Prithvi Raj, J.
(1) This second appeal is directed against the order dated 27th January, 1968, passed by Shri M. L. Jain, Rent Control Tribunal whereby he upheld the findings and judgment dated 12th October, 1966, of Shri P. K. Bahri, Additional Rent Controller, Delhi, dismissing the petition of the appellants (herein to be called 'the society') for seeking possession of the premises in occupation of the respondents.
(2) Relevant facts for disposal of this petition are that M/s. Ranjit Singh and Sons were stated to be tenants through Ranjit Singh under the appellants in respect of suit premises, bearing nos. 552 to 554 Esplande Road, Delhi.
(3) S/SHRI Ram Kumar, Babu Ram, Ishar Dass, Parkash Chand, Khusi Ram, Om Parkash and Hari Chand all sons of Ranjit Singh were imp leaded as owners of the firm as Ranjit Singh was reported to have died when the, petition under section 22 of the Delhi Rent Control Act (herein to be called 'the Act') was filed.
(4) During the pendency of the case Ram Kumar son of Ranjit Singh died. Surinder Kumar, Lalit Kumar, Rajni Gupta and Rekha Gupta major sons and daughters of Ram Kumar deceased and Anil Kumar and Pratibha Gupta minor son and daughter of Ram Kumar deceased were substituted as his legal representatives. The possession of the premises was sought on bona fide need of the society in furtherance of its activity as a public institution to enable it to open an educational institution for girls.
(5) The respondents contested the application, amongst others, on the grounds that late Lala Ranjit Singh and not the firm was the tenant. of the Society that after the death of Ranjit Singh in the year 1958 the tenancy rights were inherited by the respondents that the claim of the society was barred by the principles of rest judicata and section 11 Civil Procedure Code on the ground that previous application of the society on the same cause of action had already been dismissed by a competent court; that the premises are residential as well as non-residential; that the society was not the owner of the premises which was not gifted to it as alleged; that the petitioner--society was not a public institution and that the requirement of the society was not bona fide. The competency of the attorney of the petitioner to sign and verify the petition as also power of attorney executed in favor of Shri S. N. Marwah Advocate were also challenged.
(6) The petitioner-society in its replication controverter the allegations of the respondents, and reiterated its pleas.
(7) The Additional Rent Controller found that the tenant in respect of the premises in question was M/s. Ranjit Singh and Sons. The objection that the society could not use in its own name was repelled as the petition was filed through Pokhar Mal attorney of the society who was held to be a duly constituted attorney empowered to file the petition. The objection that one of the respondents, Rekha Gupta, was a minor at the time of filing the petition was negatived, there being no satisfactory evidence to that effect on the record. The petition was held to be barred by the principles of rest judicata as the previous petition seeking ejectment of the tenant had been dismissed in the year 1955.
(8) On merits it was found that the society was not a public institution within the meaning of section 22 clause (d) of the Act. Further, it was held that the society had no educational activity existing at the time when the petition was filed in the furtherance of which it could claim the premises in question.
(9) The society feeling aggrieved by the order of the Controller filed an appeal before the Rent Control Tribunal. The respondents filed cross-objections to the appeal on the points decided against them by the Controller.
(10) The Tribunal by its order dated the 27th January, 1968, upheld the findings of the Controller on all the points and dismissed the appeal with costs.
(11) It is in these circumstances that this second appeal has been filed against the said order of the Tribunal.
(12) In view of. the findings of the Tribunal only two questions survive for determination in this appeal, namely, (i) whether the present petition seeking ejectment of respondents is barred by the principles of les judicata and estopper; and (ii) whether the appellant-society is a public institution within the meaning of clause (d) of section 22 of the Act and requires the premises for furtherance of its activities.
(13) The principles of rest judicata are contained in section 11 Civil Procedure Code .which for facility of reference is reproduced below:-
'11.Res. Judicata-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court'.
(14) A perusal of the aforesaid provision shows that principles of resjudicata will be applicable to a subsequent suit or issue in which the matter directly and substantially in issue had been directly and substantially in issue in the former suit between the same parties and had been heard and finally decided by a Court competent to try such subsequent suit or the suit in which such issue had been subsequently raised. In other words what creates the rest judicata is if the earlier matter 'had been heard and finally decided' but not otherwise.
(15) In Daryao and others v. State of U.P. and others, : [1962]1SCR574 it was observed at page 1462 that the basis on which the rule of rest judicata rests is founded on considerations of public policy- It was also observed at page 1463, '. . . .where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or decision. Such a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed . . . .'. However, it was further observed that if the case is dismissed as withdrawn it cannot be a bar to a subsequent suit or petition because in such a case there had been no decision on the merits by the Court.
(16) In Ram Gobinda Dawan and Ors. v. Smt. Bhaktabala, : [1971]3SCR340 , it was observed that a decision given against in default of appearance would not amount to rest judicata. There would be no warrant for the wide proposition that even if there had been no hearing and final decision by any Court, at any stage, the decision will operate as rest judicata. For an earlier decision to operate as rest judicata it was observed on the authority of Pulavarthi Venkata Subha Rao and others v. Valluri Jagannadha Rao and others, : [1964]2SCR310 , that the same must have been on a matter which was 'heard and finally decided'.
(17) The earlier suit (183 of 1955) filed by the society against Ranjit Singh proprietor of M/s. Ranjit Singh and Sons was dismissed as being satisfied as per compromise arrived at between the parties whereunder the sum. of Rs. 6,949.00 lying in deposit in the Court was given to the Society. The balance amount of deposit, viz, Rs. 426.00 was given back to the defendants. The parties were left to bear their own costs as per copy of order dated 7th July, 1955, Exhibit R.W. 10/1, passed by Shri K. K. Gujral, Sub-Judge 1st Class, Delhi.
(18) It is, thereforee, evident that while disposing of the earlier suit the merits of the controversy, namely, whether the society was a public institution within the meaning of clause (d) of section 22 of the Act and that it required the premises in question for furtherance of its activities, were not gone into and decided.
(19) Applying the principles laid down by their Lordships of the Supreme Court in Daryao's case (supra) and Ram Gobinda Dawan's case (supra) it cannot be said that the present petition is barred by the principles of rest judicata because the earlier suit filed by the society was dismissed. There being no decision on merits by the Court in the earlier suit, the said suit cannot be a bar to the filing of the present fresh petition.
(20) In L. Janakirama Iyer and others v. P. M. Nilakanta Iyer and others (1962) Supp. 1 S.C.R. 206 (4) it was observed that where section 11 of the Civil Procedure Code was not applicable it would not be permissible to rely on the general doctrine of rest judicata.
(21) The earlier suit having not been 'heard and finally decided' on merits, the principles of rest judicata would not be attracted to the instant case.
(22) Shri I. D. Garg, learned counsel for the respondents placed strong reliance on Shankar Sitaram Sontakke and another, v. Balkrishna Sitaram Sontakke and others, : [1955]1SCR99 . In that case the plaintiff had earlier filed a suit seeking separation from his brothers and a decree for dividing the joint family property. The said suit embraced the entire property without any reservation. However, the plaintiff abandoned his claim to account in respect of the motor business. The suit was, however, compromised. The plaintiff brought a subsequent suit to enforce his claim to account in respect of the motor business. The subsequent suit was held to be founded on the same cause of action which he deliberately relinquished. The cause of action in the two suits being the same, the Court observed 'that the second suit was barred under Order 2 Rules 2(3) of the Civil Procedure Code .
(23) No help can be drawn by the respondents' from the above-cited authority. The society in the earlier suit did not omit without leave of the Court to sue for all reliefs which were open to it. The society had filed the earlier suit on the ground that it being a public institution required the premises in question for furtherance of its activities. The suit having been compromised on receipt of r^nt, it cannot be said that the society in any manner omitted to sue for ail such reliefs which were open to it at the time of filing the earlier suit so that the society is barred from seeking such a relief in the present petition. The society having filed the earlier suit specifically claiming the possession of the property for furtherance of its activities and having withdrawn the same, the principles laid down in Daryao's case (supra) would be applicable.
(24) Shri Garg next relied upon Sunderabai w/o Devrao Deshpande and another v. Devaji Shankar Despande, : AIR1954SC82 . wherein it was observed that where the right claimed in both the suits is the same, the subsequent suit would be barred 'as rest judicata' though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. It was further observed that though the bar of rest judicata in terms of section 11 may not strictly apply to consent decrees but the underlying principle of estoppel would still apply as such a decree would be decree passed 'in invitum'.
(25) The ratio of the decision laid down in the above cited case is not applicable to the facts of the case before me. The sole question in the instant case is whether the order passed in the earlier suit, copy Exhibit R.W.I 0/1, would operate as rest judicata or not. The suit having been withdrawn and having not been 'heard and finally decided' on merits, would not be covered by title ratio of decision in Sunderbhai's case (supra).
(26) The learned counsel for the respondents vehemently contended that the claim in the earlier suit having been given up by the society the present petition filed on the same cause of action, viz., requiring the premises for furtherance of its activities would be barred on the principles of ref judicata as the earlier suit was dismissed on the basis of compromise arrived at between the parties whereunder the society gave up its claim requiring the premises for furtherance of its activities.
(27) There is no merit in this contention. In Pulavarthi Venkata Subba Rao and others v. Valluri Jagannadha Rao (deceased) by his heirs and legal representatives, : [1964]2SCR310 also referred to in an earlier part of this judgment it was observed at page 595 that -
'THEcompromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide anything. Nor can it be said that a decision of the Court was implicit in it. Only a decision by the Court would be rest judicata, whether statutory under S. 11 of the Code of Civil Procedure, or contructive as a matter of public policy on which the entire doctrine rests'.
(28) There being no decision by the Court in the earlier suit which was dismissed as withdrawn on the compromise arrived at between the parties, the present petition is competent and is not barred by the principles of rest judicata.
(29) Shri I. D. Garg next contended that having given up its claim to possession of the property for the furtherance of its activities by accepting the sum of Rs. 6,949.00 as rent in the earlier suit, the society is estopped from filing the present petition.
(30) Section 115 of the Evidence Act deals with estoppel and is reproduced as under by his declaration act,
'WHENone person by his declaration, act or omission, intentionally caused or permitted another persons to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing'.
(31) In Gyarsi Bai and others v. Dhansukh Lal and others, : [1965]2SCR154 , it was observed at page 1061-
'TOinvoke the doctrine of estoppel three conditions must be satisfied ; (1) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such action shall have been detrimental to the interests of the person to whom the representation has been made'.
(32) It was further observed that where only first two conditions were satisfied, there was no scope to invoke the doctrine of estoppel.
INR.S. Maddanappa (deceased) after him by his legal representatives v. Chandramma and another, : [1965]3SCR283 , it was observed at page 1816-
'....THEperson who sets up an estoppel against the other must show that his position was altered by reason of the re' presentation or conduct of the latter and unless he does that even the general principle of estoppel cannot be invoked by him'.
(33) In Bennett Coleman and Co. Pvt. Ltd. v. Punya Priya Das Gupta, : (1969)IILLJ554SC , it was observed at page 434 as under :-
'THEburden of proving the ingredients of S. 115 of the Evidence Act lies on the party claiming estoppel. The representation which is the basis for the rule must be clear and unambiguous and not indefinite, upon which the party relying on it is said to have in good faith and in belief of it, acted'.
(34) The learned counsel for the respondents strongly commended the ratio of the decision of their Lordships of the Supreme Court in Sailendra Narayan Bhanja Deo v. State of Orissa, : [1956]1SCR72 wherein it was observed at page 351, '.........a judgment by consent or default is as effective as estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case'.
(35) It was accordingly urged by Shri Garg that the earlier suit having been withdrawn on the basis of a compromise arrived at between the parties whereunder on receipt of rent, the suit was dismissed, the plea that the society requires the premises in question for furtherance of its activities having been taken up in the earlier suit and not pressed the society is barred by the principles of estoppel from claiming the possession of the premises in question on the same plea.
(36) No help can be drawn by the learned counsel for the respondents from the above-cited authority as the Supreme Court in its subsequent decision in Gyarsi Bai's case (Supra) had settled the law by observing that to invoke the doctrine of estoppel three conditions must be satisfied; (1) that there should be a representation by a person to another, (2) that the other person to whom such a representation was made shall have acted 'upon the said representation, and (3) such action shall have been detrimental to the interests of the person to whom the representation had been made.
(37) The respondents have not brought anything on the record to show that while withdrawing the previous suit any representation was made by the society, on which representation they had acted in a manner which had been detrimental to their interest. The mere fact that the suit was withdrawn does not show that any representation was made or the tenants had acted on the said representation, which in fact was never made to them, and by acting on the representation they had changed their position as a result whereof detrimental consequences had occurred to their interests. The respondents have not shown that by the withdrawal of the earlier suit against them, their position had been altered.
(38) The principle in respect of doctrine of estoppel deducible from the various authorities of the Supreme Court, noted above, is that there must be a representation made by one party to other and that other party must have acted on such a representation in a way that it altered his position proving detrimental to his interests. The respondents having failed to bring their case within the ambit of law governing the application of doctrine of estoppel, the contention that the present suit is barred on the principles of estoppel has to be repelled.
(39) In view of my discussion on various points above, the finding of the Tribunal that the petition is barred by the principles of rest judicata or on the doctrine of estoppel has to be set aside.
(40) The learned counsel for the respondents next contended that in the earlier suit possession of the premises was claimed by the society on the ground that the premises were urgently required by it for the use of its employees while in the present petition the possession is claimed on the ground that the premises are required for opening an educational institution for girls. It was urged that if the premises were required by the society for opening an educational institution for the girls the said plea was open to it at the time when the earlier suit was filed and should have been taken up in the earlier suit. This ground having not been taken up in the earlier suit, it was submitted. the society is barred from raising the same in the instant petition.
(41) Support for this contention was drawn from a Division Bench decision in Man Mohan Lal v. B. D. Gupta 1964 P.L.R. 1005 and Chhatu Thiwani and another v. Smt. Kapoori Devi 1965 Supp. P.L.R. 1 172 (12).
(42) This contention fails to take note of the fact that in the earlier suit as well as in the present petition the claim of the society was and is that the premises are required by it for furtherance of its activities. The mere fact that the society has a number of activities to pursue on the basis of its aims and objects it cannot be urged that at the time when the earlier suit was filed, the possession of the property should have been claimed on the basis of all activities in which the society is engag- ed because at a particular time its requirements may be confined to the furtherance of a specific activity and it may not be requiring the premises for any other of its activities at that time.
(43) In the previous suit the claim of the society was that the premises were required for its employees and that the tenant was liable to ejectment on account of non-payment of rent. In the present petition, the possession is claimed for carrying out the educational activities of the society by opening a school for girls. In the circumstances, the present petition cannot be said to be barred by the principles of rest judicata.
(44) Another contention of the learned counsel for the respondents was that the respondents have been sued in their capacity as the tenants of the premises as is borne out from para 3(b) of the petition. If that be so, all previous notices issued terminating the tenancy of Ranjit Singh or M/s. Ranjit Singh and Sons stand waived as per provision of section 113 of Transfer of Property Act; more so when the respondents have been proceeded against as owners and not as partners of M/s. Ranjit Singh and Sons.
(45) There is no force in the above submission. Both the courts below have given a concurrent finding that the tenant in respect of the premises was M/s. Ranjit Singh and Sons. No infirmity in the notice, Exhibit R.W. 3/1 terminating the tenancy of M/s. Ranjit Singh and Sons, has been pointed out. In the circumstances it is futile for the respondents to content that this notice was in any way invalid, or that the present petition filed on the basis of this notice is not maintainable.
(46) Besides, in Shri Raja Durga Singh of Solan V. Tholu and others, : [1963]2SCR693 , it was observed that finding of fact arrived at by the District Judge on the consideration of all evidence, oral and documentary cannot be set aside in second appeal. Though for determining the question documentary evidence fell to be considered the. finding on the question is no less a finding of fact than may have been the case if the evidence to be considered was merely oral.
(47) This brings me to the second point that survives for determination in this appeal, namely, whether the society is a public institution within the ambit of section 22 of the Act. Relevant provision of section 22 of the Act envisage that where the landlord in respect of any premises is any public institution and the premises are required for the furtherance of its activities, then notwithstanding anything contained in section 14 or in any other law, the Controller may, on an application made to him in this behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied that the premises are required bona fide by the public institution for the furtherance of its activities. Explanationn to this section contemplates that for the purpose of this section, 'public institution' inchides any educational institution, library, hospital and charitable dispensary. Now the question for determination is whether the society is public institution within the meaning of section 22 of the Act. Explanationn to this section without doubt shows that the definition is illustrative and not exhaustive. It thereforee, cannot be said that only an educational institution, library, hospital and charitable dispensary can be said to be a 'public institution'. The term 'public institution' used in section 22 of the Act is in a generic sense.
(48) The society claimed the possession of the premises in question for the furtherance of its activities as a public institution and for opening an educational institution for girls. The respondents in their wrritten statement controverter this allegation by saying that 'the petitioner- sabha can hardly be called a public institution. They have no activity which can be called beneficial for the public in general. Their aims are religious and political'.
(49) The learned counsel for the society vehemently submitted that although the possession of the premises in question was sought specifically for opening a girls school but one could not lose sight of the fact that the society had asked for the possession also for furtherance of its activities which, amongst others, included, to take suitable means turn preparing competent preachers of Vedic religion and to establish a missionary college of Vedic theology if need be. Adverting to the statement of Shri Ram Gopal Shalwala, Public Witness 6, secretary of the society it was contended that the society was engaged in educational activities as well as the society was running a 'pathshala' at Ranchi at its expense and that that the expenses of the 'pathshala' were reflected in the budget of the society. It was also submitted that Ram Gopal Shalwala had further stated that the institutions which are subordinate to the society are engaged in educational activities, expenses of which are borne by those institutions. Conceding that for the present no blueprint was prepared for running the girls school, the learned counsel for the society submitted that Shri Ram Gopal Shalwala had categorically stated in statement at page 340 of the file that the premises in question were required for preparing students as preachers of Vedic religion and the funds which are required for the said purpose are to be met from the general funds of the society. Shri Ram Gopal Shalwala, it was submitted, had stated that the preachers who will be trained by the society for disseminating Vedic Dharma will be taught and trained in the proposed school. In the circumstances, it Was submitted, that opening of a missionary school for preparing preachers of Vedic Dharma for dissemination of Vedic Dharma would be a purpose in furtherance of the activities of the society who would disseminate Vedic Dharma for the benefit of the public in general. In this view of the matter, the learned counsel for the society vehemently contended that the society would answer the description of a 'public institution.'
(50) Shri Marwaha, learned counsel for the society also submitted that Shri Prem Chand, A.W. 3, accountant of the society had categorically stated that there are State Pratinidhi Sabhas which are affiliated with the society. At Delhi, according to the said witness, there are a number of girl schools run by the Arya Samaj, under the Delhi Pratinidhi Sabha. Other educational institutions of Arya Samaj at Delhi are being managed by Arya Pratinidhi Sabha, Punjab as well as Arya Samaj Educational Trust of Delhi. If that be so, it was submitted, it was not open to the respondents to urge that the society was not already engaged in educational activities. The Pratinidhi Sabhas affiliated with the appellant-society were actively engaged in the promotion and dispensation of education. The appellant-society accordingly, it was submitted, should be held to be engaged in educatinal activities. It was further submitted that the meaning of the word 'institution' according to Shorter Oxford Dictionary (Vol. 1), 1961 Edition, is, 'An establishment, organisation, or association, instituted for the promotion of some object, esp. one of public utility, religious, charitable, educational etc.' The word 'Institution', it was contended, according to its definition in the aforesaid dictionary embraces ' religious institutions' being a purpose one of public utility.
(51) There appears to be force in the contention of the learned counsel for the society. It would be instructive here to note the decision in Royal Choral Society V. Commissioners of Inland Revenue (1943) 2 AII.E.R. 101 (14). In that case the income of the society was sought to be taxed on the plea that it was not a society 'established for charitable purposes only' and that its income was not 'exclusively applied for such purposes'. It may be noted that the object of the society was 'encouragement and advancement of choral singing'. The contention of the Inland Revenue Commissioner was that the real purpose of the society must be taken to be not one which was educational or otherwise charitable, but one which was of pure entertainment; the singers sing in order to have pleasure of singing. Lord Greene, M.R., dealing with the contention observed at page 104 that there was no flavour of commercial profit, or anything of that kind, about the society. So far as the choir was concerned, the object was held to be 'encouragement and advancement of choral singing'. Bearing in mind the nature of works and the medium through which they were performed it was observed that the object so far as the public was concerned, were educational. Accordingly it was observed at page 105 that, 'a body of persons established for the purpose of raising the artistic taste of the country and established by an appropriate document which confines them to that purpose; is established for educational purposes, because the education of artistic taste is one of the most important things in the development of a civilized human being'. Further, it was observed that, 'the fact that the performances are given to the public is not of such great importance, because the circumstances that the choir is being trained, that the training and practice of the choir is one of the principal objects, and in fact may be the primary object, of this society leads to the result that the public performance may be regarded as something which is a consequential and necessary part of the training; because you cannot train people satisfactorily if they do nothing but rehearse-they must perform'. The society was accordingly held to be engaged in rendering services of musical art and thus promoting the cause of aesthetic education.
(52) Reference may also be made to Trilochap Singh V. The Director, Small Industries Service Institute, : AIR1963Mad68 . That was a case of footwear training centre wherein technical training was imparted to the students in the manufacture of footwear. Dealing with the contention whether the imparting of technical training in the manufacture of footwear was an educational activity or not, a Division Bench of the Court observed at page 71, 'Education means a systematic instruction, schooling or training given to the young boys or even to adults in preparation for the work in life. It need not necessarily be confined to science and arts. Vocational training will be an educational training.' In that view of the matter the Central Footwear Training Centre which provided instructions for learning the craft or trade was held to be an educational institution.
(53) If the imparting of instruction for learning a craft or trade and activities of a society set up for rendering services to musical art were held to be educational activities, there is merit in the contention of the learned counsel for the appellant-society that in establishing a school for imparting training to the students for preparing a competent cadre of preachers of Vedic religion would be an educational activity. It need hardly be emphasized that one of the objects of the appellant-society is to make arrangements for dissemination of Vedic Dharma and by suitable means to prepare competent preachers of Vedic religion apart from establishing a missionary college of Vedic theology, if need be. It is no doubt true that in the petition the possession of the premises in question was specifically sought on the ground that the society wanted to set up a girls school but one cannot lose sight of the fact that at the same time the society claimed possession of the premises for furtherance of its activities. Shri Ram Gopal Shalwala secretary of the appellant-society has categorically stated in his statement that the society wants to set up a training centre for training students for dissemination of Vedic Dharma.
(54) It may also be stated here that the Tribunal has not discarded the statement of Shri Ram Gopal Shalwala secretary of the society being not a witness of truth but his statement regarding educational; activities of the society had been ignored in coming to the conclusion that the object for establishing a training centre to train competent preachers of Vedic religion for the dissemination of Vedic Dharma was not an educational activity.
(55) The learned counsel for the respondents placed strong reliance on an unreported judgment in Civil Revision No. 413 of 1953, J. N. Singh and Company v. Sardari Mal etc., decided by a Division Bench of the Punjab High Court on 2nd December, 1956 (16). In that case a trust was created for the purpose of a Jain Dharamsala or construction of Digambar Jain Boarding House. The landlord claimed eviction of the tenant in pursuance of the provisions of section 17 of the Delhi and Ajmer Rent Control Act, 1952, for the construction of Digambar Jain Boarding House. The Division Bench observed that the language of the section seemed to indicate that public institutions that can take advantage of the provisions of section 17 were those which fell within the definition there given, i.e., an educational institution, library, hospital and charitable dispensary. The Division Bench further observed that the establishment of a Jain Dharmsala was a charitable object but the establishment of a Digambar Jain Boarding House could not be said to be a charitable object.
(56) Reliance was next placed on Gulab Rai Kishori Lal v. Shri Benarsidas Chandiwala Sewa Smarak Trust, Delhi 1964 P.L.R. 731 (17) in which it was observed that the society before the institution of the suit must already be a public institution, i.e., which must be running a hospital or a library for extending the scope of which it required the premises. In other words, it was observed, the society must be an existing public institution and not an institution which wants to become an institution. Accordingly it was held that when the respondent-trust instituted the ejectment proceedings it was not a public institution within the meaning of section 17 of the Delhi and Ajmer Rent .Control Act, 1952.
(57) No assistance can be drawn by the respondents from the aforesaid two authorities. In J. N. Singh's case (supra) establishment of Jain Dharamsala was held to be a charitable object which fell within the ambit of public institution. If it is so, it is not possible for the respondents to urge that setting up of a training centre for preparing competent preachers of Vedic religion for the dissemination of Vedic Dharma would be an activity which would not bring the society within the ambit of a public institution. The competent cadre of trained preachers that the institution was to turn out would certainly be beneficial to the public at large in dissemination of Vedic Dharma and its precepts. It is in the evidence of Prem Chand, A.W. 3, and Shri Ram Gopal Shalwala, A.W. 5, that the State Pratinidhi Sabhas which are affiliated with the appellant-society are already running a number of educational institutions in Delhi. Apart from this, the society is maintaining an educational institution at Ranchi. If that be so, the ratio of Gulab Rai's Kishori Lal's case (supra) would not be applicable to the instant case as the society is an existing public institution and not an institution which wants to become a public institution because the appellant-society is already engaged in activities which conform to the definition of the word 'public institution' as set out in Explanationn to section 22 of the Act. Besides, the object of' training preachers for dissemination of Vedic Dharma would be closely akin to the institutions mentioned in the Explanationn to section 22 of the Act.
(58) In Municipal Corporation of Delhi v. Shri Badri, 1966 D.L.T. 294(18) it was observed that the local authorities who render educational and other instructions come within the purview of the provisions of section 17 of the Delhi and Ajmer Rent Control Act, 1952, and that the appellant being a public institution in ordinary parlante was held entitled to claim eviction of its tenants from the premises which were bona fide required for the expansion of the services that it rendered to the public by way of opening a child welfare centre or by starting a new school.
(59) The appellant-society is already running school at Ranchi, apart from the subordinate affiliated units of the Society running educational institutions at Delhi. But even if the Society wanted to expand its activities by starting a new School, the society, would be entitled to claim possession of the premises as per provisions of section 22 of the Act. Reliance next was placed by the learned counsel for the respondents on Siya Ram Gupta v. Shrimati Ganga Devi Jain Dharmarth Trust, Delhi and others 1960 Plr 904(19). In that case according to the trust, parts of the premises forming trust property occupied by the tenants were directed under the will of the donor creating the trust, to be used as a Dharamsala for Sadhus and Mahants. It was held that a charitable institution of the nature of the respondent- trust was not necessarily a 'public institution' within the meaning of section 17 of the Delhi and Ajmer Rent Control Act, .1952.
(60) The facts of the above-cited case are distinguishable from the facts of the instant case.
(61) It was next contended by the learned counsel for the respondents that according to the statement of A.W. I Shiv Chander, member of the society, previously the office of the Sabha was at Naya Bazar. The said office according to the said witness, was shifted to a building purchased by the society at Asaf Ali Road, where 1st and 2nd floors of the building were lying vacant. It was contended that the society could have very well started its proposed school in the portions which were lying vacant. It was further submitted that the present petition was motivated by a covteous desire on the part of. the society to extract more rent from the respondents. On the change of the management of the society every time. it was submitted, the new management demanded increase in rent. The respondents have been avoiding ejectment by appeasing the management by way of increase in rent. Now that the respondents could not comply with the unwarranted demand for increase in rent, the new management of the society had filed the present petition.
(62) There is no denying the fact that some increase in rent had taken place but that by itself would not be sufficient to negative the contention of the society that the premises in question are required for opening a school to train a competent cadre of preachers for dissemination of Vedic Dharma. Shri Ram Gopal Shalwala, A.W. 6 secretary of the society had categorically stated that the office of the society had been shifted from its building at Naya Bazar to Asaf Ali Road as the building at Naya Bazar has to be converted into a memorial in the memory of Swami Sradhanand in which buildmg he was stated to have been assassinated. It was further stated by him that large number of devotees and followers of Swami Sradhanand come to pay homage to his memory. Nothing has been brought on the record to rebut this assertion. The contention of the learned counsel for the respondents that the vacant portion of the building bought by the society at Asaf Ali Road was not availed of for opening the proposed school is without merit, as the office of the society which was housed in its building at Naya Bazar had been shifted to the vacant portion of that building.
(63) Lastly, it was contended by the learned counsel for the respondents that the petition for ejectment was filed on the positive ground of the society needing the same for running a girls school. In having given a go-by to the said claim and switching over to a new plea that the premises are required for opening the proposed training school and if the said contention of the society be accepted, it would amount to making out a new case for the society which was not made in its pleadings. Support for this contention was drawn from Sheodhari Rai and others v. Suraj Prasad Singh and others, : AIR1954SC758 .
(64) This contention of the learned counsel for the respondents is equally without merit. The society in its petition claiming possession of the premises apart from averring that the premises are required for opening a school for girls had also stated that the same were required for furtherance of its activities. From the objects of the society it is evident that one of the activities in which the society is engaged is to train a competent cadre of preachers for dissemination of Vedic Dharma. In the circumstances, if the society has succeeded in proving, which in my opinion it has, that the premises are required for opening a centre for training a competent cadre of preachers for dissemination of Vedic Dharma it cannot be said that in allowing the petition a new case would be made out by the Court which was not set up by the society in its pleadings.
(65) In view of my discussion on various points, noted above, the appeal succeeds. The order dated 27th January, 1968, passed by the Rent Control Tribunal, Delhi, is set aside. The petition is accordingly accepted. The respondents are allowed three months' time to place the petitioner-society in vacant possession of the premises in question. However, in the circumstances of the case, the parties are left to bear their respective costs.