Grover ( 1 ) THIS is a petition for revision arising out of an order of eviction made by the learned Senior Sub Judge, Delhi, in reversal of the decision of the first Court by which the suit for ejectment had been dismissed in respect of a flat consisting of three rooms, verandah, kitchen, store etc. which is opposite the Odeon Cinema in Connaught Place, New Delhi. ( 2 ) ON 23rd March 1935 Bhagwan Singh (now deceased) confirmed in writing (Exhibit P 2) the terms of tenancy settled between him and R. B. S. Basakha Singh, the owner of the premises in dispute, in respect of the aforesaid flat bearing No. 28 in Prem House at a rental of Rs. 40. 00 per month. There was a stipulation in that document that he would pay Rs. 45. 00 for the shop underneath the flat which he proposed to take shortly. On 1st October 1939 a similar document was executed (Exhibit P. 3) but on that occasion it covered both the flat and the shop, the rent payable being Rs. 90. 00 per month. In July 1958 a suit for for ejectment was instituted under the Delhi and Ajmer Rent Control Act, 1952 by Daya Singh and his two brothers who were the successors of R. B. S. Basakha Singh through their general attorney Charat Singh against Bhagwan Singh who died during the pendency of the litigation and whose sons and legal representatives Jaswant Singh and others were ordered to be impleaded as defendants by an order dated 5th April 1962. In paragraph I of the plaint it was stated that the plaintiff were the owners of the building constructed on a plot of land in Block c known as Prem House which building contained shops on the ground-floor and flats on the upper floor. In paragraph 2 it was stated that the defendant was in occupation of flat No. 28 consisting of three rooms etc. On the first floor of the said building as a tenant under the plaintiffs at a rental of Rs. 46. 25np per month besides house tax and other charges. In paragraph 2 it was stated that the defendant was in occupation of flat No. 28 consisting of three rooms etc. On the first floor of the said building as a tenant under the plaintiffs at a rental of Rs. 46. 25np per month besides house tax and other charges. In paragraphs 3 and 4 it was alleged that the defendant had built a double storeyed palatial residential building at Original Road, Karol Bagh, either in his own name or in the name of his wife and had started residing in that house and that he had also built a very big house in Barakhamba Colony behind Modern School either in his own name or in the name of his relation of which he had vacant possession and which had been let out by him to some tenant. His eviction was, therefore, sought under section 13 (1) (h) of the Act of 1952. Bhagwan Singh filed a written statement dated 31st October 1958 pleading that the real tenants were Messrs Bhagwan Singh and Sons and therefore, proper parties had not been impleaded. In reply to the allegations in the plaint it was averred that Messrs Bhagwan Singh and Sons were the tenants in the flat, the rate of rent not being denied. It was stated that the plaintiffs had been sending bills to Messrs Bhagwan Singh and Sons in respect of the tenancy premises in dispute and had been receiving payment by cheques given by Messrs Bhagwan Singh and Sons for several years and that Bhagwan Singh alone was not the tenant nor was he residing in the premises. As regards the house in Karol Bagh, it was stated that it belonged exclusively to Smt. Parmeshwar Kaur, the wife of Bhagwan Singh, who was not a partner in Messrs Bhagwan Singh and Sons and that the house at Barakhamba Road was owned by Bhagwan Singh alone and not by Messrs Bhagwan Singh and Sons. It was denied that the tenants had either built or acquired vacant possession of a suitable residence and had thus rendered themselves liable to eviction under section 13 (1) (h) of the Act of 1952. The plaintiffs controverted the aforesaid allegations by a replication. The following issues were framed by the learned Subordinate Judge :- 1. Whether the suit has been filed against a proper party ? 2. The plaintiffs controverted the aforesaid allegations by a replication. The following issues were framed by the learned Subordinate Judge :- 1. Whether the suit has been filed against a proper party ? 2. If issue No. 1 is proved, whether the defendant is liable to eviction on the ground mentioned in the plaint ? 3. Relief. ( 3 ) IT was Jawant Singh and Mit Singh, two of the sons of Bhagwan Singh, who contested the suit after Bhagwan Singh had died and after all the legal representatives had been impleaded. The learned Subordinate Judge relied largely on Exhibit D. 3 W. 4/a dated 31st March 1946 by means of which Bhagwan Singh and his sons constituted a partnership under the name and style of Bhagwan Siugh and Sons. Since the bills were being sent in the name of Messrs Bhagwan Singh and Sons and the cheques were being issued in payment of rent by Jaswant Singh who signed as I. S. Junbal as partner, the learned Subordinate Judge taking into consideration the other evidence who came to the conclusion that it was the partnership firm which had become the tenant and since the suit had been filed against Bhagwan Singh alone he held that it had not been filed against proper parties. On the second issue, he came to the conclusion that Bhagwan Singh had acquired vacant possession of a suitable residence in Karol Bagh and if issue No. 1 had been found in favour of the plaintiffs, they would have been entitled to a decree for ejectment. ( 4 ) THE learned Senior Sub Judge on appeal formed the view that the finding of the Subordinate Judge on issue No. 1 was altogether erroneous. He relied on the statement of Bhagwan Singh himself as also the other evidence and found that it had not been proved that Bhagwan Singh had ever surrendered his tenancy rights and that it was the partnership firm of Bhagwan Singh and Sons which had become the tenant. He further held that on the admission of Bhagwan Singh himself he had built another house in the name of his wife and had shifted to that house in 1946 although he had built a house in Central Lane, Barakhamba Colony, and therefore, the case was covered by section 13 (1) (h) of the Act of 1952. Consequenty he decreed the suit for ejectment. Consequenty he decreed the suit for ejectment. ( 5 ) MR. P. C. Khanna, who appears for the tenants, has made a fairly strenuous effort to challenge the finding of the learned Senior Sub Judge that it was Bhagwan Singh alone who was the tenant and that it was not the partnership firm which was the tenant. Since the finding of the learned Senior Sub Judge is frima fade, one of fact Mr. Khanna has sought to show certain infirmities which according to him vitiate that finding. The first is that the learned Senior Sub Judge appeared to have looked with suspicion at the deed of partnership of 1946 which had been produced on behalf of the tenants. It is contended that no such suspicion could attach to that dacument since the agraeement of partnership had been got registered with the Registrar of Firms as far back as 1946 and even if it had not been relied upon in the list of reliance filed by Bhagwan Singh it would not follow that it was not a genuine document. Similarly the cheques (Exhibits D. 3 W/l to D. 3 W/161 which had been issued by J. S. Junbal signing himself as a partner of Bhagwan Singh and Sons must be accepted as genuine even though they had notbeen mentioned in the list of reliance. Mr. Khanna is perfectly justified in maintaining that those documents are above suspicion and must be accepted as ganuine but what the learned Senior Sub Judge has said is that neither the deed ,of partnership nor the cheques were mentioned in the list of reliance which lad originally been filed by Bhagwan Singh and that they were produced in evidence after his death beccause Bhagwan Singh in his statement in Court had taken up a position that no deed of partnership tad ever been executed. It was observed by the learned Judge that if the cheques had been produced earlier, the plaintiffs would perhaps have confronted Bhagwan Singh with them to obtain from him the necessary clarification as to the circumstances under which they were accepted by the plaintiffs. The next criticism of Mr. Khanna is levelled against whit is stated in paragraph 10 of the judgment. It was said- "it will be seen that these cheques were sent by Daya Singh to the bank for collection without any endorsement whatsoever. The next criticism of Mr. Khanna is levelled against whit is stated in paragraph 10 of the judgment. It was said- "it will be seen that these cheques were sent by Daya Singh to the bank for collection without any endorsement whatsoever. His only concern was to collect the rent of the premises in dispute from Bhagwan Singh. if the latter who had previously been sending rent under the name Messrs Bhagwan Singh and Sons, as its sole proprietor, remitted the same after the constitution of the partnership in the same name through one of the partners of the firm, it does not make any difference in the relationship of the plaintiffs and Bhagwan Singh as landlord and tenant". According to Mr. Khanna, it is significant that neither Daya Singh nor I any other plaintiff appeared in the witness-box and he says that the learned Judge had no justification for adopting the line of reasoning ontained in the portion extracted above. I am unable to accede to his contention. It is in evidence that it was Charat Singh the general attorney of the plaintiffs who owned extensive properties in Delhi, who used to attend to the collection of rent etc. and the cheques, which were being sent by Messers Bhagwan Singh and sons, were being credited to the account of Daya Singh without even his enderesement. It cannot be disputed that even before the agreement of partnership was entered into between bhagwan Singh and his five sons in 1946 the bills were being sent in the name of Messrs Bhagwan Singh and Sons to Bhagwan Singh and the rent was bing also remitted by cheques drawn by Messrs Bhagwan Singh and sons. It is true that in the cheques which had deep produced from 1951 onwards for certain years the drawer signed as--- "for Bhagwan Singh and Sons J. S. JUNBAL, Partner". According to Mr. Khanna, this should have fixed the plaintiffs with the knowledge that the firm was a partnership from and since the rent was being accpeted from the partnership firm it followed tht the plaintiffs accepted the firm as a tenant. The learned Senior, Sub Judge has considered this aspect of the matter as also the other material evidence and has arrived at the conclusion that it was Bhagwan Singh who continued to be the tenant of the plaintiffs throughout. The learned Senior, Sub Judge has considered this aspect of the matter as also the other material evidence and has arrived at the conclusion that it was Bhagwan Singh who continued to be the tenant of the plaintiffs throughout. In particular, he has relied on the statment of Bhagwan Singh in Court which almost clinched the matter. It is not possible to see how it is open to this Court in revision to interfer with the aforesaid finding on a question of fact which is based on evidence. ( 6 ) THE next contention of Mr. Khanna is based on the requirement contained in section 13 (1) (h) that the tenant should have acquired vacant possenssion of a suitable residence whether before of after the commencement of the Act. The finding of the learned Senior Sub Judge is that Bhagwan Singh had admittedly built a house in Central Lane, Barakhamba Colony, New Delhi and another house had been built in the name of his wife at Orginal Road, Karol Bagh, New Delhi. Bhagwan Singh had further admitted that he had shifted to that house in 1946. As regards the house in the Central Lane, Mr. Khanna says that according to the evicence it was built sometime before the lease of 1939. which is the operative lease, came into existence. It is contended, therefore, that Bhagwan Singh could not be regarded to have acquired vacant possesion of the aforesaid property which essentially must be acquired after the creation of the tenancy. Now, the statutory provision REFERRED TO before does not lay down that vacant possession should be acquired by the tenant after the premises have been taken on lease. All that is provided is that if vacant possession has been acquired before or after the commencement of the Act of a suitable residence the eviction of the tenant could be ordered My attention has been invited by Mr. Khanna to section 9 (1) (f) of the Delhi and Ajmer-Marwara Rent Control Act, 1947 in which a similar provision existed but it was confined to the tenant having built or acquired vancant possession of a suitable residence after the commencement of the said Act. It is maintained by Mr. Khanna to section 9 (1) (f) of the Delhi and Ajmer-Marwara Rent Control Act, 1947 in which a similar provision existed but it was confined to the tenant having built or acquired vancant possession of a suitable residence after the commencement of the said Act. It is maintained by Mr. Khanna that under the Act of 1947 building of the house in Central Lane in 1938 would not have afforded a ground to the plaintiffs for obtaining the eviction of Bhagwan Singh but the present case is governed not by the provisions of the Act of 1947 and by thouse of the Act of 1952 in which the language was deliberately altered with the result that if a tenant has acquired vacant possession of any suitable residence before 1952 or after 1952 his evection can be ordered. ( 7 ) KHANNA has next laid emphasis on the words "has acquired" which according to him necessarily cannote some event which would be subsequent to the commencement of the tenancy. In view of the wide sweep of the language employed in clause (h) of section 13 (1) of the Act of 1952 it is difficult to agree with Mr. Khanna and indeed Mahajan J. In Gian Singh v. Surrinder Lal, Negatived the view commended by Mr. Khanna by holding that it was not necessary for the applicability of the aforesaid provision that the premisses hsould be built by the tenant when he was a tenant of the landlord and that he was liable to eveiction even if he had built his own premises before the commencement of the tenncy. A regards the house Karol Bagah Bhagwan Singh stated as D. W. 1 that it belonged to his wife but he admitted that he left the flat in dispute and took up his residence there in 1946. . on he stated "when our house was constrcted in Karol Bagh I left for that place". According to Mr. Khanna this house belonged to the wife of Bhagwan Singh and he relided on the admission of Charat Singh in his statement as P. W. 4 to the effect that the wife of Bhagwan Singh was the owner of that property. on he stated "when our house was constrcted in Karol Bagh I left for that place". According to Mr. Khanna this house belonged to the wife of Bhagwan Singh and he relided on the admission of Charat Singh in his statement as P. W. 4 to the effect that the wife of Bhagwan Singh was the owner of that property. It does appear that the learned Senior Sub- judge was not fully justified in saying that Bhag vn Singh had admitted that another house had built in the name of his wife at Orginal Road Karol Bagh which imnlied that he had built that house with his money in the name of his wife but even if this house is exclude from consideration there could be no manner of doubt that the house in Central Lane had been built by Bhagwan Singh himself in respect of which he had obtained a cree for possession 1957 as admitted by him in his cross-examination when he appeared as D. W. 1. ( 8 ) THE last submission of Mr. Khanna is that it was the lease of 1939 which was operative and effective at the time of the institution of the present suit and that covered both shop and the flat for which a rental of Rs. 90. 00 per month was being paid. Since the demised premises consisted of residential as well commercial accommodation the house in Central Lane could not be regarded to be a suitable residence within the meaning of section 13 (1) (h) of the Act of 1952. According to Mr. Khanna, only that accommodation could considered suitable which would serve the same purpose as the premises of whic tenancy had been created in 1939. He has relied largely on the observations made in Dr. Gopal Dass Verma v. Dr. S. K Bhardwaj In that case the tenant was occupying a portion of the premises for residence but the major portion of the premises was being used for his professional work as an ear, nose throat specialist, It was held by their Lordshirs that a tenancy created or used both for residence and profession could not be terminated merely by saying that the tenant had acquired a suitable residence. The following observations at page 684 have been relied upon by Mr. The following observations at page 684 have been relied upon by Mr. Khanna :- " Section 13 (1) (h) applies to tenancies which are created for essential purposes adn it provide that in the case of such tenancies. even if the landlord may not be able to prove his case under section 13 (1) (h) he would neverthless be entitled to eject the tenant once it is shown that the tenant has acquired another suitable residence. The requirement is that tenant must have suitable residence. Both words of the reqauirement are significant; what he hag acquired must be residence that is to say the premises which can be used for residence and the said premises must be suitable for that purpose. If the premises from wich ejectment is sought are used not only for residence but also for professional how could section 13 (1) (h) come into operation ? One purposes for which the tenancy is acquired is professional use, and that cannot satisfied by the acquisition of premises which are suitable for residence alone and it is the suitability for residence alone which is postulated by section 13 (1) (h ). Therefore, in our opinion, it would be unreasonable to hold that tenancy which has been created or used both for residence and profession can be successfully terminated merely by showing that the tenant has acquired a suitable residence. " ( 9 ) NOW, if the plaintiffs had sought eicetment of the tenant from the shop as also the flat, Mr. Khanna would have been fully justified in saying that the house in Central Lane could not be regarded as suitable in the sense in which the same is used in section 13 (1) (h ). There appe- ars to be marked distinction between the position in the case decided by their Lordships and the present case. There, residential accommoda- tion had been let but that was used for professional purposes also. In the present case the shop which indisputably is non-residential as also the flat which is residental were let out by means of one agreement. The plaintiffs sought ejectment only from the residential part on the ground that vacant possession of residential accommodation had been obtained by Bhagwan Singh and, therefore, the case was covered by section 13 (1) (h ). The plaintiffs sought ejectment only from the residential part on the ground that vacant possession of residential accommodation had been obtained by Bhagwan Singh and, therefore, the case was covered by section 13 (1) (h ). It was so pleaded in the plaint, the gist of the relevant paragraphs of which have been set out in the earlier part of the judgment. The de- fendants never raised the question, which Mr. Khanna is raising now at that stage. Indeed, no such plea was taken that because the agreement of tenancy covered both the flat and the shop, the plaintiffs were not en- titled to sue for ejectment from the flat on the ground that vacant pos- session of suitable residence had been obtained by the tenant. In Moti Lal v. Nanak Chand Mahajan J. has expressed the view that the word "separately" has been used in section 2 (g) of the Act of 1952 in conjunc- tion with whole or part of the premises and if the premises are in well- defined parts and have been let out for residential and commercial pur- poses together the rule as to eviction regarding the portion that has been used for residence will govern the residential portion of the same and si- milarly the rule of eviction regarding the commercial premises will govern the commercial portion as laid down in the Act. Thus, where a building consisting of two parts, residential and commercial, is let out under one lease and the purpose of letting for both the parts is specified in the lease, the landlord can apply for eviction of the tenant from the residen- tial portion on the ground that he requires the same for his personal use and occupation. It appears to me that the tenancy in the present case was in respect of both residential and commercial premises which were capable of being separately let out as such. On the reasoning given by Mahajan J. with which I respectfully agree there could be no objection to eviction being sought from the residential premises on the ground em- bodied in section 13 (1; (h) of the Act of 1952. It is also significant that apart from any such objection not having been taken in the pleadings in the Courts below the defendants never raised the contention which has been pressed before me now by Mr. Khanna. It is also significant that apart from any such objection not having been taken in the pleadings in the Courts below the defendants never raised the contention which has been pressed before me now by Mr. Khanna. I am not unaware of the view expressed by a Bench of the Calcutta Court in Messrs Bata Shoe Co. Lid. v. Narayan Das Mullick* that the word "premises" in section 2 (8) of the West Bengal Premises Rent Control Act, 1950, meant whatever formed tlie subject-matter of one separate demise, but that was a case of fixation of standard rent and would hardly be apposite for the pur- pose of deciding the present case. ( 10 ) IN the result, this petition fails and it is dismissed, but in the circumstances I leave the parties to bear their own costs. But I grant two months time for vacating the premises to the tenants.