JUDGMENT 1. - The defendant-tenant has filed the present second appeal before this Court under Section 100 of CPC on 10.12.1994 being aggrieved by the eviction decree dated 26.09.1994 granted by the learned first appellate court below of District Judge, Sirohi in Civil Appeal No. 9/1990- Chhagan Raj S/o Bhanwar Lal Jain v. Bhagwati Prasad S/o Ganpant Lal Agarwal. The learned trial court dismissed the suit for eviction vide judgment and decree dated 20.12.1989 while dismissing the Civil Suit No. 57/1989- Chhagan Raj v. Bhagwati Prasad but the first appellate court below had reversed the said decree and granted the eviction decree to the landlord and being aggrieved by the same, the present second appeal has been preferred by the defendant-tenant, who is now represented by his legal representatives after his death. 2. While admitting the present second appeal, a coordinate bench of this Court vide the order dated 09.01.1995 has framed the following substantial question of law:- "Whether the court below was right and justified in passing a decree for ejectment under Section 13 (1) (i) under the Rajasthan Premises (Control of rent & Eviction) Act, 1950?" An interim stay order was also granted to the defendant subject to the condition of deposit of mesne profit of Rs. 85/- before 15th of each month. 3. The plaintiff came with a case before the learned trial court that premises in question, a residential house, which was given on rent to the defendant, Bhagwati Prasad way-back on 01.09.1968 for monthly rent of Rs. 71/- per month, which was later on increased to Rs. 85/- per month but the defendant failed to pay the rent from 08.07.1983 till the date of filing of the suit and thus Rs. 255/- was due against the rent; and that the plaintiff required the suit property, which was situated outside the "Delwara Jain Temple" at Mount Abu for his own business needs; and that the defendant had constructed a residential house in the year 1975 of his own and two more residential houses about 2 years before the filing of the suit and, therefore, a decree of eviction deserves to be granted to the plaintiff landlord. The learned trial court, however, dismissed the suit but the learned first appellate court below allowed the appeal of the plaintiff-landlord and granted eviction decree, against which the present appeal has been filed by the defendant-tenant. 4. Mr. The learned trial court, however, dismissed the suit but the learned first appellate court below allowed the appeal of the plaintiff-landlord and granted eviction decree, against which the present appeal has been filed by the defendant-tenant. 4. Mr. Manish Shishodia, learned counsel for the appellant-defendant-tenant urged that since the plaintiff had admitted in the plaint itself that the defendant was carrying on the business in the shop in the rented premises itself and thus being of commercial nature, the availability of the alternative accommodation by way of residence, which residence, was in fact owned by the defendant's wife, namely, Smt. Babli, being his second wife, after death of his first wife, could not furnish a ground of eviction under Section 13 (1) (i) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950 (for short, hereinafter referred to as 'Act of 1950'); and since the other grounds of bonafide need and default were not pressed by the plaintiff-landlord before the first appellate court, the learned lower appellate court below has erred in reversing the judgment and decree of the learned trial court and granting decree of eviction on the grounds of availability of alternative residential accommodation to the defendant u/s 13 (1) (i) of the Act of 1950. He, therefore, submitted that the substantial question of law framed above deserves to be answered in favour of defendant-tenant and the eviction suit deserves to be dismissed. 5. On the other hand, Mr. Ravi Bhansali, learned counsel for the respondent-plaintiff-landlord vehemently urged that the premises in question was given only for residential purposes and in the rent note dated 01.09.1968 itself the word used is 'Makan' (Residence) and nowhere the word 'Dukan' (Shop) has been used in the rent-note executed by the defendant in favour of plaintiff on 01.09.1968; and even subsequently in the notice for eviction served by the Advocate, Sh. Jugraj Jain, (Ex.2), dated 29.07.1983, the word "Makan" (residential house) only has been used, of which eviction was sought on various grounds of bonafide need, default and alternative accommodation becoming available and, therefore, merely because the defendant has wrongly used some portion of the premises in question even for commercial purposes, that would not make section 13 (1) (i) of the Act of 1950 inapplicable to the facts of the present case and since from the evidence on record, it is clear that the premises in question was given for residential purposes only, therefore, the learned trial court was not justified in dismissing the suit u/s 13 (1) (i) of the Act of 1950 on the grounds established by the plaintiff, viz. that the defendant had suitable alternative residential accommodation in his possession and in fact he had three residential houses, which during the course of pendency of present second appeal has risen to 5 and one of the house is situated only at a distance of 100-150 feet away from the suit premises itself, in which the defendant or his legal representatives are now can reside or even carry on their business too; and therefore, the decree of eviction deserves to be upheld and the substantial question of law framed above, deserves to be answered against the defendant-tenant appellant and in favour of plaintiff-respondent. 6. I have heard the learned counsels for the parties at length and perused the record, judgments of the courts below and case laws cited at the bar. 7. Section 2 (v) of the Act of 1950, defines the word "Premises" as under: "(v). 6. I have heard the learned counsels for the parties at length and perused the record, judgments of the courts below and case laws cited at the bar. 7. Section 2 (v) of the Act of 1950, defines the word "Premises" as under: "(v). Premises means:- (a) any land not being used for agricultural purposes; and (b) any building or part of a building other than a farm building, let or intended to be let for use as a residence or for commercial use or for any other purpose, including - (i) the gardens, grounds, god-owns, garages and out houses, if any, appurtenant to such building or part, (ii) any furniture supplied by the landlord for use in such building or part, (iii) any fittings, affixed to and amenities provided in, such building or part for the more beneficial enjoyment thereof, and (iv) any Land appurtenant to & let with any such building or part, but does not include a room or other accommodation in a hotel, dharamshala, inn, sarai, lodging house, boarding house or hotel." Section 13 of the Act of 1950, which provides for grounds for eviction to the extent of Clause (i), which is relevant for the purposes of deciding the controversy in hand is also reproduced herein below for ready reference:- "13. Eviction of tenants- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied- (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx (f) xxx (g) xxx (h) xxx (i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or 8. The Apex Court dealing with similar provisions under the Delhi and Ajmer Rent Control Act, 1952 in the case of S. Kartar Singh v. Chamanlal & Ors. reported in 1969 (1) SCC 760 , relied upon by the learned counsel, Mr. The Apex Court dealing with similar provisions under the Delhi and Ajmer Rent Control Act, 1952 in the case of S. Kartar Singh v. Chamanlal & Ors. reported in 1969 (1) SCC 760 , relied upon by the learned counsel, Mr. Maniash Shishodia, for the appellant-defendant, held that the original tenant was in occupation of the premises, which were used for a composite purpose, namely, residence and profession, therefore, there could be no eviction merely by acquisition of vacant possession of a residence by such tenant, and Section 14 (1) (h) (equivalent to Section 13 (1) (i) of the Act of 1950) can apply only where a tenant is in occupation of a premises which are only residential; then alone he would have to go, if he acquires or has a residential accommodation of his own. Distinguishing the previous judgment of the Supreme Court in the case of Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj & Anr. reported in (1962) 2 SCR 678 and English Law cited at the bar by Mr. S.C. Manchanda, Senior Advocate, the Hon'ble Apex Court observed that where the dominant intention to use the premises as a nursing home (Dr. Gopal Dass Verma's case) and the landlord claimed that tenant Labha Mal Arora was merely given permission or licence which was of a personal nature to have his office as well there, the Court held that the test of dominant intention was not applied in the case of Dr. Gopal Dass Verma's case and for the same reason, the English Law, cited at bar was of little avail to the landlord. The appeal of the landlord was accordingly dismissed. 9. In the case of B.R. Mehta v. Atma Devi & Ors., reported in (1987) 4 SCC 183 again the Hon'ble Supreme Court held that ground that "tenant has ... built, acquired vacant possession of, or been allotted, a residence" under Section 14 (1) (h) of the Delhi Rent Control Act, 1958, would not be available, if the construction, acquisition or allotment of another residence to the tenant's wife is there and the tenant claimed that his wife was living separately in Government residence allotted to her and they were having strained relations and in such circumstances, the tenant cannot be evicted under the clause (h) of the Act. 10. Mr. 10. Mr. Manish Shishodia, learned counsel for the defendant-appellant also relied upon a decision of this Court in the case of Santlal v. Harbanssingh reported in AIR 1972 Rajasthan 228 in which the learned Single Judge of this Court held that though it is correct that the word 'Premises" may include a shop but when the dispute admittedly is in regard to shop, the proper issue, which should have been framed by the learned trial court should specify the premises as a shop; and therefore, re-drafting the issue the Court remitted the matter back to the learned trial court allowing revision petition. 11. He also relied upon a judgment of this Court in the case of Sadiq Ali v. Sagarmal reported in 1995 (1) All India Rent Control Journal 331 in which following the aforesaid judgment in the case of Santlal (supra), it was held that the acquisition of alternative accommodation can be the ground of eviction in case of residential house but not for commercial use. In para 7 of the said judgment though another case of this Court in Chandra Kumar v. Smt. Kankoo was referred, but being an unreported case, was not produced before the Court and, therefore, the contrary decision was not discussed. 12. From the aforesaid legal position, it is true that clause 13 (1) (i) of the Act of 1950 applies and eviction of tenant can be ordered if the tenant has built, acquired vacant possession or has been allotted suitable residence and, therefore, this clause would furnish a ground for eviction of the tenant in case of residential accommodation and not commercial but the facts of the present case are otherwise. The premises in question was let out by the tenant under the Rent-Note dated 01.09.1968, which has been referred to and relied upon by the learned lower appellate court below in the judgment under appeal, refers only to "Makan" (House) and not "Dukan" (shop) in the said rent-note executed by the tenant, Bhagwati Prasad. He himself has admitted in his statement before the trial court that one small room is used by him as a kitchen. There is no mention of any shop being let out to the tenant in the present case. The notice for eviction (Ex.2) served by Mr. Jugraj Jain, Advocate dated 29.07.1983 also refers to residential house known as "Anand-Bhawan". He himself has admitted in his statement before the trial court that one small room is used by him as a kitchen. There is no mention of any shop being let out to the tenant in the present case. The notice for eviction (Ex.2) served by Mr. Jugraj Jain, Advocate dated 29.07.1983 also refers to residential house known as "Anand-Bhawan". The neighbourhood given in the said notice also shows that on the eastern side, the plaintiff had his own house and on the western side, there were two doors of the tenant's house, and on the northern side, plaintiff's residence part was door to the godown and on the southern side also was the plaintiff's house. Thus, the premises let out to the tenant, Bhagwati Prasad was lower portion of the residential house of the plaintiff, in which the defendant used to live. The later change of user of some portion of the said residential house for commercial purposes would not change the character of the tenancy since the tenancy was never intended to be for commercial purposes. These averments made in the notice of the advocate of the plaintiff-landlord were admitted in reply thereto vide Ex.4 dated 09.08.1983 by Mr. A.L. Singhal, Advocate on behalf of defendant-tenant, who stated in the said reply that there were eight rooms in the said premises (Hindi word " ifjlj " was used), which comprised of eight rooms and were given on rent since 1965. In the said reply, it was also admitted that alternative residence house of which the plaintiff's advocate made a mention in the notice (Ex.2) dated 29.07.1983 was that of his wife and not of his own. 13. These averments in the reply on behalf of defendant-tenant clearly shows that it was a residential house comprising of eight rooms and not a shop or a godown. The change of user or misuse by the defendant-tenant by using the same by opening a shop at a later point of time, does not mean that the tenancy was created for commercial purposes. 14. The change of user or misuse by the defendant-tenant by using the same by opening a shop at a later point of time, does not mean that the tenancy was created for commercial purposes. 14. A perusal of the statement recorded by the learned trial court of the plaintiff Chhagan Raj S/o Bhanwar Lal on 16.11.1987 would also indicate that besides the possession of two rooms and one small kitchen, the possession of two rooms at the back side and one more room was handed over back to the landlord by the defendant-tenant in the year 1983 but the door leading to the said back portion was in the possession of the defendant-tenant himself. He also stated that in the year 1977, the defendant had constructed three storey residential house, which was only 100-150 feet away from the suit premises. The defendant DW.1, namely, Bhagwati Prasad in his statement recorded by the learned trial court on 07.08.1989 himself has admitted in his examination-in-chief that " esjs jgokl okys fgLls dks Hkh [kkyh djok;k tkus ij eq>s cgqr rdyhQ gksxh D;ksafd esjk vkSj dksbZ edku nsyokM+k vFkok Hkkjro"kZ esa dgha ugha gSA esjh iRuh ccyh ckbZ dk nsyokM+k esa ,d edku gSaA esjh nks 'kknh gqbZ gSA ccyh ckbZ esjh nwljh iRuh gSA igyh iRuh xqtj pqdh gSA esjh igyh iRuh ls nks cPps ,d yM+dk o ,d yM+dh gSA lu~ 75 ds vkl&ikl esjh iRuh us nsyokM+k esa edku cuk;k FkkA "In the cross-examination, he (DW.1- Bhagwati Prasad) again has admitted that " ;g lgh gS fd jgokl ds fy, rks mfpr gS fdUrq esjh iRuh esjs dks jgus nsuk ugha pkgrh and again also admitted that eSusa Hkh edku cukus esa iSlksa dh enn dh FkhA b,Dl ,2 djus ds le; tehu o dPpk >ksaiM+k Fkk ckn esa edku cuk;k gSA "In view of these admissions of the defendant-tenant on record while admitting that the premises in question was let out to the defendant-tenant only for residential purposes, the learned trial court had clearly erred in rejecting the suit on the ground of admitted availability of alteration accommodation for his residence by the defendant and the ground of eviction as specified in Section 13 (1) (i) of the Act of 1950 clearly stood attracted. The construction of residential house in the name of his second wife, Babli Bai is admittedly by his own monetary contribution, whereas he falsely says that the said wife does not permit him to reside there. No evidence of strained relationship between the two was produced before the trial court. 15. The learned first appellate court below, therefore, was perfectly justified in reversing the said decree and holding that the plaintiff was entitled to eviction decree on the ground of alteration accommodation becoming available for his residence, which as per special pleas raised by the plaintiff, were three in number at the time of filing of the suit and, therefore, evasive denial thereof, by the defendant-tenant in his written statement could not be relied upon. The tenant defendant was, therefore, liable to be evicted on the grounds under Section 13 (1) (i) of the Act of 1950 and the judgments relied upon by the learned counsel for the defendant-tenant indirectly support the case of the plaintiff-landlord, rather then, the defendants, since the facts of the present case are clear that tenancy was with respect to a residential premises only and not of a commercial premises. 16. The misuse by the tenant-defendant of some portion of the residential house, for commercial purpose, by change of user at a later point of time, cannot create any equity in his favour or dispel the grounds under Section 13 (1) (i) of the Act of 1950, since nobody can take advantage of his own wrong. 17. Consequently, the present second appeal filed by the defendant-tenant deserves to be dismissed and the same is accordingly dismissed and the substantial question of law, framed above, deserves to be answered against the appellant defendant and in favour of respondent-plaintiff-landlord and same is accordingly answered as under:- "The first lower appellate court was right and justified in passing the decree of ejectment under Section 13 (1) (i) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950 against the defendants-appellants." 18. The appellants-defendants-tenant shall hand over the peaceful and vacant possession of the suit property to the respondent-plaintiff (landlord) within a period of six months from today and shall pay mesne profit @ Rs. The appellants-defendants-tenant shall hand over the peaceful and vacant possession of the suit property to the respondent-plaintiff (landlord) within a period of six months from today and shall pay mesne profit @ Rs. 1000/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff till the vacant possession is handed over to the plaintiff respondent and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-tenant shall also clear all the arrears of the mesne profit within three months from today, otherwise the amount shall bear interest @ 9%. The defendant-tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or mesne profits are not paid to the respondent-plaintiff/landlord within a period of six months from today, besides execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith.Second appeal dismissed - Tenant to file written undertaking to vacate within six months failing which he would face contempt proceedings. *******