JUDGMENT

MISRA, J. :— The present appeal by special leave is directed against the judgment of the High Court of Gujarat dated 10th February, 1970.

2. The dispute between the parties concerns a plot of land admeasuring 100 ft. X 164 ft. (i.e., approximately 1822 sq. yards) out of survey No. 18 in the city of Nadiad. This plot was owned by Deviprasad Motilal Jaiswal and Vora Sunderlal Manilal was occupying it as a tenant. He had also made certain constructions on the disputed plot. The appellant purchased the said plot under a registered sale deed dated 18th April, 1955. The defendant accepted the plaintiff as owner on a rent of Rs. 1325/- per annum with effect from 18th April, 1955 under a registered rent note dated 9th June, 1955 for a period of five years. The rent note provided (1) that the defendant shall pay to the plaintiff the amount of municipal tax at the rate of Rs. 40/- per annum in respect of the rented premises, (2) that the said premises shall not be let out to anyone else, and (3) that on the expiry of the period of five years the defendant shall remove the constructions at his own expense and hand over to the plaintiff the premises in the condition in which it was let out.

3. It appears that the defendant No. 1 sublet a portion of the said premises to defendant No. 2, Pa Babubhai Gordhanbhai contrary to the terms of the rent note. The period of lease contemplated in the rent note expired on l7th April, 1960 and the defendant continued as a statutory tenant on a monthly rent under the Rent Control Act. The two sons of the plaintiff Suleman and Ganibhai are dealing in empty tins on a large scale and a spacious premises was required for the said business. The plaintiff called upon the defendant to remove the construction erected on the land in dispute and to vacate the premises and handover the possession. Although the plaintiff filed the suit for eviction on a number of grounds, we are concerned in the present appeal only with the plea that the premises in question had not been used by the defendant for a period of more than six months prior to the date of the suit without reasonable cause and, therefore, the defendant was liable to eviction under S. 13(1)(k) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereinafter referred to as the Act. The trial Court dismissed the suit holding that the notice of termination was not valid and that the plaintiff had failed to prove the bona fide requirement, and that the defendant No. 2 was admitted as a sub-tenant many years before the execution of the rent note by the plaintiff and, therefore, the plaintiff was not entitled to recover possession on the ground of illegal subletting. The plaintiff feeling aggrieved by the judgment took up the matter in appeal and the Assistant Judge allowed the appeal partly holding that the notice of termination was a valid one, that the plaintiff did not require the suit premises reasonably and bona fide for occupation for himself, and that the suit premises had not been used by the defendant continuously for a period of six months immediately preceding the date of suit. without any reasonable cause. The defendant took up the matter in revision before the High Court and the High Court reversed the finding of the 1st Appellate Court on the question of user by the defendant. it took the view that the construction of the superstructure on the land itself was a user and, therefore, the Courts below had committed a manifest error in holding that the land in question had not been used for more than six months prior to the institution of the suit. The plaintiff has now come to this Court by a Special leave.

4. Mr. Harish N. Salve counsel for the appellant strenuously urged that the tenant was liable to be evicted under S. 13(1)(k) of the Act inasmuch as the premises how not been used for the purpose for which they were let out for a continuous period of six months immediately preceding the date of suit without reasonable cause