judgement:
ivil Appeal No. 1446 of 1987.
From the Judgment and Order dated 2.1.1985 of the Guja rat High Court in L.P.A. No. 94 of 1984.
K.N. Bhatt, P.H. Parekh and M.K.S. Menon for the Appellants.
S.C. Patel for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short question which arises for consideration in this case is whether the rate of, interest chargeable on the amount payable under an order passed under section 32 of the , 195 1 (63 of 195 1) (hereinafter referred to as 'the Act ') from the date of the said order is governed by section 34 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code ') or whether it is payable at the contractual rate.
The Appellant No.1 M/s.
Everest Industrial Corporation Private Limited, Baroda and its Directors had borrowed from the Gujarat State Financial Corporation (hereinafter re ferred to as 'the Corporation ') a sum of Rs.6 lakhs for the acquisition of fixed assets, namely, land bearing original Survey No. 163 and now bearing Survey No. 949 of Baroda measuring 1 acre and 3 gunthas and the factory building to be constructed thereupon and for purchasing plant and addi tional machinery under a deed of hypothecation dated April 24, 1970 hypothecating all machinery and equipment situated at the factory premises situated on Survey No. 949.
They also created an equitable mortgage mortgaging the said land and factory building by depositing the original title deeds of the properties with the Corporation by signing the letter evidencing the said deposit of title deeds.
Under the said transaction the loan of Rs. 6 lakhs had to be repaid within a period of 8 years by half yearly instalments, such first half yearly instalment of 1/13th of the loan being payable at the end of 24 months of the disbursement of the first instalment of the loan and subsequent half yearly instal ments of 1/13th of the loan to be paid.
each half year and 610 the last half yearly instalment of 1/13th of the loan to be paid on 24.4.1978.
According to the said agreement the first instalment of Rs.46,153 was to be paid on 27.4.1972 and second instalment of Rs.46,153 was to be paid on 27.10.1972.
The appellants were liable to pay interest at 8.5 per cent per annum and that was to be calculated and charged at the end of every half year and was payable on the 31st of March and 30th September in each year.
The appellants committed default in payment of instalments and interest due to the Corporation.
Hence the Corporation filed an application on 9th August, 1973 under section 31 of the Act before the District Judge, Baroda in Civil Miscellaneous Application No. 123 of 1973 claiming that in view of the default, the entire outstanding loan, interest and commitment charges amounting to Rs.6,73,390.42 paise had become due and pay able.
In the said proceedings the appellants having admitted the claim of the Corporation a compromise was arrived at under which the 1st Appellant M/s.
Everest Industrial Corporation undertook to pay a sum of Rs.15,000 every month towards the claim of the Corporation and further agreed that if there was a default in payment of any two instalments at a time, then the Corporation could recover the entire out standing amount then due forthwith.
On the basis of the above compromise an order was passed on 29.4.1977 by the learned Joint Judge, Baroda before whom the case was pending at that time.
The operative portion of the order read as follows: "ORDER Claim of the applicant is decreed.
Opponent No. 1 to pay the amount of Rs.15,000 (fifteen thousand) per month through the Bank of Maharashtra to the applicant towards his claim.
If two instalments of Rs.15,000 each at a time are not paid by Opponent No. 1, then the applicant shall be entitled to recover the remaining amount then due, at a time.
Decree to be drawn on payment of Court fees by the applicant.
2/3 of the Court fee amount be refunded to the applicant advocate.
Costs to be borne by Opponent No. 1.
Costs to be assessed after deducting the amount of court fees refundable to the applicant.
" Because the 1st Appellant failed to pay the amount as ordered by the Court an application was filed by the Corpo ration under section 32(8) of the Act before the District Judge, Baroda requesting that the property hypothecated in favour of the Corporation be directed to be sold by the Commissioner appointed by the Court and the amount so 611 realised might be appropriated towards the dues of the Corporation.
Accordingly an order directing the sale of the properties was passed on 8.2.1980.
Before the property could be sold the appellants raised an objection regarding the actual amount which could be realised by the Corporation by the sale of the properties mortgaged in its favour.
The objection which related to the amount of interest payable by the appellants was formulated thus.
Since under the order dated 29.4.1977, which was described as a decree, the Court had not expressly directed payment of any interest on the decretal amount, the Corporation was not entitled to recover any amount by way of interest due on the principal amount for the period subsequent to the date of the order.
It was further submitted that since the question of payment of interest on the amount due for the period subsequent to the date of the decision of the Court is governed by section 34 of the Code the appellants were not liable to pay any inter est because the Court had not ordered payment of any amount by way of interest to be paid as required by that section.
In other words the contention of the appellants was that when the "decree" was silent about the payment of interest for the period between the date of the "decree" and the date of payment the Corporation was not entitled to recover it.
It may be mentioned that the Corporation had claimed inter est at the rate agreed upon under the transaction, i.e., 8.5 per cent per annum and that had not been disputed by the borrowers.
The said objection was overruled by the Joint Judge by his Order dated February 25, 1983.
He determined that Rs.9,35,547.84 paise was due as on February 8, 1983 and that thereafter interest at the rate of Rs.178.60 paise per day would be accruing.
Aggrieved by the order of the Joint Judge, the appellants filed an appeal in First Appeal No. 1474 of 1983 before the High Court of Gujarat.
That appeal was dismissed by the learned Single Judge on February 2, 1984.
Under the Letters Patent Appeal No. 94 of 1984 filed by the appellants, a Division Bench of the High Court af firmed the judgment of the learned Single Judge by its decision dated January 2, 1985.
This appeal by special leave is filed against the judgment of the Division Bench of the High Court.
The main contention urged on behalf of the appellants before this Court is that a proceeding under section 31 of the Act is in the nature of a suit, an order made thereon under section 32 thereof is a decree and since by sub sec tion (6) of section 32 of the Act the District Judge is required to investigate the claim of the Corporation in accordance with the provisions of the Code insofar as the said provisions would be applicable thereto, section 34 of the Code which governs the question of levy of interest on the amount due from the date of the suit 612 to the date of the decree and from the date of the decree to the date of payment would be attracted to the proceedings instituted under section 31 of the Act also.
It is urged that since the "decree" passed in this case is silent on the question of payment of any interest on the principal sum from the date of the decree to the date of payment, the Court should be deemed to have refused such interest by virtue of subsection (2) of section 34 of the Code.
In support of the above contention of the appellants, reliance is placed on the decision of the High Court of Karnataka in Karnataka State Financial Corporation, Bangalore vs Sri Nithyananda Bhavan and another, A.I.R. 1982 Karnataka 179 in which the High Court had applied section 34 of the Code to a proceeding instituted under section 31 of the Act.
In that case the District Judge had awarded future interest at 6 per cent per annum on the amount payable under a transaction under the Act from the date of the application to the date of payment.
The Karnataka State Financial Corporation which was aggrieved by the order of the District Judge filed an appeal against that order before the High Court.
In the said appeal the Karnataka State Financial Corporation claimed interest on the principal amount due from the date of the application at the rate of 18 per cent per annum.
In decid ing the said case the High Court did not go into the ques tion whether section 34 of the Code would be applicable to a proceeding under the Act.
It was assumed on all hands that section 34 of the Code was applicable.
Ultimately, the High Court increased the rate of interest to 11 per cent per annum which was the contractual rate of interest treating that as a reasonable rate of interest that could be awarded under section 34 of the Code.
It may be mentioned here that an earlier decision of this Court in Gujarat State Financial Corporation ' vs M/s Natson Manufacturing Co. (P) Ltd. & Ors., ; in which the nature of a proceed ing instituted under section 31 of the Act and of the order passed thereon under section 32 thereof had been considered was not brought to the notice of the High Court.
In Gujarat State Financial Corporation vs M/s. Natson Manufacturing Co. (P) Ltd. & Ors.
(supra) no doubt the question involved was whether court fee was payable on an application made under section 31 of the Act on an ad valorem basis as if the proceeding was a suit or not.
But this Court after analysing the provisions of the Act held that an application for any of the reliefs that can be granted under the Act was not certainly a plaint in a suit for recovery of mortgage loan and that it was not even something akin to a suit by a mortgagee to recover mortgage money by sale of the mortgage property.
The Court held that the applicant in such a case could not pray 613 for a preliminary decree for sale of the property or a final decree for the payment of the money nor it could seek to enforce any personal liability even if such a liability had been incurred under the contract of mortgage as the law stood then.
This Court held that the form of the relief to be granted under the Act did not attract Article 1 or Arti cle 7 of Schedule 1 of the Bombay Court Fees Act, 1959 which required payment of court fee on ad valorem basis on any plaint or application in the nature of a plaint instituted for recovery of mortgage amount.
Accordingly it held that the demand for payment of ad valorem court fee was unsus tainable.
In the course of its judgment the Court rejected the contention based on sub section (6) of section 32 of the Act which required a District Judge to apply the procedure of the Code to applications made under section 31 of the Act and ultimately held that the substantive relief in any claim under section 31(1) of the Act was something akin to the relief that could be granted on an application for attach ment of property for execution of a decree at a stage poste rior to the passing of the decree.
The Court further ob served that "we are unable to appreciate the view taken by the High Court that the proceeding is not in the nature of execution of the decree because the question of enforcement of the order of attachment or sale would only arise after the same is made absolute under sub section (7).
" Even though in the above decision the question which arose for consideration was whether ad valorem court fee was payable on an application under section 31 of the Act as if it was a suit, the Court has decided the said question after deter mining the true nature of a proceeding instituted under section 31(1) of the Act on a detailed analysis of the provisions of the Act.
If as held by this Court the proceeding instituted under section 31(1) of the Act is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree no question of passing any order under section 34 of the Code would arise since section 34 of the Code would be applicable only at the stage of the passing of the decree and not to any stage posterior to the decree.
It may also be mentioned here that even under the Code the question of interest payable in mortgage suits filed in civil courts is governed by order 34 rule 11 of the Code and not by section 34 of the Code which may be applicable only to cases of personal decrees passed under order 34 rule 6 of the Code.
The High Court was right in holding that interest would be payable on the principal amount due in accordance with the terms of the agreement between the parties till the entire amount due was paid as per the order passed under section 32 of the Act.
We hold that the decision of the Karnataka High 614 Court, referred to above, which has applied section 34 of the Code to a proceeding instituted under section 31(1) of the Act is not correctly decided.
It was lastly urged on behalf of the appellants that the amount due and payable to the Corporation has not been properly calculated by the Joint Judge.
We do not have all the material before us to enable us to determine the actual amount due.
It is also seen that subsequent to the date of the order passed by the Joint Judge a sufficiently long time has elapsed.
In the circumstances we feel that the Joint Judge before whom the proceeding for recovery of the amount by sale of the properties has been instituted should be directed to redetermine the amount due and payable to the Corporation in this case.
We accordingly affirm the judgment of the High Court holding that section 34 of the Code of Civil Procedure, 1908 is not applicable to this case but remand the matter to the Joint Judge to redetermine the actual amount due and payable to the Corporation in these proceedings calculating the same as per contract between the parties before directing the sale of the properties.
We direct the Joint Judge to deter mine the amount payable by the appellants within one month from the date of the receipt of a copy of the order of this Court.
Both the parties are directed to file their state ments of accounts before the Joint Judge within one week from the date of receipt of the copy of this order by the Joint Judge to enable him to decide the case as directed above.
The appeal is accordingly disposed of.
There shall, however, be no order as to costs.
P.S.S. Appeal disposed of.

summary/full:
The appellants had borrowed from the respondent Corpora tion a certain sum for the acquisition of fixed assets under a deed of hypothecation.
They also created an equitable mortgage, mortgaging the land and factory building by depos iting the original title deeds of the properties with the Corporation.
The loan had to be repaid within a period of 8 years by half yearly instalments.
The appellants were liable to pay interest at 8.5 per cent per annum and that was to be calculated and charged at the end of every half year.
The appellants committed default in payment of instal ments and interest due to the Corporation.
The Corporation filed an application under section 31 of the before the District Judge claiming the entire outstanding loan, interest and commitment charges.
The appellants having admitted the claim of the Corporation, an order of compromise was passed by the Court under which the appellants undertook to pay a sum of Rs.15,000 every month towards the claim of the Corporation.
The appellants failed to pay the amount as ordered by the Court.
The respondent thereupon filed an application under section 32(8) of the Act requesting that the property hypothecated in favour of the Corporation be directed to be sold by the Commissioner appointed by the Court and the amount so rea lised be appropriated towards the dues.
The appellants raised an objection that since the Court had not in 608 its order expressly directed payment of any interest on the amount, the Corporation was not entitled to recover any amount by way Of interest due on the principal amount for the period subsequent to the date of the order, and since payment of interest subsequent to the date of the decision of the Court was governed by section 34 of the Code of Civil Procedure, the appellants were not liable to pay any inter est.
The first appeal and the Letters Patent Appeal filed by the appellants were dismissed by the High Court.
In this appeal by special leave, it was contended for the appellants that a proceeding under section 31 of the Act is in the nature of a suit, an order made thereon under section 32 thereof is a decree, and since by subs.
(6) of section 32 of the Act, the District Judge was required to investigate the claim of the Corporation in accordance with the provisions of the Code, section 34 of the Code would be attracted to the proceeding instituted under section 31 of the Act also, and that since the decree passed in this case is silent on the ques tion of payment of any interest on principal sum from the date of the decree to the date of payment, the Court should be deemed to have refused such interest by virtue of sub section
2 of section 34 of the code.
Disposing of the appeal, HELD: 1.
The High Court was right in holding that inter est would be payable on the principal amount due in accord ance With the terms of the agreement between the parties till the entire amount due was paid as per the order passed under section 32 of the .
[613GH] 2.
Section 34 of the Code of Civil Procedure, 1908 is not applicable to this case.
A proceeding instituted under section 31(1) of the Act is something akin to an application for attachment of property in execution of a decree at a stage posterior to the .passing of the decree.
That being so, no question of passing any order under section 34 of the Code would arise since that provision would be applicable only at the stage of the passing of the decree and not to any stage posterior to the decree.
Even under the Code, the question of interest payable in mortgage suits filed in civil courts is governed by Order 34 rule 11 of the Code and not by section 34 of the Code which may be applicable only to cases of person al decrees passed under Order 34 rule 6 of the Code.
[614C, 613F] 3.
In the instant case, the Joint Judge is to redeter mine the actual amount due and payable to the Corporation as per the contract between the parties before directing sale.
[614D] 609 Karnataka State Financial Corporation, Bangalore vs Sri Nithyananda Bhavan & Anr., A.I.R. 1982 Karnataka 179 and Gujarat State Financial Corporation vs M/s Natson Manufac turing Co. (P) Ltd. & Ors., ; , referred to.


judgement:
Civil Appeal No. 1635 of 1985.
From the Judgment and Order dated 21.1.1985 of the Punjab and Haryana High Court in Civil Revision No. 2227 of 1984.
V.C. Mahajan, S.K. Bagga and Mrs. S.K. Bagga for the Appellant.
R.K. Jain, and Bharat Sangal for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
This appeal by special leave against a judgment of the High Court of Punjab and Haryana pertains to a contest between a widowed landlady seeking recovery of possession of a leased premises of the residential needs of herself and her sons and daughter on the one hand and an young medical practitioner on the other wanting to continue his medical practice in the premises without being evicted therefrom.
The Rent Controller and the Appellate Authority declined to pass an order of eviction in favour of the respondent but the High Court had reversed their judgments and directed eviction and hence the present appeal by spe cial leave by the tenant.
One Iqbal Singh, the deceased husband of the respondent was the owner of house No. 16, Sector 18 A, Chandigarh.
He leased out the entire portion of the house except a big hall to one Kuldeep Singh on May 27, 1977.
Iqbal Singh died in the year 1980 and on 1.4.81, his widow viz. the respondent leased out the hail to the appellant on a monthly rent of Rs.650.
The lease was for a period of 11 months.
The terms of the lease were reduced to writing but the deed was not registered.
The respondent filed two applications more or less concurrently (one on 2.2.82 and the other on 3.2.82) against the tenants of both the portions of the house viz. Kuldeep Singh and the appellant.
The eviction of both the tenants was sought for on the same grounds viz., they had changed the user of the premises to non residential purposes and secondly the respondent bona fide required the premises for her own occupation.
In addition, in so far as the appellant is concerned, his eviction was also sought for on the ground of default in payment of rent from 1.5.81 onwards.
It may be mentioned here that the respondent has three grown up sons and a grown up daughter.
During the 557 pendency of the proceedings the size of the family increased to seven members due to the eldest son getting married and begetting a child.
The respondent 's husband had been allot ted a Government quarters and after his death the allotment was changed to the name of the eldest son viz. Gurcharanjit Singh who has been examined as AW 2 in the case.
The appellant remitted the entire arrears of rent to gether with interest, costs etc.
on the first day of the hearing of the case and hence the prayer for eviction on the ground of non payment of rent did not survive for considera tion.
As regards the other two grounds the appellant as well as Kuldeep Singh contended that they had not changed the user of the respective portions let out to them and secondly the respondent was in occupation of a government quarters and did not therefore, bona fide require the leased premises for her residence.
The Rent Controller and the Appellate Authority held that Kuldeep Singh had changed the user of the premises and ordered his eviction but in so far as the appellant is concerned, both the Authorities found against the respondent on both the grounds and dismissed the action for eviction.
Against the order of the Appellate Authority two Revi sion petitions, one by the tenant Kuldeep Singh and the other by the respondent were preferred to the High Court.
The High Court dismissed the Revision preferred by Kuldeep Singh and allowed the Revision filed by the respondent and ordered the eviction of the appellant too.
While Kuldeep Singh has abided by the order of eviction and surrendered possession to the respondent of the portion leased to him, the appellant has come to this Court to impugn the order of the High Court directing his eviction.
Before we enter into the merits of the case, it is relevant to state that the High Court went only into the question of the bona fide requirement of the hall by the respondent for her residential use and did not go into the question whether the appellant had changed the user of the hall by running a clinic and had thereby rendered himself liable for eviction on that ground also.
The High Court was of the view that when the respondent 's requirement of the hall was a genuine one, the eviction of the appellant could be ordered on that ground alone and there was no need or necessity to examine the merits of the second ground on which also eviction was sought for.
In the light of the arguments advanced by Mr. Mahajan, learned 558 counsel for the appellant, to assail the judgment of the High Court, the questions that fall for consideration can be enunciated as under: 1.
Whether the High Court had erred in the exercise of its revisional powers in (a) setting aside the concurrent findings of the Rent Controller and the Appellate Authority that the respondent was not bona fide in need of the hail for her residential use and (b) ignoring the findings of the Rent Controller and the Appellate Authority that the appellant had not changed the user of the hall from residential to non residential purposes and, as such, he cannot be evicted on the ground of mis user of the hall.
Whether the High Court has failed to note that in view of the concurrent findings of the Rent Controller and the Appellate Authority that the hall must be deemed to have been let out for a non residential purpose.
to wit, running a clinic, the appellant will not be entitled to seek recovery of possession under Section 13(3)(a)(i)(a) of the Act for her residential occupation.
We will now take up for consideration the first conten tion of Mr. Mahajan.
The Rent Controller and the Appellate Authority have rejected the ease of the respondent that she bona fide required the hail for her residential needs for the following reasons: 1.
The Government quarters allotted to the respondent 's son in which the respondent 's family was living consists of three bed rooms and only a nominal rent was being paid for it and hence the accommodation was sufficient and she was not likely to vacate it.
The respondent was not likely to occupy the hall after eviction the tenant who was paying an attractive rent of Rs.650 per month.
It was inconceivable that the respondent and her family members could manage to live in a single hall when their grievance was that the accommodation in the Government quarters consisting of three bed rooms was insufficient for their requirements.
In so far as this finding is concerned, the High Court was refused to give any weight or credence to it, even though it was a concurrent one.
In our view, the High Court was fully justified in rejecting the finding of the Rent Controller and the Appellate Authority, even though it is a finding of fact, because both the Authorities have based their findings on conjectures and surmises and secondly because they 559 have lost sight of relevant pieces of evidence which have not been controverted.
The evidence of the respondent and her son, which has not been challenged is that the Govern ment Quarters consists of only one bed room, one store, one kitchen and a small dining room and nothing more.
Strangely enough the Rent Controller and the Appellate Authority have proceeded on the assumption that the Government Quarters consists of three bed rooms and hence there was enough accommodation for the entire family.
It is, therefore obvi ous that they have based their findings on imaginary materi al and not facts.
Secondly, both the Authority have taken the erroneous view that the respondent had initiated action only against the appellant to get possession of the hall in the house and had not initiated action to get possession of the other portions of the house from the other tenant.
Due to this mistake, the Authorities have disbelieved the re spondent and held that the entire family cannot manage to live in a single hall.
They have failed to note that the respondent had contemporaneously initiated proceedings against the other tenant Kuldeep Singh also for recovery of possession of the remaining portion of the house leased to him.
Those proceedings were also before the very same Rent Controller and the Appellate Authority and they had them selves ordered the eviction of Kuldeep Singh.
The respondent has clearly stated in her evidence as follows: "The house is of single storey.
I require the property for my own use and for my children.
I require the entire ground floor.
I have filed the ejectment petition against the other tenant also.
" Her evidence was not and indeed could not be challenged.
In spite of all these materials being there, the Rent Control ler and the Appellate Authority have taken a curious view that the respondent and her family members were wanting one hall alone for their residential needs and as such their case was not a believable one.
In so far as the doubts entertained about the respondent not beings likely to forego the rent of Rs.650 per month paid by the appellant, the Authorities have failed to give due consideration to the respondent 's statement that her daughter and sons are all fully grown up and she wanted to perform their marriages and as such she was very much in need of the entire house in cluding the hall for her occupation.
Having regard to all these vitiating factors, the High Court was fully entitled to reverse the findings of the Rent Controller and the Appellate Authority and examine the case of the respondent and give her relief.
The so called findings of fact suffer from inherent defects which deprive them of their binding force on the revisional court.
560 As regards the second limb of the first contention, the Rent Controller and the Appellate Authority have again committed serious errors in rendering their decision on the question whether the appellant had changed the user of the hall from residential to nonresidential purpose.
The appel lant rested her case upon the recital in the unregistered lease deed that the hall was let out only for residential purposes and for no other.
The Rent Controller refused to look into the lease deed because of its non registration.
The Appellate Authority has taken the view that in spite of the non registration, the lease deed can be looked into for collateral purposes out even then the respondent 's case can fare no better, because the respondent has admitted in her evidence that she knew before the hall was let out that the appellant was a doctor and that the purpose of taking the hall on lease was for running a clinic therein and therefore she must be deemed to have acquiesed in the change of user of the hall.
The Statutory Authorities have also been influ enced by the fact that the payment of rent of Rs.650 per month was fully indicative that the hall should have been taken on lease for running a clinic.
On the basis of such reasoning the Rent Controller and the Appellate Authority have held that the hall must have been let out for non residential purposes only i.e. for running a clinic and hence the charge levelled by the respondent that the appel lant had changed the user of the hall from residential to non residential purpose cannot be sustained.
As far as this aspect of the matter is concerned, the Rent Controller and the Appellate Authority have both failed to take note of the pleadings of the appellant.
In the written statement, the appellant has averted as follows: "The demised premises were taken by the answering respondent from the petitioner for the purposes of his residence and for running his clinic therein .
The answering re spondent is having his residence and clinic in the premises in dispute and is using the same for the said purposes, as such.
" However, when the appellant entered the witness box, he gave up the case set out in the written statement and pro pounded a different case that the hall had been taken on lease only for non residential purposes.
The perceptible manner in which the appellant had shifted his defence has escaped the notice and consideration of the Statutory Au thorities.
Both the Authorities have failed to bear in mind that the pleadings of the parties from the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case.
Another failing noticed in the judgments of 561 the Rent Controller and the Appellate Authority is that they have been oblivious to the fact that the respondent had leased out the hall to the appellant only for a period of 11 months.
Such being the case, even if the respondent had come to know soon after the lease was created that the appellant was using the hall to run a clinic, she may have thought it prudent to let the appellant have his way so that she can recover possession of the hall after 11 months without hitch whereas if she began quarrelling with the appellant for his running a clinic, she would have to be locked up in litiga tion with him for a considerable length of time and can obtain possession of the hall only after succeeding in the litigation.
Yet another factor which vitiates the findings of the Rent Controller and the Appellate Authority is that both of them have over looked Section 11 of the Act, and the sustainability of any lease transaction entered in contra vention of Section 11.
The legislature, with a view to ensure adequate housing accommodation for the people, has interdicted by means of Section 11 the conversion of resi dential buildings into non residential ones without the written consent of the Rent Controller.
Admittedly, in this case the parties had not obtained the consent in writing of the Rent Controller for converting the hall in a residential building into a clinic.
Such being the case, the appellant cannot get over the embargo placed by Section 11 by pleading that the respondent was well aware of his running a clinic in the hall and that she had not raised objection at any time to the running of the clinic.
Learned counsel for the appellant referred us to the decision in Dr. Gopal Dass Verma vs Dr. S.K. Bharadwaj & Anr., [1962] 2 SCR page 678 and argued that the ratio laid down therein would be fully attracted to the facts of this case.
It is true that in the said decision, it was held that when a leased premises was used by the lessee incidently for professional purposes and that too with the consent of the landlord, then the case would go out of the purview of Section 13(3)(e) of the Delhi & Ajmer Rent Control Act 1954 and consequently, the landlord would not be entitled to seek eviction of the tenant on the ground he required the premises for his own residential requirements.
We find the facts in that case to be markedly different and it was the speciality of the facts which was largely instrumental in persuading this Court to render its decision in the aforesaid manner.
Moreover, the Court had not considered the question whether the conversion of a residential premises into a non residential one without the permission of the Rent Controller was permissible under the Delhi & Ajmer Rent Control Act and if it was not permitted, now far the contravention would affect the rights of the parties.
In our opinion, the more relevant decision to be noticed would be Kamal Arora vs Amar Singh & Ors., [1985] SCC (Supplementary) 481 where this Court declined to inter 562 fere with an order of eviction passed in favour of the landlord as the Court was of the view that even if the landlord and the tenant had converted a residential building into a non residential one by mutual consent, it would still be violative of Section 11 of the East Punjab Rent Restric tion Act and therefore, the landlord cannot be barred from seeking recovery of possession of the leased building for his residential needs.
We are therefore of the view that the findings of the Rent Controller and the Appellate Authority about the appellant having taken the hall on lease only for running a clinic and that he had not changed the user of the premises have been rendered without reference to the plead ings and without examining the legality of the appellant 's contentions in the light of Section 11 of the Act.
We do not therefore think the High Court has committed any error in law in ignoring the findings rendered by the Statutory Authorities about the purpose for which the hall had been taken on lease.
Learned counsel for the appellant repeatedly contended that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court was not entitled to disregard those findings and come to a different conclusion of its own and cited in this behalf the decision of this Court in Hiralal Vallabhram vs Sheth Kas turbhai Lalbhai and others, AIR 1967 S.C. 1653.
The proposi tion of law put forward by the counsel is undoubtedly a well settled one but then it must be remembered that the rule would apply only where the findings have been rendered with reference to facts and not on the basis of non existent material and baseless assumptions.
In this case when the Government quarters occupied by the respondent consists of a single bed room alone, it has been construed as comprising of three bed rooms; when the respondent wanted the entire house to be vacated by the two tenants so that she and her family members can occupy the whole house, the Authorities have proceeded on the basis that the respondent was seeking recovery of possession of one hall alone for her residential needs; when the respondent had not demanded increase of rent, even as per the admission of the appellant, the Au thorities have proceeded on the basis that the respondent was not likely to forego the income derived by way of rent for the hall etc.
In such circumstances it is futile to say that the Rent Controller and the Appellate Authority have rendered their findings on the basis of hard and irrefutable facts.
On the contrary the findings have been rendered on either non existent or fictitious material.
They cannot therefore be construed as findings of fact and once they cease to be findings of fact, they stand denuded of their binding force on the appellate or revisional court.
563 Coming now to the second question, Mr. Mahajan argued that the respondent cannot seek recovery of possession of the hall by means of an application under Section 13(3)(a)(i)(a) because the Rent Controller and the Appellate Authority have found that the hall had been let out only for running a clinic and not for the appellant 's residence.
It is true that under the Act, a landlord can apply to the Controller for an order or eviction against a tenant on the ground he requires the building for his own occupation only if the building is a residential one and not if it is a non residential one.
Since we have already held that the findings rendered by the Rent Controller and the Appellate Authority about the purpose for which the hall was let out are vitiated by several errors of facts and law, the appel lant is not entitled to rely on those findings and dispute the respondent 's right to seek his eviction under Section 13(3)(a)(i)(a) of the Act.
In fact, such a contention was never put forward before the Statutory Authorities or before the High Court.
Mr. Mahajan advanced another argument which also had not been urged before the Statutory Authorities or the High Court.
He contended that even if the hall had been let out for residential and non residential purposes, the premises would constitute a non residential building as per the amended definition under the East Punjab Rent Restriction (Chandigarh Amendment) Act, 1982, and consequently the respondent cannot seek the eviction of the appellant on the ground she requires the premises for her residential use.
The Amendment Act referred to above has enlarged the defini tion of "non residential building", in the parent Act by making "a building let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence" to be also a non residential building.
We do not feel persuaded to examine the merit of this contention because it had not been raised before the Rent Controller or the Appellate Authority or the High Court or even in the grounds of appeal in the special leave petition.
Moreover, the appellant had given up his case in the written statement that the hall was let out for his residential use as well as for running a clinic and had taken a categoric stand during the enquiry that he had taken the hail on rent only for running his clinic and not for his residential needs as well.
Having taken up such a stand the appellant cannot reprobate and contend that the lease of the hail has of a composite nature and as such the benefit of the enlarged definition of a 'non residential building ' given in the Amendment Act would endure to his aid in the case.
Mr. Mahajan sought to contend that he was entitled to raise 564 these questions before this court even though they had not been raised before the Statutory Authorities or the High Court, because they are questions of law and can be raised at any time.
The learned counsel placed reliance on the decision rendered in Management of the State Bank of Hydera bad vs Vasudev Anant Bhide and others; , to give added weight to his argument.
It is true that a pure question of law can be raised for the first time before the High Court or this Court even though the question had not been raised before the Trial Court or the Appellate Court but the position here is that the arguments advanced by the counsel pertain to mixed questions of fact and law.
The contentions have been advanced on the assumption that the hall had been leased out for non residential purposes alone or in the case in appeal or revision would amount to apply ing once over again under the Act to seek eviction of a tenant on the ground of bona fide requirement.
Over and above all these things, we find that the events which have taken place subsequently, give added force to the decision rendered by the High Court.
The eviction proceed ings against the other tenant Kuldeep Singh have ended in favour of the respondent and she has filed affidavits before this Court to state that she has re occupied the portion leased out to Kuldeep Singh.
The occupation of a portion of the house by the respondent places her claim for recovery of possession of the hall on a better footing.
This is because of the fact the hall does not have an attached bath room or water closet.
Consequently the appellant and the patients visiting his clinic are also making use of the common bath room and toilet in the house.
This would not only cause inconvenience to the members of the respondent 's family but would also expose them to the risk of infection from the patients using the bath room and toilet during their visit to the appellant 's clinic.
Though the appellant has averted in his affidavit that he has only a portable X Ray unit and he does not have a clinical laboratory to carry out blood test, motion test, urine test etc.
and that his patients do not make use of the common bathroom and toilet, there are enough averments in the counter affidavits of the alterna tive for residential as well as non residential purposes.
Factually the findings on these contentions have been found to be unacceptable.
Moreover, the contentions run counter to the legislative direction contained in Section 11 of the Act prohibiting the conversion of a residential building into a nonresidential one without the written consent of the Rent Controller.
These factors stand in the way of our accepting the contentions of the appellant 's counsel as being pure questions of law and, therefore, worthy of consideration by us in the appeal.
565 It was lastly contended by Mr. Mahajan that as per the second proviso to Section 13(3)(a) the respondent is not entitled to apply once over again for eviction of a tenant on the ground of bona fide requirement for owner 's occupa tion after having obtained an earlier order on the same ground.
According to Mr. Mahajan inasmuch as the respondent has obtained an order of eviction against Kuldeep Singh she is precluded by the proviso from seeking eviction of the appellant too on the ground of bona fide requirement.
We do not find any merit in this judgment because it does not take note of relevant facts.
We have already stated that the eviction proceedings were initiated against both the tenants concurrently and not after an interval of time.
As such merely because the respondent succeeded in one of the peti tions and failed in the other, it cannot be argued that the continuation of the proceedings in that respondent and material in the photos produced by her of the same board of the appellant 's clinic to show that he does have a clinical laboratory in the hall in question.
It does not require much to see that at least some of the patients visiting the appellant 's clinic would be making use of the common bath room and toilet and this would certainly cause great incon venience to the occupants of the house.
Hence the respondent will be fully justified in asking for the eviction of the appellant from the hall let out to him.
For all these reasons, we do not find any merit in the contentions of the appellant.
As we have already stated the findings of the Rent Controller and the Appellate Authority are vitiated by the inherent defects in them and the High Court was, therefore, justified in taking the view that the findings have no binding force on the revisional court.
In the result the appeal fails and will stand dismissed.
The parties are directed to bear their respective costs.
In order to enable the appellant to secure alternate accommodation for shifting his clinic he is granted time till 31.1.0.1987 to vacate the premises subject to the condition he files an undertaking in the usual terms within three weeks from today failing which the respondent will be entitled to recover possession in terms of the judgment and decree of the High Court.
P.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The deceased husband of the respondent leased out the entire portion of his house, except a big hall, to tenant in Chandigarh.
He was then putting up in a Government quarter.
After his death, his widow the respondent, leased out the hall to the appellant on April 1, 1981 for a period of 11 months on a monthly rent of Rs.650.
The Government quarter which had been allotted to her husband was transferred to the name of her eldest son.
The respondent filed two applications, more or less concurrently, in February 1982 against tenants of both the portions of the house seeking their eviction oh grounds that they had changed the user of the premises to non residential purposes, and that she bona fide required the premises for her own use and occupation.
The Rent Controller and the Appellate Authority held that the first tenant had changed the user of the premises and ordered his eviction.
Insofar as the appellant was concerned, both the authorities found against the respondent on both the grounds and dismissed the action for eviction.
The High Court dismissed the revision preferred by the first tenant, but allowed the one filed by the respondent and ordered the eviction of the second tenant too.
The first tenant abided by the order of eviction and surrendered possession to the respondent.
The second tenant, however, appealed by special leave to this 553 Court.
It was contended that when the Rent Controller and the Appellate Authority have rendered concurrent findings of the fact, the High Court was not entitled to disregard those findings, and come to a different conclusion of its own, that the respondent could not seek recovery of possessing of the hail by means of an application under section 13(3)(a) (i)(a) of the East Punjab Rent Restriction Act, 1949 for residen tial use because even of the hail had been let out for residential and nonresidential purposes, the premises would constitute a non residential building as per the amended definition under the East Punjab Rent Restriction (Chandi garh Amendment) Act, 1982, that he was entitled to raise these questions though they had not been raised earlier because they were questions of law, that as per the second proviso to section 13(3)(a) of the Act the respondent was not entitled to apply once over again for eviction of a tenant on the ground of bona fide requirement after having obtained an earlier order on the same ground.
Dismissing the appeal, HELD: 1.1 The findings of the Rent Controller and the Appellate Authority are vitiated by inherent defects.
The High Court was, therefore, justified in taking the view that those findings have no binding force on the revisional court.
[565E] 1.2 The rule that when the courts of fact render concur rent findings of fact, the High Court would not be entitled to disregard those findings and come to a different conclu sion of its own, would apply where the findings have been rendered with reference to facts.
In the instant case, both the statutory authorities have based their findings on conjectures and surmises and lost sight of relevant pieces of evidence which have not been controverted.
When the evidence of the respondent and her son, which has not been challenged, was that the Government quarter consisted of only one bed room, one store, one kitchen and one small dining room and nothing more, it has been construed by the authorities as comprising of three bed rooms and held that as there was enough accommodation for the entire family she was not likely to vacate it.
When the respondent wanted the entire house to be vacated by the two tenants so that she and her family members could occupy the whole house, the authorities have proceeded on the basis that the respondent was seeking recovery of possession of one hail alone for her residential needs and held that the entire family could not manage to live in a single hail.
They have failed to take note that the respondent had con temporaneously initiated proceedings against the 554 other tenant also for recovery of possession of the remain ing portion of the house leased to him.
Those proceedings were also before the very same Rent Controller and the Appellate Authority and they themselves had ordered the eviction of the other tenant.
The respondent had clearly stated in her evidence that she required the property for her own use and for her children and that she had filed the ejectment petition against the other tenant also.
That evidence was not and indeed could not be challenged.
When the respondent had not demanded increase of rent, even as per the admission of the appellant, the authorities have proceeded on the basis that the respondent was not likely to forego the income derived by way of rent for the hall.
They have failed to give due consideration to the respondent 's statement that her daughter and sons were all fully grown up and she wanted to perform their marriages and as such she was very much in need of the entire house, including the hall, for her occupation.
All these findings have been rendered on either non existent or fictitious material.
They cannot, therefore, be construed as findings of fact and once they cease to be findings of fact, they stand denuded of their binding force on the appellate or revisional court.
[558H; 559A H] Hiralal Vallabhrara vs Sheth Kasturbhai Lalbhai and others, AIR 1967 S.C. 1653, referred to.
2.1 The finding rendered by the Rent Controller and the Appellate Authority about the purpose for which the hall was let out were vitiated by several errors of fact and law.
The appellant, therefore, was not entitled to rely on those findings and dispute the respondent 's right to seek his eviction under section 13(3)(a)(i)(a) of the Act.
[563C] 2.2 The pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case.
[560H] In the instant case, the tenant had averred in his written statement that the hall was taken by him for the purpose of his residence and for running his clinic but when he entered the witness box he propounded a different case that the hall had been taken on lease only for non residen tial purposes.
The statutory authorities failed to notice the perceptible manner in which the appellant had shifted his defence.
[560G] 2.3 Yet another factor which vitiates the findings of the statutory authorities is that both of them have over looked section 11 of the Act and the sustainability of any lease transaction entered in contravention of that 555 provision which interdicts conversion of residential build ings into nonresidential ones without the written consent of the Rent Controller.
[561C D] In the instant case the parties had not obtained the consent in writing of the Rent Controller for converting the hall in a residential building into a clinic.
Such being the case the appellant cannot get over the embargo placed by section 11 by pleading that the respondent was well aware of his running a clinic in the hall and that she had not raised objection at any time to the running of the clinic.
[561D E] Kamal Arora vs Amar Singh & Ors., [1985] SCC (Supplemen tary) 481, referred to.
Dr. Gopal Dass Verma vs Dr. S.K. Bhardwaj & Anr., [1962] 2 SCR page 678, distinguished.
Having taken a categoric stand during the enquiry that he had taken the hail on rent only for running his clinic and not for his residential needs as well, the appel lant cannot reprobate and contend that the lease of the hall was of a composite nature, to seek the benefit of the en larged definition of a 'non residential building ' given in the Amendment Act.
A pure question of law can be raised for the first time before the High Court or the Supreme Court even though the question had not been raised before the trial court or the appellate court.
But in the instant case, the conten tions advanced by the counsel on the nature of user of the hail pertain to mixed questions of fact and law.
Moreover these contentions run counter to the legislative direction contained in section 11 of the Act prohibiting conversion of a residential building into a non residential one without the written consent of the Rent Controller.
These contentions cannot, therefore be said to be pure questions of law.
Management of the State of Bank of Hyderabad vs Vasudev Anant Bhide and others; , , referred to.
The eviction proceedings were initiated by the re spondent against both the tenants concurrently and not after an interval of time.
As such, merely because the respondent succeeded in one of the petitions and failed in the other it cannot be said that the continuation of the proceedings in that case in appeal or revision would amount to applying once over again under the Act to seek eviction of a tenant on the ground of bona fide requirement.


judgement:
vil Appeal No. 215052 of 1980.
From the Judgment and Order dated 28.8.1980 of the Delhi High Court in S.A.O. No. 138 of 1979.
R.F. Nariman, P.H. Parekh and Suhail Dutt for the Appel lants.
Ashok Grover for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals by special leave are from the judgment and order dated 28th of August, 1980 of the High Court of Delhi.
Three appellants, Jai Bhagwan, Pearey Lal and Ganpat Ram, were inducted into premises No. 3240, Kucha Tara Chand, Daryaganj, Delhi by the then land lord, Shri Dina Nath.
The families of the appellants con sisted of about 7 or 8 members per family living in one room each on the ground floor of the said premises.
Shri Pearey Lal, one of the appellants, had one side store room along with the room and Shri Jai Bhagwan had one small tin shed on the first floor.
The appellants were also sharing the ter race.
In 1952 the land and building situated at No. A 6;25, at Krishna Nagar, Delhi was purchased by one Nathu Ram, father of the appellant Ganpat Ram and Pearey Lal together with the appellant Jai Bhagwan, his son in law.
The building consist ed of two room, two kitchens and a Barsati.
Three applications were made by the appellants under Order 41 Rule 2 of C.P.C. on or about 4th of August, 1980.
The High Court pronounced its judgment without disposing of these applications on or about 27th of August, 1980 and proceeded to hold against the appellants on the basis of an adverse inference that the three appellants had built the house in Krishna Nagar, whereas a copy of the sale deed 543 would show that the said house was bought and not built that by Nathu Ram and Jai Bhagwan, and were not by the two of the three appellants.
In 1958 Ganpat Ram was allotted a D.D.A. Quarter No. 3 7 at Village Seelampur, Shahdara.
By a notification dated 28th of May, 1966.
Village Seelampur, Shahdara was declared to be an urban area.
By Notification dated 27th March, 1979 issued under section 1(2) of the Delhi Rent Act (hereinafter called 'the Act ') this village was subjected to the provisions of the said Act.
During 1967 68 one Mrs. Sushila Devi was inducted into the quarter at Seelampur, consisting of a room, a kitchen and a bath room.
This lady had applied for the allotment of the said quarter in her name sometime in 1974.
On 20th of July.
the authorities, in fact, allotted the said quarter to her.
In 1965 70 Ms. Dev Karan and Kul Bhushan being the sons of Pearey Lal had been occu pying the portion of the house at Krishna Nagar together with their family members and grand father, Nathu Ram.
Nathu Ram died in 1969.
The other portion was occupied by one Kalu Ram and his family members being brother of Jai BhagWan.
There are 18 people residing at the relevant time in the said house.
The present landlord, the respondent herein, purchased the suit premises from the erstwhile landlord, Dina Nath on or about 9th April, 1973.
On or about 28th of September, 1973, the present landlord applied to the compe tent authority under the Slum Act for permission to evict the appellants from the said premises.
On 12th of December, 1974 the competent authority under the Slum Act granted permission to the landlord to proceed in eviction against the three appellants.
On or about the 16th of April, 1975, the respondent herein filed three eviction suits against the appellants on the grounds contained in section 14(1)(a),(h) & (j) of the Act.
On 31st of January, 1977, it was held by the Additional Rent Controller, Delhi that the ground under section 14(1)(h) was made out against all the three appel lants.
The ground under section 14(1)(a) was also upheld but the appellants were asked to deposit arrears of rent within a month from the date of the order so as to avail the bene fit of section 15(1) of the Rent Act which the appellants availed of.
On or about 24th April, 1979, the Rent Control Tribunal confirmed the decree in ejectment on appeal under section 14(1)(h) of the Act against the three appellants.
On further appeal the High Court construed section 14(1)(h) of the Act to mean that a Building constructed by the tenant which is outside the purview of the Delhi Rent Act on the date of the application for ejectment, was yet within sec tion 14(1)(h) and the tenant was liable to be ejected.
544 In appeal before us, it was submitted on behalf of the appellants that in none of the three judgments, there was any finding as to the suitability of the residence that is built, allotted or of which the tenant was acquired vacant possession of.
None of the courts has re examined the size of the space, the distance and inconvenience that might be caused, the number of persons in the tenants ' families or the state of residence built or allotted by or to the ten ants.
Aggrieved by the aforesaid judgment of the High Court dated 28th August, 1980, the tenants have come up in appeal.
In this case the learned Addl.
Rent Controller had passed an order of eviction under clause (h) of section 14(1) of the said Act against all the three appellants as mentioned before.
The said decision was upheld by the Tribu nal.
It has been held by the courts below that the three tenants have built and acquired vacant possession of the residential house at A 6/25 Krishna Nagar, Lal Quarter, Delhi.
It was held that Ganpat Ram, one of the tenants appellants has been allotted residential quarter at 317, Seelampur III, Shahdara, Delhi.
Before the High Court the judgments of the Rent Controller as well as the Tribunal were challenged on the grounds, inter alia, that none of the three tenants had built or acquired vacant possession of the residential house No. A 6 25, Krishna Nagar, near Lal Quar ter, Delhi.
It was further submitted that in any case the respondent landlady was not entitled to claim eviction under clause (h) on the grounds of waiver and laches.
Counsel submitted before the High Court that Ganpat Ram had not been allotted the quarter at Seelampur and that in any case he was not in possession of the same.
He further submitted that the Act was not applicable to the quarter alleged to have been allotted to Ganpat Ram, tenant and as such grounds covered by clause (h) were not available to the landlady.
Lastly it was submitted that all the three ingredients mentioned in clause (h) of section 14 of the Act were ap plicable to the landlord.
Section 14 of the Act is in Chap ter III and controls eviction of the tenants.
The said section stipulates that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against the tenant.
Clause (h) deals with the situation where the tenant has, whether before or after the commence ment of the Act, built or acquired vacant possession of or has been allotted a residence.
The High Court noted the apparent purpose of providing clause (h) of sub section (1) of section 14.
The High Court was of the opinion that on account of rapid growth of popu lation of Delhi, landlords were 545 tempted to terminate the tenancies of the existing tenants and ask for their eviction in order to let out the premises to the pew tenants at high rents.
Rent Control Legislation for Delhi and New Delhi was passed for the first time during the second world war and since then there has been Rent Control Legislation applicable to various urban areas in the Union Territory of Delhi.
The Rent Control Act was enacted to provide for the control of rents and evictions.
The object of clause (h), as is apparent, is not to allow the tenant more than one residence in Delhi.
Therefore, it provided that in case that tenant builds a residence, the landlord could get his house vacated.
It also provided that if the tenant acquires vacant possession of any other resi dence, he is not protected.
Lastly, it also stipulated that if a residential premises has been allotted to a tenant, he is not entitled to retain the premises taken on rent by him.
In the instant case, on the three causes on which the land lord can claim eviction were present against the tenant, the High Court held that these causes are not joint.
These need not be conjointly proved or established.
These were in the alternative.
Therefore, if the landlord is successful in proving any one of the causes, he is entitled to an order of eviction against the tenant.
Counsel for the appellants sought to urge before the High Court that if a tenant built a house, he must acquire its vacant possession before he can be evicted under clause (h).
Similarly, it was submitted that if residential accommodation was allotted to a tenant then he must obtain vacant possession of the same.
The word 'or ' showed, according to the High Court, that these were different circumstances in which tenant was liable to be evicted.
These were (i) if the tenant had built a new resi dence, or (ii) if he had acquired vacant possession of it or (iii) if he had been allotted a residence.
The words 'built ' and 'allotted ' do not mean that after building residence or after allotment of a residence, the tenant must also acquire its possession.
If a tenant builds a house and does not occupy it, he is liable to eviction, according to the High Court.
Similarly, if a residence is allotted to a tenant, but he does not occupy it and allows others to occupy the same, he is not protected, according to the High Court.
The Act provides that building of a house by tenant or allotment of residence to him is a ground of eviction available to the landlord against his tenant.
The learned Judge of the High Court was of the view that it is not necessary for a landlord to prove either that the tenant has built and acquired vacant possession of the building or that he has been allotted and taken possession of the allot ted premises.
The landlady in the eviction application alleged that the tenants 546 had built and acquired vacant possession of a residential house at A 6 25, Krishna Nagar, near Lal Quarter, Delhi.
It was denied by all the tenants but the Controller and the Tribunal on the basis of the evidence on record concluded that the three tenants have built and have also acquired vacant possession of the said residential premises.
It was further held that the relatives of the three tenants were in actual physical possession of the said house at Krishna Nagar.
It transpired from the record that Dev Karan.
Kul Bhushan and Kalu Ram were admittedly related to the three tenants and were in occupation of house at Krishna Nagar as licensee of the three appellants tenants.
This is a finding of fact and could not have been challenged in second appeal before the High Court.
Learned counsel for the tenants then submitted before the High Court that the landlady was a purchaser of the property from one Dina Nath and she and her vendor had also been aware that the tenants were owners of the house in Krishna Nagar.
On account of this knowledge it was argued that the landlady respondent had waived her rights under clause (h) of section 14(1) of the Act.
The High Court found that there was no substance in the argument.
There was no plea that the landlady ever waived or was guilty of laches.
No evidence was led by the parties.
The facts were that the respondent landlady purchased this property from Dina Nath on 9th of April, 1973.
There was nothing on record to show that Dina Nath was ever aware of the fact about building or acquiring a house at Krishna Nagar by the three tenants.
The landlady on the 28th September, 1973 filed applications against the three tenants under section 19 of the Slum Area (Improvement & Clearance) Act, 1956 seeking permission to institute eviction proceedings.
The required permission was granted by the competent authority on 12th of December.
1974 and the present eviction application out of which this appeal arises was filed on 16th of April, 1975.
Therefore, there was no question of laches on the part of the landlady.
She filed an application for permission after about six months from the date of purchase and she filed an eviction application after about four months from the date of the grant of permission by the Slum authority.
The landlady claimed eviction of Ganpat Ram, appellant tenant, on another ground also, namely, that he has been allotted residential quarter at 317.
Seelampur III.
Shahda ra. Delhi.
This fact was denied by the tenant.
A.W. 1 Naresh Chand, an Official of the D.D.A. brought the official record relating to the allotment of this quarter.
It was proved that the said quarter was allotted to him in 1958 and that possession was delivered to him.
It was deposed that it was residential in nature.
On behalf of the tenants, it was submitted before the High 547 Court that the same was in possession of Sushila Devi.
Sushila Devi had appeared as a witness.
She admitted that the said quarter was allotted to the tenant, Ganpat Ram, the appellant.
After allotment Ganpat Ram was entitled to occupy the allotted accommodation and possession was delivered to him.
According to the said witness, he was not now in possession and somebody else was in possession.
Evidence was adduced on behalf of the tenant that he was not in possession and somebody else was in possession.
According to the High Court, if once the condition stipulated in clause (h) was fulfilled, by the tenant, he was disentitled to protection under the Act He cannot thereafter claim that he should be protected.
We are of the opinion that the High Court was right.
It was further alleged that Seelampur area known as Seelampur where the allotted quarter was situated, was not governed by the Act and therefore ground covered by clause (h) was not available to the landlady.
There is no plea and the High Court found taking into consideration all the relevant materials that there was no evidence to show that it was situated within the area which was not governed by the Act.
We are in agreement with the learned Judge of the High Court.
Before us in appeal, however, several points were sought to be urged.
It was urged that on a proper construction, there must be a suitable residence, that is to say, a good substitute for the petitioners or the landlord and a reason able substitute.
Reliance was placed on the decision of this Court in Goppulal vs Thakurji Shriji Dwarkadheeshji and another, [ ; There the Court was concerned with the sub letting before the coming into force of the Act and was concerned with section 13(1)(e) of the relevant Act which used the expression "has sublet".
The present perfect tense contemplated a completed event connected in some way with the present time.
The words took within their sweep any sub letting which was made in the past and had continued up to the present time.
Therefore, this Court held that it did not matter that the sub letting was either before or after the Act came into force.
The Delhi High Court in the case of Ved Prakash vs Chunilal, [1971] Delhi Law Times Vol. 7, 59, where the expression 'has ' in the Delhi Rent Control Act.
1958 in section 14(1)(h) came up for consideration.
It was held that the word 'has in clause (h) carries in itself the force of the present tense.
It has therefore to be interpreted in terms of the words employed in the opening part of the proviso which are to the 548 effect that the Controller may on an application made to him in the prescribed manner make an order for the recovery of the premises and those words meant that on the date of the application the tenant must be having a residence either because he might have built the same or might have acquired vacant possession thereof or it might have been allotted to him.
Either of the three situations must be there on the date of the application.
If that is not so, then clause (h) of the proviso to sub section (1) of section 14 of the Act would have no application.
According to the learned single Judge of the Delhi High Court, the word 'has ' applied with the same force and veloc ity to the words 'built ', 'acquired vacant possession of ' and 'been allotted '.
The last words 'a residence ' again relate to all the three contingencies.
The word 'has ' con tains in itself the meaning of presently possessing some thing.
The ordinary English dictionaries while giving the meaning of word 'has ' refer to the word 'have ', which in turn means 'to hold ', 'possess '.
The words 'has built ' or 'has acquired ' or 'has been allotted ' clearly mean that the tenant has already built, acquired or been allotted the residence to which he can move and that on the date of the application for his eviction his right to reside therein exists.
It was therefore held that the words as they stood associated with each other in clause (h) lead to the only conclusion that as on the date of the application the tenant must be possessing a clear right to reside in some other premises than the tenancy premises as a matter of his own rightful choice either because he may have built such premises or acquired vacant possession thereof or the same may have been allotted to him.
In Smt.
Revti Devi vs Kishan Lal, [1970] Rent Control Reporter Vol.
II, 71 Deshpande, J. of the Delhi High Court had occasion to construe section 14(1)(h) of the Act.
The landlord there applied for eviction of his tenant on the ground that the tenant had acquired vacant possession of another residence within the meaning of section 14(1)(h) of the Act.
The tenant defended that he had not acquired any residence and that the alleged residence had in fact been acquired by his wife and his sister in law jointly.
The Rent Control Tribunal held that the view that under section 14(1)(h) the tenant was liable to be evicted only if he himself had acquired the vacant possession of another resi dence and not by any other member of his family including the wife.
The question which came up before the Court for decision was whether the acquisition of a separate residence by the wife of the 549 tenant was sufficient ground for the eviction of the tenant by the landlord under proviso (h) of sub section (1) of section 14: That, however, is not the question here.
In Naidar Mal vs Ugar Sain Jain and another, A.I.R. 1966 Punjab 509, the court had to construe, inter alia, section 13(1)(h) of the Delhi and Ajmer Rent Control Act, 1952.
There under section 13(1)(h) of the said Act in order to be liable for eviction, the tenant must have built a suitable residence.
The Court was of the opinion that merely because the tenant had built a house, would not be a ground for ejectment within the meaning of section 13(1)(h).
The words 'suitable residence ' must be read with all the terms namely 'built ' 'acquired vacant possession of ' or 'been allotted '.
Although the onus to prove facts within the special knowl edge of a party must be on him, a landlord bringing a suit for eviction under section 13(1)(h) of the said Act must first allege the existence of grounds entitling him to a judgment.
The residence of the tenant must be suitable one.
In Siri Chand vs Jot Ram, (Punjab Law Reporter Vol. LXIII, 1961 at page 915), the Punjab High Court had to construe the Delhi and Ajmer Rent Control Act, 1952 and it was held that on the date of the suit for ejectment of the tenant, in order to succeed, all that the landlord had to show was that he was the landlord and secondly.
, that de fendant was his tenant and thirdly the tenant has, whether before or after the commencement of the Delhi and Ajmer Rent Control Act, either built a suitable residence, or been allotted a suitable residence.
The decision of the Delhi High Court in Govindji Khera vs Padma Bhatia Attorney, [1972] Rent Control Reporter, Vol 4. 195 to which our attention was drawn, does not advance the case any further.
Before we discuss the other aspect the result of the several decisions to which reference has been made above, indicate that the position in law is that the landlord in order to be entitled to evict the tenant must establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence.
It is essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built acquired vacant possession or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts.
The other aspect is that apart from the question 550 of limitation to which we shall briefly refer is that the landlord must be quick in taking his action after the accru al of the cause of action, and if by his inaction the tenant allows the premises to go out of his hands then it is the landlord who is to be blamed and not the tenant.
In the light of these, we have now to examine whether the suit in the instant case was barred by the lapse of time.
But quite apart from the suit being barred by lapse of time, this is a beneficial legislation, beneficial to both the landlord and the tenant.
It protects the tenant against unreasonable eviction and exorbitant rent.
It also ensures certain limit ed rights to the landlord to recover possession on stated contingencies.
The next aspect of the matter is which article of the would be applicable.
Reference was made to Article 66 and Article 67 of the (hereinafter called the ) which stipulates that for possession of immovable property the cause of action arises or accrues when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition.
Article 67 stipulates a period of twelve years when the tenancy is determined.
Article 113 deals with suit for which no period of limitation is provided elsewhere in this Schedule.
On the facts of this case it is clear that Article 66 would apply because no determination in this case is necessary and that is well settled now.
Determination by notice under section 106 of the Transfer of Property Act is no longer necessary.
It is well settled that time begins to run from the date of the knowledge.
See in this connection the decision of Harbans Singh and another vs Custodian of Evacuee Property 'P ' Block and others, A. I. R. 1970 Delhi 82 though that was a case under a different statute and dealt with a different article.
See also Ujagar Singh vs Likha Singh and another, at page 30.
The Division Bench of the Punjab and Haryana High Court in Somdass (deceased).
v Rikhu Dev Chela Bawa Har Jagdass Narokari, Punjab Law Re porter Vol.
85., 184 held that in a suit for possession under Article 113 of the , material date is one on which the right to sue for possession arises.
In K.V. Ayyaswami Pathar and another vs
M.R. Ry.
Manavik rama Zamorin Rajah and others, A.I.R. 1930 Madras 430, it was held that where a claim is based upon a forfeiture of a lease by reason of alienation of the demised land and noth ing else, the article applicable for the purpose of limita tion was clearly Article 143 and the limitation commences to run from the date of the alienation.
Here 551 accrual of the right of the landlord is not challenged.
The knowledge is indisputably in 1973 looked at from any point of view.
There is no question of limitation in this case.
In the premises, we are of the view that the High Court was right and the appeals must fail and are accordingly dismissed with costs.
N.P.V. Appeals dis missed.

summary/full:
The respondent purchased the suit premises in April, 1973 and in September, 1973 applied to the Competent Author ity under the Slum Area (Improvement and Clearance) Act, 1956 for permission to evict the appellants who were induct ed into the premises by the erstwhile landlord.
The permis sion was granted in December, 1974 and three eviction suits were filed in April, 1975 on the grounds contained in Sec tion 14(1)(a), (h) and (j) of the Delhi Rent Control Act.
1958 and the Additional Rent Controller held that the ground under Section 14(1)(h) was made out against all the three appellants.
The Rent Control Tribunal confirmed the decree.
Before the High Court in revision, it was submitted that when the landlady purchased the property she and her vendor had also been aware that the tenants owned a house and that on account of this knowledge the respondent had waived her rights under clause (h) of Section 14(1) of the Act, that if a tenant built a house or has been allotted a residential accommodation, he must acquire/obtain vacant possession before he was evicted under clause (h), and that the area where the allotted quarter was situated was not governed by the Act 540 and, therefore, the ground covered by clause (h) was not available to the landlady.
The High Court construed Section 14(1)(h) of the Act to mean that a building constructed by the tenant which is outside the purview of the Delhi Rent Control Act on the date of application for ejectment, was yet within Section 14(1)(h), and held that the word 'or ' showed the different circumstances in which a tenant was liable to be evicted, that it was not necessary for a landlord to prove either that the tenant had built a house and acquired vacant pos session of the building or that he had been allotted and taken possession of the allotted premises, and that there was no substance in the argument advanced by the tenants that on account of the knowledge of the landlady that the tenants owned a house, she had waived her rights under clause (h) of Section 14(1) of the Act, and dismissed the Revision Petitions.
In the appeals, it was submitted that there must be a suitable residence, one which is a good and a reasonable substitute for the appellants or the landlord before evic tion could be ordered under Section 14(1)(h) of the Act.
Dismissing the appeals by special leave, this Court, HELD: 1.
The Rent Control Act is a beneficial legisla tion to both the landlord and the tenant.
It protects the tenant against unreasonable eviction and exorbitant rent.
It also ensures certain limited rights to the landlord to recover possession in stated contingencies.
[550B C] 2.1 The words 'has built ' or 'has acquired ' or 'has been allotted ' in clause (h) of Section 14(1) clearly mean that the tenant has already built, acquired or been allotted the residence to which he can move and that on the date of the application for his eviction, his right to reside therein exists.
Therefore, the High Court was right in holding that the words as they stood associated with each other in clause (h) lead to the only conclusion that as on the date of application the tenant must be possessing a clear right to reside in some other premises than the tenancy premises as a matter of his own rightful choice either because he may have built such premises or acquired vacant possession thereof or the same may have been allotted to him.
The words 'built ' and 'allotted ' did not mean that after building a residence or after allotment of a residence the tenant must also acquire its possession.
[548D F] 2.2 The landlord, in order to be entitled to evict the tenant, must 541 establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence.
It is essential that the three ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built, acquired vacant possession or has been allotted a residence, whether it is suitable or not and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts.
[549F H] 2.3 The landlord must be quick in taking his action after the accrual of the cause of action, and if by his inaction, the tenant allows the premises to go out of his hands then it is the landlord who is to be blamed and not the tenant.
[550A B] 2.4 The High Court was right in holding that once the condition stipulated in clause (h) was fulfilled by the tenant, he was disentitled to protection.
He cannot, there fore, claim that he should he protected.
[547B C] 3.1 Article 66 of the stipulated that for possession of immovable property the cause of action arises or accrues when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition.
[550C D] 3.2 On the facts of this case it is clear that Article 66 would apply in this case because no determination is necessary, as determination by notice under Section 106 of the Transfer of Property Act is no longer necessary.
[550D E] In the instant case, the landlady purchased the property on April, 9, 1973.
She filed an application for permission after about six months from the date of purchase, and filed eviction application after about four months from the date of the grant of the permission by the Slum Authority.
Time begins to run from the date of the knowledge.
Knowledge in this case is indisputably in 1973 looked at from any point of view.
There is, therefore, no question of limitation in this case.
[55OH; 551A] Ved Prakash vs Chunilal, [1971] Delhi Law Times Vol. 7, 59; Smt Revti Devi vs Kishan Lal, [1970] Rent Control Re porter Vol.
II, 71; Naidar Mal vs Ugar Sain Jain and anoth er.
A.I.R. 1966 Punjab 509; Siri Chand vs Jot Ram, Punjab Law Reporter Vol.
LXIII, 1961, 915; Govindji Khera vs Padma Bhatia Attorney, [1972] Rent Control Repor 542 ter Vol.
4, 195: Harbans Singh and another vs Custodian of Evacuee Property 'P ' Block and others, A.I.R. 1970 Delhi 82; Ujagar Singh vs Likha Singh and another, A.I.R. 1941 Allaha bad 28, 30; Somdass (deceased) vs Rikhu Dev Chela Bawa Har Jagdass Narokari, Punjab Law Reporter Vol. 85, 184 and K.V. Ayyaswami Pathar and another vs M.R. Ry.
Manavikrama Zamorin Rajah and others, A.I.R. 1930 Madras 430, referred to.