JUDGMENT

KANIA, J.:— This is an appeal against the judgment of a Division Bench of the High Court of Bombay in First Appeal No. 283 of 1969 by special leave granted by this Court under Art. 136 of the Constitution.

2. We propose to consider first whether any interference with the judgment of the High Court is called for in this appeal and hence, we intend to take note of such facts as are relevant to consider that question.

3. Respondent was the plaintiff in Suit No. 725 of 1959 filed by her in the Bombay City Civil Court and the appellant was defendant No. 3. For the sake of convenience, we propose to refer to the parties by their description in the suit.

4. On December 25, 1956 defendant No. 3 entered into an agreement whereby he granted permission to the plaintiff to conduct the business of a restaurant known as "Meenakshi Bhuvan" which later came to be known as "Central Cafe Udipi" of which he was the owner and which was conducted in tenanted premises. This restaurant was situated at Vishvas Nivas, King Edward Road, Parel, Bombay. The period of this agreement was for five years commencing from December 25, 1956 with an option to renew the same. Under the agreement, defendant No. 3 was referred to as the owner and the plaintiff was referred to as the conductor. It is significant that in the opening part of the agreement the expression "conductor" was defined as inclusive of the heirs, executors, administrators and assigns of the plaintiff. This agreement provided that all furniture, pots, pans, utensils and things mentioned in the list attached thereto would continue to belong to defendant No. 3 and the plaintiff admitted this fact. Certain payments were to be made by the plaintiff to defendant No. 3 by way of royalty. On January 11, 1958 the plaintiff entered into an agreement with defendant No. 1 permitting defendant No. 1 to conduct the business for the unexpired period of the agreement dated Dec. 25, 1956 which was about four years and the agreement further provided that defendant No. 1 was to pay Rs. 700/- per month to the plaintiff and that the plaintiff would not be responsible for any loss in the business but was entitled to get the monthly amount of Rs. 700/-. It appears that although this agreement was with defendant No. 1, it was defendant No. 2 who conducted the business of the said restaurant.

5. Some time prior to May 18, 1958 a notice was addressed by defendant No. 3 to the plaintiff. However, on May 18, 1958 a letter was addressed by defendant No. 3 to the plaintiff stating that all notices sent by him to the plaintiff were cancelled and that it was agreed between the plaintiff and defendant No. 3 that there shall be certain changes in the terms of the agreement dt. December 25, 1956 as set out in the said letter. The changes which need be noticed by us are only that the period of agreement was to remain extended till April 30, 1965. Certain payments of amounts by the parties were noted and paragraph 3(H) of the said letter stated that all other terms of the former agreement remained as they were. It may be noted here that no change was made expressly regarding the right to renew the said agreement. On January 10, 1959, according to defendant No. 3, a notice was addressed by one B. M. Gujar, his advocate on his behalf to the plaintiff at the restaurant address giving one months notice to the plaintiff for resuming possession and stating that if the plaintiff failed to give possession of the said restaurant to defendant No. 3, he would proceed in a court of law. The said notice was addressed at the address of the restaurant. On February 12, 1959 another notice was addressed by the said advocate at the same address stating that there was no reply to the first letter and that defendant No. 3 would approach the plaintiff for taking possession of the said restaurant on February 15, 1959. There is considerable conflict as to what transpired on February 15, 1959. According to the plaintiff she never received any of the