ORDER
N.M. Kasliwal, C.J.
1. Heard learned counsel for the parties. This revision by the tenant has been filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act). The petitioner was a tenant in premises forming part of a building known as Naish Villa Annexe, Lower Jakhu, Shimla. A petition for eviction was filed on 15-12-1979. The eviction was sought on several grounds, but the Rent Controller (I) Shimla found one ground alone in favour of the landlord for granting the decree for eviction. The said ground was that the tenant, Kundan Lal, had acquired vacant residence.
2. Tenant Kundan Lal, aggrieved against the order of the Rent Controller, filed appeal which came up for consideration before the Appellate Authority (I) Shimla. During the pendency of the appeal, an amendment was made in Section 14(3)(a)(iv) of the Act. According to this amendment, the landlord was required to prove that the tenant has, whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted, a residence reasonably sufficient for his requirements. In view of the aforesaid amendment, the landlord sought an amendment in para No. 18, Sub-clause (a)(i) of his petition. The amendment was allowed by the Appellate Authority by its order dated 2-1-1989. Both the parties opted not to lead any evidence on this amendment as it was submitted that the evidence already on record can be referred to in this regard. Thereafter, the learned Appellate Authority considered the matter in detail and held that the tenant had built or acquired vacant possession of a residence reasonably sufficient for his requirements and the appeal filed by the tenant was dismissed by order dated 19-4-1989.
3. Aggrieved against the judgment of the Appellate Authority, the present revision has been filed by the tenant, Kundan Lal Ahuja.
4. In view of the fact that the order for eviction has been given in favour of the landlord on one ground alone, namely the tenant has built or acquired vacant possession of a residence reasonably sufficient for his requirements, learned counsel for the tenant assailed the finding of the lower Appellate Authority on this ground alone.
5. In order to appreciate the arguments on behalf of the parties, it may be stated that the tenant had built a building known as Aroma Hotel, consisting of 15 rooms, out of which ten rooms were given on rent to the Indian Oil Corporation while five rooms remained in the possession of the tenant. It may also be mentioned at this stage that the tenant was in occupation of three rooms, one verandah, kitchen, toilet, bath-room and store in Naish Villa Annexe, Lower Jakhu, Shimla.
6. It has been contended on behalf of the petitioner that the building known as Aroma Hotel was used as a hotel and as such it does not fall within the meaning of ‘building’ as defined under Section 2(b) of the Act. The definition of ‘building’ has been given as under:
” ‘building’ means any building or part of a building let out for any purpose whether being actually used for that purpose or not, including any land, godowns, out-houses or furniture let out therewith, but does not include a room in a hotel, hostel or boarding house:”
On the basis of the above provision, it has been contended that the building in the above definition does not include a room in a hotel, hostel or boarding house. It has thus been contended that even if it may be held proved that the tenant-petitioner was in occupation of five rooms in Aroma Hotel then it would not fall within the meaning of ‘building’ under the Act. I see no force in the above contention. Learned Appellate Authority has considered this aspect of the matter and after considering the statements of PW 2, Tax Inspector of Municipal Corporation, Shimla and that of the tenant himself, who appeared as RW 1, gave a finding that the tenant petitioner failed to prove that the building in question was a hotel. It has come in the evidence of PW 2, a Tax Inspector of Municipal Corporation, Shimla that there were two buildings, one known as Aroma Hotel and the other one as new building at stable Aroma Hotel which appeared to be new buildings. PW 2 clearly stated that the building Aroma Hotel had tenants in it but was not assessed as a hotel and the new buildings now form part of the old building. The tenant-petitioner himself admitted in his statement that his building had not been registered as a hotel nor any register was being maintained for the visitors of this building. It is further important to note that at the relevant time the Himachal Pra-desh Registration of Hotels and Travel Agents Act, 1970 was in force. Under this Act under Section 4 it was clearly provided that every person intending to operate a hotel in a tourist area shall, before operating a hotel, apply for registration to the prescribed authority in the prescribed manner. Under Section 5 the prescribed authority was required to issue a certificate. Admittedly, in the present case, the building was not got registered with the prescribed authority as a hotel. In view of these circumstances the lower Appellate Authority was perfectly justified in arriving at the conclusion that the tenant-appellant failed to prove that the building in question was a hotel.
7. Apart from the above circumstances, Section 14(3)(a)(iv) clearly lays down that the landlord is required to prove that the tenant has, before or after the commencement of this Act, built or acquired vacant possession of a residence reasonably sufficient for his requirements. Thus the only requirement of the above provision is that it must be proved that the tenant has built or acquired vacant possession of a residence which was reasonably sufficient for his requirements. In the present case, it is admitted by the tenant-appellant himself that he had built a building known as Aroma Hotel consisting of 15 rooms. Thus the building in the present case, known as Aroma Hotel, is proved beyond any manner of doubt to have been built by the tenant-appellant.
8. The next argument made by Mr. Bhardwaj, learned counsel for the petitioner-tenant, is that the burden lay upon the landlord to prove that the tenant had built or acquired vacant possession of a residence reasonably sufficient for his requirement. It has been submitted that no issue was framed to the effect that the residence was reasonably sufficient for the requirements of the petitioner or not. It has been further argued that the lower Appellate Authority was not justified in holding that the five rooms in occupation of the tenant-appellant were reasonably sufficient for his requirements. I see no force in this contention of the learned counsel for the petitioner. Admittedly, there are only three rooms, one verandah, kitchen, toilet, bath room and store in the tenancy of the petitioner in the premises in question. The tenant-petitioner is in possession of five rooms in the building known as Aroma Hotel. Learned counsel for the petitioner submitted that the five rooms in the Aroma Hotel are not in possession of the petitioner, but are occupied by the two sons of the petitioner-tenant. This aspect of the matter has also been considered by the lower Appellate Authority and it has been rightly held that no such plea was at all taken by the tenant-petitioner in the written statement filed initially as well as in the amended reply filed on 16-1-1989. The facts in this regard were in the special knowledge of the petitioner-tenant and it was incumbent on him to plead and prove as to how and in what manner the five rooms in the Aroma Hotel were not reasonably sufficient for his requirements. That apart, if after constructing 15 rooms in the building known as Aroma Hotel, which is admittedly owned by the tenant-petitioner, if ten rooms were given on rent and five rooms kept in his possession, which, for argument sake may be accepted that the five rooms were occupied by his sons and their families, the tenant cannot be permitted to take the plea that the residence was not reasonably sufficient for his requirements. Even otherwise, it is an admitted case that only three rooms were in occupation in the premises in question taken on rent by the petitioner while he is in occupation of five rooms in Aroma Hotel.
9. Thus the lower Appellate Authority was perfectly justified in taking the view that the petitioner had built or acquired a residence reasonably sufficient for his requirements.
10. It was next contended that no issue had been framed that the tenant had built or acquired vacant possession of a residence reasonably sufficient for his requirements. In this regard it may be sufficient to mention that after the aforesaid amendment in the Act, the landlord had filed an application for amending the petition and to include such grounds in the petition. Said amendment was allowed by the learned Appellate Authority and the tenant had also filed a reply in this regard on 16-1-1989. Thereafter both the parties had opted not to lead any evidence on this amended ground taken in the petition and1 this clearly goes to show that the tenant-petitioner was fully alive and having knowledge that the above ground has been taken by way of amendment in the petition. Thus the parties had full knowledge about the above ground and in case such ground was not contained specifically in issue No. 1, it will be of no consequence. It is well settled that if the parties are fully alive and have knowledge with regard to a particular question, merely non-mentioning of the same in the issue will mot be of any consequence.
11. Lastly, it was contended that the landlord petitioner was estopped from filing the present petition as on earlier occasions two petitions for ejectment had been filed against the present petitioner and the same had been dismissed. It has been contended that in the earlier ejectment petitions, the landlord could have taken the ground for eviction which is now sought to be raised in the present petition and having failed to do so the landlord is estopped from taking this ground in the present petition. I see no force at all in this contention. The petitioner-tenant has not been able to show as to how and in what manner the landlord was estopped from taking this plea in the present petition. The petitioner-tenant has failed to show as to in what year this Aroma Hotel building was constructed and whether such ground was at all available to the landlord at the time when the earlier two petitions for eviction were filed. Even otherwise, a landlord is entitled to bring any petition for eviction on such fresh grounds which were not available at the time of the earlier eviction petition.
11A. In the result, I find no force in this revision and it is accordingly dismissed with costs.
12. The tenant-petitioner is granted three months’ time to vacate the suit premises provided he filed an undertaking before this Court within two weeks that he would surrender vacant possession of the premises in question to the respondent-landlord on or before three months.