JUDGMENT J.C. Gupta, J.
1. Heard petitioner's counsel. Shri Rajesh Tandon appears for caveator-respondent No. 2.
2. By means of this writ petition, the petitioner has challenged the order dated 25.8.1998 passed by the Rent Control and Eviction Officer 1st, Allahabad, whereby the accommodation in question has been declared vacant.
3. A perusal of the impugned order would indicate that the Rent Control and Eviction Officer under the deeming provision of Section 12 (3) of the U. P. Act No. XIII of 1972 has treated the accommodation in question as vacant. Section 12 (3) of the Act runs as follows :
"In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy :
Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date."
4. A perusal of the above provision would indicate that by a legal fiction, the tenant is deemed to have ceased to occupy the building under his tenancy if he or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate. By virtue of sub-section (4) of Section 12. such a building would be deemed to be vacant.
5. In the present case, it is an undisputed fact that the petitioner has acquired in a vacant state a residential building within the city of Allahabad. However, the tenant-petitioner asserted before the Rent Control and Eviction Officer that Section 12 (3) has no application since the tenanted accommodation is not a residential building and was being used by the petitioner for commercial purposes only. The Rent Control and Eviction Officer, however, has not accepted this assertion of the petitioner and on the other hand, has recorded a clear finding of fact that the dominant purpose of the building in question has been residential. While arriving at the said finding, the Rent Control and Eviction Officer has taken into consideration various circumstances and evidence including an important piece of evidence which is in the form of the own admission of the petitioner which he had made in the plaint filed by him in Suit No. 371 of 1998. In that plaint, the petitioner in clear and unequivocal terms admitted that in the disputed accommodation, he has been living with his son. his son's wife and children. An admission is the best piece of evidence against its maker and unless the same is satisfactorily explained it is of conclusive nature. It has been held by me in the case of Smt. Urmila Devi v. IInd A.D.J., Meerut, 1998 (2) ARC 6. that an admission ma.de by a party or his agent in earlier judicial proceedings is binding upon the party in subsequent proceedings and can be relied upon for proving the truth-incorporated therein and such an admission has the effect of shifting the onus of proving to the contrary on the party against whom it is produced and in the absence of a satisfactory explanation, it is presumed to be true. It is correct that before an admission can be acted upon as conclusive, it should be clear, definite and certain and not ambiguous, vague or confused.
6. In the present case also in judicial proceedings, which were initiated by the petitioner himself, he made a specific averment in the suit that in the disputed accommodation, he has been living with his son, daughter-in-law and children as a tenant for the last so many years and asked for an injunction restraining the landlords for evicting him forcibly from the accommodation in question. Learned counsel for the petitioner contended that the petitioner offered an explanation in the affidavit filed before the R. C. and E. O. wherein it was stated that it was on account of a mistake of the counsel that such an admission was made in the aforesaid suit. No affidavit of the counsel or any other document was filed before the Rent Control and Eviction Officer in support of the said explanation. It is not conceivable that a counsel would have Incorporated a fact without any instructions from the party. It was not a pleading depending upon a view of law but it was a specific fact which was pleaded in the plaint and had the petitioner been using the accommodation in question exclusively for commercial purposes, such a fact would never have found place in the plaint filed by him. The explanation thus offered by the plaintiff on its face value was unsatisfactory and not acceptable. Besides the aforesaid admission, the Rent Control and Eviction Officer has also placed reliance on other evidence. A Ration Card of the landlord also existed from this house and if the petitioner was not living in the accommodation in question how this Ration Card came into existence has also not been satisfactorily explained. It has been held in the case of Ganga Ram and others v. State of U. P. and others, 1978 ARC 369. that even where a portion of a residential house Is used as a shop, that would not convert the building into something different from a residential house. What is in fact required to be seen in such a case is the dominant purpose for which the house is used. It is well known that lawyers, doctors quite often have their chambers or consulting rooms within their residential houses but that fact would itself not convert their residential houses into commercial houses. It may be that the petitioner may be carrying on business from part of the accommodation but it is only the dominant purpose which is to be seen and as per the finding of the Rent Control and Eviction Officer, the dominant purpose of the accommodation has been residential. This finding of the Rent Control and Eviction Officer is based on appraisal of evidence and this Court normally does not interfere in such matters. The provisions of sub-section (3) of Section 12 were thus fully attracted to the facts of the present case and a deemed vacancy stood created under Section 12 (3) read with Section 12 (4) of the Act. Therefore, no intervention of this Court is required In the order of the Rent Control and Eviction Officer.
7. For the above reasons, this writ petition is dismissed in limine.
8. Learned counsel for the petitioner at this stage submitted that a reasonable time may be allowed to the petitioner to vacate the premises and for that matter the petitioner Is prepared to file an undertaking before the Rent Control and Eviction Officer. In the circumstances the petitioner Is allowed time upto 31.12.1998 to vacate the accommodation in question and upto that period the petitioner shall not be dispossessed in pursuance of any final order which may be passed in proceedings under Section 16 of the Act. provided the petitioner files an undertaking within a period of three weeks from today before the Rent Control and Eviction Officer to the effect that he shall vacate the accommodation in question on or before 31.12.1998 and handover its vacant possession to the person in whose favour final order of release/allotment is made under Section 16 of the Act and if no such order is made by that date then to the landlord, without Inducting any third person therein. In the event of no such undertaking being filed within the aforesaid period, the order extending time for delivery of possession shall remain automatically vacated.