R.N. Aggarwal, J.
(1) The appellant R.N. Mathur took on rent under section 21 of the Delhi Rent Control Act the premises flat No. D-II/B, D.D.A. flats, Munirka, New Delhi, belonging to Shri Pratap Pawar for residential purposes for a period of two years commencing from 22nd July 1978. The ground stated in the application for permission to create tenancy for a fixed period was that the landlord is on a foreign assignment/and posted as Cultural Officer, High Commission of India, Port of Spain, Trinidad, and Tabago, West Indies, and was expected to return to India on the expiry of his assignment after a period of two years and he would thereafter require the premises for his personal residence. The said application was made on behalf of the landlord by his attorney Miss Raj
(2) On 26th August 1980 the landlord through his attorney filed an application for warrants for possession of the flat No. D-II/B D.D.A. flats. It was stated in the application that although the period of two years had expired the tenant had not vacate the premises The landlord stated in the application that he has been posted back from his foreign assignment and is returning to India any time in September.
(3) The tenant filed objections against the said application. The main plea of the tenant was that the premises were let out to him from 15th June 1978 and that the permission obtained under section 21 of the Delhi Rent Control Act for letting out the premises with effect from 22nd July 1978 was a fraud on the provisions of the Rent Control Act. The tenant further pleaded that the landlord does not require the premises and he was posted out of India and that there is no definite period of his return from abroad.
(4) The landlord in reply to the objection petition denied that the premises were let out to the tenant on 15th June 1978. The landlord further pleaded that the permission under section 21 of the Delhi Rent Control Act was a proper and legal exercise of jurisdiction. The landlord further pleaded that on the expiry of his assignment as Cultural Officer in the High Commission of India at Trinidad he had come back to India and that as the tenant did not vacate the premises he along with his family was forced to live with his friends for 5 to 6 months and that he again went out on another assignment and he had after completing the second assignment returned to India and he required the premises badly for his own occupation.
(5) The tenant in his rejoinder reiterated the allegations made in the objection petition.
(6) The Additional Rent Controller dismissed the objections of the tenant and directed that warrants of possession be issued.
(7) Against the aforesaid order the tenant went in appeal to the Rent Control Tribunal.
(8) The main contention before the Tribunal was that the permission granted under section 21 of the Rent Control Act for creating tenancy for a fixed period was a fraud on the provisions of the Rent Control Act. The ground urged was that the property was let out to the tenant on 15th June 1978 and, thereforee the question of granting permission to create tenancy for a fixed period on 22nd July 1978 did not arise. It was also contended that the permission was obtained by stating wrong facts. The learned Tribunal held that even if it is assumed that the property was let out to the tenant on 15th June 1978 on the execution of a fresh lease under section 21 of the Rent Control Act it would be deemed that the earlier tenancy had been surrendered and a fresh lease had come into existence. The learned Tribunal rejected the contention of the tenant that any fraud had been practiced in obtaining the lease under section 21 of the Rent Control Act.
(9) The Tribunal after a careful consideration of the contentions raised before it rejected the appeal.
(10) Dissatisfied with the judgment of the Tribunal the tenant has come further in appeal to this Court.
(11) On October 12, 1984, after hearing the learned counsel I required the landlord to file an affidavit on the following points : (1) As to when Shri Pawar left India in 1978 ; (2) When did he return to India in 1980 and for how long he stayed at that time ; (3) That after returning to India in 1980 when did be again leave India for abroad : (4) From 1980 to 1984 how many trips he has made to India ; (5) When is he finally returning to India.
(12) Shri Pawar (the landlord) has filed an affidavit dated 20th November 1984 stating therein that he had returned to India on 16th October 1980 and 175 that since the tenant had not vacated the premises he had to stay in small quarters at Bhawalpur House, Bhagwan Das Road, and that he vacated the said temporary accommodation in March 1981 and that he accepted an offer from the Bharatiya Vidya Bhavan and left India on 10th March 1981 and that he returned to India on 22nd December 1982 and after staying for two months with his sister-in-law at Greater Kailash as a guest he went back on 22nd February 1983, that he again came to India on 19th December 1983 and left for London in February 1984 to pack up bids belongings as his contract with Bhartiya Vidya Bhavan was due to expire in March 1984. The landlord has further testified that his contract with Bhartiya Vidya Bhavan has expired and that he stayed back and gave performances at various places in Europe and elsewhere with bids troupe as an independent professional, and that he has come back to India on 18th November 1984 and that at present he has no assignment or contract for going abroad and he has to stay in India permanently. In para 9 of the affidavit the landlord stated as under : '9. That I am a renowned Kathak Artist and given the nature of my profession I accept any offer for giving performance whether in India or abroad as this is the only source of my livelihood. However, I am not a resident anywhere abroad as my contract for teaching dancing at the Bhartiya Vidya Bhavan had come to an end long ago. In the circumstances, it will cause great hardship if I am denied my own house and compelled to spend enormous amount on rent for seeking accommodation, which I can hardly afford to do.'
(13) The tenant in his counter affidavit dated 22nd November 1984 has stated that as per his information the landlord is now based in London Bhartiya Vidya Bhavan. The tenant along with his affidavit has filed an article from the magazine 'Sunday.'
(14) I have carefully gone through the record and I find that no fraud was practiced or wrong statement made by the landlord in obtaining permission under section 21 of the Rent Control Act. The ground given for obtaining permission to create tenancy for a fixed period was that the landlord had gone as Cultural Officer, High Commission of India, Port of Spain, Trinidad and Tabago, West Indies for a period of two years and he was expected to return to India on the completion of the said assignment. There is no material on the record to show that the above statement of fact in the application was wrong. Shri Pratap Pawar had come back to India in October 1980, and in 1981 he had accepted another assignment from Bhartiya Vidya Bbavan, London which came to an end in March 1984 and Shri Pawar returned to India in November 1984. Shri Pawar, it appears, is a renowned Kathak Artist and he frequently goes abroad to give performances.
(15) Shri Andley stated that Shri Pawar is permanently stationed in London and he only visits India occasionally. I find no material or basis for this contention. The mere fact that Shri Pawar frequently goes abroad or accepts short period foreign assignments does not mean that he has settled abroad permanently.
(16) Shri Andley contended that the address given of the tenant in the application under section 21 is sector 13, house No. 748, R.K. Puram, New Delhi, and that this statement of fact in the application is not correct and that on the date the application was made the tenant was residing at D-1I/B, D.D.A. flats. The above, according to the counsel, was a deliberate incorrect 176 information given in the application and that in case the correct address of the landlord had been given the additional Rent Controller would not have given the permission to create tenancy for a fixed period. The tenant admittedly was residing at sector 13, house No. 748, R.K. Puram before he moved into the premises in dispute. It seems that the tenant was allowed to occupy the premises on 15th June 1978 but the formal application under Section 21 of the Delhi Rent Control Act was filed on 21st July 1978 and the permission to create tenancy for a period of two years was given by the Additional Rent Controller on 22nd July 1978. I see no fraud or malafides in the application for obtaining permission for creating lease for a fixed period.
(17) Mr. Andley referred to V.S. Rahi another v. Smt. Ram Chambeli, : 2SCR290 . I have carefully gone through the cited authority and I am of the view that it is distinguishable, on facts and is not applicable to the case in hand.
(18) No other point was urged.
(19) The appeal is without merit and is dismissed with costs. The counsel fee is assessed at Rs. 500.00. The tenant is allowed one month's time to vacate the premises.