Sultan Singh, J.
1. Shri Ram Dev, predecessor of the respondents, on 2nd December, 1967 filed an application for eviction of Shri Gurdip Singh, appellant-applicant on the: ground mentioned in Section 14(1)(e) of the Delhi Rent Control Act, 1958 (for short the Act) with respect to a garage which is a part of property No. 8574, Basti Ara Kashan, Rani Nagar, Paharganj, New Delhi. The Additional Controller on 3rd May, 1973 passed an order of eviction which was confirmed by the Rent Control Tribunal by order dated 14th January, 1977 against the tenant. The tenant filed second appeal (S.A.O. No. 62 of 1977) in this court. On 27th October, 1978 the tenant gave an undertaking to this court to deliver vacant and peaceful possession of the premises on or before 3.1st October, 1978. This undertaking was accepted by court by order dated 30th October, 1978.
2. The applicant-tenant has filed this application under Section 19 ofthe Act read with Section 151 of the Code of Civil Procedure alleging that therespondents have vacated the suit House No. 8574, Basti Ara Kashan, RamNagar, Paharganj, New Delhi, that they have shifted to S-470, GreaterKailash I, New Delhi in 1980, that the suit house has been converted into atourist home and the same is being used as 'Malika Tourist Home'. Theapplicant further alleges that the respondents thus cannot use the premises fortheir residence and if possession is handed over by him in pursuance of the undertaking, he would be entitiled to its restoration. He, thereforee, praysthat the undertaking may be discharged and he may be allowed to remain inpossession of the premises.
3. The respondents in reply submit that they are using the part of thesuit house as guest house in the name of 'Maiika Tourist Home' on accountof financial difficulties after the death of Sushil Bhutani, that they have notre-let the suit house, that they are still in possession of the car and need thepremises in suit i.e. garage for parking the car. It is admitted that they havetaken on rent premises at S-470, Greater Kailash I and a part of the family hasshifted there, that they are using the suit house for residence as well as guesthouse.
4. The learned counsel for the respondents submits that conversionof house as tourist home does not debar the respondents to continue to residein a portion of the suit house. He also submits that they are in need of thepremises i.e. the garage with respect to which an order of eviction was passedand confirmed by the Tribunal and the appellant-tenant gave an undertakingto this court to vacate up to, 31st October, 1981, that the present applicationis an abuse of the process of, court and has been filed with a view to delaydelivery of possession.
5. Learned counsel for, the applicant-tenant submits that as the suithouse has been converted into a tourist home, the same cannot be used by therespondents for their residence. The learned counsel for the respondents onthe other hand submits that it is not correct to say so. He submits that partof the suit house has been converted into a tourist home andeven if the entire house is converted into a tourist home, the respondentshave a right to use a portion of the suit house for their residence includingthe garage in question. His submission is that there is no bar that in atourist home the owners cannot use it as their residence. Nothing has beenpointed out baring the respondents to occupy the house for their residenceeven if house has been concerted into a tourist home. I am, thereforee, of theopinion, that at this stage the present application of the applicant-tenant fordischarging the undertaking is not maintainable.
6. Under Section 19 of the Act the landlord after obtaining possession is not entitled to re-let the whole or any part of the suit premises within three years from, the date of obtaining such possession without obtaining permission of the Controller. Further it is provided that if the landlord does not occupy the premises within two months of obtaining possession or the premises having been so occupied are re-let within three years, the Controller on an application on behalf of the evicted tenant can direct the landlord to put the tenant in possession of the premises. The applicant-tenant has no cause of action at present moment. The respondents are entitled to the possession of the suit premises and if they do not occupy the same, the applicant-tenant may seek remedy in accordance with law.
7. The learned counsel for the applicant refers to Jamna Mangaji v. Vaktavarmal: Gangaram and Ors. 1979 (2) R.L.R. 637 where a decree foreviction on ground of personal requirement was held to be non-executable on the ground that the landlord had sold the property prior to the execution of the decree. The learned counsel next refers to P.O. Badhwar v Lajwatti Malik and Oer., : AIR1977Delhi63 where the premises were re-let after obtaining the possession and the tenant made an application for restoration of possession and compensation payable to the tenant was determined under Section 19(2) of the Act. In Shahdastrapal Sharma v. Ho Ram and Anr., 1973 Rent Control Reporter 195 the landlord after evicting tenant used the premises for shop which was in violation of Section 19 of the Act. These judgments referred to by the learned counsel for the applicant are not applicable to the facts of the case. I am, thereforee, of the opinion, that the present application is not maintainable unless the tenant complies with the undertaking given by him.
8. The tenant has also made another application (C.M. No. 3694 of 1982) under Order 26 Rule 9 and Section 151 of the Code of Civil Procedure to appoint a Local Commissioner to visit the house where 17 bed rooms exist and make a sketch so that it may be determined whether the house can be used as a residence. There is no necessity for appointing any Local Commissioner to get the sketch of the house prepared. The crucial question is : Whether a tourist home can be used as a residence by the respondents-owners. Prima facie there is no bar for the respondents to use the tourist home as residence. No purpose would be served by appointing any Local Commissioner.
9. The application of the tenants are thereforee not maintainable and are hereby dismissed with no order as to costs.
10. The undertaking given by the tenant was suspended during the pendency of the above application by this Court. The application stands dismissed and the applicant-tenant is directed to comply with the undertaking immediately.