A tenant's default under clause (h) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958, is a concluded default and not a continuing default. Once the tenant has committed a default, he loses the protection of the Act permanently and cannot revive it by subsequently relinquishing the new premises and reverting to the original accommodation.

( 1 ) THIS second appeal filed by the tenant appellant raises the question of interpretation of Clause (h) of proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 59 of 1958. The order of eviction was passed against the tenant under the said clause. Clause (h) which affords ground of eviction to a landlord reads as follows ; "that the tenant has whether before or afer commencement of this Act, built, acquired vacant possession of, or been allotted, a residence;"

( 2 ) ADMITTEDLY the appellant-tenant had acquired possession of new premises at Y-42 Hauz Khas, New Delhi on May 18, 1967 and reverted to the suit premises in October 1967 before the notice of termination of tenancy was given by the landlord. The learned single Judge (B. C. Misra J) faced some difficulty in reconciling certain decision of this Court and Supreme Court. The learned single Judge has, therefore, set out the following questions of law for our decision:

"the question of law that needs to be decided in this appeal is whether in view of the Supreme Court decision in Gajanan Dattatraya vs. Sherbanu Hosang Patel s (1976 (1) S. C. R-535) case and Avadh Behari J in Munilal s case (1967 R. C. R. 220) and of the division bench of this court in Buttoo Mal s Case (ILR 1970 1 Delhi 748), the cause of action to the landlord to obtain eviction on the ground mentioned in clause (h) of the Act must exist and continue; a) on the date of the notice b) on the date of the institution of the petition e) during the pendency of the proceedings and decision of the peti tion;and d) during the pendency of the proceedings before the competent authority (slums) or if accrued any time prior to the institution of the petition, it renders the tenant liable to eviction irrespective of any considerations except the plea of waiver and estoppel, which are different concepts and which may or may not afford adequate defence to claim eviction in respect of old or fresh cause of action".

( 3 ) THE learned single Judge has further referred fur decision the question about the eviction of the appellant on the grounds mentioned in clause (d) and clause (e) of sub-section (i) of section 14. We find that the Rent Control Tribunal has rejected the landlord s prayer for eviction the grounds mentioned in clauses (d) and (e) of proviso tosub-secton (l)of Sctionl4and no appeal is filed by the landlord respondent against the said part of the judgement of the Tribunal. So for as the landlord is concerned, the matter stands concluded in regard to these two grounds and we, therefore, do not find any need to decide the question of eviction on the said two grounds.

( 4 ) THE decision of the division bench in Battoo Mal s case is a direct authority on the interpretation of clause (h) of the proviso to section 14 (1) of the Delhi Rent Control Act. The decision is a binding precedent for a single Judge and a division bench of this Court. The judgment in Battoc Mal s case was pronounced by the D. B. on May 6, 1979. Onjuly20,1970safeerj. pronounced the judgment in Ved Parkash vs. S. H. Chuni Lal (supra) wherein he took a view contrary to the ratio of Battoo Mal s case was not noticed by the learned single Judge. Had the division bench judgment been noticed the learned single Judge would not have held contrary to the division bench judgment as he was bound by the division bench judgment. Five years later, in Gian Singh Tarlok Singh s case Avadh Behari J. again took a view contrary to the division bench judgment in Battoo Mal s case and agreeing with the view taken by Safeer J. in Ved Parkash case, from the reading of the judgment of learned single Judge in Gian Singh s case we find that the learned single Judge has not noticed the ratio of the division bench judgment on inter pretation of clause (h) of the proviso to section 14 (1 ). It appears that the learned single Judge thought that the only ratio of Baltoo Mal s case was that the landlord s delay in filing an evicition proceeding mi