M. K. SHAH, J. ( 1 ) THIS revision application arises out of a wit being Regular Civil suit No. 401 of 1972 filed by petitioners the Original plaintiffs against the opponent original defendant for eviction and recovery of arrears of rent. ( 2 ) IT was the plaintiffs case that the defendant was their tenant in respect of the first the second and the third floors of their property situated on Mahatma Gandhi road Bhavnagar consisting of a ground and three upper floors. It was further the plaintiffs case that the premises were let to the defendant for business purposes and that there was change of user because the defendant was using the second and the third floors of the premises for residence. ( 3 ) THE defendant inter alia contended that the premises were let for the purposes of business as well as residence and from the very inception of tenancy he was using the second and the third floor for the purposes of residence and the first floor for business purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 4 ) ON the evidence led before him the learned trial Judge came to the conclusion that the suit premises were let to the defendant for the purposes of business as well as residence and he therefore found that there was no change of user. He therefore dismissed the suit. . . . . . . . . . . . . . . . . . . . . . ( 5 ) THE first question which arises in this revision application is as to whether the premises were let for the purpose of business only as contended by the plaintiffs followed by further question as to whether there was any change of user by virtue of putting the second and the third floors of the property to the use of residence. ( 6 ) MISS Shah the learned Advocate appearing for the petitioners has taken me through the contents of the rent note which is at Ex. ( 6 ) MISS Shah the learned Advocate appearing for the petitioners has taken me through the contents of the rent note which is at Ex. 35 in this case. The rent note after reciting that the said three floors of the property were let out on a monthly rent of Rs. 35/and that possession was handed over to the tenant further provides thus: "" Translated into English it reads and in respect thereof I am executing this rent note today after stipulating the following conditions. 14 conditions are thereafter set out at Sr. Nos. 1 to 14 and condition No. 4 thereof on which Miss Shah heavily relies in support of the plaintiffs case provides as under :-"" (The tenanted portion has been taken on rent by me for the purpose of selling articles in connection with our electric and also for storing articles and for sitting ). Reading this clause as a whole an impression which is conveyed is that the premises are let for the specific purpose of storing articles and selling goods and for sitting. That means for business purpose only excluding any residential use and as rightly held by the lower appellate court the expression (for the purpose of sitting) read in the context of the words preceding would not convey the meaning as was sought to be canvassed on behalf of the tenant defendant that the property was also occupied for the purpose of residence. Thus viewed the said words are capable of only one meaning viz. for the purpose of sitting or use in connection with the business earlier referred to. ( 7 ) MISS Shah therefore contends that the lower appellate court erred in interpreting the rent note Ex. 35 because the rent note after recitals in terms says that the premises were taken on rent on conditions appearing below the said recitals and condition No. 4 which has been set out above very clearly states that the premises were taken on rent by the tenant for the purposes of storing articles as also selling electronic articles in which the defendant was dealing and then it says that it is also for the purpose of sitting. The learned Judge of the lower appellate court in interpreting the word sitting also came to the conclusion that it was used in the sense of sitting for the purposes of the business and that word was not indicative of the premises being let for residential purposes. ( 8 ) MR. Shah the learned Advocate appearing for the opponent original defendant on the other hand contends that there was no specific term in the rent note to the effect that the premises cannot be used for any other purpose. The mention that the premises were taken on rent for business purpose as set out in condition No. 4 merely further submits Mr. Shah expresses the state of mind of the tenant and it does not amount to any representation or promise or agreement from his side to use the premises exclusively for the said purpose and not to use the same for any other purpose. The suit premises consist of first second and third floors. ( 9 ) I am unable to accept this contention of Mr. Shah. It would be significant to note that the stamp paper for the rent note was purchased in the name of and under the signature of the defendant on June 9 1959 But a couple of days before that as is the case of the defendant himself he had occupied the premises which would be on June 7 1959 The rent note was executed a few days later on June 17 1959 If therefore as the defendant says the premises were taken on rent for the twin purposes of residential as well as business and if they were being put to the said use from the very beginning that is from the date of occupation which would be from June 7 1959 then it would be unnatural to find such a term as a condition embodied in clause 4 in the document which in terms says that the premises were taken on rent for the purposes mentioned therein which indicated business purposes. It is also to be borne in mind that the purposes are mentioned in the body of the document and in the operative part of the document which contains terms on which the premises were taken on lease. It is also to be borne in mind that the purposes are mentioned in the body of the document and in the operative part of the document which contains terms on which the premises were taken on lease. This therefore cannot amount to a mere state of mind of the tenant or want of any representation or promise or agreement on his part to use the premises for the purposes for which they were let. This indicates positively that the premises were let out for a specific purpose viz. business purpose. There are as many as 14 conditions and all of them refer to the conditions or obligations which the tenant has agreed to abide by and fulfil specifically. The document is executed unilaterally by the tenant specifically recording that he had taken possession of the premises on and from June 7 1959 as a tenant on a monthly rent of Rs. 35. 00. He was executing the document in the form of a rent note or agreement entered into by the tenant with the landlord after fixing terms or conditions enumerated at Sr. Nos. 1 to 14. Condition No. 4 is therefore an integral part of the obligations to he performed by the tenant and it forms part of the terms and conditions on which the premises were taken on rent by the tenant. The lower courts therefore were clearly in error in holding that the premises were not let exclusively for the business purposes but that they were let both for the purposes of residence as well as business. ( 10 ) MR. M. C. Shah then contended that as the evidence shows the premises were initially let out to and used for residential purpose by the previous tenant Pritamlal Vrajlal Ex. 56 and that therefore there would be breach of sec. 25 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (the Rent Act ). if later in the year 1959 the landlord lets out the premises for non residential purpose to the defendant as was the plaintiffs case and that therefore such agreement in breach of law would not be enforceable. Now in the first instance the point which Mr. Shah raises now was never raised in this form before any of the lower courts. Now in the first instance the point which Mr. Shah raises now was never raised in this form before any of the lower courts. No such contention was taken in the written statement and I do not find any plea in terms of sec. 25 of the Rent Act in the written statement. No issue was therefore raised in those terms no evidence led and no point urged before the lower courts. Mr. Shah therefore cannot be permitted to raise this point which involves controversial questions of fact with regard to initial letting out and use of the premises. As there was no pleading and no issue the parties attention was not focussed on this issue and no evidence tearing this issue in mind would be expected to be led by the plaintiffs. In this state of affairs this court in a revision application would not enter into such controversial questions of fact particularly when there vas no pleading and no issue raised on the same. Again Pritamlals evidence does not inspire confidence and merely rests on his bare word. Though he refers to the rent note and the premises having been let to him at the rate of Rs. 20/per month and the rent note being executed by him no rent note was produced by him. I have therefore no means to find out the purpose for which the premises were let which purpose can be determined from the conditions of the rent note. He even could not produce 8 Single receipt to show that he was paying Rs. 20/as rent nor has he stated that he himself was using the premises for residential purpose and they were let to him for residential purpose. He merely refers to the defendant coming in occupation of the premises after the witness vacated them and he then says that the premises were hired by the defendant for residence as well as business and that he was using the same for the said two purposes. Thus in any view of the matter there is no substance in this point raised by Mr. Shah. ( 11 ) MR. Thus in any view of the matter there is no substance in this point raised by Mr. Shah. ( 11 ) MR. Shah also submitted that as the evidence shows from the very beginning and for 8 very long period the premises were being used for business as well as residential purposes to the knowledge of the plaintiffs or their agent Devendra who was collecting rent on their behalf. The plaintiffs are therefore estopped from contending that there was change of user by virtue of the provisions contained in sec. 63 of the Contract Act. Sec. 63 contains provisions to the effect:"every promisee may dispense with or remit wholly or in part. the performance of the promise made to him or may extend the time for such performance or may accept instead of it any satisfaction which he thinks fit. "in order that there may be remission or waiver as contemplated by sec. 63 it has to be shown that it is a voluntary act on the part of the promisee which would result in dispensing with the performance by promissor. A mere omission on the part of the promisee to assert his right cannot amount to such waiver. ( 12 ) MISS Shah drew my attention to PHOENEX MILLS LTD. V. M. H. DINSHAW AND COMPANY 48 B. L. R. 313 wherein while referring to the law with regard to the waiver as contained in sec. 63 of the Contract Act the High Court of Bombay observed that a promisee can only dispense with the performance of the promise by a voluntary conscious act. It must be an affirmative act on his part. A mere omission to assert his rights or insist upon his rights cannot amount to a dispensation within the meaning of the section. The High Court even went to the length of observing that even negligence to assert his rights although it might in certain cases result in estoppel cannot amount to a dispensation within the meaning of the section. An estoppel can only come into play if by the plaintiffs conduct the defendant has changed his position in any way to his prejudice. An estoppel can only come into play if by the plaintiffs conduct the defendant has changed his position in any way to his prejudice. ( 13 ) IN another decision in the case NARAYAN BADLAJI SALI V. STATE OF BOMBAY 59 B. L. R. 532 a Division Bench of the Bombay High Court observed as follows:"waiver is a matter of intention and can be either express or implied. Whether it is one or the other it must be deliberate in the sense that the party waiving a right should after applying his mind to the matter decide to abandon the right. In order to infer a waiver some positive act on the part of the party which is supposed to have waived is necessary. A mere delay in doing a particular act or in raising a particular objection would not of itself justify an inference of waiver. "now in the instant case as we find there is no such evidence showing that there was any voluntary conscious deliberate or positive act on the part of the plaintiffs to dispense with the requirement with regard to the user of the premises as contained in the rent note. There is no overt act established on the part of the plaintiffs which may in law amount to waiver as contemplated under sec. 63 of the Contract Act and I therefore do not find any substance in this contention of Mr. Shah. ( 14 ) IT was next urged by Mr. Shah that in any event the said stipulation at Ex. 35 as contained in clause 4 only refers to intention and cannot be termed as a term or condition of tenancy. The stipulation must be in the nature of a positive covenant and not equivalent to a negative covenant and that user by the tenant in the instant case of the premises partly for the purpose of residence does not amount to breach of express covenant. Mr. Shah relied on GLAMOUR CLEANERS V. CHANDRAKANT CHHOTALAL GANDHI AND ANOTHER 3 G. L. R. 941 in support of the said contention of his. There is no dispute that the party will have to establish that the breach complained of was of a term or condition of the tenancy and not merely on incident of the grant of tenancy not amounting to a term or condition of the tenancy. There is no dispute that the party will have to establish that the breach complained of was of a term or condition of the tenancy and not merely on incident of the grant of tenancy not amounting to a term or condition of the tenancy. In the instant case as would be seen from reading the document with regard to tenancy Ex. 36. The said document contains all the stipulations and obligations to be performed by the tenant who has executed the document unilaterally in clear terms reciting that he was taking the premises on conditionsmentioned in the operative part of the document which conditions were set out at Sr. Nos. 1 to 14 and wherein appears condition No. 4 with which we are concerned. It therefore contains a positive obligation on the part of the tenant to observe and perform the said condition and it will therefore be a breach of an express covenant. It is true the term contained in clause 4 does not contain negatively a covenant to the effect that the premises will not be used for residential purpose or any other purpose save and except the purpose for which they were let viz. the business purpose. But on reading the document as a whole it is manifest that the tenant has entered into a stipulation with the landlord that he has taken on rent the premises for the purpose set out in clause 4 viz the business purpose and this clause having been made one of the conditions of tenancy it amounts to a stipulation not to change the user by putting the premises to the use for a different purpose. The covenant as is contained in clause 4 is touching a right of enjoyment of the premises and hence it amounts to a condition of tenancy apart from the fact that it has been specifically referred to as a condition of tenancy and not as a mere personal obligation (vide KANTILAL ISHWARLAL SHAH V. DR. MUKUNDRAI KESHAVLAL PARISH AND OTHERS 14 G. L. R. 227 ). ( 15 ) MR. Shah then submitted that when the document is ambiguous it should be interpreted in such a manner as would be consistent with the objects and purpose of the Rent Act which is primarily enacted for protection of the tenants and not landlords. I do not find any substance in this argument. ( 15 ) MR. Shah then submitted that when the document is ambiguous it should be interpreted in such a manner as would be consistent with the objects and purpose of the Rent Act which is primarily enacted for protection of the tenants and not landlords. I do not find any substance in this argument. There is no ambiguity in the document. The term is very clear. The intention of the party is also very clear and clause 4 is not capable of any other interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 16 ) MR. Shah lastly cited SANT RAM V. RAJINDER LAL AND OTHERS A. I. R. 1978 S. C. 1601 in support of his contention that there was no change of user. This was a case decided on its own peculiar facts which showed that a cobbler by vocation was a petty tenant of the eastern half of a shop in Ram Bazar Simla. The lease deed disclosed no purpose. The landlord respondent filed a petition for eviction under sec. 13 (2) (ii) (b) of the East Punjab Urban Rent Restriction Act 1949 on the ground that the premises were being used for a purpose other than the one for which they were let out. The appellant on some days cooked his food and stayed at night in the rear portion of the shop and the Supreme Court held:"it could not he held that the purpose was exclusively commercial and incompatible with any residential use even of a portion. The legal inference to be drawn from a lease deed was conditioned by the prevailing circumstances. The intention of the parties from which the purpose of the lease was spelled out was to be gathered from the social milieu. The legal inference to be drawn from a lease deed was conditioned by the prevailing circumstances. The intention of the parties from which the purpose of the lease was spelled out was to be gathered from the social milieu. "the Supreme Court further held:"it is impossible to hold that if a tenant who takes out petty premises for carrying on a small trade also stays in the rear portion cooks and eats he so disastrously perverts the purpose of the lease A different purpose in the context is not minor variation but majuscule in made of enjoyment. This was not a case of a man switching over to a canteen business or closing down the cobbler shop and converting the place into a residential accommodation. On the other hand the common case is that the cobbler continued to be cobbler and stated in the shop at night on days when he was running his shop but left for his home on shop holidays. "it would be seen that the case was decided on a finding that the main use of the premises viz. carrying on the trade of a cobbler continued and that the tenant stayed in the shop at night on days when he was running his shop but left for his home on shop holidays. In the case at hand we find that the premises which consisted of three floors and which were let out exclusively for the business purposes were substantially converted and put to the use for residential purpose by using the same for residential purpose so far as two out of three floors are concerned. Substantially therefore the place which was let out for business purpose was converted into residential accommodation. This decision therefore does not help Mr. Shah. .