Bachawat, J. - (1.) This appeal arises out of a suit for ejectment instituted by a landlord against a tenant. It is common case that the suit is governed by the provisions of the Delhi and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952) hereinafter referred to as the Act. The material provisions of Section 13 (1) of the Act are as follows:"13. (1) Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated) : Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied- ********** (b) that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act,- (i) sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises, or (ii) used the premises for a purpose other than that for which they were let; or (c) that the tenant without obtaining the consent of the landlord has before the commencement of this Act.- (i) sub-let, assigned or otherwise parted with possession of, the whole or any part of the premises or (ii) used the premises for a purpose other than that for which they were let; or ********** (k) that the tenant has, whether before or after the commencement of this Act, caused or permitted to he caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi improvement Trust while giving him a lease of the land on which the premises are situated;"
(2.) The respondent constructed the building known as the Hotel Imperial, New Delhi on land leased to him by the Secretary of State for India in Council under a perpetual lease deed dated July 9, 1937. By a deed dated August 18, 1939, he leased to the appellant the hotel premises together with fittings and furniture for a term of 20 years commencing on September 15, 1939. On January 28, 1958, the respondent instituted the present suit alleging that in breach of the express conditions of the lease dated August 18, 1939, the appellant sub-let portions of the premises and made unauthorised additions and alterations in the premises, that on such breaches he was entitled to determine the lease and he did so by notice in writing dated January 6, 1958. He claimed eviction of the appellant on the grounds mentioned in Clauses (b) , (c) and (k) of the proviso to Section 13 (1) of the Act. The appellant filed its written statement on April 3, 1958 denying most of the material allegations in the plaint. The appellant also pleaded that the respondents had waived the breaches, if any, of the conditions of the lease by accepting rents with knowledge of such breaches and particularly by accepting rent on or about January 3, 1958. On April 24, 1958, Sri P. L. Vohra, counsel for the appellant, made the following statement before the trial Court: "The plaintiff can seek ejectment of the defendant only under Section 13 of Act 38 of 1952. In case the plaintiff succeeds in establishing the liability of the defendant for ejectment on any of the grounds given in Section 13 of the Rent Act, the defendant would not seek any protection under the terms of the lease deed dated 18th August, 1939 executed between the parties, as regards the period of lease fixed therein ......" Having regard to the pleadings and statement of counsel, the Court settled the following issues on May 12. 1958. "1. Whether the defendant had sub-let, assigned or otherwise parted with possession of any part of the suit premises before the commencement of Act 38 of 1952 2. If so, was the same done with express or implied consent of the plaintiff 3. Whether the defendant had sub-let, assigned or otherwise parted with possession. of any part of the suit premises after the commencement of Act 38 of 1952 4. If so, was the same done with the prior consent in writing of the plaintiff 5. Whether the defendant has used the tenancy premises for a purpose other than that for which they were let 6. Whether the defendant has caused substantial damage to the tenancy premises 7. Whether the defendant notwithstanding previous notice has been using and dealing with the tenancy premises in a manner contrary to the conditions imposed on the plaintiff by the Government while giving him lease of the site of the tenancy premises 8. Is the defendant entitled to special costs . 9. Whether the plaintiff is estopped or has waived his right to seek ejectment of the defendant on any of the grounds mentioned above If so, what and to what effect 10. Whether the defendant is entitled to sub-let any part of the hotel premises even when there was a clause to the contra in the lease dated the 18th August, 1939, and in face of statutory provisions under the Rent Control Act (for reasons given in para 16 of the amended written statement) -.
(3.) A tenant holding premises under a subsisting lease is protected by the lease and needs no protection under the Rent Act. It was open to the appellant to contend that it was protected by the terms of the lease dated August 18, 1939, that the breaches, if any, of the conditions of the lease had been waived by the respondent and that the lease had not determined. But the appellant deliberately elected to seek protection under S. 13 of the Act only. The appellant's counsel made a formal statement in the trial Court that the appellant would not seek any protection under the terms of the lease deed as regards the period of the lease fixed therein. The Court accordingly settled the ten issues. Issue No. 8 was not pressed. All the other issues relate to the grounds of eviction mentioned in Cls. (b) , (c) and (k) of the proviso to S. 13 (1) of the Act. Issue No. 9 raises the question of waiver of the respondent's right to seek ejectment on those grounds. Thus, the only question in issue between the parties was whether the appellant was entitled to protection from eviction under S. 13 and whether any ground for eviction under the Act was made out. The case was tried and decided on this footing. We have come to this conclusion after a close examination of the pleadings, particulars, statement of counsel, issues and the judgment of the trial Court. No issue was raised on the question whether the breaches of the express conditions of the lease had been waived by the respondent, and whether the lease was still subsisting. The appellant sought to raise this plea in the High Court and also in this Court. Having regard to the deliberate stand taken by the appellant in the trial Court, the appellant cannot be allowed to raise the plea at a later stage. The lease determined by effect of time on September 15, 1959. Had the appellant taken the plea that the lease had not determined by forfeiture on the date of the institution of the suit, it is possible that the respondent might have filed another suit for ejectment of the appellant immediately after September 15, 1959. Because of the stand taken by the appellant, it was not necessary for the respondent to file another suit. This appeal must be decided on the footing that the lease had determined by forfeiture on the date of the institution of the present suit. The respondent is entitled to a decree for eviction if any of the grounds mentioned in Cls. (b) , (c) and (k) of the proviso to S. 13 (1) is made out.;