Judgment

WANCHOO, J. : These two appeals by special leave from two judgments of the Punjab High Court raise a common question with respect to the application of the first proviso to S. 57(2) of the Delhi Rent Control Act, No. 59 of 1958 (hereinafter referred to as the present Act). They arise from decisions of two learned single Judges in revision applications under the Delhi and Ajmer Rent Control Act, No. 38 of 1952 (hereinafter referred to as the 1952-Act). In one of them (C. A. 879) the learned Judge has held that in view of the first proviso to S. 57(2), a decree for ejectment against the tenant could not be passed. In the other appeal (No.121), the other learned Judge has held that the tenant is liable to ejectment in spite of the first proviso to S. 57(2) of the present Act. It will thus be seen that the two decisions are contradictory and raise the question as to when the first proviso to S. 57(2) precisely applies to facts similar to the facts in the present two appeals which are more or less the same.

2. Before we consider the question thus raised before us, we may briefly indicate the facts in the two appeals. In appeal No. 879/1962, the landlord sued for ejectment on the ground that the tenant had erected certain structures in the shape of closing an open verandah and erecting a partition therein. On account of this, notices were sent to the landlord as well as to the tenant by the authorities concerned to remove the unauthorised structures. As, however the tenant did not do so, suit for ejectment was filed by the landlord under cl.(k) to the proviso to S.13(1) of the 1952-Act, which ran as follows:-

"13(1). Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):

Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied-

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(k) that the tenant has, whether before or after the commencement of this Act, "caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situated;"

The lease in favour of the landlord by the Government provided that

"the lessee will not without the previous consent in writing of the Chief Commissioner of Delhi or such officer or body as the lessor or the Chief Commissioner of Delhi may authorise in this behalf erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected thereon at the date of these presents". The case of the landlord was that the tenant had made structures without authority which made him liable to ejectment under cl.(k). During the pendency of the suit, however, the tenant had removed the offending structures with the result that there was no longer any breach of the condition of the lease.

3. In C. A. 121 of 1963, also the facts were similar and the suit was filed on the basis of cl. (k) of proviso to S. 13(1) of the 1952-Act. In this case also the tenant had closed the verandah without the permission of the authorities concerned and notice was given to the landlord on that count by the authorities and the landlord in his turn asked the tenant to remove the unauthorised structure. When the tenant did not do so, the landlord filed the suit. It appears that during the trial of the suit, the tenant made certain changes in the structure and removed the glazing and instead he closed the verandah with wire-gauze net. It was stated by a witness from the office of the Land Development Officer that the fixing of wire-gauze net was not against the clause as to unauthorise