Sultan Singh, J.
(1) Smt. Agyawanti, respondent is the landlord ofQuarter No. 3 Block No. 1, Lajpat Nagar-1, New Delhi. She let out tworooms, Verandah, Kitchen, bath room and open space on ground floor toD.N. Vohra, Appellant for a fixed period of 22 months with effect from 17/07/1976 for residential purposes after obtaing permission dated 15/07/1976of the Controller, under section 21 of the Delhi Rent Control Act, 1958(hereinafter called 'the Act'). The appellant executed the lease deed dated 19/07/1976 in terms of the permission but did not vacate the premises onthe expiry of the said period. An execution application was filed for obtainingpossession. The appellant filed objections which were dismissed on 12/10/1979 and his appeal was also dismissed by the Rent Control Tribunal videorder dated 21/02/1980. We has come up in second appeal under s. 39 of the Act.
(2) In his objections the appellant pleads that in October 1969 theentire ground floor consisting of three rooms, kitchen, latrine and bath roomwas let out to him at a monthly rent of Rs. 260/. In 1972 the husband ofthe respondent was seriously ill and he was not in a position to climb thestairs. On respondent's request he handed over one room out of the threerooms to her temporarily. The rent was reduced to Rs. 250.00 per month. Therespondent's husband thereafter died but the said room was never restored.He alleges that the respondent issued only two rent receipts under hersignatures without showing therein either the rate of rent or the amountreceived by her for two months, November and December 1969. He furtheralleges that the respondent to avoid payment of house tax did not mentionthe rate of rent in the said two receipts. She did not issue any receipt thereafter. In July, 1976 the respondent threatened that she would recover theentire arrears of rent since 1969 as the appellant was not in possession ofreceipts showing payment of rent. The appellant was, thereforee, prevailedupon to take the premises already in his possession for a fixed period of 22months under Section 21 of the Act and was assured that she would treathim as a regular tenant even after tenancy under Section 21 of the Act.(Under these circumstances, the respondent made an application under section 21 of the Act to the Controller alleging that she was the owner ofproperty in suit, that at that time she did not require the ground floor portionexcept one room and that she wanted to let out the same to the appellant forthe limited and fixed period of 22 months. The statements of the appellant andthe respondent were recorded by the Additional Controller on 15/07/1976.The respondent (landlady) stated as under :-
'Ido not require the premises for a period of 22 months from 17/07/1976. The purpose of letting shall be residential only andthe premises is shown on site plan Exhibit A 1 in red. The proposedagreement is Exhibit A2.''
THEappellant stated as follows :-
'I have heard the statement of the petitioner and I accept it ascorrect. I have no objection. I shall vacate the premises after expiryof 22 months with effect from 17/07/1976. The purpose of lettingshall be residential.'
THEAdditional Controller passed the following order on 15/07/1976:-
'THISis an application filed under Section 21 of the Act for permission to create a limited tenancy for a period of 22 months from 17/07/1976. The purpose of letting shall be residential only andthe premises is shown in site plan Exhibit A I in red. The proposedagreement is Exhibit A2. From the perusal of the statements of theparties, I am satisfied that as at present the petitioner does not requirethe premises. thereforee, limited tenancy is allowed to be created for a period of 22 months from 17/07/1976.'
(3) The appellant further pleads that the facts relating to his possessionof the premises as tenant were suppressed and fraud was played on him bythe respondent that provisions of Section 21 of the Act were notcomplied with as he was already a regular tenant, that his tenancystill continued, that on account of his non-possession of rent receiptsfor a period of more than six years, he was under a fear that therespondent might institute a false suit for recovery of arrears of rent againsthim, although up to date rent had already been paid by him. He, thereforee,alleges that he, as desired by the respondent went through the exercise ofmaking a statement before the Controller and getting the permission under section 21 of the Act and executed lease deed dated 19/07/1976 He allegesthat his possession of suit premises since 1969 is proved from ration card,voter list, electricity and water bills, T.V. license, radio license, insurancepremium receipts. A notice was sent by him to the respondent informingthat the tenancy under Section 21 of the Act was irregular, illegal andinvalid and that the same was not in accordance with the provisions ofSection 21 of the Act and that the entire responsibility for suppressing thematerial facts and practicing fraud on him and on the court rested with therespondent. He admits that subsequent to the permission under Section 21of the Act the respondent issued receipts for the period 17/07/1976 toDecember 1977 for rents paid by him. The execution of the writing dated 19/07/1976 in pursuance of the permission under Section 21 of the Actis admitted but the same is alleged to be void and illegal and not bindingupon him because the same was obtained under the circumstances alreadymentioned.
(4) The respondent in her pleading controverts all the allegations ofthe appellant-tenant. She denies, appellant became tenant in October 1969.She pleads that the possession of the premises given to him for a fixed periodof 22 months with effect from 17/07/1976 after obtaining Controller's permission, that he made statement before the Additional Controller, that heis estopped from alleging otherwise. It is denied that the permission wasobtained by fraud or any material facts were suppressed. It is also deniedthat possession of one room out of the three rooms was ever given to her by theappellant, or she ever threatened to recover arrears of rents. The possessionof the appellant from 1969 till the filing of the permission application is alsodenied. Thus in short the case of the respondent in her pleading is thatappellant was never a tenant prior to the permission proceedings under section 21 of the Act and that he came into possession after the grant ofpeimission by the Additional Controller under Section 21 of the Act. Noother positive averment was made by the respondent in her reply.
(5) The appellant examined himself and four other witnesses insupport of his objections. He, also O.W.1, deposes-he occupied the disputedpremises in October 1969, the premises were let to him by the respondent,-then it were three rooms, one kitchen, one latrine, both room and themonthly rent was Rs. 260.00, in 1972 one room was taken back since herhusband was ill and suffered fram heart-attack and the rent was reduced tors. 250.00 per month, that except on two occasions receipts were never issued,these receipts are Exhibit O.W.1/1 and Exhibit O.W.1/2. In reply to thequestion-'Under what circumstances you came to Court Under Section 21of the Delhi Rent Control Act.' he states 'I was threatened for the recoveryof rent entirely because I was not given the receipt and was assured thatshe will not get me evicted. I am possessing electricity/water bills. The billsare Exhibit O.W.1/5 to Exhibit O.W.1/15. I have got the gas connection, thereceipt to which is Exhibit O.W.1/16 and T.V. license.' In cross examination he states that he signed his statement before the Rent Controller, hewas present at the time of permission, he did not object at that time thathe was in possession, he did not make a complaint to the police. He however, states that he has been defrauded and that he gave a notice. He furtherstates that in exhibit A1 i.e. the lease deed correct facts were not mentionedand that he signed the same under duress. During cross examination asuggestion was made that in 1975-76 he left the premises which he had takenearlier. In reply he denies this suggestion. He denies that he ever left the premises. (O.W.2) Mange Ram, is an Officer from the Election Office,Delhi who produced voter list of the suit house showing the name of theappellant and his family members as on 6/12/1974. O.W.3 anOfficer of the Rationing Office, Delhi produce the appellant's ration cardat suit premises for the period July 1974 to 1977. The appellant purchasedration on this card from 1974 to 1977 specially on 7/07/1976 and Jul 29/07/1976. I may mention that the alleged permission under S. 21 of the Act wasobtained on 15/07/1976. This ration card shows that the appellant obtainedthe ration both prior to the permission and after the permission. O.W.4is the record keeper of the House Tax Department of the Municipal Corporation of Delhi who produced a photostat copy of the assessment record bearingthe date 26/10/1971. The appellant's name appears in this recordas one of the tenants in suit premises. The last witness on behalf of theappellant is one Mr. Shiv Shanker, who states that the appellant nevervacated the suit premises. In cross examination it was suggested that theappellant vacated the house in 1975-76 and that he again occupied the sameafter three or four months. The suggestion is denied by him. The respondent appeared as her own witness. She states-the appellant came intopossession of the suit premises after the grant of permission by the AdditionalController, the appellant was residing at Jor Bagh, he was tenant under herprior to his shifting to Jor Bagh, there was an interval of four or five monthsbetween his shifting to Jor Bagh and again occupying the premises after thepermission. In cross examination she admits, first tenancy commenced inOctober, 1969, rent was Rs. 260.00 per month, the premises consisted of threerooms, kitchen, bath room, latrine on the ground floor, in 1972 one roomwas taken back from him. She admits her signatures on the receipts ExhibitO.W.I/I for November 1969. She neither admits nor denies her signatureon receipt for December 1269 Exhibit O.W.I/2. Signatures on receiptsExhibits O.W.1/3, O.W.1/4 for the period July 17, 1276 to Jul 31/07/1976and December 1977 are admitted. She denies appellant's possession andoccupation on the date when the permission application under Section 21was made.
(6) As regards documentary evidence various electricity and water bills were produced by the appellant. Electricity bills are Exhibit O. W. 1/5 to Exhibit O.W. 1/11 showing consumption of electricity in suit premises. Meter reading as per these bills is as follows :
Date Power meter reading Light meter reading10.10.1974 2480646026.12.19742620657024.2.1975270066608.10.19753450714030.12.19753620728024.2.19763710736026.4.19763840747023.6.19764030755023.8.19764240766025.10.197643907800
THESEbills show consumption of electricity for light and power purposes from October, 1974 to October, 1976 specially during the period of about fivemonths prior to permission in July, 1976. Water bills and receipts for payment of water bills are Exhibit O.W. 1/12 to Exhibit O.W. 1/15 showingmeter reading as follows :
Date Water meter reading4.11.1975 10031.3.1976 15922.5.1976 209 9.9.1976 2931.10.1976 30525.10.1976 330
THESEreading show consumption of water in suit atall relevant times.Respondent's suggestion that appellant left the premises at any relevant timeis falsified by the electricity and water bills. Exhibit O.W. 1/16 is the cashmemo dated 7/05/1971 showing payment of gas cylinder charges. Thisreceipt shows the suit premises as the address of the appellant. Exhibit O.W.2/1 is the record of the Election Office pertaining to suit premises showingthe names of the appellant and others as voters on 6/12/1974. Theration card also shows that the appellant obtained ration on this card on 7/07/1976 and Jul 29/07/1976 besides on various other dates from 1974 to1977. The correctness of the documentary evidence produced by the appellant consisting of Exhibit O.W.1/1 to Exhibit O.W. 1/16 is not challenged bythe respondent. Not a single question was put to him in cross examination.The appellant was not given receipts for rent paid up to July 1976 i. e. fora period of about 7 years. The respondent has not given the receipts forthe period ending 16/07/1974 were given to the appellant. Hewas, thereforee, under a fear that he would have to pay the arrears of rents atsuch rate as may be claimed by the respondent if he had not accepted thesuggestion of the respondent to take the tenancy premises under Section 21and execute the lease deed in accordance with the permission because rate ofrent was not mentioned in the receipts for November-December 1969. Theconduct of the respondent was a fraud upon the appellant and the Court. Shedid not accept the appellant's tenancy from October 1969 in her pleading.But when she realised that unrebutted documentary evidence on record hasbeen produced by the appellant she in cross-examination of the appellantcame forward with the story that the premises taken on rent previously i. e.in November 1969 were left by him in 1975-76 and again occupied after thepermission for 22 months. No such plea was ever taken in her reply to theappellant's objections. In fact, the respondent in her pleading denied histenancy, possession and occupation during the period October 196 9/07/1976. The premises were already under the tenancy of the appellant. Shewas never in possession of these premises since October 1969. The premiseswere not available for letting on the date when the application was made forpermission under S. 21 of the Act she suppressed the true facts once a tenancyis created it can be determined be one of the methods mentioned in Section 111of the Transfer of Property Act and/or under the Rent Control Act. If oncetenancy in favor of the appellant stands proved on record, the onus shiftsupon the respondent to allege and prove how that tenancy was determinedand the premises were available for letting. In the present case there isneither any plea nor any evidence to show determination of tenancy andavailability of premises for letting under Section 21 of the Act.
(7) Section 21 of the Act is as under :
'RECOVERYof possession in case of tenancies for limited period.Where a landlord does not require the whole or any part of anypremises for a particular period, and the landlord, after obtaining thepermission of the Controller in the prescribed manner, lets the wholeof the premises or part thereof as a residence for such period as maybe agreed to in writing between the landlord and the tenant and thetenant does not, on the expiry of the said period, vacate such premisesthen, notwithstanding anything contained in Section 21 or in any otherlaw, the Controller may, on an application made to him in this behalfby the landlord within such time as may be prescribed, placethe landlord in vacant possession of the premises or part thereofby evicting the tenant and every other person who may be inoccupation of such premises.'
UNDERthis section a landlord must show that the premises are available forletting and he does not require the same for a particular period. He mustfurther give reason for not requiring the premises. The Controller mustsatisfy himself that the conditions prescribed under Section 21 of the Actexisted, before granting the permission. If the premises were already undertenancy, it cannot be said that the same were available with the landlord forletting. If the landlord is not in possession of the premises he must disclosein his application as to how he would be entitled to let out the same after thepermission of the Controller. In such circumstances Controller may determine whether the landlord would be entitled to possession of the premisesin his own right before creation of tenancy after permission. If landlord isnot entitled to possession from the occupant, no permission to let the premisesalready in occupation of a person other than the landlord can be granted.Further if reasons for not requiring the premises are not mentioned in theapplication, it would not be possible for the Controller to determine whetherthe landlord does not require for the particular period and in such circum-stances no permission can be granted. If permission has been granted inviolation of these requirements it would be void and open to challenge at thetime of execution of the permission. The Supreme Court in S.B. Noronah v.Prem Kumari Khanna, 1980(1) Supreme Court Gases 52 held :
'THEfirst condition is that the landlord does not require thedemised premises 'for a particular period' only. This means that hemust indicate to the authority before which sanction is sought forletting what is the particular period for which he can spare the accommodation. The Controller must be satisfied that the landlord meanswhat he says and it is not a case of his not requiring the property indefinitely as distinguished from a specific or particular limited period ofsay one year, two years or five years. If a man has a house availablefor letting for an indefinite period and he so lets it, even if he specifiesas a pretence, a period or term in the lease, Section 21 cannot beattracted. On the other hand, if he gives a special reason why hecan let out only for a limited period and requires the building atthe end of that period, such as that he expects to require by then orthat he is going on a short assignment or on deputation and needs thehouse when he returns home it is good compliance. The second condition is that the letting must be made for a residential purpose. Thehouse must be made over 'as a residence'. If it is let out for a commercial purpose. Section 21 will not apply, whether the ritual of asanction under that provision has been gone through or not. Thirdly,the Controller's permission is obligatory where he specified the particular period for which he gives permission and further qualifies thepermission for use as a residence. The Controller exercises an important regulatory function on behalf of the community. The fact that alandlord and a potential tenant together apply, setting out the formalingredients of Section 21, does not relieve the Controller from beingvigilant to inquire and satisfy himself about the requisites of the landlord's non requirement 'for a particular period' and the letting itselfbeing 'as a residence'. A fraud on the statute cannot be permittedespecially because of the grave mischief that may be perpetrated insuch event.
xx xx xx WHENan application under Section 21 is filed by the landlordand/or tenant, the Controller must satisfy himself by such inquiry ashe may make, about the compulsive requirements of that provision.If he makes a mindless order, the Court, when challenged at the timeof execution, will go into the question as to whether the twin conditions for sanction have really been fulfillled. Of course, there will be apresumption in favor of the sanction being regular, but it will still beopen to a party to make out his case that in fact and in truth theconditions which make for a valid sanction were not present.xx xx xxIt is altogether wrong to import the idea that the tenant havingtaken advantage of induction into the premises pursuant to the permission, he cannot challenge the legality of the permission.'
(8) The appellant has challenged the original order of the Controllergranting permission under Section 21 of the Act. From the material onrecord as discussed above, I am satisfied that he has discharged the onus. Noreason was disclosed by the respondent why she did not require the premisesfor the fixed period of 22 months. The premises were also not available forletting. The fact that the premises were already under tenancy of the appellant, was not disclosed by the respondent in her application. The Controllerat the time of granting the permission, it appears, did not apply his mind.He ought to have taken into consideration whether the premises were available for letting and what was the reason that the premises were not requiredby the respondent. It appears that after recording the statement he passedthe order in a mechanical way. The oral and documentary evidence onrecord conclusively proves that the appellant occupied the premises as tenantin October 1969 consisting of three rooms etc. at Rs. 260.00 per month, thathe surrendered one room subsequently and rent was reduced to Rs. 250.00 permonth, that he never left the premises, that he continued in occupation andpossession of the premises right up to the date of permission under Section 21 of the Act and thereafter.
(9) It was argued on behalf of the respondent that the appellant gavehis address as 37 Jor Bagh in the lease deed executed on Jul 19/07/1976 inpursuance of the permission of the Controller. She is not aware of the premises in Jor Bagh. No evidence has been led by her to show that the appellant ever left the suit premises or shifted to Jor Bagh. Giving of the addressin the proposed lease agreement or the lease deed dated 19/07/1976 doesnot mean that the appellant left the premises and went to occupy the premises in Jor Bagh. The appellant while in the witness box stated that henever left the suit premises meaning thereby that he never shifted to anyother place for his residence. No question was put to the appellant in crossexamination suggesting that the appellant before permission was residing atJor Bagh. The respondent showed his ignorance about the alleged Jor Baghaddress of the appellant. She could not point out where the appellant usedto reside in Jor Bagh. The documentary evidence shows that the appellantremained in occupation of the suit premises.
(10) The Additional Controller and Tribunal were not correct in holding that the appellant was not continuously residing in the premises in dispute. The findings are contrary to unrebutted oral and documentary evidence on record. The further finding that he was not residing at the time of permission under Section 21 of the Act is also contrary to record. They have not taken into consideration that from October 196 9/07/1976 receipts forpayment of rent except receipts for two months were not granted to theappellant. In the two receipts the rate of rent was also not disclosed. Why?No reason is given even now. The respondent did not disclose to the RentController in her application under Section 21 of the Act that the appellantwas tenant and in occupation of the premises. It was an active concealmentof a material fact within the knowledge of the respondent. This fact wasconcealed with intention to induce the appellant to enter into lease agreement under Section 21 of the Act. The conduct of the respondent was nothing butfraud upon the appellant in the Court. The Controller and the Tribunalhave further held that the appellant has taken advantage of the permissionand, thereforee, there was no question of any fraud. I do not agree. Theappellant was in difficulty. He had no defense to the demand of the respondent for arrears of rent from 1969 to 1976. He had no alternative but to acceptthe demand of the respondent and go through the formalities of making thestatement before the Controller and thereafter execute the lease deed. Therespondent obtained permission and got the lease deed executed by puttingthe appellant in fear.
(11) It was also argued on behalf of the respondent that under thefacts and circumstances of the case it be held that there was implied surrenderof the 1969 tenancy and that there was tenancy under Section 21 of the Actin July 1976. It is well-known that parties cannot be allowed to go beyondpleadings. Without any plea of surrender of tenancy, no amount onof evidence, if any, on record can be looked into. In fact, there is no evidencerecord to hold surrender of tenancy by the appellant in 1975-76 or at anyother time. The suggestion is that there was a gap of four to five monthsbetween the date when the appellant left the premises and the date he occupied the same after permission under Section 21 of the Act. This suggestionis also false to her knowledge. The electricity and water bills on record conclusively prove that the premises were in occupation and there was consumption of water and electricity also during the period of five months prior to thesaid permission in July 1976. Thus the suggestion of the respondent at a verylate stage at the time of evidence to the appellant that he left the premises forperiod of about five months is held to be false. In the present case conditions for the grant of valid permission under Section 21 of the Act were notfulfilled when the application was made by the respondent.
(12) The appeal is, thereforee, accepted, the orders of the AdditionalController and Rent Control Tribunal are set aside. The execution application of the respondent in pursuance of the permission dated 15/07/1976under Section 21 of the Act is dismissed. It is further held that the permission granted on 15/07/1976 is invalid. The respondent shall also payappellant's costs throughout.. Counsel fee Rs. 400.00.