1. This judgment will dispose of two Second Appeals, S. A. O. Nos. 92 and 306 of 1968. Amrik Chand is the appellant in both the second Appeals, and Harbans Singh is the respondent in the two second appeals. The facts which have given rise to these second Appeals are as follows:

The dispute between the parties relates to three rooms and a Varandah in house No. 14, South Patel Nagar, New Delhi. The said house was government build property and was allotted to Amrik Chand by the Ministry of Rehabilitation in the year 1954. In 1955, an agreement deed purporting to be a partnership deed was executed between Amrik Chand and Harbans Singh, and the latter was put in possession of the said three rooms and Varandah. Subsequently, disputes arose between them, and Amrik Chand filed a Civil suit in 1957 for dissolution of partnership and rendition of accounts against Harbans Singh. Harbans Singh pleaded that he was a tenant of the premises in dispute and was using the back portion of the same for his residence and the front portion for manufacturing furniture. The trial Court held that the relationship of the parties was that of partners. But, on appeal, the Additional Senior Subordinate Judge, Delhi reversed the decision and the matter went up in Second Appeal No. 91-D of 1959, to the High Court. In that Second Appeal, in interim order was made by the High Court on 13th October, 1959, directing that Harbans Singh should deposit Rs. 45 mensum from 3rd October, 1955, and should continue to do so every month. The Second Appeal was dismissed by Capoor, J. On 27th April 1962, affirming the decision of the lower Appellate Court that partnership had not come into existence at all and dismissing the suit for dissolution of partnership and rendition of accounts. The said judgment of the learned Single Judge was affirmed in an appeal under Clause 10 of the Letters Patent in April, 1964.

On 12th August, 1964, Amrik Chand accepting the position of Harbans Singh as that of a tenant filed a petition under Section 14 of the Delhi Rent Control Act, 1958, for eviction of Harbans Singh, alleging that the premises in dispute were non-residential and were let for manufacturing furniture; and that the tenant had changed the user of the premises to a tea shop-cum-residence without the permission of the landlord. Eviction was sought on two grounds, namely misuse of the premises and non-payment of rent. The tenant, Harbans Singh, pleaded that the premises were commercial-cum residential, that he had never misused the same and that he had paid some amount to the landlord in the previous litigation, and accounts may be adjusted between the parties. He also pleaded that standard rent may be fixed. As regards non-payment of rent, the Rent Controller passed an order under Section 15 (1) of the Delhi Rent Control Act, 1958, fixing the interim rent at Rs. 65 per month and directing the tenant to deposit arrears of rent at the said rate with effect from 15.6.1961. An appeal was preferred against the said order to the Court of the Rent Control Tribunal which reduced the interim rent to Rs. 45 per mensem. Against that order, a second Appeal, S. A. O. No. 147-D of 1965, was preferred to the High Court by Amrik Chand. The second Appeal was heard by A. N. Grover, J. (as his Lordship then was), who by his judgment, dated 16th February, 1966, held that the agreed rate of rent was Rs. 65 per mensem and the Rent Controller was justified in fixing the interim rent at Rs. 65 per mensem, that the Rent Control Tribunal interfered with that order without giving cogent reasons, and that the Tribunal fell into a substantial error in interfering with the order of the Rent Controller in the matter of fixation of interim rent. In the result, the learned Judge allowed the Second Appeal, set aside the order of the Tribunal and restored the order of the Rent Controller. The petitioner for eviction subsequently came up for hearing before the Rent Controller. By an order, dated 20th January, 1967, the Rent Controller held that the three rooms and the Varandah were let to Harbans Singh for commercial cum-residential purposes, that the tenant was manufacturing furniture in the front room while he kept his residence in the other rooms from the date of the commencement of the tenancy, and that by so using some of the rooms as residence, he did not use the premises for a purpose other than the purpose for which they were let out within the meaning of Clause (6) of the proviso to Sub-section (1) of Section 14 of the Rent Control Act. In the alternative, the Rent Controller held that even if it is held that the whole of the premises were let for manufacturing furniture only, the question would arise as to whether the tenant had used the premises for a purpose other than that for which they were let by having residence in the back portion, and that in view of the decisions in Manohar Lal Chopra v. Bal Raj Arora, (1953) 55 PLR 295, Inder Singh v. Kalu Ram, (1965) 67 PLR 58 [LQ/PunjHC/1964/252] and Firm Himalayan Traders v. Narain Dass, (1966) 68 PLR 367 [LQ/PunjHC/1965/419] it was necessary that the landlord should establish that the change in the user related to the whole of the premises let out and not a part of the same, and that since Harbans Singh was only using a portion of the Premises for residence, there was no question of any change of user by the tenant within the meaning of Clause (c) of Sub-section (1) of Section 14 of the Rent Control Act. The Rent Controller also referred to Sub-section (5) of Section 14 of the Act. And held that there was no evidence in the case to show that the tenant used the premises for a tea shop at any time or that there was any misuser of the premises which amounted to a public nuisance or caused damage to the premises or was otherwise detrimental to the interests of the landlord. The Rent Controller thus came to the conclusions that the tenant was not liable tot be evicted on the ground contained in Clause (c) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958.

2. As regards the determination of the standard rent for the three rooms and Varandah, the Rent controller pointed out that the premises in question was Government built property, that when the property was allotted to the landlord, the valuation of the structure had been put at Rs. 5,387 and the value of the land had been put at Rs. 1769.40 by the Government, and that, according to Mr. O. P. S. Bhatia, Field Inspector, L & D. O., who was examined as R. W. 1, the aforesaid value was fixed by the Government, no profit no loss basis. He further pointed out that the premises in question were commercialcumresidential out that the standard rent had, therefore, to be fixed under Section 6(1)(B)(2)(b) of the Delhi Rent Control Act, 1958, on the basis of the aggregate of the reasonable cost of the construction of the structure and the market price of the land comprise in the premises on the date of the commencement of the construction, and that the tenant had examined Mr.. N. P. Bakshi, consulting Engineer, as R. W. 5. , who estimated the cost of the structure at Rs. 3,423. The Rent Controller also pointed out that Mr. Bakshi had used the C.P.W.D. Schedule of rates of 1950 for the premises built in 1953. On a consideration of the matter, the Rent Controller took the view that the estimate of Mr. Bakshi was rather low, and that the value put by the Government, viz. Rs. 5387 was itself a concessional rate. Ultimately the Rent Controller fixed the cost of construction of the structure at Rs. 5387.

3. As regards the market price of the land, the Rent Controller pointed out that since the property was allotted to Amrik chand on 15.2.1954, it must have been constructed by the government in 1953, that the value put by the Government on the land, viz. Rs. 1769. 40 paise was as concessional value, that there was evidence on record that the Government auctioned some plots of almost equal sizes for Rs. 10,000 and Rs. 15,000 in 1955, and that as the market value of land in the locality in 1953, was not available, the price for which plots were auctioned by the Government in the next available i. e. , 1955, had to be relied upon, After considering all the circumstances and the evidence, the Rent Controller fixed the market price of the land and premises in question at Rs. 9000. Adding Rs. 9000 and Rs. 5387 making an aggregate of Rs. 14387 the Rent Controller fixed the standard rent of Rs. 103 per month. In the result the rent controller directed the tenant Harbans Singh to pay the rent at the rate of Rs. 103 per month for the period from 15.6.1961 to 31.12.1966 after deducting from the same the money already deposited by the tenant in the Court. The Rent Controller ordered that the tenant should deposit the balance amount within one month from the date of the order, and if the amount is so deposited, the petition for eviction would stand dismissed, and that if the tenant did not so deposit, it should be deemed an eviction order has been passed against the tenant, and the landlord should be entitled to get possession of the premises from the tenant. The Rent Controller also made it clear that the ground of misuser of the premises pleaded by the landlord for eviction of the tenant was rejected.

4. Against that order, the landlord, Amrik Chand preferred an appeal, Rent Control Appeal No. 254 of 1967, to the Rent Control Tribunal, Delhi, in so far as the Rent Controller rejected his-prayer for eviction of the tenant. He also questioned the fixation of the standard rent at Rs. 103 per month and pleaded that it should have been fixed ar rs 150 per month. The tenant, Harbans Singh, also preferred an appeal, Rent Control Appeal No.161 of 1971, to the Rent Control Tribunal, so far as the order of the Rent controller fixing the Standard Rent of premises at Rs. 103 per month was concerned and pleaded that it should have been fixed at rs 45 per month. In the Appeal 254 of 1967, filed by the landlord, Amrik Chand, the Rent Control Tribunal, by an order, dated 21st November, 1967, agreed with the view taken by the Rent Controler that the premises in dispute could not be said to have been used for a purpose other than that for which they were let. As regards the standard rent, the Tribunal held that as the landlord had not applied for fixation of standard rent, he was not entitled to contest the standard rent fixed by the Controller, and that the prayer of the landlord for enhancement of the standard rent had no merit. In the result, the Tribunal dismissed the said appeal. It is against that order that the present second Appeal No. 92 of 1968 has been filed by the landlord, Amrik Chand. In Appeal No. 161 of 1967, the Rent Control Tribunal. By an order, dated 4th June, 1968, held that the Rent Controller should have fixed the market value of the land at Rs.1769.40 paisa which was the cost price found entered in the Government record. In the view, the Tribunal calculated the aggregate of the cost construction of the super-structure and the markdet value of the land at Rs.7,156,40 and fixed the standard rent at 7 of the aggregate i. e. at Rs. 45 per month. He also held that the standard rent was payable by the tenant only from 5th September, 1964. In the result, he allowed the said appeal, set aside the order of the Controller, and fixed the standard rent of the premises in dispute at the rate of Rs. 45 per month with effect from 5th September, 1964. It is against that order that the present second Appeal No. 306 of 1968 has been filed by the landlord, Amrik. Chand.

5. In Second Appeal No. 306 of 1968, the only contention raised by Mr. B. N. Kirpal learned Counsel for the appellant landlord, is as regards the standard rent fixed by the Tribunal. As already stated, the Tribunal fixed the standard rent of the premises in dispute at the rate of Rs. 45 per month with effect from 5th September, 1961. Mr. Kirpal did not dispute the date from which the rent was directed to be paid by the Tribunal. It is common ground that the provision applicable for the fixation of the standard rent in the present case is Section 6(1)(B)(2)(b) of the Act, according to which, the standard rent has to be calculated on the basis of 7 per annum of the aggregate of the reasonable cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction. As regards the reasonable cost of construction, the Rent Controller and the Tribunal fixed the same at Rs. 5,387. This amount also was not disputed by Mr. Kirpal. As regards the market price of the land comprised in the premises on the date of the construction, the Controller fixed the amount at Rs. 9,000. While the Tribunal fixed the same at Rs. 1769.40. It is this reduction in the price of the land that was questioned by Mr. Kirpal. The learned Counsel argued that the premises in question was allotted to the landlord on 1954, and therefore, it must have been built by the Government in or about 1953. There is no evidence as regards the amount for which the Government had purchased the land in question before the premises were built thereon. The only evidence adduced was that of Mr. O. P. S. Bhatia, Field Inspector, L. & D. O. examined as R.W. I. He stated in his evidence that the premises was Government built property and the valuation of the structure had been put at Rs. 5,387 by the Government while the value of the land had been put at Rs. 1769. 40 paise. In cross-examination he stated that the value was put on no profit no loss basis. The Rent Controller considered the said value of the land to be a concessional rate, and held that it should not be taken as the market value of the land on the date of the commencement of the construction. He, therefore, took the rates at which similar plots in the locality were sold by the Government in 1955 regarding which evidence was available, and on a consideration of all the circumstances and the evidence, fixed the market price of the land under the suit premises at Rs. 9000, on the other hand, the Tribunal considered that when the cost of the lad as entered by the Government in its record was available, the said cost should be taken as the market price of the land and not the amounts for which plots were sold in 1955 i.e. two years after the construction of the premises in question. Mr. Kirpal submitted that the sum of Rs.1769.40 paise found entered in the records of the Government was the cost price of the Government as deposed by R.W. I, and that the said cost price cannot be regarded as the market price of the land, and that the Tribunal was clearly in error in adopting the cost price instead of market price as the basis for the fixation of the standard rent. There is considerable force, in my opinion, in the contention of Mr. Kirpal. In view of the evidence of Mr. Bhatia (R.W.I.) that the premises were given by the Government to the landlord on no profit no loss basis, and that the Government entered the price of the land in question as Rs.1769.40 paise, it is clear that the said amount of Rs.1769.40 paise represents the cost at which the Government obtained the land before they build the premises in question upon it, and allotted the same to the landlord. It is not known when the Government obtained that land at the said cost, and how long thereafter the premises were built. Section 6(1)(B)(2)(b) refers to the market price of the land on the date of the commencement of the construction. It is, therefore, obvious that even on the assumption that the sum of Rs.1769.40 paise was the cost price at which the Government obtained the land and later recovered for the landlord. It cannot be regarded as the market price of the land on the date of the commencement of the construction. The land was allotted to the landlord, Amrik Chand, in 1954. The premises must have, therefore, been constructed some time in 1953, and the land must have, therefore, been obtained or purchased by the Government much earlier. It is thus clear that in would not be correct to take the said amount of Rs.1769.40 paise as the market price of the land in 1953, which may be assumed as the date of the commencement of the construction. The term market price as used in Section 6(1)(B)(2)(b) means, in my opinion, the price which the land would have fetched if sold in open market on the date of the commencement of the construction. The Tribunal was, therefore, in error in treating the said amount of Rs.1769.40 paise as the market price of the land in question on the date of the commencement of the construction of the suit premises. No evidence has been adduced by either party as regards the market price for similar land in the locality in or about 1953. In the absence of such evidence, the Rent Controller took into consideration, in my opinion rightly, the price prevailing in the next available year, namely, 1955. Hari Singh (A.W.10), a Clerk in the office of Land and Development Office, Delhi, deposed that the Government auctioned in 1955 some plots in the very market in which the suit land is situate. According to his evidence, plots of almost equal size were auctioned in 1955 for amounts ranging from Rs. 10,000 and Rs. 15,000. Taking all the circumstances and the evidence into consideration, the Rent Contrloller fixed the market price of the land under the suit premises at Rs. 9,000. The basis adopted by the Rent Controller was the correct one, while the basis adopted by the Tribunal was not correct. It follows that that standard rent fixed by the Rent Controller at Rs. 103 per mensem has to be upheld as correct.

6. Mr. Sardar Singh, learned Counsel for Harbans Singh, after arguing the case for some time, submitted that it was the tenant who pleaded in his written statement that standard rent may be fixed, that the said plea was barred by the provision in Section 12 of the Act, and that the standard rent fixed by the Rent Controller and the Tribunal may be treated as not fixed. He pointed out that the premises were let out to the tenant on 3rd October, 1955, that the Rent Control Act came into force on 9th February, 1959, that the prayer for the fixation of standard rent was made in the written statement, dated 5th September, 1964, and that in view of the provision in Section 12 of the Rent Control Act which requires that an application for fixation of standard rent should be made within two years from the date of the commencement of the Act, the tenant could not pray for the fixation of the standard rent. This contention was not raised either before the Rent Controller or before the Trinunal. The Rent Controller fixed the standard rent at Rs. 103 per month. The tenant could have raised this contention in the appeal preferred by him to the Tribunal against the order of the Rent Controller. But he did not do so. In this Second Appeal, when the arguments proceeded for some time, the learned Counsel for the tenant sought permission to raise the contention. In my opinion, it would be unjust and inequitable to the opposite party to permit this contention to be raised at this stage. It was the tenant who put forward the plea for standard rent in the written statement. The parties adduced evidence regarding the same and the Rent Controller fixed the standard rent. As already stated, the tenant did not raise this question in his appeal to the Rent Control Tribunal. The Rent Control Tribunal reduced the standard rent and the order went in favour of the tenant. Feeling aggrieved by the same, the landlord has preferred the present Second Appeal. But for the plea of standard rent raised by the tenant, al these proceedings would not have been necessary. It would, therefore, be unjust and unfair to allow the tenant to say that his own prayer for fixation of standard rent could not be made to the Rent Controller in view of the provision in Section 12 of the Act. I am of the opinion that in the circumstances of the present case, the tenant cannot be permitted to contend that his prayer for the fixation of standard rent was barred by the provision in Section 12 of the Act.

7. For the above reasons, this Second Appeal is allowed and the order of the Tribunal is modified to the extent that the standard rent is Rs. 103 per month effect from 5th September, 1964, instead of Rs. 45 per month. IN the circumstances of the case, the parties are directed to bear their own costs in this Second Appeal.

8. IN S. A. O. No. 92 of 1968, Shri Kirpal argued that the Rent Controller and the Tribunal erred in holding that there was no user of the premises by the tenant for a purpose other tan that for which they were let within the meaning of clause of the proviso to Sub section (1) of Section 14 of the Delhi Rent Control Act, 1958. The landlord, Amrik Chand, alleged in his petition for eviction that the premisesindispute were let out for manufacture of furniture, but the tenant changed the user by sing the premises as tea shopcumresidence without the permission of the landlord. The tenant pleaded in his written statement that the premises in dispute were let out to him for written statement that the premises indispute were let out to him for commercialcumresidential purposes, and that he had never mussed the same. As pointed out by the Rent Controller, the contention of the landlord in the previous litigation-in-he Civil Court throughout was that Harbans Singh was a partner with him in the suit premises in the business of manufacturing furniture, and he did not admit that Harbans Singh was his tenant or that the premises in dispute were let out to him. Out the other hand, Harbans Singh pleaded even in his written statement in the aforesaid previous litigation in April. 1957, that he was a tenant in respect of the suit premises, that he was making furniture in the front portion of the said premises, and that he was having his residence in the back portion. The said plea was put forward by Harbans Singh in his written statement in the petition for eviction. He also examined two witnesses, R. Ws. 2 and 3, who deposed that Harbans Singh brought his family after two or the years of his occupation of the premises and started residing in the back portion. On a consideration of the evidence and the use to which the premises had been put for many years, the Rent Controller held that the premises were let out for commercial-cum-residential purposes to Harbans Singh. In the alternative, the Rent Controller held that even if it is held that the premises on dispute were let out for commercial purposes only, the user of the portion thereof for residential purposes would not amount to a change of user such as is contemplated by clause (C) of the proviso to Subsection (1) of Section 14 of the Rent Control Act, relying on certain decisions of the High Court of Punjab. He also held that there was no reliable evidence to prove that there was a tea shop in the premises at any time. He further held that there was no evidence that, the user of the back portion of the premise for residential purposes was a public nuisance or tat it has caused any damage to the premises, that narring a bare assertion that it was detrimental to this interests, the landlord did not explain how bit was detrimental to his interests, and that the landlord thus failed to prove any of the circumstances mentioned in Subsection (5) of Section 14 of the Act.

9. The Tribunal, on the other hand, held that the premisesin dispute were intended to be used for commercial purposes, and that there was little evidence on record for the tenant to show that the premises, either wholly or in part, were also intended to be used for residential purposes. The Tribunal, however, pointed out that it was admitted that a part of the premisesin dispute was being used by the tenant, for residential purposes, and held that on the admitted affects of the case and relying on the decisions mentioned by the Rent Controller, it had no hesitation in affirming the finding of the Controller that the premisesindispute could not be said to have been used for purpose other than that for which the were let.

10. Shri Kirpal contended that the Rent Controller and the Tribunal erred in holding that for purposes of eviction under clause (c) of the proviso to Subsection (1) of Section 14 of the Rent Control Act, the entire premises let out must have been used by the tenant for a purpose other than that for which they were let. Hew argued that even if the tenant uses a portion of the premises let out to him for purpose other then the purpose for which they were let, the provision in clause would be attracted. In support of his argument he referred to the definition of the term premises in the Act, according to which the term means any building or a part of a building. It is true that the term premises means a part of building also. But, it does not help the contention of the learned Counsel. The word used in clause (C) are the tenant has used the premisesA plain reading of the clause suggests, in m opinion, that the words the premises means the entire premises let out to the tenant. In this connection, it ma be noted that in clause (b) of the proviso to Sub-section (1) of Section 14, the words used are the tenant has . Subthe whole or any part of the premises. If the intention of the Legislature was that the expression the premises in clause (c) should mea even a part of the premises let out to the tenant, similar words as those used n clause (b) would have been used. The absence of the words or any part of the premises in clause (c) is quite significant, and the only meaning that can be given to the expression the premises in clause (c) is the entire premises let out to the tenant. In this view, the fact that the term premises includes a part of a building makes no difference. Whatever has been let out to the tenant, whether it is an entire building or a part of a building, would be the premises for the purposes of clause (c). Thus, the expression the premises in clause (c) means, in my opinion, the entire premises which were let out to the tenant and clause would apply only if the tenant uses the entire premises, whether it is a building or part of a building, let out to him, for a purpose other ten the purpose for which the were let out to him. Thus the contention of Shri Kirpal has to be rejected as untenable.

11. For the above reasons, the second Appeal fails, and is dismissed. In the circumstances of the case, I direct the parties to bear their own costs in this Second Appeal.