S. B. Wad ( 1 ) THIS is the landlord s petition against the order ofadditional Rent Controller, passed on 29/08/1981. The order waspassed in the execution proceedings for possession under S. 21 of the Delhirent Control Act. The learned Rent Controller held that the evictionorder was contrary to the judgment of the Supreme Court in S. B. Noronah v. Prem Kumari, XV (1979) D. L. T. 305. The Rent Controller dismissed land-lord s execution application. ( 2 ) THE impugned order is challenged on the following grounds : (A) The Rent Controller has not correctly appreciated the judgmentof the Supreme Court in the above case. The Division Benchjudgment of this Court reported in Vijay Kumar v. Inder Sain,xx (1981) D. L. T. 515 (D. B.) has "correctly construed the saidjudgment. (b) The Rent Controller has failed to appreciate that on the date ofthe execution the petitioner was already transferred to Delhi, hiswife had taken up a job in Delhi and his sons were admitted todelhi school. The justification for the shorter tenancy of twoyears was fully established on the date of the executionapplication. (c) The objections filed by the tenant against the execution applica-tion were barred by the principles of resjudicata. The tenanthad refused to accept the notice of the execution application. When he was proceeded exparte he made an application for thereview of the said order. That application was dismissed by therent Controller. The said order has become final. ( 3 ) IN reply the counsel for the tenant submits that the landlord hasnot stated any specific reason why a shorter tenancy for two years was beingcreated in 1978. He further submits that ever since the house was constructedthe landlord has never stayed in it. It was let out from time to time athigher rents. The eviction order was secured by the landlord fraudulently. The Rent Controller was right in holding that the eviction order was contraryto the decision of the Supreme Court in Noronah s case. ( 4 ) PETITIONER is the owner of house No. J-8a, Green Park, New Delhi. On 5-7-1978 the premises were let out to the tenant for two years under S. 21of the Act. The rental of the premises was Rs. 1300. 00 per month. At the timeof the creation of the tenancy the petitioner was transferred to Jammu andkashmir. He is Lt. Col. in Army. On 5-7-1978 the premises were let out to the tenant for two years under S. 21of the Act. The rental of the premises was Rs. 1300. 00 per month. At the timeof the creation of the tenancy the petitioner was transferred to Jammu andkashmir. He is Lt. Col. in Army. He was transferred to Delhi on 3-3-80 inthe Army Headquarters, New Delhi. He joined the Headquarters on 11-6-80. On 4/07/1980 the tenancy of two years had come to an end. The petitioner,therefore, moved the Rent Controller court for an order for the possessionof the premises. That application was made on 6-7-80. Summons wereissued for 28-7-80. The tenant refused to accept the summons. Therefore,warrants of possession were ordered by the Rent Controller, on 19-9-80. Although the tenant had denied the knowledge of the summons, he filed anapplication on 20-9-80 praying for a review of the order for warrants ofpossession. That application was dismissed by the Rent Controller on14-11-1980. The present objections to the execution proceedings were filedby the tenant on 29-11-80. The tenant had not made any payment of therent from September, 1980 and the landlord had to file a suit for recoveryof about 35000. 00 rupees of the arrears of rent. From October 1981 tilldate again no payment of rent was made by the tenant. An additionalamount of Rs. 22,000. 00 by way of arrears of rent had also become due by thetime the petition was heard by me. ( 5 ) THE learned Rent Controller held that order 21 of the Civil Procedure Code does not apply to proceedings under S. 21 of the Delhi Rent Control Act. Hefurther held that the tenant s objections were not barred by the principles of resjudicata. He then held that there was nothing. in the original petition of thelandlord to show as to why he did not require the premises for a period oftwo years. Therefore, requirements of law as laid down in Noronah casewere not fulfilled. He also held that the judgment of this Court in Nandabrother, XX (1981) D. L. T. 49 was distinguishable on facts. ( 6 ) THE judgment in Noronah case was delivered by Supreme Courtin 1978. The tenancy in the present case was created on 5-7-78. Therefore, requirements of law as laid down in Noronah casewere not fulfilled. He also held that the judgment of this Court in Nandabrother, XX (1981) D. L. T. 49 was distinguishable on facts. ( 6 ) THE judgment in Noronah case was delivered by Supreme Courtin 1978. The tenancy in the present case was created on 5-7-78. Thesupreme Court has fully expounded the object of S. 21, conditions whichshould be specified before the benefit is claimed by the landlord and duties ofthe Rent Controller while deciding the matter and giving decision unders. 21. The well established principle of law that fraud vitiates all proceedingwas made applicable to the special procedure prescribed under S. 21by the Supreme Court. In invoking the said doctrine of fraud the Supremecourt wanted to deal with the abuse of the provision of S. 21 and itscolourable exercise by the landlords. It was found that the landlords uses. 21 as a short-cut method for obtaining possession, avoiding the detailedprocedures of S. I 4 (1) (e) of the Act. Although the premises can be let outindefinitely, the landlords are creating short-term tenancies without showingany justification for them. The short term tenancies, it is found, are createdwith a view to increase the rent every time the tenant is changed. Thesupreme Court, therefore, laid down stringent requirements for an applicationunder S. 21. The Court held that the application must specify theparticular short period of duration of tenancy. The reasons for short termtenancies should also be stated. If these requirements are not followed andlandlords keep on creating tenancies for successive short-term period, byincreasing the rent at each time, that would be a fraud on S. 21. Adecreefor eviction so secured will stand vitiated. The objections as regards the fiaud can be taken even at the stage of the execution. It is the duty of therent Controller to go behind the decree and to find out whether any fraudis practised by the landlord. If his conclusion is in the affirmative he canrefuse the warrants of possession to a landlord. While tracing the genesis ofs. 21, the Supreme Court has noted that the object of S. 21 was to encouragethe building construction activity and to make additional accommodationavailable for residence even if it is for a short period. If his conclusion is in the affirmative he canrefuse the warrants of possession to a landlord. While tracing the genesis ofs. 21, the Supreme Court has noted that the object of S. 21 was to encouragethe building construction activity and to make additional accommodationavailable for residence even if it is for a short period. ( 7 ) IN Noronah s case, the Supreme Court has held that the executioncourt, while executing the order under S. 21, can and should go behind thedecree to satisfy it if whether the justification for short-term tenancy of aparticular period has been made out by the landlord or not. The requirements of S. 21 are also now authoritatively laid down by the Supreme Court. As stated earlier, the original application of the landlord under S. 21 andthe proceedings on it had taken place prior to the same Supreme Courtjudgment. Before the said decision of the Supreme Court, the law as laiddown by this Court was different. Therefore in the earlier tenancies unders. 21 special reasons for short term tenancies were never slated. The presentcase is of that kind. Since the question of the bona fides of the landlord isto be examined again at the stage of the execution the whole exercise is to begone over again. ( 8 ) IF at the stage of the original application a special reason such asexpected retirement or deputation is stated, but at the time of. the execution,it is found that the landlord has not retired or the deputation period isfurther extended, the executing court will be able to take into considerationthese subsequent developments. Suppose after retirement the landlord gets anew job where an accommodation is provided to him by the new employeror if he is permanently absorbed by the new employer (by teminatingdeputation) outside Delhi) the original special reason may not survive. Therent Controller can take these facts into consideration at the time of theexecution. The coverse is also true. If the actual need arises at the timeof the execution, which was not expressely stated at the time of the creationof the tenancy, the execution court will have to take into considerationthe new development. In the present case, although a specificperiod was stated in the original application made in 1978, special reasonswere not stated. The coverse is also true. If the actual need arises at the timeof the execution, which was not expressely stated at the time of the creationof the tenancy, the execution court will have to take into considerationthe new development. In the present case, although a specificperiod was stated in the original application made in 1978, special reasonswere not stated. At the time of the execution application, however, thepetitioner is transferred to Delhi, his wife has taken up a job in Delhi and hissons are admitted to Delhi School. Bona fides of the landlords claim havebeen established. The Rent Controller failed to take into considerationthese new developments. In Vijay Kumar v. Inder Sain, XX (1981) DLT 515 (DB), the Division Bench of this Court, has elaborated the ratio of thesupreme Court decision in Noronah. It has further held that even if specificreasons for a short-term tenancy are not stated in the original application,landlord can, by leading evidence prove it at the trial. ( 9 ) NORONAH s Judgment is to be applied consistently with the factsituations. This can be illustrated by the present case. Petitioner is agoverment servant and had owned a plot in Delhi. The plots can be acquiredin Delhi only on lease-hold from the Delhi Development Authority. One of the conditions in the lease is that the owner must construct thehouse with in two years. If a Govt. servant, whose services are transferablewants to occupy his house again, he may not get it back. The onlyoption for him is to keep the house locked and not to let it out. This woulddeprive the owner a lawful return of the money invested by him. The propertywould deteriorate if it is not used. At the same time he will have topay ground rent and house tax. But more serious problem would arisedefeating the object of the rent Act itself. The premises, although vacant,would not be available for a tenant and thereby to reduce the shortage ofaccommodation. A landlord, if he is very young, on transfer, may be ableto take his family with him. But when be grows to middle age and familyresponsibilities increase requirements of a stable place of residence are activelyfelt. For pursuing the higher studies, the children will have to stay inbig place like Delhi. A landlord, if he is very young, on transfer, may be ableto take his family with him. But when be grows to middle age and familyresponsibilities increase requirements of a stable place of residence are activelyfelt. For pursuing the higher studies, the children will have to stay inbig place like Delhi. The wife may pursue her studies or may take up ajob, which would be possible because the children have grown up and wouldnot require much attention. In some cases, out of economic necessitya wife may be required to take a job. Therefore, if at a stage later to thecreation of tenancy, such developments take place should not the landlordhave a right to come to a Court and get the premises back from the tenant. The fact that previous to the new need the premises were let out from timeto time would not be of much relevance in deciding the need arising at thesubsequent time. This exactly is what has happened in the present case. The Supreme Court judgment has been mechanically applied by the Rentcontroller in the present case. ( 10 ) IN the objections filed by the tenant vague allegations of fraudare made by the tenant. They are as follows : "that by obtaining an order under Section 21 of the Delhi Rentcontrol Act on 5-7-78, the petitioner has played a fraud upon this. Court inasmuch as that from the information gathered by the respondent these premises have been let out from time to time by the petitioner to various tenants since the construction of the premises. Thepetitioner has not lived in this premises at any point of time. Previous to the occupation of the respondent from 5-7-78, the premises werelet out to one Mr. Mukherjee, Director, Children Book Trust. Earlierto Mr. Mukherjec s occupation the premises were let to other tenants. The petitioner has let out the premises to subsequent tenants at enhan-ced rate of rent. " ( 11 ) THE landlord has denied the fact that the premises let out to onemr. Mukherjee. He has stated that one Mr. Lok Nath Bhattacharya wasthe tenant at a rental of Rs. 1300. 00 per month which also is a rent for thepresent tenant. He has further denied the fact that the premises were letout at enhanced rate of rent. ( 12 ) THE allegations of fraud lack in all material particulars. Mukherjee. He has stated that one Mr. Lok Nath Bhattacharya wasthe tenant at a rental of Rs. 1300. 00 per month which also is a rent for thepresent tenant. He has further denied the fact that the premises were letout at enhanced rate of rent. ( 12 ) THE allegations of fraud lack in all material particulars. Thename of the previous tenant stated by the tenant is wrong. He has not pro- vided any particulars regarding the alleged enhanced rates of rent from different tenants nor has laid any prima facie evidence. On the averments of thetenant quoted above it is impossible to hold that the landlord has practiseda fraud. In a summary inquiry before the execution court, definite facts andcogent evidence must be suggested. ( 13 ) THE general principle of law is that a person alleging fraud mustcome to the Court with clean hands. The tenant must perform his dutiesunder the Act such as punctual payment of rent, utilising the premises forthe purpose for which they were let out, not to cause any damage to thepremises etc. It is an admitted fact that almost from the beginning of thetenancy, the tenant did not pay rent at all and suit for recovery of about Rs. 35,000. 00 was required to be filed by the landlord. During the course ofthe argument it was found that from 1981 onwards, the tenant was again inarrears. The tenant admitted this fact. Alarge sum of Rs. 22,000. 00 was admitted to be due by way of arrears of rent. In spite of the earlier suit,the tenant was deliberately avoiding payment of rent. I had, therefore, todirect him to make the payment of the said admitted amount of Rs. 22. 000. 00immediately which the tenant has now done. The notice of execution applicationwas given to the tenant. The landlord accompanied the court bailifffor service of the notice. The tenant read the notice but refused to acceptit on the pretence that the father s name was wrongly shown on the noticethis was not the fact. Father s name was correctly stated. He deliberately avoided contesting the execution application. However, when thewarrant of possession were issued he rushed to the court for getting theorder set aside. The conduct of the tenant disentitles him to seek anyindulgence from the court on (vague) charges of landlord s fraud. Father s name was correctly stated. He deliberately avoided contesting the execution application. However, when thewarrant of possession were issued he rushed to the court for getting theorder set aside. The conduct of the tenant disentitles him to seek anyindulgence from the court on (vague) charges of landlord s fraud. ( 14 ) THE learned Rent Controller has further erred in holding thatthe provisions of the Civil Procedure Code do not apply to the executionapplication made in case of a decree under Section 21. Perhaps he wantsto suggest that Rule 5 of the D. R. C. Act provides for a special procedure. On these findings, he has held that the tenant s application was not barredby principles of resjudicata. Rule 5 of the D. R. C. Act reads : "an application for recovery of possession under Section 21 bythe landlord shall be made within six months from the date of expiryof the period of tenancy. "bare reading on the said Rule would show that except for the period of limitation,the said Rule does not provide for any procedure for execution of thedecree passed under Section 21. The Rent Controller has accepted a legalposition that for execution of the eviction order under Section 14 Order 21cpc would be applicable. The Rent Controllernoted the decision reportedin A. 1. R. 1963 Gujarat page I, wherein it is held that where JD does notappear under Order 21 Rule 22 GPC to Show cause why the decree shouldnot be executed against him/then Order 21 Rule 23 C. P. G. provides that thecourt shall order the decree to be executed. An order under Order 21 Rule 23being a determination of a question within Section 47 amounts to a. decreewithin the meaning of Section 2 (2) and an appeal lies. If no appeal is filedby the judgment debtor he cannot be permitted to contend at any subsequentstage of the execution proceedings that order was not rightly made and thesaid order would operate as a resjudicata. But the learned Rent Controllerheld that the ruling was not applicable in view of his view that Order 21cpg does not apply in the present case. That view is erroneous. Since noprocedure is laid down by Rule 5, Order 21 C. P. G. would apply. I am inrespectful agreement with the decision of the Gujarat High Court quotedabove. The landlord s application for execution was under Order 11 CPC. That view is erroneous. Since noprocedure is laid down by Rule 5, Order 21 C. P. G. would apply. I am inrespectful agreement with the decision of the Gujarat High Court quotedabove. The landlord s application for execution was under Order 11 CPC. The tenant did not contest the said application nor filed any appeal afterthe order was passed. The present application of the tenant is, therefore,barred by principles of resjudicata. It has been authoritatively held thatthe principle of resjudicata is not exhaustively defined in Section 11 of thec. P. G. The object of the provision is to discourage multiplicity of proceedingsand harassment of parties to a litigation. ( 15 ) THE last conteniion of the tenant is that the matter should be remandedback to the Rent Control for taking further evidence in the matter. The counsel for the landlord opposes it on the ground that there is alreadylong delay in the matter and landlord s need is very pressing. The landlord isrequired to stay in the army mess where he cannot continue indefinitely. Thelandlord has produced his transfer order to Delhi and the receipts of fees fromthe schools where his children are admitted. The tenant has not made anyspecific allegations regarding fraud. The landlord has furnished the name ofthe earlier tenant and has positively asserted that he was charging the samerent from the said tenant as he charged from the present tenant. Since histransfer to Delhi in March, 1980 the landlord is managing to stay in the armymess for the last 3 years. The enquiry before the executing Court has to bea summary inquiry and the facts disclosed by both the parties were suffisientfor the decision in the matter. Unfortunately, the Rent Controller has notlooked into all the facts. No useful purpose would be served by remandingthe matter as the proceedings are likely to be delayed indefinitely. Thesubmission of the tenant is, therefore, rejected. ( 16 ) FOR the reasons stated above, the order of Shri Kuldip Sinh, 3rd Additional Rent Controller dated 29/08/1981 is set asije. Thelandlord is entitled to warrants of possession. The petition succeeds withcosts. Counsel fee at Rs. 500. 00.