liquor". We, (particularly one of us Kochu Thommen J,), cannot, with respect endorse the learned judge's broad statement that drinking has been acknowledged to be a vice and recognised as such by all religions. The prophet of Islam has also through various sayings condemned the use of liquor". We, (particularly one of us Kochu Thommen J,), cannot, with respect endorse the learned judge's broad statement that drinking has been acknowledged to be a vice and recognised as such by all religions. The virtues and vices of drinking are matters, which, for obvious limitations, one of us, (myself) is "ill-qualified to expound" (to borrow the language of Lord Simon). Following the learned judge's example, we retrain from diving into the Holy Scriptures to examine this aspect further. The decision of the case must rest on the terms of the contract Ext. Al and on S.108 (o) of the Transfer of Property Act. In regard to that Section, the learned judge took the view that trade in liquor offends the religious sentiments of the plaintiff and causes damage to her reputation and a slur on the building and earns for it a bad association. Referring to the plea that no evidence at all had been adduced in the case, the learned judge recorded that it can safely be held that the use of the building for wine trade would offend the plaintiff's, religious sentiments and cause a slur which cannot be compensated by repairs or even by the cessation of such use. In Para.27 the learned judge recorded: "The injury is not a physical injury, but an injury on the reputation of the owner and a bad association to the building." It was on this reasoning that the learned judge sustained the decree for injunction and dismissed the appeal. 8. The learned Advocate General contended that the positive covenant in Ext. Al that the letting was to carry on gold trade, is itself sufficient to imply a negative covenant that no other trade could be carried on, and that the premises are not to be used for any other purpose. He further maintained that that the fact that there was acquiescence by the landlord in the trade in clocks, watches and electrical goods, would not constitute an acquiescence for carrying on wine stores. Attention was called to the decision in Behari Lal v. Smt. Chandrawati (AIR. 1966 Allah. 541). There the original letting, was for residential purpose. There was diversion of the premises for running a laundry and for selling sweets. This was acquiesced in by the landlord. Attention was called to the decision in Behari Lal v. Smt. Chandrawati (AIR. 1966 Allah. 541). There the original letting, was for residential purpose. There was diversion of the premises for running a laundry and for selling sweets. This was acquiesced in by the landlord. There was a further attempt to use the premises for a manufacturing process, which was objected to. It was held by Bhavan J. that although a landlord may have acquiesced in certain acts of the tenant, that did not amount to manufacturing process, he was not precluded from objecting against a diversion for such a purpose. The learned Advocate General referred to the passage in Woodfall's Landlord and Tenant (25th Edn. at page 180 Para.2138; See page ,930 Para.2066 of Vol. I of the 26th Edn ). This passage only notices S 148 of the English Law of Property Act of 1925 which enacted that waiver of the benefit of any covenant proved to have taken place cannot operate as a general waiver, and shall not be deemed to extend to any breach save that to which it specifically relates. The principle is intelligible enough-Submission to an encroachment of an acre or two would not preclude the person who submitted in the first instance, from resisting further attempts at aggrandisement. The passage at page 278, Para.168, of Hill and Red man's Law of Landlord and Tenant was cited only to show that covenants restricting user of the demised promises of the lessee, were common and may be enforced by injunction. The same paragraph also states that if the land is let for a specific purpose, its use for other purposes will be restrained by injunction, and a restriction for use otherwise may be implied from a positive stipulation. But there is also the further statement that subject to what is stated, the lessee is not prohibited from using the premises for any purpose for which the premises may properly be used under the general law, notwithstanding that it is different from the purpose originally contemplated, provided there is no fraud on the lessor in taking the lease in an unrestricted form. Para.170 of the book, (at pages 283 & 284 of 15th Edn. footnote (h)) refers to cases of conducing a different business from that originally permitted. Para.170 of the book, (at pages 283 & 284 of 15th Edn. footnote (h)) refers to cases of conducing a different business from that originally permitted. The sale of cigarettes at the cash desk of a restaurant was held not to be a use of the premises let for running a hotel for the different business of sale of tobacco; and a covenant not to use the premises for the business of bread and confectionery was held to be not violated by the premises being 1st to grocers who sold also bread and confectionery These passages are to some extent helpful in understanding and formulating the principle underlying S.108 (o) But the background and the content of the decisions cannot be overlooked, It would be unwise to import wholesale considerations germane to the provisions of the English Statute, while dealing with the terms of the Indian Section. The learned judge in the course of his judgment noticed the two English decisions in Hoffman v Fineberg & others (1948 (1) A. E. R.592) and Egerion v. Esplanade Hotels, London (1947 (2) A. E. R.88). The first decision was concerned with the question of the construction of S.146 of the Law of Property Act 1925 which will be found quoted in the judgment That, in substance, provided that a right of reentry on forfeiture under any provision or stipulation in a lease for breach of any covenant or condition in the lease shall not be enforceable by action or otherwise until the lessor serves on the lessee a notice, requiring the lessee if the breach is capable of remedy, to remedy the same. (The rest of the provisions of the Section are not material and need not be noticed). The premises originally let for use as a Workmen's Social Club was later used as a gambling house. The lease contained a covenant not to do or suffer to be done any act which might be to the annoyance or damage of the landlord, but to conduct the club in a proper manner and to comply with all the legal and other necessary regulations. There was a provision for re-entry on breach of the covenant. The tenants used the premises for running a gambling house. There was a conviction under the Gaming Act. There was a provision for re-entry on breach of the covenant. The tenants used the premises for running a gambling house. There was a conviction under the Gaming Act. It was in these circumstances that the landlord served a notice under S.146(1) of the Law of Property Act, but the notice did not require the tenants to remedy the breach. The question arose whether the breach was "capable of remedy" and whether the requirement of notice had to be complied with. It was held that the breach was not capable of remedy and that notice need not be issued. Harman J. stated: "Clearly, the section contemplates that some breaches are, while others are not, capable of remedy, but the cases give, I think, very little guidance as to what is "capable of remedy" within the meaning of the section. In one sense, no breach can ever be remedied, because, ex-concessis, there must always be a time in which the covenants have not been complied with, but S.146 clearly involves the view that some breaches are remediable. I observe, in passing, that in Civil Service Co-operative Society v. McGrigor's Trustee (4) RUSSELL. J., held ((1923) 2 Ch. 356) that bankruptcy was a breach which was irremediable, and the point was discussed also in Rugby School v. Tannahill (5), where MACKINNON, J, proposed a test which, if it was a good test, would be a satisfactory one. In Rugby School v. Tannahill (5) the breach was of a covenant not to use the premises for illegal or immoral purposes, and the notice which was served did not require any remedy for the breach. MACKINNON, J. came to the conclusion that, the breach being a breach incapable of remedy, it was not necessary to demand its remedy in the notice. He said ( (1934) 1 K B. 700, 701): "The second point has given me rather mere difficulty namely the contention that the notice was bad because it did not require the lessee to remedy the breach. It is stated that, notwithstanding the absence of a requirement to remedy, the lessee has in fact altered her conduct, and the house is now respectably conducted. Mr. It is stated that, notwithstanding the absence of a requirement to remedy, the lessee has in fact altered her conduct, and the house is now respectably conducted. Mr. Farnley Whittingstall for the defendant says that breach, of a negative covenant can be remedied by compliance therewith as from a certain day, and instances the breach of a covenant not to use the premises fora children's school, which he says can be remedied by ceasing so to use them. At first sight this is an attractive argument, but it has a Very obvious disadvantage from the point of view of the landlord, for supposing the case of a breach of a covenant not to do something and, when the landlord complained, an immediate abstention from the user of the premises in breach of the covenant, the landlord would be deprived of any cause of action, or, if he had already begun one, he would have it dismissed with costs. And that might happen again and again; the landlord would have to give a fresh notice in each case, with the same result. On the other hand it is quite clear that if the covenant is an affirmative covenant to do something, e. g, to repair or to build, then if the repairs are done or the buildings erected within a reasonable time there is no possible danger of a renewal of the breach. I think there is a radical distinction between the two sorts of covenant A promise to do a thing, if broken, can be remedied by the thing being done. But breach of a promise not to do a thing cannot in any true sense be remedied; that which was done cannot be undone. There cannot truly be a remedy; there can only be abstention, perhaps accompanied with apology. I think the breach of a negative covenant; of this sort is not one "'capable of remedy" within the section, This does not mean that the penalty for breach of a negative covenant is necessarily greater than that for breach of an affirmative covenant. There cannot truly be a remedy; there can only be abstention, perhaps accompanied with apology. I think the breach of a negative covenant; of this sort is not one "'capable of remedy" within the section, This does not mean that the penalty for breach of a negative covenant is necessarily greater than that for breach of an affirmative covenant. For the power of the court to grant relief remains If that remained the law, it would, be attractive and easy, and one cannot but regret that that is not the case, but when Rug by School v. Tannahill (5) went to the Court of Appeal, the court, while agreeing that the breach there in question was a breach which was incapable of remedy, rejected the broader Statement which MACKINNON, J., had made. GREER. L. J., said ((1935) I K. B. 90,91) "In my judgment MACKINNON, J., was right in coming to the conclusion that it was not (i.e. that the breach was not capable of remedy). I think perhaps he went further than was really necessary for the decision of this case in holding that a breach of any negative covenant the doing of that which is forbidden can never be capable of remedy. It is unnecessary to decide the point on this appeal; but in some cases where the, immediate ceasing of that which is complained of. together with an undertaking against any further breach, it might be said that the breach was capable of remedy. This particular breach, however conducting the premises, or permitting them to be conducted, as a house of ill fame is one which in my judgment was not remedied by merely, stopping this user. I cannot conceive how a breach of this kind can, be remedied. The result of committing the breach would be known ail over the neighbourhood and seriously affect the value of the premises. Even a money payment together with the cessation of the improper use of the house could not be a remedy. Taking the view as I do that this breach was incapable of remedy, it was unnecessary to require is the notice that the defendant should remedy the breach. MAUGHAM, L. J.,said (ibid, 92): I am not prepared to go as far as MACKINNON, J., in his reasons for holding. that the notice given to the defendant was valid. Taking the view as I do that this breach was incapable of remedy, it was unnecessary to require is the notice that the defendant should remedy the breach. MAUGHAM, L. J.,said (ibid, 92): I am not prepared to go as far as MACKINNON, J., in his reasons for holding. that the notice given to the defendant was valid. The learned judge thought that the breach, of a negative covenant was incapable of remedy. I am not satisfied that there may not be some negative covenants with regard to which a breach may be capable of remedy so that as to them a proper notice under S.146 ought to require the lessee to remedy the breach. My ground for affirming the decision appealed from rests upon a somewhat narrow basis." He then discussed the basis on which he came to the same conclusion as MACKINNON, J., had reached. I am, therefore, deprived of the assistance that I should otherwise have had from the decision of the court of first instance in that case, and the sea is left still uncharted in consequence." Examining the matter further, the learned judge held that the lessees were not entitled to indulgence and that the landlord was entitled to re-entry. In Egerton v. Esplanade Hotels London (1947 (2) A E R. page 88), the lease was for the use of the premises as a hotel. There was a covenant that it was not to be used against the provisions of any law The tenant us?d the premises for running a brothel The Manager was convicted by a criminal court. It was held that under the terms of S.146 of the Law of Property Act, there was a breach of the covenant, causing damage not capable of repair, and that notice to repair the damage was not necessary. Except by way of persuasive value in regard to the difference of purpose and the nature of the damage caused by the diversion of the tenement, these decisions appear to have not much of a bearing in dealing with S.108 (o) of the Indian Act worded; differently. We have discussed them in difference to the learned Single Judge who dealt with these cases, and only to point out the difference in the language of the Indian Section as compared to the English Statute. We shall say more on this aspect later. 9. We have discussed them in difference to the learned Single Judge who dealt with these cases, and only to point out the difference in the language of the Indian Section as compared to the English Statute. We shall say more on this aspect later. 9. Counsel for the appellant rightly concentrated on the language of S.108(o) of the Transfer of Property Act and emphasised, in particular, that the act contemplated by the clause is one "which is destructive or permanently injurious thereto" (underlining ours). In the context, there can be little doubt that the expression 'thereto' can relate only to the demised premises. It was contended that the violation of the religious feelings and sentiments of the landlord cannot amount to an act destructive of, or permanently injurious to, the leasehold right. The learned judge held that it was; and the question for our determination is whether his reasoning and conclusion are right. 10. 'With all respect to the learned judge, we are unable to share his view that use of the premises for conducting a wine trade, in the circumstances disclosed, amounts to an act destructive of no permanently injurious to, the property leased. The use of the premises as a gambling house or at a brothel, as in the English cases referred to, appear to us to stand on a fundamentally different basis, as the very nature of the use its If involves a slur or stigma on the premises and is sufficient to destroy its value or permanently injure the same. But we find it difficult to hold that the use of premises as a wine store has the same result or effect because the landlord (landlady) is a Muslim whose religion does not view drinking With favour. She resides far away from the premises. Nor, are we satisfied that the national policy to bring in total prohibition and the directive principle of State policy embodied in Art.47, or the signature campaign for prohibition, of which judicial notice was taken by the learned judge, would make any difference to this position. We may refer to the latest Edition of Mulla's Transfer of Property Act, page 728 where the following passage is to be found: "But if premises are let for business purposes, they may be used, in the absence of an express covenant, for any lawful business which is not a nuisance". We may refer to the latest Edition of Mulla's Transfer of Property Act, page 728 where the following passage is to be found: "But if premises are let for business purposes, they may be used, in the absence of an express covenant, for any lawful business which is not a nuisance". The case noticed as authority for the proposition is the decision In The Matter of Standard General Assurance Co. Ltd (AIR. 1965 Calc.16). There, objections were raised by the landlord, to the lessee, a company, altering the objects clause of the Company to permit a change horn the business of insurance to manufacture and dealing in chemicals, drugs etc One of the grounds made on behalf of the tenant in answer to the opposition was that the landlord cannot dictate the business that the tenant should carry on and had ho right to object to a change of business of the tenant, unless there are restrictive covenants or statutory prohibitions, and, that in the absence of these, the tenant had the right to use the premises for any purpose so long as they were not illegal or immoral and did not create a nuisance. The submission was sought to be fortified by passages from Hill and Redman's Law of Landlord and Tenant. The learned judge was prepared to accept this submission as sound, (vide para 27). In U Po. Aaroo v. Burma Oil Co. (AIR 1929 P.C 108), the premise's were leased for winning oil. It was held by the Judicial Committee that the purpose was sufficient to cover and to 'protect, the generation of gas which was necessarily involved in the process of winning oil. The relevant passage is as follows: "A further argument was based upon the provisions of S.108, sub-s, (o), T. P. Act, 1882, which provides that the lessee of property must not use the property for a purpose other than that for which it was leased. 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 is 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." 11. The learned Advocate General cited the decision in Nashirwar etc. The learned Advocate General cited the decision in Nashirwar etc. v. State of Madhya Pradesh : AIR.1975 SC. 360) and Har Shankar and Others etc. v. The Deputy Excise and Taxation Commissioner (AIR. 1975 SC. 121) to emphasise that prohibition is a national policy, and that there is no fundamental right to carry on trade of do business in liquor. Counsel for the appellant, and also the learned Advocate General, made copious quotations from the decision of the Supreme Court in Gherulal Parakh v. Mahadeodas Maiya and Others (AIR. 1959 SC, 781) each to highlight his own point of view. The decision was concerned with expounding the concept of 'public policy' in relation to S 23 of the Indian Contract Act Wagering contracts were attacked in that case on various ground viz., as opposed to public policy, as illegal, immoral and so on The grounds were all repelled. The danger of inventing new heads of public policy was pointed out. In regard to immorality it was emphasised that immorality as known in this country is confined to sexual immorality and not to any type of merely unethical conduct. 12. The learned Advocate General referred to the later ruling of the Supreme Court in Muralidhar Agarwal & Another v. State of Uttar Pradesh & Others (AIR 1974 SC 1924), which, it was said, bad somewhat whittled down the earlier pronouncement. Mathew J. who spoke for the Division Bench of the Supreme Court, observed: "28. The expression'public policy' has an entirely different meaning from'policy of the law and one much more extensive. Nevertheless, the term'public policy' is used by the House of Lords itself apparently as synonymous with the policy of the law or the policy of a statute (See Hollinshead V Hazleton 1916 AC.428) Yet it is clearly so used without intent to repudiate or disregard the distinction so clearly drawn in Egerton v. Brownlow. (1853) 4 HLC. I at p 105. It seems clear that the conception of public policy is not only now quite distinct from that of the policy of law but has in fact always been so except in some exceptional instances of confusion which have had no substantial effect on the general course of authority See W.S.M, Knight, "Public Policy in English Law". 38. Law Quarterly Rev. 207, at pp. 217-218. 29. The courts have often repeated Mr. 38. Law Quarterly Rev. 207, at pp. 217-218. 29. The courts have often repeated Mr. Justice Borough's metaphor about public policy being an unruly horse. Some Judges appear to have thought it more like a tiger and have refused to mount if at all, perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balsam's ass which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community. There is nothing remarkable in this because the topic itself is so elusive. See Percy H. Winfield, "Public Policy in English Common Law", 42, Harward Law Rev. 76. 30. "Public Policy" has been defined by Winfield as "a principle of judicial legislation or interpretation founded on the current needs of the community " (See Percy H. Winfield, 'Public Policy in English Common Law" 42 Harward Law Rev. 76) Now, this would show that the interests of the whole public must be taken i to account; but it leads in practice to the paradox that in many cases what seems to be in contemplation is the interest of one section only of the public, and a small section at that. The explanation of the paradox is that f he courts must certainly weigh the interests of the whole community as well as the interests of a considerable section of it, such as tenants, for instance, as a class as in this case. If the decision is in their favour it means no more than that there is nothing in their conduct which is prejudicial to the nation as a whole. Nor is the benefit of the whole community always a more tacit consideration. The courts may have to strike a balance in express terms between community interests and sectional interests So, here we ate Concerned with the general freedom of contract Which everyone possesses as against the principle that this freedom shall not be used to subject a class, to the harassment of suits, without valid or reasonable grounds. Though there is considerable support in judicial dicta for the view that courts cannot create new heads of public policy, see Gherulal Parakh v. Mahadeodas Maiya,159 Supp. Though there is considerable support in judicial dicta for the view that courts cannot create new heads of public policy, see Gherulal Parakh v. Mahadeodas Maiya,159 Supp. (2) SCR 406 at p 440 - (AIR 1959 SC 781) there is also no lack of judicial authority for the view that the categories of heads of public policy are not closed and that there remains a broad field within which courts can apply a variable notion of policy as a principle of judicial legislation or interpretation founded on the current needs of the community". See Dennis Lloyd "Public Policy", (1953), pp. 112-113. 31. Public Policy does not remain static in any given community; It may vary from generation to generation and even in the same generation. Public policy would be almost unless if it were to remain in fixed moulds for all time." After some discussion, the learned judge found at the end of Para.32 that the function of finding out public policy at any given point of time and in regard to any specific provision must be discharged by the Judges. It is unnecessary for purpose of this case to get en-mashed in the intricacies of this aspect of the law There was no contention that the use in question contravened public policy. We think it unnecessary again, to deal with the earlier decision of the Supreme Court in Krishnakumar Narula & Another' v. State of Jammu and Kashmir & Others (AIR 1967 SC 1368) holding, that there is a fundamental right to carry on a business or trade in liquor and examine how far that view can be sustained in the light of the later rulings in Nasnirwar etc. v. State of Madhya Pradesh & Others (AIR 1975 SC 360) and Har Shmkar & Others etc v. The Deputy Excise and Taxation Commissioner & Others Etc. (AIR 1975 SC 1121). Assuming, or stating the proposition in the most favourable way to the Advocate General.it can only amount to this that there cannot be a fundamental right for consuming liquor or to carry on trade in liquor But the question that falls for consideration in this appeal runs on a lower plane viz. whether the use of the leased premises to carry on a wine trade, can be said to violates. 108(0) of the Transfer of Property Act, particularly when the landlord happens to be a Muslim lady. whether the use of the leased premises to carry on a wine trade, can be said to violates. 108(0) of the Transfer of Property Act, particularly when the landlord happens to be a Muslim lady. There was no oral evidence on either side. It is not contended that the landlady was living either in, or anywhere near, the demised premises. Secularism is the ideal postulated for attainment by our country, and tolerance is the keynote of that ideal. In the circumstances disclosed, we are unable to hold that the use of the premises as a wine store amounts to an act destructive of, or permanently injurious to, the leased property. We should not, of course, be underset of as ruling out that as injury to the demised premises' of the type contemplated by S 108(0) of the Transfer of Property Act cannot result by any sort of disreputable use of the premises, such as what was considered and discussed in English cases and text books noticed earlier. That is unnecessary for the purposes of this case. On the facts of this case it cannot be said that there was anything like a use of the premises for a purpose permanently destructive of it or injurious thereto. 13. The learned Advocate General then tried to put his case within the earlier part of clause (o) of S 108 on the ground that the lessee had used or permitted another to use the premises for a purpose other than that for which it was leased. The learned judge had held against him on this point. But it is, of course open to him to support the decree even on the point decided against him. He relied on the covenant in Ext. Al and on the passages in Hill and Redman's Law of Landlord an Tenant, and Woodfall on'Landlord & Tenant, referred to earlier, for making out that a positive covenant without more, is sufficient to imply that the demised premises were to be used only for the purpose indicated and for no other. Counsel for the appellant took up the position that there was no positive covenant at all. This appears to pitch the tent too high. There was a covenant in Ext. Al that the premises were to be used for conducting a gold trade. Counsel for the appellant took up the position that there was no positive covenant at all. This appears to pitch the tent too high. There was a covenant in Ext. Al that the premises were to be used for conducting a gold trade. But Counsel for the appellant raised an interesting discussion on the question of confining the covenant to the named or specified purpose and as prohibitive of any others. In Vinod Chandra Hiralal Gandhi v. Vivekanand Mills Ltd Ahmedabad (AIR 1967 Guj. 255) there is a good survey of the development of the law on the question of inferring a negative covenant against use or action for any other purpose, from mere specification of a positive covenant for a stipulated purpose. Bhagwati J. who spoke for the Court, noticed, that the basic decision of English Law on which this proposition was based Montague v. Flockton (1973,16, Eq. 189) was no longer good law in view of the later decision of the English Court in Whitwood Chemical Co. v. Hardmun (1891 (2) Ch. 416). The learned judge pointed out that the earlier English decision had inspired illustration (d) to S.57 of the Specific Relief Act, 1877. That illustration seems to suggest that an affirmative stipulation, without more would imply a negative stipulation, not to do anything inconsistent with the affirmative stipulation. The later English decision in 1891, noticed earlier, overruled the earlier one and held that an affirmative stipulation does not itself imply a negative stipulation not to do anything inconsistent with it But illustration (d) to S.57 continued to remain on the Indian Statute book Bhagwati J. pointed out that the illustration was to serve only a limited purpose and was not meant to make the law. When the new Specific Relief Act was enacted in 1963, by S 38 of the said Act, Illustration (d) to S.57 of the earlier Act was omitted. These are interesting aspects. When the new Specific Relief Act was enacted in 1963, by S 38 of the said Act, Illustration (d) to S.57 of the earlier Act was omitted. These are interesting aspects. In an earlier decision in Sree Ambarnath Mills Corporation, Bombay v. Custodian of Evacue Property (AIR 1957 B. 119) Shah J. (as he then was) held; "There must be something in the agreement, apart from the affirmative agreement, which shows that the promisor has expressly or by necessary implication agreed not to sell the property to any person other than the purchaser": Earlier the learned judge stated: "Whether a covenant is affirmative or negative is a matter of substance and not of mere form, and the negative stipulation whether it is express or implied must be distinct; and an affirmative agreement does not by itself imply a negative agreement not to do some, thing inconsistent therewith". In Mec Laboratories (Private) Ltd. V. R. Nathan, Sole Proprietor of V. R. Nathan and Sons ( (1967 (1) M.L J. 363), the Madras High Court (Alagiri Swamy J) held that a positive agreement of exclusive service of an employee with an employer during the period of agreement would imply a negative covenant not to serve another employer (See Pollack and Mulla's Indian Contract and Specific Relief Acts, 9th Edn. p 963). We cannot agree with the learned Advocate General that the positive covenant in Ext Al to carry on business in gold trade carried with it a negative covenant not to carry on business of any other kind whatsoever. Even taking into account the fact that the landlady is a Muslim, we do not think that conducting a wine store was so inconsistent with original purpose of the letting as to violate the implied negative covenant not to use the premises for the said purpose. We are accordingly of the view that the plaintiff is not entitled to relief on the ground that there was a use or permission to use the property for a purpose other than that for which it was let. We allow this appeal, set aside the judgment and decree of the learned judge and direct that the suit will stand dismissed with costs throughout Allowed.