Full Judgment Text
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CASE NO.:
Appeal (civil) 390 of 2004
PETITIONER:
Kailash Chand & Anr.
RESPONDENT:
Dharam Dass
DATE OF JUDGMENT: 04/05/2005
BENCH:
CJI R.C. Lahoti, Y.K. Sabharwal & G.P. Mathur
JUDGMENT:
J U D G M E N T
R.C. Lahoti, CJI
An application seeking an order of eviction under Section
14 (3)(a) (i) of the Himachal Pradesh Urban Rent Control Act,
1987, hereinafter, the Act for short, was allowed by the Rent
Controller and the tenant was ordered to be evicted. The order
was maintained in appeal by the Appellate Authority. The High
Court has in exercise of revision jurisdiction set aside the order
of eviction. The aggrieved landlords have come up in appeal by
special leave.
It will be necessary to set out the relevant material facts in
order to appreciate the controversy arising for decision. The suit
premises are part of a double-storeyed building, bearing house
number 108, situated in the city of Shimla, where the Act is
applicable. The ground floor consists of one shop, one godown,
one store-room and one kitchen. The first floor consists of two
rooms, a kitchen, latrine and one verandah. The property
belonged to one Ramji Dass. The two appellants before us,
namely, Kailash Chand and Nokha Ram are real brothers. They
purchased the property from Ramji Dass. The exact date of
purchase is not known but it was sometime in the year 1980.
Ramji Dass was carrying on his own business on the ground floor
while the first floor was in occupation of the tenant, Dharam
Dass, the respondent herein. The appellants got vacant
possession of the ground floor from their vendors while the
tenant continued to be in occupation of the first floor which he
was holding on tenancy at a monthly rent of Rs.15/-.
Having purchased the premises, the landlords initiated
proceedings for the eviction of the tenant from the first floor
premises by an application filed on 1.8.1980 before the Rent
Controller under the Himachal Pradesh Urban Rent Control Act,
1971 \026 the law as it was applicable then. The ground for eviction
was that the family of the appellants was living in miserable
conditions. On purchasing the building No. 108, appellant No. 2
commenced his commercial activity by opening a shop on the
ground floor of the building. He started using the godown for
the residence of himself along with his wife and two school going
children. One room was used as a store room and one room as
a kitchen. Before purchasing house No.108, appellant No. 1 was
living in a rented accommodation which he had to vacate
perforce as it was in a dilapidated condition and unsafe for
human habitation. Appellant No. 1 joined appellant No. 2 for
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residence. At night, he had to sleep in the shop. Appellant no.1
was of marriageable age but his marriage was not being
performed for want of living accommodation. The landlords
urged that the residential accommodation on the first floor in
occupation of the tenant was required by them to accommodate
their large family. The Rent Controller vide order dated
31.10.1984 allowed the landlords’ application and directed the
respondent-tenant to be evicted.
The tenant preferred an appeal. During the pendency of
appeal before the Appellate Authority the parties entered into a
compromise which is recorded in the order dated 17.9.1986
passed by the Appellate Authority. The landlords agreed to
create a new tenancy in favour of tenant-respondent in respect
of a room, a kitchen and a passage on the ground floor of the
building with effect from 1.10.1986 on a monthly rent of Rs.30.
Appellant No.2 and his family members shifted to the first floor
accommodation which was in occupation of the tenant earlier.
The tenant entered into occupation of the ground floor, as per
the terms of the agreement, though the ground floor premises
were not fit for human residence as per the version of the
landlords itself.
On 1st March, 1988, the landlords filed another application
against the tenant-respondent seeking his eviction from the
ground floor accommodation in his possession. It was alleged in
the application that subsequent to the induction of respondent as
tenant in the ground floor, appellant No.1 was blessed with a
female child. It appears that this appellant was married during
the pendency of the earlier eviction proceedings. The family of
appellant No.1 was kept at village Panhoi i.e. away from Shimla
but then for the purpose of giving education to his child, the wife
of appellant no.1 and the child were shifted permanently to
Shimla in view of the educational facilities needed for the child
being available in the city. But the family of appellant no.1 was
residing in a rented residential accommodation where the rent
was being paid at the rate of Rs.225/- per month beside taxes.
The upper floor accommodation continued to be in occupation of
the family of appellant no.2. Looking at the number of members
in the family of appellant no.2 and the small size of
accommodation on the first floor which was already occupied by
the family of appellant No.2, the family of appellant no.1 could
not have been accommodated therein.
Vide Order dated 20.1.1993, the Rent Controller directed
tenant-respondent to be evicted. The tenant’s appeal was
dismissed by the Appellate Authority. In Civil Revision preferred
by the tenant, the High Court has vide its Order dated November
27, 2001 allowed the Civil Revision and directed the eviction
petition to be dismissed. The High Court has placed reliance on
one of the provisos appended to sub-Section (3) of Section 14 of
the Act (called the ’third proviso’ in this judgment) as noticed
hereinafter and the decision of this Court in Molar Mal (dead)
through L.Rs. v. M/s. Kay Iron Works (Pvt.) Ltd., (2000) 4
SCC 285. In the opinion of the High Court the landlords had
admittedly obtained the possession of another building (as
defined in Section 2 clause (b) of the Act) on the same ground of
bona fide requirement for his own occupation under Section
14(3)(a)(i) of the Act and as against this very tenant and,
therefore, the eviction petition filed by the landlords was not
maintainable even prima facie. The landlords have come up in
appeal by special leave.
The relevant part of sub-Section (3) of Section 14 of the
Act reads as under:
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"(3) A landlord may apply to the Controller for
an order directing the tenant to put the
landlord in possession :-
(a) in the case of a residential building, if -
(i) he requires it for his own occupation:
Provided that he is not occupying
another residential building owned by
him in the urban area concerned:
Provided further that he has not
vacated such a building without sufficient
cause within five years of the filing of the
application, in the said urban area;"
xxx xxx xxx
"Provided further that where the landlord
has obtained possession of any building
or rented land under the provisions of
clause (a) or clause (b), he shall not be
entitled to apply again under the said
clause for the possession of any other
building of the same class or rented
land."
The relevant proviso quoted hereinabove and which has
been relied on by the High Court, we will refer to as the third
proviso for the sake of convenience.
When the appeal came up for hearing before a two-Judge
Bench of this Court, reliance was placed on behalf of tenant
again on the case of Molar Mal (supra), as was done before the
High Court. The Bench felt the need of giving a fresh look at the
law laid down in Molar Mal’s case and hence for the appeal
being heard by a three-Judge Bench inasmuch as Molar Mal’s
case is a two-Judge Bench decision.
The two-Judge Bench has, in its referral order dated
October 7, 2004, for hearing by a Bench of three Judges, noted
two contentions advanced before it on behalf of the landlords.
First, the present case is not a case of obtaining possession.
Secondly, the landlords were not seeking eviction on the "self
same ground". If the circumstances have changed and the
necessity has increased, it may be possible and permissible for
the landlord to apply again under Sub-section (3) of Section 14
of the Act on the ground of bona fide requirement. The
requirement may continue to subsist or the circumstances may
have changed to a different state. In either case, the third
proviso to Section 14(3) of the Act would not apply. These are
the reasons which persuaded the learned two Judges to place
the matter for consideration by a Bench of three Judges.
In our opinion, the third proviso has no application to the
facts of the present case and this we say for two reasons. First,
the third proviso would apply when an order for eviction has
been passed under clause (a) or (b) and possession is obtained
by the landlord pursuant to that order. In this case, the parties
entered into a compromise and, therefore, an occasion for the
Appellate Authority passing an order for eviction did not arise.
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Secondly, by virtue of settlement arrived at between the parties,
the landlords did not obtain possession of the building; the
tenant shifted from one part of the building to another part of
the same building. The tenant did not ’vacate’ the building.
’Vacate’, normally, means to go away, to leave. (See \026 Surinder
Singh Sibia v. Vijay Kumar Sood, (1992) 1 SCC 70 para 2).
The landlord can be said to have obtained possession of any
building if the tenant has correspondingly vacated such building.
Such is not the case before us.
Molar Mal’s case which has been relied on by the High
Court deals with a pari materia provision contained in the
Haryana Urban (Control of Rent) & Eviction Act, 1973. There the
plea taken by the tenant in his written statement was that the
landlord had filed other petitions against other tenants alleging
personal requirement and during the pendency of the eviction
petition in question he had obtained possession of building and
lands from three other tenants and hence the landlord’s plea for
the tenant’s eviction was not maintainable, in view of the third
proviso. The contention of the landlord was that the possession
from other tenants was obtained during the pendency of the
eviction petition and not on the date of filing of the eviction
petition and, therefore, the proviso did not apply. This
contention of the landlord was repelled by this Court observing
that the proviso needed to be interpreted keeping in view the
Legislative intent and not in a pedantic manner. Not the letter of
the law by assigning a literal meaning, but the purpose sought to
be achieved by the legislature had to be kept in view. This Court
opined that if the landlord had obtained possession of the
premises/land belonging to the same class of building or
tenanted land, wherefrom the eviction was being sought for in
the proceedings, then the applicability of the proviso would be
attracted. To record a finding in that regard, the case was
remanded to the trial court by framing an issue and allowing
liberty to the parties to adduce evidence. Molar Mal’s case
(supra) does not deal with the situation like the one before us
nor does answer the question as is posed in the case before us.
In Molar Mal’s case this Court has not expressed any opinion if
the applicability of the third proviso would be attracted if there
was no order of eviction pursuant to which the landlords came
into occupation of another residential building and what was
done, was only an exchange of accommodation by way of mutual
settlement and without intervention of the Court, though such
settlement was brought to the notice of the Court.
We find it difficult to accept the construction placed on the
third proviso, in para 14 of the judgment in Molar Mal’s case.
In Rakesh Wadhawan and Ors v. Jagdamba Industrial
Corporation and Ors, (2002) 5 SCC 440, this Court has held
that a statute can never be exhaustive. Legislature is incapable
of contemplating all possible situations which may arise in future
litigation and in myriad circumstances. The scope is always
there for the Court to interpret the law with pragmatism and
consistently with the demands of varying situations. The
construction placed by the Court on statutory provisions has to
be meaningful. The legislative intent has to be found out and
effectuated. "Law is part of the social reality" (See - Law in the
Scientific Era by Justice Markandey Katju, 2000 Ed., p.33)
"Though Law and Justice are not synonymous terms they have a
close relationship, as pointed out by the American jurist Rawls.
Since one of the aims of the law is to provide order and peace in
society, and since order and peace cannot last long if it is based
on injustice, it follows that a legal system that can not meet the
demands of justice will not survive long. As Rawls says "Laws
and institutions no matter how efficient and well arranged, must
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be reformed or abolished if they are unjust"." (ibid, p.72).
Clearly law cannot be so interpreted as would cause oppression
or be unjust.
Life is not static and so the law cannot afford to be static.
The third proviso cannot be so interpreted as to restrict the right
conferred by sub-Section (3)(a)(i) on the landlord to be
exercisable only "once in a life time". The proviso has to be read
as providing a statutory expression of a situation which would
otherwise have been held to be mala fides of a requirement. A
landlord, having obtained possession of any building to satisfy a
requirement, cannot again and again plead the same set of
circumstances or similar circumstances for evicting tenants one
after other. That is what the third proviso aims at providing.
The proviso cannot be interpreted to mean that in spite of the
requirement having undergone a change or a new requirement
unrelated to the previous one having come into existence, the
landlord would yet be denied relief under sub-Section (3)(a)(i)
merely because at some point of time in the past he had
resorted to this provision for seeking an eviction. Such an
interpretation is too rigid an interpretation and would cause such
hardship to the landlord as the Legislature cannot be said to
have intended. The examples are available in decided cases and
two such are: Jagir Singh v. Jagdish Pal Sagar, 1980 (1)
R.C.R. 494 and Brij Lal Puri and Anr v. Smt. Muni Tandon,
AIR 1979 Punjab & Haryana 132.
In Jagir Singh’s case there were five tenants on the
ground floor of the premises in dispute and the respondent filed
applications for ejectment against all the tenants simultaneously.
Orders of ejectment were passed against all the tenants. Four
tenants vacated; the fifth one took his battle to the Appellate
Court. The premises got vacated from the four tenants
consisted of five rooms out of which two were very small rooms
which can be used only as stores. The entire construction of the
house lay in two hundred square yards. The requirement of the
landlord was of the ground floor in its entirety and was found to
be bona fide as a matter of fact. The contention that the
landlord having evicted four other tenants cannot evict the fifth
tenant in spite of the proven requirement was rejected by the
High Court.
In Brij Lal Puri’s case the interpretation placed by the
High Court on the third proviso in similar set of facts runs,
thus___
"A plain reading of the proviso mentioned
above shows that a landlord after getting one
building vacated, which can reasonably meet
his needs, cannot get another building
vacated. The proviso does not lay down that if
the entire building, which is needed by a
landlord for his personal use, is occupied by
more than one tenant, he or she cannot take
out eviction proceedings against the other
tenants after having evicted one. The object of
this proviso is that a landlord should not be
allowed to seek unreasonable ejectments of
tenants from independent buildings if he has
already succeeded in evicting a tenant from a
building which is sufficient for his personal
occupation."
In our opinion, the interpretation placed by the High Court
on the local law takes a practical, pragmatic, reasonable and
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balanced view of the law and deserves to be upheld. We find it
difficult to subscribe to the view taken in Molar Mal’s case that
eviction of three other tenants from the premises which are part
of the same building, would disentitle the landlord from pursuing
the proceedings for eviction against yet another tenant in spite
of his requirement for possession over such part of the building
being found to be bona fide, subsisting and real.
Having held that third proviso is not attracted to the facts
and circumstances of the present case and, therefore, that
provisio cannot cause any dent in the entitlement of the
landlords to seek eviction of the tenant-respondent under
Section 14(3)(a)(i), it is still necessary to examine whether the
order for eviction passed by the Rent Controller and upheld by
the Appellate Authority could have been sustained by the High
Court.
Sub-Section (3)(a)(i) contemplates an order of eviction
being made against tenant in the case of a residential building if
the same was required by the landlord for his own occupation.
The two provisos appended to sub-clause (i) of clause (a) of sub-
section (3) of Section 14 place two restrictions on the right of
the landlord to seek eviction. These are :-
(i) the landlord must not be in occupation of another
residential building owned by him in the urban
area concerned;
(ii) the landlord having another residential building
of his own in the urban area concerned though
not in occupation thereof on the date of the filing
of the application, must not have vacated such a
building without sufficient cause within five years
of the date of the filing of the application.
In short, availability of another residential building of his
own in the same urban area would disentitle the landlord from
seeking eviction of the tenant on the ground of his requirement
for his own occupation if he is in occupation of such another
building or has vacated such another building within five years.
On a plain reading, the availability of another building by
reference to the first proviso disentitles the landlord from
seeking eviction if the building satisfies these tests: (i) it is
another building; (ii) it is residential in nature; (iii) it is in
occupation of landlord; (iv) it is owned by him; and (v) it is
situated in the same urban area in which another building in
occupation of the tenant is situated. The building referred to in
the second proviso, availability whereof disentitles the landlord
to seek eviction is not in occupation of the landlord. In all other
manner it has to be a building satisfying the tests as above, and
in addition, it must be a building vacated by landlord within five
years of the date of filing of the application and that too without
sufficient cause. The applicability of any of the two provisos
would not be attracted if the landlord is occupying or has
vacated another residential building which is rented or is not
owned by the landlord.
What is the scope of the first Proviso? Whether the
occupation by landlord of any other residential accommodation
of whatever nature, in abstract and without consideration of any
other relevant factor would be enough to attract the applicability
of the first Proviso and to deny the landlord his right to seek an
order of eviction against the tenant? In our opinion, the first
Proviso is not to be read in isolation. It has to be read along
with the principal provision to which it is appended. The ground
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for eviction in the case of a residential building is "he requires it
for his own occupation". If the pleadings and the evidence
adduced by the landlord do not make out a case of requirement,
there would be no question of the tenant being directed to put
the landlord in possession. Even on the requirement having
been proved, the landlord would be denied the order for
possession from the tenant because of his being in occupation of
’another residential building owned by him in the same urban
area’. The occupation of another residential building, to act in
denial of the landlord’s right to evict the tenant to satisfy his
requirement, must have correlation with the requirement of the
landlord. To illustrate, another residential building in occupation
of the landlord may be crumbling, or may be in dilapidated
condition or may consist of very little residential space, say one
small room alone, which it would be misnomer to call availability
of a residential building in occupation of the landlord by any
stretch of imagination. The legislature could not have intended
such an absurd and unreasonable consequence to follow. In our
opinion, the first Proviso would come into play only if the
landlord is occupying another residential building of his own in
the same urban area and such building is considered by the
Court as reasonably enough and suitable to satisfy the proven
requirement of the landlord. Hence, the first Proviso would not
apply in the case before us. It is impractical and unreasonable
to hold that the accommodation which is already fully occupied
and actually in use of appellant No.2, though technically in
occupation of both the landlords can satisfy the requirement of
appellant No.1 and his family as well. Rightly the tenant has not
urged the plea that the landlord being in occupation of other
parts of the building excluding the portion in occupation of the
tenant would attract applicability of the first proviso so as to
disentitle the landlord from seeking his eviction on the ground of
requirement of appellant No. 1 who is actually living in a rented
house.
We have to see if the landlords’ entitlement to evict the
tenant can be faulted by reference to the second proviso. For
two reasons we are of the opinion that the applicability of the
second proviso is also not attracted so as to disentitle the
landlord-appellants from seeking eviction of the tenant-
respondent. First, the landlords cannot be said to have ’vacated’
any building. It is not the case of the tenant, pleaded or proved,
that the accommodation which was given to the tenant by way
of settlement in the earlier round of litigation was in actual
occupation of the landlords. If the accommodation was non-
residential (though the tenant agreed to use it for his residence)
or was already and genuinely lying vacant as of no use to the
landlords and not deliberately or mala fide kept vacant to create
a false ground for eviction, it cannot be said that the landlords
had ’vacated’ a residential building. It is for the tenant to raise
and substantiate the plea attracting applicability of the proviso
so as to disentitle the landlord from evicting him in spite of the
requirement having been proved. On the tenant having pleaded
and proved that the landlord has vacated another residential
building in the same urban area within five years of the filing of
the application, the onus will shift again on the landlord to either
rebut the plea or to prove sufficient cause for such vacating. In
the present case, there is complete lack of pleadings and
evidence so as to enable a finding of fact being recorded which
would attract applicability of the second proviso.
Secondly, ’sufficient cause’ is also discernible from the
facts available on record in the present case. As held in
Surinder Singh Sibia’s case (supra), ’Sufficient cause’ "has
been construed liberally in keeping with its ordinary dictionary
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meaning as adequate or enough. That is, any justifiable reason
resulting in vacation has to be understood as sufficient cause.
For instance economic difficulty or financial stringency or family
reasons may compel a landlord to let out a building in his
occupation. So long as it is found to be genuine and bona fide it
would amount to vacating a building for sufficient cause and the
bar of second proviso stands lifted. In other words if the
vacation of the building was not a pretence or pretext the
proviso could not frustrate the right of landlord to approach the
Controller for necessary direction to tenant to hand over
possession to him."
The landlords were earlier litigating for eviction of the
tenant from the upper floor. In the first round of litigation, they
succeeded and yet the fruits of the decree were denied to them
on account of pendency of the appeal. They thought it proper to
shift the tenant from the first floor to the ground floor so as to
satisfy their own requirement as it existed on that date. The
tenant also agreed to occupy the ground floor for residence as
he was in dire need of some space to live though the premises
were not fit for human residence and could not be termed
’residential’. This is ’sufficient cause’ within the meaning of the
second proviso. Circumstances changed. Subsequent events
took place. The family of appellant no.1 enlarged. A new
requirement came into existence which did not exist earlier. The
bona fides of such requirement of the landlords cannot be
doubted.
The expression ’his own occupation’ as occurring in sub-
clause (i) of clause (a) of section (3) is not to be assigned a
narrow meaning. It has to be read liberally and given a practical
meaning. ’His own occupation’ does not mean occupation by the
landlord alone and as an individual. The expressions "for his
own use" and "for occupation by himself" as occurring in two
other Rent Control Acts, have come up for the consideration of
this Court in Joginder Pal v. Naval Kishore Behal,
(2002) 5 SCC 397 and Dwarkaprasad v. Nirnajan and
Another, (2003) 4 SCC 549. It was held that the requirement
of members of family of the landlord or of the one who is
dependent on the landlord, is the landlord’s own requirement.
Regard will be had to the social or socio-religious milieu and
practices prevalent in a particular section of society or a
particular region to which the landlord belongs, while
interpreting such expressions. The requirement of the family
members for residence is certainly the requirement by the
landlord for ’his own occupation’.
Undoubtedly, the Himachal Pradesh Urban Rent Control
Act, 1987 has been enacted for the purpose of providing for the
control of rents and evictions because of paucity of
accommodation in urban areas. The Rent Control Legislations,
generally aim at preventing rack-renting and resorting to
evictions by unscrupulous and greedy landlords, who take
advantage of the shortage in availability of accommodations in
cities and dictate their terms to the tenants and if they do not
follow the dictates, subject them to eviction. The Rent Control
Legislations are generally heavily loaded in favour of the tenants
and the provision dealing with which the courts at times lean in
favour of the landlords is the one which permits the landlord to
seek eviction of the tenant on the ground of requirement for his
own occupation, residential or non-residential. There are weak
amongst the tenants as also amongst the landlords. (See \026
Joginder Pal’s case, supra, paras 9 and 32) Take the case of a
landlord knocking the doors of the court seeking its assistance
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for a roof over his head or for a reasonably comfortable living,
when he is himself either in a rented accommodation or
squeezing himself and his family members in a limited space,
while the tenant protected by the Rent Control Law is
comfortably occupying the premises of the landlord or a part
thereof. Provisions like Section 14(3)(a)(i) of the Act should be
so interpreted as to advance the cause of justice instructed by
the realties of life and practical wisdom. While the tenant needs
to be protected, the courts would not ordinarily deny the relief to
the landlord, who genuinely and bona fide requires the premises
in occupation of the tenant for occupation by himself or for the
members of his family, unless they feel convinced that the so-
called requirement of the landlord was a ruse for getting rid of
an inconvenient tenant or was otherwise mala fide and did not
fall within the four corners of the ground for eviction provided by
the law.
On a perusal of the pleadings and the findings arrived at
by the Rent Controller and the Appellate Authority (which
findings have not been dislodged by the High Court), the picture
which emerges may briefly be projected. The tenant was in
occupation of the upper floor of the building before and during
the first round of litigation. Through the compromise arrived at
during the pendency of the appeal, the tenant agreed to take
one room, one kitchen and one covered passage accommodation
situated on the ground floor under the new tenancy at a new
rate of rent with effect from 1.10.1986. The arrangement made
by the compromise having been implemented, the family of the
appellant No. 2 \026 one out of the two landlords, who are two
brothers, actually occupied the entire first floor and also a part of
the ground floor. The appellant no.2, who is the brother of
appellant No.1 herein and was impleaded as a performa
defendant before the Rent Controller and the Appellate
Authority, is running a shop on the ground floor and is also using
a portion of the ground floor as godown and staircase. The
upper floor accommodation consists of two rooms, one kitchen
and one open veranda which is being used by appellant No.2
with his family members namely his wife and three school going
children. Appellant No.1 is staying in a rented accommodation
for the reason that the wives of the two brothers not carrying on
well with each other to permit their living together and also on
account of paucity of accommodation. During the pendency of
the proceedings another female child was born to appellant No.1
and thus by the time the appeal came to be decided by the
Appellate Authority on 1.3.1988, appellant No.1 had two
children, as has been noted by the Appellate Authority.
As an upshot of the above discussion we hold that the High
Court was not right in applying third proviso to the facts of the
case and deny the relief of eviction to the appellants. The first
and the second proviso also do not come in the way of
appellants. Their case of requirement within the meaning of
Section 14(3)(a)(i) is fully made out.
The appeal is allowed. The order of the High Court is set
aside and that of the Rent Controller as upheld by the Appellate
Authority is restored. However, the tenant-respondent is
allowed time upto 31.8.2005 for vacating the suit premises and
delivering peaceful possession to the landlords, subject to filing
the usual undertaking before the Rent Controller within a period
of four weeks from today. The costs incurred by the landlords
shall be borne by the tenant-respondent throughout.