JUDGMENT

VENKATACHALIAH, J.:— The appellant-landlords seek special leave to appeal to this Court from the judgment dated 29-11- 1989 of the High Court of Delhi in S.A.P. No. 384 of 1987 allowing respondent-tenants appeal and setting aside the appellate order dated 17-10-1987 of the Rent Control Tribunal, Delhi which had confirmed the order of the Rent Controller dated 16-2-1987, granting possession of premises No. 19/20, New Rohtak Road, to the appellants upon the expiration of a limited-tenancy under S. 21 of the Delhi Rent Control Act, 1958, (Act).

2. The effect of the High Courts judgment was invalidation of the permission for the limited-tenancy and refusal of appellants prayer for possession. The High Court held that the initial grant of permission by the Rent Controller under S. 21 for a limited-tenancy for five years from 6-4-1978 was itself marred by a fraudulent suppression of material facts; that the permission, in effect, was merely an ex-post facto sanction of a subsisting tenancy which had earlier come into existence on 5-31978 and that, therefore, the appellants were not entitled to the benefit of S. 21. The High Court relied upon a pronouncement of this Court in Subhash Kumar Lata v. R. C. Chhiba (1988) 4 SCC 709: (AIR 1989 SC 458) to support its view that the nullity of the order under S. 21 obtained by fraud could be urged in defence against execution.

3. We have heard Sri Rajinder Sachar, learned senior counsel for the appellants and Sri Avadh Bihari Rohtagi, learned senior counsel for the respondent-tenants. Special leave is granted.

The necessary and material facts, briefly stated, are these: Appellants and the respondents by their joint application to the Rent Controller sought for and obtained permission for a limited-tenancy for five years under S. 21. Respondents not having surrendered possession upon the expiry of the said period of five years, the appellants commenced proceedings for redelivery. Respondents resisted the proceedings raising several contentions. They urged that the appellants were not the owners of the premises at all; that the permission under S. 21 was vitiated by fraud resulting from a suppression by the appellants of the material fact that at the relevant time the premises was not available for letting at all; that respondents had been inducted into possession as tenants from 5-3-1978 itself and, therefore, one of the basic jurisdictional requirements for the grant of permission under S. 21 was absent and that, at all events, a fresh contractual tenancy had been created with effect from 6-4-1983 immediately upon the expiry of the five year term of the limited-tenancy.

4. The Rent Controller by his order dated 16-2-1987 rejected all these contentions and made an order granting possession. The respondents appeal before the Rent Control Tribunal was unsuccessful. In the second appeal under S. 39 of the Act by the respondents, the High Court held that even prior to the limited-tenancy, the respondents had been inducted into possession as tenants; that the subsequent permission for the limitedtenancy was a mere pretence and the result of a fraud on the statute and, therefore, a nullity. Relying on Subhash Kumar Latas case (AIR 1989 SC 458), the High Court held that such a nullity could be pleaded in and against execution as well. The High Court, accordingly, allowed the second appeal and, in reversal of the orders of the authorities below, dismissed appellants claim for possession. The correctness of this view is assailed in this appeal.

It must, however, be stated that Sri Rohtagi while supporting the judgment of the High Court did not - and rightly in our opinion - lay store by the other defences urged by the respondents as to the alleged fresh-tenancy or as to the disputed ownership of the property. Sri Rohtagi, however, sought to maintain that there having been an earlier subsisting. tenancy as found by the High Court, the purported creation of a limited-tenancy thereafter was a nullity s