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PETITIONER: VINOD KUMAR ARORA

       Vs.

RESPONDENT: SMT. SURJIT KAUR

DATE OF JUDGMENT17/07/1987

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1987 AIR 2179            1987 SCR  (3) 552  1987 SCC  (3) 711        JT 1987 (3)   106  1987 SCALE  (2)60  CITATOR INFO :  RF         1989 SC 758  (13)  R          1991 SC 744  (10,11,13)

ACT:     East  Punjab  Urban Rent Restriction Act,  1949  (as  in force  in Union Territory of Chandigarh): ss.  13(3)(a)  and 11--Bona  fide requirement and change in  user--Eviction  of tenant--Concurrent findings of statutory authorities vitiat- ed--Such    findings   whether   binding    on    revisional court--Conversion of residential premises into  non-residen- tial  premises without consent of  Rent  Controller--Whether tenant  entitled to get over statutory embargo  by  pleading that landlady was aware of and consented to change in user.     Constitution of India, Articles 226 and  136---Jurisdic- tion of Courts--New questions of fact and law--Admissibility of.

HEADNOTE:     The  deceased husband of the respondent leased  out  the entire portion of his house, except a big hall, to tenant in Chandigarh. He was then putting up in a Government  quarter. After  his death, his widow-the respondent, leased  out  the hall  to the appellant on April 1, 1981 for a period  of  11 months  on a monthly rent of Rs.650. The Government  quarter which  had been allotted to her husband was  transferred  to the name of her eldest son.     The  respondent  filed two applications,  more  or  less concurrently,  in February 1982 against tenants of both  the portions of the house seeking their eviction oh grounds that they had changed the user of the premises to non-residential purposes,  and that she bona fide required the premises  for her  own  use and occupation. The Rent  Controller  and  the Appellate  Authority held that the first tenant had  changed the  user of the premises and ordered his eviction.  Insofar as  the appellant was concerned, both the authorities  found against the respondent on both the grounds and dismissed the action  for eviction. The High Court dismissed the  revision preferred by the first tenant, but allowed the one filed  by the respondent and ordered the eviction of the second tenant too.  The first tenant abided by the order of  eviction  and surrendered possession to the respondent.

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The  second  tenant, however, appealed by special  leave  to this  553 Court.  It was contended that when the Rent  Controller  and the Appellate Authority have rendered concurrent findings of the fact, the High Court was not entitled to disregard those findings,  and  come to a different conclusion of  its  own, that the respondent could not seek recovery of possessing of the hail by means of an application under s. 13(3)(a) (i)(a) of  the East Punjab Rent Restriction Act, 1949 for  residen- tial  use  because  even of the hail had been  let  out  for residential and nonresidential purposes, the premises  would constitute  a  non-residential building as per  the  amended definition  under the East Punjab Rent Restriction  (Chandi- garh  Amendment)  Act, 1982, that he was entitled  to  raise these  questions  though they had not  been  raised  earlier because  they were questions of law, that as per the  second proviso  to  s. 13(3)(a) of the Act the respondent  was  not entitled  to apply once over again for eviction of a  tenant on the ground of bona fide requirement after having obtained an earlier order on the same ground. Dismissing the appeal,     HELD:  1.1 The findings of the Rent Controller  and  the Appellate  Authority are vitiated by inherent  defects.  The High Court was, therefore, justified in taking the view that those  findings  have  no binding force  on  the  revisional court. [565E]     1.2 The rule that when the courts of fact render concur- rent findings of fact, the High Court would not be  entitled to disregard those findings and come to a different  conclu- sion  of its own, would apply where the findings  have  been rendered with reference to facts.     In the instant case, both the statutory authorities have based  their findings on conjectures and surmises  and  lost sight  of  relevant pieces of evidence which have  not  been controverted.  When the evidence of the respondent  and  her son, which has not been challenged, was that the  Government quarter  consisted  of  only one bed room,  one  store,  one kitchen  and one small dining room and nothing more, it  has been construed by the authorities as comprising of three bed rooms  and held that as there was enough  accommodation  for the entire family she was not likely to vacate it. When  the respondent wanted the entire house to be vacated by the  two tenants so that she and her family members could occupy  the whole  house,  the authorities have proceeded on  the  basis that  the respondent was seeking recovery of  possession  of one  hail alone for her residential needs and held that  the entire  family  could not manage to live in a  single  hail. They  have failed to take note that the respondent had  con- temporaneously initiated proceedings against the 554 other tenant also for recovery of possession of the  remain- ing  portion of the house leased to him.  Those  proceedings were  also  before  the very same Rent  Controller  and  the Appellate  Authority  and they themselves  had  ordered  the eviction  of  the other tenant. The respondent  had  clearly stated  in her evidence that she required the  property  for her own use and for her children and that she had filed  the ejectment  petition  against  the other  tenant  also.  That evidence  was not and indeed could not be  challenged.  When the  respondent had not demanded increase of rent,  even  as per  the  admission of the appellant, the  authorities  have proceeded on the basis that the respondent was not likely to forego the income derived by way of rent for the hall.  They have  failed to give due consideration to  the  respondent’s

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statement that her daughter and sons were all fully grown up and  she wanted to perform their marriages and as  such  she was  very  much in need of the entire house,  including  the hall,  for  her  occupation. All these  findings  have  been rendered on either non-existent or fictitious material. They cannot, therefore, be construed as findings of fact and once they  cease  to be findings of fact, they stand  denuded  of their  binding force on the appellate or  revisional  court. [558H; 559A-H]     Hiralal  Vallabhrara  v. Sheth  Kasturbhai  Lalbhai  and others, AIR 1967 S.C. 1653, referred to.     2.1 The finding rendered by the Rent Controller and  the Appellate Authority about the purpose for which the hall was let out were vitiated by several errors of fact and law. The appellant,  therefore,  was not entitled to  rely  on  those findings  and  dispute the respondent’s right  to  seek  his eviction under s. 13(3)(a)(i)(a) of the Act. [563C]     2.2 The pleadings of the parties form the foundation  of their  case and it is not open to them to give up  the  case set  out in the pleadings and propound a new  and  different case. [560H]     In  the  instant  case, the tenant had  averred  in  his written  statement  that the hall was taken by him  for  the purpose of his residence and for running his clinic but when he  entered the witness box he propounded a  different  case that the hall had been taken on lease only for  non-residen- tial  purposes. The statutory authorities failed  to  notice the  perceptible manner in which the appellant  had  shifted his defence. [560G]     2.3  Yet another factor which vitiates the  findings  of the  statutory authorities is that both of them  have  over- looked s. 11 of the Act and the sustainability of any  lease transaction entered in contravention of that                    555 provision which interdicts conversion of residential  build- ings into nonresidential ones without the written consent of the Rent Controller. [561C-D]     In  the  instant case the parties had not  obtained  the consent in writing of the Rent Controller for converting the hall in a residential building into a clinic. Such being the case the appellant cannot get over the embargo placed by  s. 11  by  pleading that the respondent was well aware  of  his running  a  clinic in the hall and that she had  not  raised objection at any time to the running of the clinic. [561D-E]     Kamal Arora v. Amar Singh & Ors., [1985] SCC (Supplemen- tary) 481, referred to.     Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj & Anr., [1962] 2 SCR page 678, distinguished.     3.  Having  taken a categoric stand during  the  enquiry that  he  had taken the hail on rent only  for  running  his clinic and not for his residential needs as well, the appel- lant cannot reprobate and contend that the lease of the hall was  of a composite nature, to seek the benefit of  the  en- larged  definition of a ’non-residential building’ given  in the Amendment Act.     4.  A pure question of law can be raised for  the  first time before the High Court or the Supreme Court even  though the  question had not been raised before the trial court  or the  appellate court. But in the instant case,  the  conten- tions  advanced by the counsel on the nature of user of  the hail  pertain to mixed questions of fact and  law.  Moreover these  contentions run counter to the legislative  direction contained  in s. 11 of the Act prohibiting conversion  of  a residential building into a non-residential one without  the written  consent of the Rent Controller.  These  contentions

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cannot, therefore be said to be pure questions of law.     Management of the State of Bank of Hyderabad v.  Vasudev Anant Bhide and others, AIR 1970 SC 196, referred to.     5.  The eviction proceedings were initiated by  the  re- spondent against both the tenants concurrently and not after an interval of time. As such, merely because the  respondent succeeded in one of the petitions and failed in the other it cannot  be said that the continuation of the proceedings  in that  case  in appeal or revision would amount  to  applying once  over again under the Act to seek eviction of a  tenant on the ground of bona fide requirement. 556

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No.  1635 of 1985.     From  the  Judgment  and Order dated  21.1.1985  of  the Punjab and Haryana High Court in Civil Revision No. 2227  of 1984.     V.C.  Mahajan,  S.K. Bagga and Mrs. S.K. Bagga  for  the Appellant. R.K. Jain, and Bharat Sangal for the Respondent. The Judgment of the Court was delivered by     NATARAJAN,  J.  This appeal by special leave  against  a judgment of the High Court of Punjab and Haryana pertains to a  contest  between a widowed landlady seeking  recovery  of possession of a leased premises of the residential needs  of herself  and  her sons and daughter on the one hand  and  an young medical practitioner on the other wanting to  continue his  medical practice in the premises without being  evicted therefrom.  The Rent Controller and the Appellate  Authority declined  to  pass  an order of eviction in  favour  of  the respondent  but the High Court had reversed their  judgments and  directed eviction and hence the present appeal by  spe- cial leave by the tenant.     One Iqbal Singh, the deceased husband of the  respondent was  the owner of house no. 16, Sector 18-A, Chandigarh.  He leased out the entire portion of the house except a big hall to  one Kuldeep Singh on May 27, 1977. Iqbal Singh  died  in the  year 1980 and on 1.4.81, his widow viz. the  respondent leased  out the hail to the appellant on a monthly  rent  of Rs.650.  The lease was for a period of 11 months. The  terms of  the lease were reduced to writing but the deed  was  not registered.     The  respondent  filed  two applications  more  or  less concurrently (one on 2.2.82 and the other on 3.2.82) against the  tenants of both the portions of the house viz.  Kuldeep Singh  and the appellant. The eviction of both  the  tenants was  sought for on the same grounds viz., they  had  changed the  user  of the premises to non-residential  purposes  and secondly the respondent bona fide required the premises  for her own occupation. In addition, in so far as the  appellant is concerned, his eviction was also sought for on the ground of default in payment of rent from 1.5.81 onwards. It may be mentioned  here that the respondent has three grown up  sons and a grown up daughter. During the  557 pendency of the proceedings the size of the family increased to  seven members due to the eldest son getting married  and begetting a child. The respondent’s husband had been  allot- ted a Government quarters and after his death the  allotment was changed to the name of the eldest son viz.  Gurcharanjit Singh who has been examined as AW 2 in the case.

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   The  appellant remitted the entire arrears of  rent  to- gether  with  interest, costs etc. on the first day  of  the hearing of the case and hence the prayer for eviction on the ground of non-payment of rent did not survive for considera- tion. As regards the other two grounds the appellant as well as  Kuldeep  Singh contended that they had not  changed  the user of the respective portions let out to them and secondly the  respondent was in occupation of a  government  quarters and did not therefore, bona fide require the leased premises for  her  residence. The Rent Controller and  the  Appellate Authority  held that Kuldeep Singh had changed the  user  of the  premises and ordered his eviction but in so far as  the appellant  is concerned, both the Authorities found  against the respondent on both the grounds and dismissed the  action for eviction.     Against  the order of the Appellate Authority two  Revi- sion  petitions,  one by the tenant Kuldeep  Singh  and  the other  by the respondent were preferred to the  High  Court. The  High Court dismissed the Revision preferred by  Kuldeep Singh  and allowed the Revision filed by the respondent  and ordered  the  eviction of the appellant too.  While  Kuldeep Singh  has abided by the order of eviction  and  surrendered possession  to the respondent of the portion leased to  him, the appellant has come to this Court to impugn the order  of the High  Court directing his eviction.     Before  we  enter  into the merits of the  case,  it  is relevant  to  state that the High Court went only  into  the question  of  the bona fide requirement of the hall  by  the respondent  for her residential use and did not go into  the question  whether the appellant had changed the user of  the hall  by running a clinic and had thereby  rendered  himself liable for eviction on that ground also. The High Court  was of  the view that when the respondent’s requirement  of  the hall was a genuine one, the eviction of the appellant  could be  ordered  on that ground alone and there was no  need  or necessity  to  examine the merits of the  second  ground  on which also eviction was sought for. In  the  light  of the arguments advanced  by  Mr.  Mahajan, learned  558 counsel  for  the appellant, to assail the judgment  of  the High Court, the questions that fall for consideration can be enunciated as under:-               1.  Whether  the High Court had erred  in  the               exercise  of  its  revisional  powers  in  (a)               setting  aside the concurrent findings of  the               Rent  Controller and the  Appellate  Authority               that the respondent was not bona fide in  need               of  the hail for her residential use  and  (b)               ignoring  the findings of the Rent  Controller               and the Appellate Authority that the appellant               had  not  changed the user of  the  hall  from               residential  to non-residential purposes  and,               as such, he cannot be evicted on the ground of               mis-user of the hall.               2.  Whether the High Court has failed to  note               that in view of the concurrent findings of the               Rent  Controller and the  Appellate  Authority               that the hall must be deemed to have been  let               out  for  a non-residential purpose.  to  wit,               running  a clinic, the appellant will  not  be               entitled to seek recovery of possession  under               Section  13(3)(a)(i)(a)  of the  Act  for  her               residential occupation.     We will now take up for consideration the first  conten-

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tion  of Mr. Mahajan. The Rent Controller and the  Appellate Authority have rejected the ease of the respondent that  she bona  fide required the hail for her residential  needs  for the following reasons:-     1. The Government quarters allotted to the  respondent’s son in which the respondent’s family was living consists  of three  bed rooms and only a nominal rent was being paid  for it  and hence the accommodation was sufficient and  she  was not likely to vacate it.     2.  The  respondent was not likely to  occupy  the  hall after eviction the tenant who was paying an attractive  rent of Rs.650 per month.     3.  It  was inconceivable that the  respondent  and  her family  members could manage to live in a single  hall  when their grievance was that the accommodation in the Government quarters consisting of three bed rooms was insufficient  for their requirements.     In  so far as this finding is concerned, the High  Court was  refused  to  give any weight or credence  to  it,  even though it was a concurrent one. In our view, the High  Court was  fully  justified in rejecting the finding of  the  Rent Controller and the Appellate Authority, even though it is  a finding  of  fact, because both the Authorities  have  based their  findings  on conjectures and  surmises  and  secondly because they 559 have  lost sight of relevant pieces of evidence  which  have not  been controverted. The evidence of the  respondent  and her  son, which has not been challenged is that the  Govern- ment Quarters consists of only one bed room, one store,  one kitchen and a small dining room and nothing more.  Strangely enough the Rent Controller and the Appellate Authority  have proceeded  on  the assumption that the  Government  Quarters consists  of  three  bed rooms and hence  there  was  enough accommodation for the entire family. It is, therefore  obvi- ous that they have based their findings on imaginary materi- al  and not facts. Secondly, both the Authority  have  taken the erroneous view that the respondent had initiated  action only against the appellant to get possession of the hall  in the house and had not initiated action to get possession  of the  other portions of the house from the other tenant.  Due to  this mistake, the Authorities have disbelieved  the  re- spondent  and held that the entire family cannot  manage  to live  in  a single hall. They have failed to note  that  the respondent   had  contemporaneously  initiated   proceedings against the other tenant Kuldeep Singh also for recovery  of possession  of the remaining portion of the house leased  to him.  Those proceedings were also before the very same  Rent Controller  and the Appellate Authority and they  had  them- selves ordered the eviction of Kuldeep Singh. The respondent has clearly stated in her evidence as follows:-               "The house is of single storey. I require  the               property for my own use and for my children. I               require the entire ground floor. I have  filed               the  ejectment  petition  against  the   other               tenant also." Her evidence was not and indeed could not be challenged.  In spite of all these materials being there, the Rent  Control- ler  and the Appellate Authority have taken a  curious  view that the respondent and her family members were wanting  one hall  alone  for their residential needs and as  such  their case  was  not  a believable one. In so far  as  the  doubts entertained about the respondent not beings likely to forego the  rent  of Rs.650 per month paid by  the  appellant,  the Authorities  have  failed to give due consideration  to  the

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respondent’s  statement that her daughter and sons  are  all fully grown up and she wanted to perform their marriages and as  such she was very much in need of the entire  house  in- cluding  the hall for her occupation. Having regard  to  all these  vitiating factors, the High Court was fully  entitled to  reverse  the  findings of the Rent  Controller  and  the Appellate  Authority and examine the case of the  respondent and  give her relief. The so-called findings of fact  suffer from  inherent defects which deprive them of  their  binding force on the revisional court. 560     As regards the second limb of the first contention,  the Rent  Controller  and  the Appellate  Authority  have  again committed serious errors in rendering their decision on  the question  whether the appellant had changed the user of  the hall from residential to nonresidential purpose. The  appel- lant  rested her case upon the recital in  the  unregistered lease  deed that the hall was let out only  for  residential purposes  and for no other. The Rent Controller  refused  to look  into the lease deed because of  its  non-registration. The Appellate Authority has taken the view that in spite  of the non-registration, the lease deed can be looked into  for collateral purposes out even then the respondent’s case  can fare  no better, because the respondent has admitted in  her evidence that she knew before the hall was let out that  the appellant  was a doctor and that the purpose of  taking  the hall on lease was for running a clinic therein and therefore she  must be deemed to have acquiesed in the change of  user of the hall. The Statutory Authorities have also been influ- enced  by  the fact that the payment of rent of  Rs.650  per month  was fully indicative that the hall should  have  been taken  on lease for running a clinic. On the basis  of  such reasoning  the Rent Controller and the  Appellate  Authority have  held  that the hall must have been let  out  for  non- residential  purposes  only i.e. for running  a  clinic  and hence the charge levelled by the respondent that the  appel- lant  had changed the user of the hall from  residential  to non-residential purpose cannot be sustained. As far as  this aspect  of the matter is concerned, the Rent Controller  and the Appellate Authority have both failed to take note of the pleadings  of the appellant. In the written  statement,  the appellant has averted as follows:-               "The  demised  premises  were  taken  by   the               answering  respondent from the petitioner  for               the purposes of his residence and for  running               his clinic therein  ......  The answering  re-               spondent is having his residence and clinic in               the premises in dispute and is using the  same               for the said purposes, as such."     However, when the appellant entered the witness box,  he gave  up the case set out in the written statement and  pro- pounded  a  different case that the hall had been  taken  on lease  only  for non-residential purposes.  The  perceptible manner  in which the appellant had shifted his  defence  has escaped  the notice and consideration of the  Statutory  Au- thorities. Both the Authorities have failed to bear in  mind that  the  pleadings of the parties from the  foundation  of their  case and it is not open to them to give up  the  case set  out in the pleadings and propound a new  and  different case. Another failing noticed in the judgments of    561 the Rent Controller and the Appellate Authority is that they have  been  oblivious to the fact that  the  respondent  had leased out the hall to the appellant only for a period of 11 months. Such being the case, even if the respondent had come

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to know soon after the lease was created that the  appellant was using the hall to run a clinic, she may have thought  it prudent  to let the appellant have his way so that  she  can recover possession of the hall after 11 months without hitch whereas if she began quarrelling with the appellant for  his running a clinic, she would have to be locked up in  litiga- tion  with  him for a considerable length of  time  and  can obtain  possession of the hall only after succeeding in  the litigation.  Yet another factor which vitiates the  findings of  the Rent Controller and the Appellate Authority is  that both of them have over-looked Section 11 of the Act, and the sustainability  of any lease transaction entered in  contra- vention  of  Section  11. The legislature, with  a  view  to ensure  adequate housing accommodation for the  people,  has interdicted  by means of Section 11 the conversion of  resi- dential  buildings  into non-residential  ones  without  the written consent of the Rent Controller. Admittedly, in  this case the parties had not obtained the consent in writing  of the Rent Controller for converting the hall in a residential building  into a clinic. Such being the case, the  appellant cannot get over the embargo placed by Section 11 by pleading that  the respondent was well aware of his running a  clinic in  the  hall and that she had not raised objection  at  any time  to the running of the clinic. Learned counsel for  the appellant  referred  us to the decision in  Dr.  Gopal  Dass Verma  v. Dr. S.K. Bharadwaj & Anr., [1962] 2 SCR  page  678 and  argued that the ratio laid down therein would be  fully attracted to the facts of this case. It is true that in  the said  decision, it was held that when a leased premises  was used by the lessee incidently for professional purposes  and that  too  with the consent of the landlord, then  the  case would go out of the purview of Section 13(3)(e) of the Delhi & Ajmer Rent Control Act 1954 and consequently, the landlord would not be entitled to seek eviction of the tenant-on  the ground  he  required the premises for  his  own  residential requirements. We find the facts in that case to be  markedly different  and it was the speciality of the facts which  was largely instrumental in persuading this Court to render  its decision  in the aforesaid manner. Moreover, the  Court  had not  considered  the question whether the  conversion  of  a residential premises into a non-residential one without  the permission of the Rent Controller was permissible under  the Delhi & Ajmer Rent Control Act and if it was not  permitted, now  far  the contravention would affect the rights  of  the parties.  In our opinion, the more relevant decision  to  be noticed  would be Kamal Arora v. Amar Singh &  Ors.,  [1985] SCC (Supplementary) 481 where this Court declined to inter- 562 fere  with  an  order of eviction passed in  favour  of  the landlord  as  the  Court was of the view that  even  if  the landlord and the tenant had converted a residential building into a non-residential one by mutual consent, it would still be violative of Section 11 of the East Punjab Rent  Restric- tion  Act and therefore, the landlord cannot be barred  from seeking  recovery of possession of the leased  building  for his residential needs. We are therefore of the view that the findings of the Rent Controller and the Appellate  Authority about the appellant having taken the hall on lease only  for running a clinic and that he had not changed the user of the premises have been rendered without reference to the  plead- ings  and without examining the legality of the  appellant’s contentions in the light of Section 11 of the Act. We do not therefore  think the High Court has committed any  error  in law  in  ignoring  the findings rendered  by  the  Statutory Authorities  about the purpose for which the hall  had  been

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taken on lease.     Learned  counsel for the appellant repeatedly  contended that  when the Rent Controller and the  Appellate  Authority have  rendered concurrent findings of fact, the  High  Court was  not entitled to disregard those findings and come to  a different conclusion of its own and cited in this behalf the decision  of this Court in Hiralal Vallabhram v. Sheth  Kas- turbhai Lalbhai and others, AIR 1967 S.C. 1653. The proposi- tion of law put forward by the counsel is undoubtedly a well settled  one  but then it must be remembered that  the  rule would apply only where the findings have been rendered  with reference  to  facts and not on the  basis  of  non-existent material  and  baseless assumptions. In this case  when  the Government quarters occupied by the respondent consists of a single  bed room alone, it has been construed as  comprising of  three bed rooms; when the respondent wanted  the  entire house  to be vacated by the two tenants so that she and  her family  members can occupy the whole house, the  Authorities have proceeded on the basis that the respondent was  seeking recovery of possession of one hall alone for her residential needs;  when  the respondent had not  demanded  increase  of rent,  even as per the admission of the appellant,  the  Au- thorities  have proceeded on the basis that  the  respondent was  not likely to forego the income derived by way of  rent for the hall etc. In such circumstances it is futile to  say that  the Rent Controller and the Appellate  Authority  have rendered their findings on the basis of hard and irrefutable facts.  On the contrary the findings have been  rendered  on either  non-existent  or fictitious  material.  They  cannot therefore  be  construed as findings of fact and  once  they cease  to be findings of fact, they stand denuded  of  their binding force on the appellate or revisional court.  563     Coming  now to the second question, Mr.  Mahajan  argued that  the respondent cannot seek recovery of  possession  of the   hall  by  means  of  an  application   under   Section 13(3)(a)(i)(a) because the Rent Controller and the Appellate Authority   have found that the hall had been let  out  only for running a clinic and not for the appellant’s  residence. It  is true that under the Act, a landlord can apply to  the Controller for an order or eviction against a tenant on  the ground he requires the building for his own occupation  only if  the  building is a residential one and not if  it  is  a non-residential  one.  Since we have already held  that  the findings  rendered by the Rent Controller and the  Appellate Authority  about the purpose for which the hall was let  out are vitiated by several errors of facts and law, the  appel- lant  is not entitled to rely on those findings and  dispute the  respondent’s right to seek his eviction  under  Section 13(3)(a)(i)(a)  of the Act. In fact, such a  contention  was never put forward before the Statutory Authorities or before the High Court.     Mr. Mahajan advanced another argument which also had not been  urged  before the Statutory Authorities  or  the  High Court.  He contended that even if the hall had been let  out for  residential and non-residential purposes, the  premises would  constitute  a  non-residential building  as  per  the amended  definition under the East Punjab  Rent  Restriction (Chandigarh  Amendment)  Act,  1982,  and  consequently  the respondent cannot seek the eviction of the appellant on  the ground  she requires the premises for her  residential  use. The Amendment Act referred to above has enlarged the defini- tion  of  "non-residential building", in the parent  Act  by making  "a building let under a single tenancy for  use  for the purpose of business or trade and also for the purpose of

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residence" to be also a non-residential building. We do  not feel  persuaded  to  examine the merit  of  this  contention because it had not been raised before the Rent Controller or the  Appellate  Authority or the High Court or even  in  the grounds  of appeal in the special leave petition.  Moreover, the appellant had given up his case in the written statement that the hall was let out for his residential use as well as for running a clinic and had taken a categoric stand  during the  enquiry  that he had taken the hail on  rent  only  for running  his  clinic and not for his  residential  needs  as well.  Having  taken up such a stand  the  appellant  cannot reprobate  and contend that the lease of the hail has  of  a composite  nature  and as such the benefit of  the  enlarged definition  of  a ’non-residential building’  given  in  the Amendment Act would endure to his aid in the case. Mr. Mahajan sought to contend that he was entitled to raise 564 these  questions before this court even though they had  not been  raised  before the Statutory Authorities or  the  High Court,  because they are questions of law and can be  raised at  any  time. The learned counsel placed  reliance  on  the decision rendered in Management of the State Bank of Hydera- bad  v. Vasudev Anant Bhide and others, AIR 1970 SC  196  to give  added weight to his argument. It is true that  a  pure question of law can be raised for the first time before  the High  Court or this Court even though the question  had  not been  raised before the Trial Court or the  Appellate  Court but the position here is that the arguments advanced by  the counsel  pertain  to mixed questions of fact  and  law.  The contentions  have been advanced on the assumption  that  the hall had been leased out for non-residential purposes  alone or in the case in appeal or revision would amount to  apply- ing  once  over again under the Act to seek  eviction  of  a tenant on the ground of bona fide requirement.     Over and above all these things, we find that the events which have taken place subsequently, give added force to the decision  rendered by the High Court. The eviction  proceed- ings  against the other tenant Kuldeep Singh have  ended  in favour of the respondent and she has filed affidavits before this  Court  to state that she has re-occupied  the  portion leased out to Kuldeep Singh. The occupation of a portion  of the house by the respondent places her claim for recovery of possession of the hall on a better footing. This is  because of the fact the hall does not have an attached bath room  or water  closet. Consequently the appellant and  the  patients visiting  his clinic are also making use of the common  bath room  and  toilet in the house. This would  not  only  cause inconvenience to the members of the respondent’s family  but would  also  expose them to the risk of infection  from  the patients  using the bath room and toilet during their  visit to the appellant’s clinic. Though the appellant has  averted in his affidavit that he has only a portable X-Ray unit  and he  does not have a clinical laboratory to carry  out  blood test, motion test, urine test etc. and that his patients  do not  make use of the common bathroom and toilet,  there  are enough  averments in the counter-affidavits of the  alterna- tive  for residential as well as  non-residential  purposes. Factually the findings on these contentions have been  found to be unacceptable. Moreover, the contentions run counter to the legislative direction contained in Section 11 of the Act prohibiting the conversion of a residential building into  a nonresidential  one without the written consent of the  Rent Controller. These factors stand in the way of our  accepting the  contentions  of the appellant’s counsel as  being  pure questions of law and, therefore, worthy of consideration  by

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us in the appeal.  565     It  was lastly contended by Mr. Mahajan that as per  the second  proviso  to Section 13(3)(a) the respondent  is  not entitled  to apply once over again for eviction of a  tenant on  the ground of bona fide requirement for owner’s  occupa- tion  after  having obtained an earlier order  on  the  same ground. According to Mr. Mahajan inasmuch as the  respondent has obtained an order of eviction against Kuldeep Singh  she is  precluded  by the proviso from seeking eviction  of  the appellant too on the ground of bona fide requirement. We  do not find any merit in this judgment because it does not take note  of  relevant facts. We have already  stated  that  the eviction proceedings were initiated against both the tenants concurrently  and  not after an interval of  time.  As  such merely because the respondent succeeded in one of the  peti- tions and failed in the other, it cannot be argued that  the continuation  of  the  proceedings in  that  respondent  and material in the photos produced by her of the same board  of the appellant’s clinic to show that he does have a  clinical laboratory in the hall in question. It does not require much to  see  that  at least some of the  patients  visiting  the appellant’s  clinic would be making use of the common  bath- room and toilet and this would certainly cause great  incon- venience to the occupants of the house. Hence the respondent will  be fully justified in asking for the eviction  of  the appellant from the hall let out to him.     For  all these reasons, we do not find any merit in  the contentions of the appellant. As we have already stated  the findings of the Rent Controller and the Appellate  Authority are  vitiated by the inherent defects in them and  the  High Court was, therefore, justified in taking the view that  the findings have no binding force on the revisional court.     In the result the appeal fails and will stand dismissed. The parties are directed to bear their respective costs.     In  order  to enable the appellant to  secure  alternate accommodation  for  shifting his clinic he is  granted  time till  31.1.0.1987  to  vacate the premises  subject  to  the condition he files an undertaking in the usual terms  within three weeks from today failing which the respondent will  be entitled to recover possession in terms of the judgment  and decree of the High Court. P.S.S.                                                Appeal dismissed. 566