Can rights of the accused be waived by his Advocate?

  In India, the rights of the accused cannot be waived by the advocate without the express and informed consent of the accused. The accused person is the primary holder of their legal rights, and these rights are considered fundamental and inalienable. The advocate's role is to provide legal advice and representation, but they must act in accordance with the instructions and decisions of their client, the accused.

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When can a contractual right be not waived?

  This Court elucidated the general principle that everyone has a right to waive and to agree to renounce an advantage of law or Rule made solely for the benefit and protection of the person in private capacity. If a party gives up the advantage that could be taken of a particular position in law, it cannot later be permitted to change and turn around so as to avail of that advantage. However, this Rule will not apply when there is a prohibition against contracting out of the statute, which prohibition would have its consequences or in case the waiver would be contrary to public policy. Further, a person cannot waive a right of a third person.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7372 of 2021 

Decided On: 03.12.2021

Arce Polymers Private Limited  Vs. Alphine Pharmaceuticals Private Limited and Ors.

Hon'ble Judges/Coram:

L. Nageswara Rao, Sanjiv Khanna and B.R. Gavai, JJ.

Author: Sanjiv Khanna, J.

Dated: MANU/SC/1184/2021

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How to prove that a party has waived his legal right?

 The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. {Para 9}

10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.

SUPREME COURT OF INDIA

N. Santosh Hegde J.S.B. Sinha J.

Krishna Bahadur Vs. M/s Purna Theatre & Ors.

Appeal (Civil) 7251 of 2001

25th August 2004

Citation: 2004 ALL SCR 334

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Whether a party is entitled to recover liquidated damages for breach of contract if waived it at the time of the first extension?

This brings us to the waiver. It may be noted that ONGC waived liquidated damages twice before giving extension with pre-estimated damages. The approach of the Arbitral Tribunal was to hold that once liquidated damages were waived in the first extension, subsequent extension could not be coupled with liquidated damages unless a clear intention flowed from the contract; while this Court recognizes the autonomy of the party to engage in contractual obligation. Such obligation must be contracted in clear terms. From the aforesaid discussion, it is clear that the promisee (ONGC) waived the liquidated damages initially and the same cannot be imposed, unless such imposition was clearly accepted by parties. In this case, the interpretation of the Arbitral Tribunal could not be faulted as being perverse, for the reasons stated above.

 In the Supreme Court of India

(Before N.V. Ramana, C.J. and Surya Kant, J.)

Civil Appeal Nos. 2826-2827 of 2016

Welspun Specialty Solutions Limited (Formerly Known As Remi Metals Gujarat Ltd.) VsvOil and Natural Gas Corporation Ltd.

Decided on November 13, 2021

Citation: 2021 SCC OnLine SC 1053

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Whether the government can waive non-essential term in the tender if there is substantial compliance with tender terms?

 In Jal Mahal Resorts (P) Ltd. v. K.P. Sharma (2014) 8 SCC 804, the Supreme Court has quoted with approval B.S.N. Joshi & Sons Ltd. It has held that when there is substantial compliance with the terms of tender, the Government is entitled to waive any non-essential term in the tender for the bona fide reasons and in public interest. To conclude, the Court has held that if there were no mala fides in the decision-making process, literal compliance cannot be insisted upon. {Para 51}

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NOS.1114 of 2016 & 718 of 2018

Dr. R. Venkatesh  V/s  State of Goa,

Coram:- DAMA SESHADRI NAIDU &

NUTAN D. SARDESSAI, JJ.

Date:- 5th MARCH 2020

ORAL JUDGMENT: (Per Dama Seshadri Naidu, J.)

Citation: 2021(1) MHLJ 105

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Whether legal representative of deceased person can waive objection that decree is nullity?

It is true that a decree passed against a dead man is a nullity because it cannot be allowed to operate against his legal representatives when they were never brought on record to defend the case. As pointed out by the Supreme Court in the case of N. Jayaram Reddi (supra), while the law treaties such a decree as a nullity qua the legal representatives of the deceased defendant there is nothing to prevent them from deciding that they will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If the legal representatives adopt that alternative course of action, the Supreme Court proceeded, it cannot be possibly said that their option to be governed by the decree is against the law or any concept of public policy, or purpose or the public morality. It is, thus, a matter entirely at the discretion of the legal representatives of deceased party against whom a decree has been passed to decide whether they will raise the objection that the decree has become a nullity at the appropriate time during course of hearing or abandon all these technical objections and fight the litigation on merit. When no objection to that effect is raised and the case is fought on merit, according to the Apex Court, there is no scope to argue subsequently that the decree was a nullity.

IN THE HIGH COURT OF CALCUTTA

C.O. No. 1102 of 2004

Decided On: 11.10.2004

Phool Chand Halwai  Vs. UCO Bank and Ors.

Hon'ble Judges/Coram:

B. Bhattacharya, J.

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Whether it can be inferred that new tenancy is created if second quit notice is issued?

 In the judgment rendered by Orissa High Court in Bhagabat Patnaik vs. Madhusudhan Panda, Section 113 has been interpreted to hold that since a valid notice to quit a lease or to determine a tenancy cannot be waived without the assent of the Landlord and the tenant both, the question as to whether such consent can be implied by acceptance of rent by the Landlord depends on the facts and circumstances of the case. An English Authority in Lawenthanfal vs. Banhoute 1947 (1) All England Law Report, page 116 was quoted to say that a new tenancy cannot be inferred on the issuance of second notice. It is in this context that it was observed that "a subsequent notice to quit is of no effect." It was held that a tenancy is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect.

26. The mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first. An english commentary "Landlord and Tenant", was quoted by the High Court thus:

"Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first."

27. To the same effect are the decisions of the Punjab & Haryana High Court in Shiv Jeet Singh vs. Charan Singh (supra) and Bombay High Court in Nanaji Gajanan Upganlawar vs. Shabbir Husain Fida Hussain (supra). The illustrations to Section 113 of the Transfer of Property Act were considered and it was observed that merely because a second notice was given, the first notice cannot be deemed to have been waived. To create a new tenancy, there must be an express or an implied agreement to that effect, and such agreement cannot be unilateral. It has to be bilaterally agreed between the tenant and the landlord for extension of lease.

28. This High Court in Post Master General vs. District Judge (supra) and Waqf Allal Aulad (supra) has observed that the tenancy would stand terminated on the expiry of the notice period. The Landlord would be justified in receiving the rent for the notice period from the date of service of notice. But merely acceptance of such rent could not be treated as an implied or express consent to treat the lease/tenancy as subsisting on the part of the Landlord. If the Rent Control Act does not apply, then the tenant is liable to be simply evicted after termination of tenancy default or no default in payment of rent, it is wholly immaterial.

29. In a Full Bench decision in Gokaran Singh vs. 1st Additional District Judge (2000) 40, ALR 405, this Court had observed that even if Rent Control Act applies and in the notice a wrong period of default and a wrong rate of rent is mentioned, still notice does not become invalid.

30. In the facts and circumstances of the case as have been referred to in the impugned judgment dated 01.10.2011, the Trial Court has treated the First Notice dated 10/20.02.1998 as subsisting because the Landlord did not file the suit for ejectment in pursuance of the first notice but gave a second notice and then filed the suit. The learned Trial Court has observed that the second notice given again was an invalid notice, the suit for ejectment based thereon was liable to be rejected and has rejected the same.

31. This kind of reasoning can only be said to be perverse. In Swaroop Singh Gupta vs. S. Gagdish Singh (supra) the Supreme Court has observed that mere acceptance of rent for the period in between the issuance of two notices to vacate would not itself constitute an act on the part of the Landlord showing an evidence to treat the lease as subsisting. The fact remains that even after accepting the rent tendered the landlord filed a suit for eviction. It cannot therefore be said that by accepting the rent he intended to waive the notice and to treat the lease as subsisting. The second notice after which the suit was filed for ejectment was not treated as illegal by the Supreme Court only because the first notice to quit was held as determining the tenancy without creating a new tenancy, by the act of the Landlord to accept the rent in the meantime.

IN THE HIGH COURT OF ALLAHABAD

Civil Revision No. 564 of 2011

Decided On: 22.11.2018

Praveen Kumar Jain Vs.  Jagdish Prasad Gupta and Ors.

Hon'ble Judges/Coram:

Sangeeta Chandra, J.

Citation:  2019 (132) ALR 357

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Whether objection to quit notice if not taken specifically is deemed to have been waived?

 Thus when in paragraphs 1, 6 and 9 of the written statement the applicant did not dispute that the suit notice terminated the tenancy of the applicant nor did the applicant contend that the notice was illegal in any manner being contrary to section 106 of the Transfer of Property Act, in such a situation, the consequence in law is that the applicant acquiesced in the suit notice and waived its right to contend that the suit notice is illegal. The applicant thus was not permitted to take a contrary position. The law in this regard is well settled. In Dharampal v. Harbansingh 2006 (9) SCC 216 the Supreme Court has held that objection to the invalidity or insufficiency of the notice should be specifically raised in the written statement failing which it will be deemed to have been waived. It was held that in the absence of a specific plea in the written statement in regard to the said objection, such a plea would be deemed to have been waived by the appellants-tenant therein. Their Lordships in paragraphs 7 and 8 of the decision observed thus:

"7. Learned counsel for the appellants submits that none of the two recitals contained in the notice can fulfill the requirement of section 106 of the Transfer of Property Act. One recital in the notice terminates the tenancy from the date of issue of notice. The other one requires the tenant to vacate the premises within 15 days from the date of receipt of the notice. Both are bad in the light of the requirements spelled out by section 106 of the Transfer of Property Act. The learned counsel seems to be right in urging the pleas. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under section 106 of the Transfer of Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived. In the present case, the only objection taken in the written statement is that the notice issued by the plaintiff was "illegal, null and void and ineffective upon the right of the defendant." The thrust of the plea raised by the defendant-appellant in his written statement was that the notice was issued by the person who did not have the authority from the landlord to give the notice. The plea so taken has been found devoid of merit by the High Court and the courts below. The plea that the notice was insufficient in the sense that did not give 15 clear days to the tenant to vacate or that the notice did not terminate the tenancy with the expiry of the month of the tenancy has not been take in the written statement.

8. Obviously, for want of specific plea in the written statement, the trial court has not framed any issue reflecting an objection to the validity or sufficiency of notice, the plea in the manner in which it is sought to be urged before us. The plea as to insufficiency of notice should be deemed to have been waived by the appellant and cannot be allowed to be urged at this stage.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application (ST) No. 4255 of 2018

Decided On: 02.04.2018

 Universal Cables Ltd. Vs.  Laxmi Properties Ltd.

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Whether inadvertent error in quit notice issued U/S 106 of transfer of property Act will invalidate it?

 Justice P.N. Bhagwati, speaking for the bench and referring to the observations of Lord Justice Lindley in Sidabotham v Holland (1895) 1 SC 376 in Bhagabandas Agarwala v. Bhagwandas Kanu & ors MANU/SC/0269/1977 : AIR 1977 SUPREME COURT 1120 observed that notice to quit must not be read in a hyper-critical manner nor must its interpretation be affected by pedagogic pedantism or over refined subtlety but it must be construed in a common sense way. In paragraph 3 the Supreme Court observed thus:

Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it which would render it defective but it must be construed ul resmedia coolest quam pereat. The validity of a notice to quit" as pointed out by Lords Justice Lindley L.J. in Sidabotham v. Holland (1895) 1 SC 376 "ought not to turn on the splitting of a straw". It must not be read in hyper-critical manner nor must its interpretation be affected by pedagogic pedantism or over refined subtlety but it must be construed in a common sense way. See Hariher Bannerjee v. Ramashi Roy 45 I.A. 222. The notice to quit in the present case must be judged for its validity in the light of this well recognized principle of interpretation."

17. It is thus, well-settled that notice to quit need not be worded with accuracy. It would not be in-valid merely because the period mentioned therein falls short of the period specified under subsection (1) of section 108 of the Transfer of Property Act, 1882 namely of 15 days notice in case of month-to-month tenancy when a suit or proceeding is filed after expiry of the period so specified under subsection (1) of section 108. The object and purpose being, that the leasee should have a reasonable notice before he is asked to vacate the premises. Thus, the law is not that, the notice to quit issued by the landlord must be strictly construed in favour of the tenant, but the notice is required to be construed in a common sense way. It is well settled that the notice would be required to be construed broadly and it should not be defeated by inaccuracies even in regard to the date of expiry of the notice. Even the amended section 106(3) of the Transfer of Property Act reflects this position. When the language used in the notice is clearly to convey the intention of the lessor namely that the tenant should quit and vacate the suit premises, surely, a honest and inadvertent error would not invalidate the notice. The surrounding circumstances are also of relevance while considering any issue on the landlord's notice to the tenant, terminating the tenancy.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application (ST) No. 4255 of 2018

Decided On: 02.04.2018

 Universal Cables Ltd. Vs.  Laxmi Properties Ltd.

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: 2018(6) MHLJ 715

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Whether plea of waiver is to be specifically raised?

 It is well established position that waiver is an intentional relinquishment of a right. It must involve conscious

abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. It is an agreement not to assert a right. To invoke the principle of waiver, the person who is said to have waived must be fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. [See para 41 of State of Punjab (supra)]. There must be a specific plea of waiver, much less of abandonment of a right by the opposite party.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1217-1218 OF 2017

M/s. Sonell Clocks and Gifts Ltd. Vs The New India Assurance Co. Ltd. 

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Whether party is expected to state provision of law in pleading?

 The respondent has also invited our attention to the fact that in Galada’s case (supra), this Court has had no occasion to consider the efficacy of Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000, which came into effect from 14th November, 2000. For, the claim in Galada’s case (supra) arose in 1998 and the repudiation took place in 1999. By virtue of

the regulations, it is mandatory to appoint a surveyor on receipt of intimation about the loss; and the surveyor so appointed has to discharge his responsibilities and duties specified in the regulations while submitting its report.

24. Thus, the appointment of a surveyor by the respondent after receipt of intimation of the loss from the appellant, in the context of the present insurance policy, coupled with the 2000 Regulations and in particular an express stand taken in the repudiation letter dated 18th February, 2005 sent by the respondent to the appellant after consideration of the surveyor‟s report, it cannot be construed to be a case of waiver on the part of the respondent.

25. The appellant would then contend that the respondent did not take a plea that the surveyor was appointed because of statutory obligation. Such a plea is raised for the first time before this Court. Even this submission does not commend us. For, that plea has been taken as an additional factor to distinguish the decision in Galada’s case (supra). The party is not expected to state the provisions of law in its pleading. The

fact that such obligation flows from the regulation, in that sense, is a mixed question of fact and law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1217-1218 OF 2017

M/s. Sonell Clocks and Gifts Ltd. Vs The New India Assurance Co. Ltd. 

A.M. Khanwilkar, J.

Dated:August 21, 2018.

Citation:  2018 ACJ 2672 : AIR 2018 SC 4146 : 2018 (4) CPJ 1 : JT 2018 (8) SC 289 : 2018 (4) RCR (Civil) 203 : 2018 (10) Scale 24 : 2018 (7) SLT 325 : (2018) 9 SCC 784

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Whether parties can waive forum selection clause in arbitration proceeding?

 The key question which arises for consideration in this case is whether the forum selection clause can be said to be effective and, if so, whether it is binding on the parties. The second aspect of the question may be answered first. Every clause in an agreement between the parties is binding on the parties, but any covenant is also capable of being waived. If the parties have agreed to go to a particular Court, but one party commits breach of such agreement and goes to another Court, unless an objection in such regard is raised at the earliest opportunity by the other party, the Court cannot suo motu enforce the forum selection clause on the parties to the contract. A forum selection clause, just like most other clauses contained in an agreement between two parties, is capable of being waived.

IN THE HIGH COURT OF CALCUTTA

GA 1329 of 2018, APO 163 of 2018 and AP 924 of 2017

Decided On: 06.09.2018

Hirok Chowdhury Vs. Khagendra Nath Mandal and Ors.

Hon'ble Judges/Coram:

Sanjib Banerjee and Abhijit Gangopadhyay, JJ.

Citation: AIR 2018 Cal 272

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Whether tenant has deemed to have waived objection to validity to quit notice if he has not replied to said notice?

 First, when the Appellant sent a quit notice dated 17.05.2012 to the Respondent Under Section 106 of the TP Act determining the tenancy and calling upon the Respondent to pay the arrears of rent and vacate the suit premises, despite receipt of the quit notice, they did not reply to it.

57. In our view, the Respondent ought to have replied to the notice at the first available opportunity, which they failed to do so. It amounts to waiver on their part to challenge the invalidity or infirmity of the quit notice including the ownership issue raised therein.

58. In the case of Parwati Bai v. Radhika MANU/SC/0372/2003 : AIR 2003 SC 3995, the question arose as to whether the tenancy was terminated in accordance with the provisions of Section 106 of the TP Act. The Defendant despite receiving the notice from the Plaintiff did not reply to it.

59. This Court held that if the Defendant does not raise any objection to the validity of quit notice at the first available opportunity, the objection will be deemed to have been waived. The following Para 6 of the decision is apposite which reads as under:

6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the Defendant is admitted in the written statement. The Defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice Under Section 106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the Plaintiff as Ext. P-4.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4249 of 2018 (Arising out of S.L.P. (C) No. 27775 of 2017)

Decided On: 20.04.2018

Apollo Zipper India Limited Vs. W. Newman and Co. Ltd.

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Whether defendant can waive right to seek reference to arbitration?

In the same case, in para No. 25, the Hon'ble Supreme Court observed that, not only filing of the written statement in a suit, but filing of any statement, application, affidavit, by a defendant prior to the filing of the written statement will be construed as "submission of a statement on the substance of the dispute", if by filing such a statement/application/affidavit, the defendant shows his intention to submit himself to the jurisdiction of the Court and waives his right to seek reference to arbitration.

10. Same is the view taken by the Hon'ble Supreme Court in the case of Rashtriya Ispat Nigam Limited and another v. M/s. Verma Transport Company, MANU/SC/3491/2006 : AIR 2006 SC 2800. It also clarified in this case that waiver of a right on the part of the defendant to the lis must be gathered from the fact situation obtaining in each case. Same principle of law was also propounded by the Division Bench of Bombay High Court in a 1954 case of Jadavji Narsidas Shah and Company v. Hirachand Chatrabhuj, MANU/MH/0047/1954 : AIR 1954 Bom. 174. So now it would be necessary to examine the conduct of the defendants, who are applicants here to ascertain as to whether or not they have waived their right to seek arbitration and have submitted themselves to the jurisdiction of the Civil Court in the present case.

11. While it is true that the objection regarding maintainability of the suit because of the presence of the arbitration clause and the need for referring the dispute to arbitration under Section 8(1) of the Arbitration Act were expressed in clear words in an application filed by applicants to seek leave to defend and it is also true that while granting leave, the trial court did not decide on applicants objection as to maintainability of suit and need for referring the dispute to arbitration. But, it is seen from the record of the case that later on, these applicants never insisted upon the trial court to decide their objection on the maintainability of the suit as well as need for referring the dispute to arbitration. On the contrary, the applicants submitted their written statement in the suit. The filing of the written statement by the applicants, I must say, marked submission of their first statement on the substance of the dispute thereby showing their intention that the Civil Court must hear the parties and decide the dispute between the parties on it's own merits. This clearly amounted to waiver of the applicants' right to seek arbitration in the present case. Therefore, I do not think that later rejection of the application seeking rejection of plaint on the ground of maintainability of suit because of existence of arbitration clause by the trial court could be faulted with in any manner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rivision Application No. 58/2017

Decided On: 15.09.2017

 Narayana Farm Produce Pvt. Ltd. Vs.  Jalaram Feeds

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2018(3) MHLJ 292

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Whether challenge to arbitral award on ground of payment of interest can be waived?

Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Cuilibet licet renuntiare juri pro se introducto. (See Maxwell on The Interpretation of Statutes 12th Edition at page 328)

28. If a plea is available-whether on facts or law, it has to be raised by the party at appropriate stage in accordance with law. If not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. If permitted to raise, it causes prejudice to other party. In our opinion, this principle applies to this case.

It is a well-settled principle in Arbitration Law that the award of an Arbitral Tribunal once passed is binding on the parties. The reason being that the parties having chosen their own Arbitrator and given him an authority to decide the specific disputes arising between them must respect his decision as far as possible and should not make any attempt to find fault in each issue decided by him only because it is decided against one party. It is only when the issue decided is found to be bad in law in the light of any of the specified grounds set out in Section 34 of the Act, the Court may consider it appropriate to interfere in the award else not. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8530 of 2009

Decided On: 08.12.2017

Union of India (UOI) Vs.  Susaka Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Navin Sinha, JJ.

Citation:(2018) 2 SCC 182

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Whether it is permissible for landlord to waive change of user from residential to commercial use?

The only question which has to be determined, therefore, is whether the tenant is entitled to urge that there is a waiver by the previous landlord of the breach committed by the tenant, inasmuch as for a period of six years from 1960 to 1967, the landlord has accepted rent without any protest and whether this would mean that breach has been waived and, according to the learned counsel, the present plaintiffs cannot take advantage of that breach since it has already been waived by the previous landlord. This argument was founded on a decision of the Punjab High Court in M/s. New Garage Ltd. v. Khuswant Singh & another MANU/PH/0024/1952 : AIR (1952 P&H. 82, where dealing with provisions of section 9(1)(b) of the Delhi & Ajmer Merwara Rent Control Act, the Division Bench took the view that the effect of section 9(1)(b) of that Act was that if it was proved that by consent of the landlord premises have been used for purposes other than that for which they were let, a landlord will not have the right of ejectment. It was held that the consent may be either express or implied and, therefore, section 9(1)(b) would be defeated by waiver on the part of the landlord if it is proved that by his past conduct he had consented to a particular breach of the covenant with regard to user of the premises. Section 9(1)(b) of that Act provided as follows:--

9. (1) Notwithstanding anything contained in any contract, no Court shall pass any decree in favour of a landlord, or make any order, in favour of a landlord whether in execution of a decree or otherwise, evicting any tenant, whether or not the period of the tenancy has terminated, unless it is satisfied either.

* * * *

(b) that the tenant without the consent of the landlord, has whether before or after the commencement of this Act,

(i) used the premises for a purposes other than that for which they were let, or

Now, while it may not be possible to quarrel with the proposition-laid down in the Punjab decision, the ratio of that decision cannot be applied with full force in the present case in view of the provisions of section 25 of the Bombay Rent Act on which reliance has been placed by Shri Gumaste appearing on behalf of the landlord. Section 25 of the Bombay Rent Act is as follows :--

25. (1) A landlord shall not use or permit to be used for a nonresidential purpose any premises which on the date of the coming into operation of this Act were used for a residential purpose.

(2) Any landlord who contravenes the provisions of sub-section (i) shall, on conviction, be punishable with imprisonment for a term which may extend to three months or with fine or with both.

Shri Abhyankar has contended that section 25 is merely a penal provision and will not come in the way of the defendant if he wants to prove a waiver by the landlord. Now, it is clear on the reading of provisions of section 25 that it is in two parts. The first part is prohibitory in character and operates as an injunction against the landlord and prevents him from using or permitting to be used premises which are used for a residential purpose on the date of the coming into operation of the Rent Act to be used for a non-residential purpose. The object appears to be that the accommodation which is available for residential purposes should not be allowed to be reduced by unilateral action on the part of the landlord either by using it or by allowing it to be used for a non-residential purpose. Sub-section (2) of section 25 prescribes the penalty for a contravention of sub-section (1). Now, while it may not be disputed that a right of termination of lease flowing out of a breach or the lease by the tenant can be waived by the landlord if he does not want to exercise this right. In so far as the provisions of the Rent Act are concerned, the right of the landlord to allow the premises to be used for any other purpose in a case where the premises were originally taken for residential purposes is now controlled or indeed taken away by the provisions, of section 25(1). Any waiver which is bound ultimately to result in either temporary or permanent change in the user of residential premises for nonresidential purposes is bound to defeat the provisions of section 25 (1) which has clearly been enacted on the ground of public policy. Any contract between the landlord and the tenant whether expressly made or inferred by implied consent would, therefore, be only impermissible in a case where residential premises are sought to be used or allowed to be used for non-residential purposes in view of the imperative character of section 25 (1). In such a case, there is no question of any waiver because if a landlord cannot legally do anything expressly, the same result could not be brought about by implication. Thus, there is clear indication in section 25 (1) that a tenant cannot be permitted to use residential accommodation for non-residential purpose either by express permission or by permission granted impliedly and in such a case, it is not open, therefore, to the tenant to contend that the landlord has waived the breach so as to defeat his right under section 13 (1) (a) of the Bombay Rent Act, It is not, therefore, possible to accept the contention that the landlord has waived the breach.

11. It was then contended that the house is of 30 khans and only accommodation to the extent of 10 khans is being utilised for non-residential purposes and, therefore, the dominant use of the premises continued to be for residential purposes and consequently section 25 (1) will not be affected. Having regard to the nature of the provisions of section 25 (1) and its object, in my view, the question of either dominant use or ancillary use of the premises becomes wholly irrelevant. Even otherwise so far as the present case is concerned, mere extent of the accommodation will not be very relevant. 

IN THE HIGH COURT OF BOMBAY

Spl. C.A. No. 561 of 1977

Decided On: 21.08.1981

Bansilal Rampratap Rathi Vs.Suratsing Chandanmal and others

Hon'ble Judges/Coram:

M.N. Chandurkar, J.

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Whether it is necessary to issue notice as per S 106 of Transfer of property prior to filing of eviction suit?

When the tenant cannot be evicted unless the grounds are made out and the conditions laid down under Section 16 of the Maharashtra Rent Control Act are fulfilled, there would be no dual requirement one of issuance of notice under Section 106 of the Transfer of Property Act and then making out aground under that section for eviction. Of course, a special provision can be made in a Rent Act requiring the issuance of a notice under Section 106. of the Transfer of Property Act, as it was there in C.P. and Berar Letting of Premises and Rent Control Order, 1949. But in Maharashtra Rent Control Act there is no such provision. In view of the above discussion the notice under Section 106 of the Transfer of Property Act was not necessary in the present case.

The Counsel for defendant/revision petitioner vehemently argued that the notice under Section 106 of the Transfer of Property Act was actually issued by the plaintiff'/respondent and thereafter the rent was accepted which amounts to waiver. However, when the notice itself was redundant there was no question of any waiver.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 13 of 2003

Decided On: 20.11.2003

 K. Mukta Ashok Khankhoje

Vs.

 Namdeorao Tukaram Khutaphale

Hon'ble Judges/Coram:

S.G. Mahajan, J.

Citation: 2004(2) AllMR 59

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Whether licencee can claim protection of Bombay rent Act if he enters into fresh agreement of licence?

When the licensee entered into fresh agreement of licence, that amounts to waiver or not ? or

Whether in that case, i.e. in the case of waiver the licensee can claim protection under Section 15A of the Bombay Rent Act. ?

The unreported judgment of this Court in Writ Petition No. 2280 of 1993 squarely applies to the facts of the present case.

9. It was also contended by the Counsel for the respondent that the subsequent leave and licence agreement came to be executed by the respondent at the instance of the applicant. Whatever may be the reason, the applicant is the public limited company just like Bank. It has got, either its own legal cell or aid and assistance of extremely competent legal brain. Even then, right from 1967 to 1996 they went on entering into leave and licence agreements in spite of the provisions of Section 15A of the Bombay Rent Act. Therefore, the judgment in Writ Petition No. 2280 of 1993 decides the Issue. In such a situation and when it is held that it is the waiver, then the Respondent cannot claim any right. Consequently, the judgment of the Trial Court is perverse. 

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 40 of 2000

Decided On: 12.09.2003

Alban Joseph Gonsalves Vs.  Rallis India Ltd.

Hon'ble Judges/Coram:

D.G. Deshpande, J.

Citation: 2004(1) ALLMR702

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How doctrine of waiver is applicable to arbitration proceeding?

 In Karnataka State Road Transport Corporation vs. M. Keshava Raju, MANU/KA/0732/2003 : AIR 2004 Kant 109, the Karnataka High Court, considering the scope and ambit of Section 4 of the Act of 1996, regarding waiver of right to object, observed thus:-

"Section 4 narrates the circumstances in which the party, who knowingly fails to object the non-compliance of any non-mandatory provisions of Part-I or any requirement under the arbitration agreement by the other party, is deemed to have waived his right to object. This Section is based on general principles such as "estoppel" or "venire contra factum proprium". It is intended to help the arbitral process function efficiently and in good faith. If there is non-compliance of any non-mandatory provision of Part I or of any requirement of the arbitration agreement by a party to an arbitration agreement of which the other party to the agreement though has the knowledge of such non-compliance but does not object without undue delay, or if a time limit is provided for stating that objection and no objection is taken within that period of time, such a party later on can neither raise objection about that non-compliance of any provision of Part I nor any requirement of the arbitration agreement since such party shall be deemed to have waived its objection. Though, in order to apply the doctrine of waiver by invoking Section 4, the first condition is that the non-compliance must be of non-mandatory provision of Part I or of any requirement under the arbitration agreement, certain mandatory provisions of the Act also provide for a grant of waiver in the event of failure to object. For example, sub-sections (2) and (3) of Section 16 are one of such mandatory provisions. Section 16(2) of the Act provides that a plea that the Arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. Section 16(3) of the Act provides that a plea that the Arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings."

27. Keeping in view the guiding principles of law enunciated by various Courts, a careful scrutiny of Sections 12, 13, 14 and 15 of the Act of 1996 in juxtaposition within the facts of this case, shows that there does not exist any circumstance, which may warrant termination of mandate of the arbitrator in the present case. On the facts as have been analyzed above, the matter was taken up by learned Arbitrator on 01.12.2015, soon after expiry of ten months on 11.11.2015, in which proceedings the applicant participated, it would be deemed to have waived its right to object continuation of the arbitrator in terms of Section 4 of the Act of 1996. Section 4 of the Act of 1996, provides for waiver of right to object that if a party, who knows that (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration, without stating his objection to such noncompliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object. The said provision fully applies to the facts of the present case. The applicant knew when the arbitral proceedings were taken up by the learned Arbitrator in this case on 01.12.2015, that period of ten months had already expired, even then, it consented to continuance of arbitral proceedings by the sole Arbitrator. Since the applicant did not raise objection as to continuance the same before 11.11.2015, the day when the tenth month expired, it shall be deemed to have waived its right to so object.

28. In view of the facts and law, as discussed above, the principle of waiver would apply with full force in the present case. The right to object the continuance of the proceedings on the ground of expiry of the stipulated period falls in Part-I of the Act, which is derogable. The object of providing time limit for rendering an Award by the Arbitrator is aimed at expeditious resolution of the disputes rather than' to leave the disputes unsettled or inconclusive on the expiry of the stipulated period. The principle of waiver as is enshrined in Section 4 of the Act of 1996 would therefore apply against the applicant in the present case. In totality of the circumstances, therefore, the applicant would be deemed to have waived its right to object to continuance of the arbitral proceedings and the arbitrator, to resolve the dispute between the parties. Therefore, mandate of the arbitrator cannot be terminated merely because the arbitral award was not rendered within ten months. 
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Arbitration Application No. 62/2016

Decided On: 25.11.2016

 Guru Kripa HP, HPC Petrol Pump

Vs.

 Hindustan Petroleum Corporation Ltd. and Ors.

Hon'ble Judges/Coram:

Mohammad Rafiq, J.
Citation:AIR 2017(NOC)474 Raj

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Whether objection based on want of statutory Notice can be raised by defendants other than municipal corporation?

 It would be, thus, clear that the language of Section 289 is also mandatory in nature as subsection (1) of Section 289 of the Municipalities Act clearly provides that no suit shall lie against the Council or against Committee constituted under the Act in respect of any act done in pursuance of, or in execution or intended execution of the act or in respect of any alleged neglect or default in the execution of the act. In my considered view, in the face of the language as used, it would be for the Court to look into whether the suit would be maintainable for want of notice under Section 289 of the Municipalities Act. Thus, once the fact about absence of a statutory notice under Section 289 of the Municipalities Act is brought to the notice of the Court, the same cannot be brushed aside on the ground that the concerned statutory body, namely Municipal Council has not raised the issue, but is raised by some other defendant. If we were to draw an analogy, the same can be found in Section 3 of the Limitation Act, wherein notwithstanding the fact that any of the parties raise the issue, the Court is obliged and is entitled to look into and ascertain whether the suit is filed within limitation. In view of the language as used in Section 289 of the Act and the observations in the case of Syed Abdul Razzak (supra), with which I am in respectful agreement, the objection that the issue of absence of notice under Section 289 is not raised by the statutory body i.e. the Municipal Council, but by a private defendant, cannot be accepted. I also find that non-raising of the said objection by Municipal Council cannot tantamount to waiver as there is a statutory bar in entertaining the suit in the absence of the notice.

IN THE HIGH COURT OF BOMBAY AT GOA

Civil Revision Application Nos. 21 and 23 of 2015

Decided On: 16.09.2015

 Boshan Developers Pvt. Ltd. and Ors.
Vs.
 Communidade of Bordem and Ors.

Hon'ble Judges/Coram:C.V. Bhadang, J.

Citation: 2015(6) ALLMR 868

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