The acquisition of vacant possession of a residence by the tenant's wife satisfies the requirement of Section 14(1)(h) of the Delhi Rent Control Act, 1958.

( 1 ) THIS second appeal is directed against the concurrent judgments of the lerned IIIrd Additional Rent Controller, Delhi, and the Rent Control Tribunal. Delhi posing an order of eviction against the appsilants/tenant under the provisions of clause (h) to the proviso to subsection (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act ).

( 2 ) THE landlady, Smt. Raujit Kaur, had filed an eviction application against Shari V. K. Malhotra (residing in America) and Si Pardeep Kumar Malhotra, brotther of Shri V. K. Malhotra, respondent No. I under the provisions of clauses (b), (d) and (h) of sub-section (l) of section 14 of the Act.

( 3 ) THE case of the landlady was that the ground floor of property No. A-172, Defence Colony, New Delhi was let out to Shri V. K. Malhotra and the tenant has sub-let or otherwise parted with possession of the whole of the premises without written consent to his brother, respondent No. 2. The eviction was also claimed on the ground that neither the tenant nor any dependant member of his family ii residing in the suit premises for a period of six months immjdiately before the filing of the petition and that the tenant, respondent No. I has built, acquired/allotted vacant possession of residence II-G, Extention Kirti Nagar, New Delhi.

( 4 ) THS tenant filed the written statement and pleaded that there was no subletting, assigning or parting with possession ; that the premises were occupied by the mother and younger brother, who are family members of the tenant and, therefore, there is no sub-letting, assigning or parting with possession and similarly it cannot he said that neither the tenant nor any member of his family is residing in the premises fora period of six months before the filing of the petition.

( 5 ) REGARDING the third allegation that respondent No. I, has built/ acquired or been allotted premises, it was allged that he is not the owner of home No. I I-G, Extension Kirti Nagar, New Delhi. It was not alleged that It was owned by his wife.

( 6 ) THE learned Additional Rent Controller held that the brother and mother of the appellant are staying in the disputed house and they are his family members and therefore, there is no question of the applicability of clause (b) or clause (d) to the first proviso to sub-section (i) of Section 14 of the Act. The learned Additionil Rent Controller, however, took the view that the appellant has acquired possession of premises No. ll. G, Extension Kirti Nagar, New Delhi, tnrough his wife, and held that it fulfil] the requirement of clause (b) to the proviso to sub-section (1) of Section 14 of the Act. For this finding the learned Additional Rent Controller relied upon the decisfon of the Supreme Court in the matter Prem Chand and another v. Sher Singh 198] (2) DRJ 287 delivered through the Hon bie the Chief Justice Y. V. Chandrachud, A. P. Sen, J. and Baharul Islam, J. and passed an order for ejectment under clause (h) to the proviso to sub-section (1) of section 14 of the Act.

( 7 ) THE appellant went up in appeal before the Tribunal. The Tribunal also felt that it was bound by the decision of the aforesaid case of the Supreme Court and the facts of the present case are similar to the facts of that case.

( 8 ) MR. Vinod Tvagi, learned counsel for the appellants/tenant in the second appeal, submitted that the decision of the Supreme Court in the afore- said case is not correct. It is not based on any analysis of clause (h) to the proviso to sub-section (1) of Section 14 of the Act and it is mere an obiter dictum.

( 9 ) I am afraid the Supreme Court was very much conscious of the provisionsof the aforesaid clause (h) to the proviso to sub-section (1) of Section 14 of the Act and the judgment of the Supreme Court is based while applying that provision. It is not an obiter as I would like to quote the entire Judgment of that case which reads :

"y. V. Chandrachud, C. /.-The respondent-tenant is out of posse