JUDGMENT
Sunanda Bhandare, J.
(1) Professor Hakim Mohd. Mazhar-uddin Ajmali, a Professor of Diagnosis in the Ayurvedic and Unani Tibbia College -and also Principal Jamia Tibbia, Delhi took on rent in the year 1940 a portion of the premises in a-double storeyed property bearing No. 7167-7169 situated at Beri Wala Bagh, Near Pul Bangash, Azad Market, Delhi-110006 from a family which migrated to Pakistan during the partition of the country. After the migration of this family, the property was declared as evacuee property and Professor Hakim Mohd. Mazhar-uddin Ajmali became a tenant under the custodian. Later on, this property was purchased by one Jeevan Dass from the Custodian of the evacuee property. Since the property was on two floors and there were two tenancies in respect of these two floors, Jeevan Dass instituted two suits for eviction against Professor Hakim Mohd. Mazharuddin Ajmali on the ground of sub-letting and also on the ground that he had acquired another accommodation for his residence. Though there were two suits for eviction, the Additional Rent Controller by a consolidated order dated 4/3/1964 dismissed these suits finding that since the premises were being used by Professor Hakim Mohd. Mazhar-uddin Ajmali for a Dawakhana, the tenancy was for a composite purpose and, therefore. Section 14(1)(h) of the Delhi Rent Control Act was not available and though the premises were sub-let to the petitioner and his parents by Professor Hakim Mohd. Mazhar-uddin Ajmali and since the assignment had taken place prior to 1948 the ground of sub-letting was not available to the landlord.
(2) In 1967 Jeevan Dass sold the property to Shri Panju Mal and Shri Vasdev sons of Shri Kuttu Mal. panju Mal issued rent receipts to the petitioner. In October 1972 Panju Mal and Vasdev sold the property to the present respondents and gave vacant possession of the first floor to the respondents. On 14th October 1980 the respondents herein, instituted an eviction petition against the petitioner on the ground of bona fide personal requirement alleging that the premises in their possession were not sufficient for their family which consisted of the two respondents and their respective wives, a child of respondent No. 2 and a married daughter of respondent no. I and they being men of status, running hardware business, needed the premises in occupation of the petitioner for their own bona fide personal use. It was also urged that the wife of respondent no. I had developed a chronic sort of Asthama due to which she was unable to climb stairs and, therefore, she required the ground floor which was in possession of the petitioner. The petitioner sought leave to defend the suit inter alia alleging that Professor Hakim Mohd. Mazhar-uddin Ajmali continued to be the tenant though the rent receipts were issued in the name of the petitioner for the sake of convenience by the landlord. Secondly, the finding of the composite purpose in the previous suit filed by Jeevan Dass disentitled the respondents to file the suit and lastly the respondents did not need the premises for bona fide personal need as alleged. The Rent Controller granted leave to defend to the petitioner, however allowed the eviction petition filed by the respondents and held that : (1) the letting purpose of the premises was purely for residence; and (2) in view of the illness of the wife of respondent no. 2, respondents needed the premises for their bona fide personal use. It is this order of the Additional Rent Controller dated 22/4/1985 which has been challenged by the petitioner in this revision petition under Section 25B(8) of the Delhi Rent Control Act.
(3) In this Court though the main challenge was to the finding regarding letting purpose, learned counsel for the petitioner also disputed the bona fide need of the landlord. It was contended by the learned counsel that since in a previous litigation between Jeevan Dass and Prof. Hakim Mohd. Mazhar- uddin Ajmali, brother of the petitioner, it was held that the purpose of letting was composite, it was not open to the respondents to allege that the letting purpose was purely residential. He, therefore, relied on the judgment of the Additional Rent Controller in Jeevan Dass. v. Hakim Mohd. Mazhar-uddin Ajmali. It was further contended that purpose of letting has to be seen and not the user and thus even if it is found that because of the employment of the petitioner with Indian Airlines he was not using the said premises for commercial purpose, eviction on the ground of bona fide personal need could not be ordered.
(4) It was not disputed by the respondents that in the previous judgment in the case of Jeevan Dass v. Hakim Mohd. Mazhar-uddin Ajmali, the then Additional Rent Controller had held that the premises were being used for composite purposes and that the petitioner was held to be a sub-tenant of Prof. Hakim Mohd. Mazhar-uddin Ajmali. However, it was contended that when the present respondents bought the premises from Panju Mal, the purpose of letting was changed and a letter of attornment was given by Panju Mal to the petitioner wherein it was specifically mentioned that the premises were being used by the petitioner for residential purpose only. This letter of attornment was signed by the petitioner and he did not raise any objection to this till the eviction petition was filed. Learned counsel also referred to the sale deed entered into between the respondents and Panju Mal which specifically indicated that the premises in possession of the petitioner were being used by the petitioner for purely residential purposes. Emphasis was also laid on the fact that the petitioner is an employee of Indian Airlines since 1956 and as. such he was specifically barred from engaging himself in any other activity for profit and as such he was not practicing as a Hakim and, therefore, in fact also the premises were not being used for commercial purposes.
(5) Though the jurisdiction of this Court under Section 25B(8) of the Delhi Rent Control Act is limited, in order to ascertain whether the decision of the Add). Rent Controller is according to law and the finding is not contrary to evidence, with the assistance of the counsel the record was perused. Learned counsel for the parties referred to the relevant evidence and particularly to the previous judgment of the Additional Rent Controller in the case of Jeevan Dass v. Prof. Hakim Mohd. Mazhar-uddin Ajmali and the letter of attornment on which great stress was laid by the respondents on the first question and the statement of Awi Ashok Kumar, AW5 Dr. Shiv Nath Singh and Ext. AWI/9 which is the certificate of the doctor and statement of the petitioner on the second question.
(6) No doubt for deciding whether the premises were given for a composite purpose, purpose of letting has to be seen and not the user. Thus what has to be seen is whether the purpose of letting was composite or for residence only. On perusal of the judgment in the case of Jeevan Dass v. Hakim Mohd. Mazhar-uddin Ajmali, I find that the Additional Rent Controller has held that the premises were let out to Prof. Hakim Mohd. Mazhar-uddin Ajmali for a composite purpose and the ground under Section 14(1)(h) of the Delhi Rent Control Act was not available to the landlord. In the same judgment, the further finding is that since the assignment to the present petitioner was before 1948 he was a lawful sub-tenant. This finding has not been disputed by the respondents in this Court. But what is contended is that the letting purpose changed at a subsequent date when the petitioner became a tenant under Panju Mal or thereafter when the property was purchased by the present respondents. In support of this proposition, emphasis was laid on the sale deed and the letter of attornment.
(7) Attornment by a tenant does not change the nature of the contract but since the letter of attornment in the present case specifically mentions that the premises were let out to the petitioner for residential purposes coupled with the fact that the petitioner has claimed tenancy in his own right as a tenant and not as a sub-tenant of Prof. Hakim Mohd. Mazhar-uddin Ajmali goes a long way in proving that in fact the purpose of letting had changed when the new landlord purchased the property from Jeevan Dass. The petitioner tried to explain away his signatures on the letter of attornment by saying that it was obtained when he was in hurry leaving for his office. This explanation does not impress me because there is nothing on record to show that the petitioner at any later stage took steps to ensure that the mistake in signing this letter of attornment in hurry was cured in any manner. I also find that there is enough evidence to show that the letting purpose was changed at a subsequent stage. The petitioner himself in his statement has asserted that he alone was the tenant. Though in the case of Jeevan Dass v. Prof. Hakim Mohd. Mazhar-uddin Ajmali it is held that the petitioner was a lawful sub-tenant of Prof. Hakim Mohd. Mazhar-uddin Ajmali, the petitioner in his written statement claims a tenancy in his own right. This indicates that at some subsequent stage the previous landlord accepted the petitioner as atenant. The petitioner having been employed with Indian Airlines since 1956 probably did not object to the tenancy being only for residence. The rent receipt Ext. A3 also indicates that though previously there were tenancies, later on the petitioner paid consolidated rent and accepted one receipt for both the premises. In my opinion, therefore, the learned Additional Rent Controller rightly held that the finding of the court in the case of Jeevan Dass v. Prof. Hakim Mohd. Mazhar-uddin Ajmali was irrelevant.
(8) Now coming to the second question. The Additional Rent Controller has held that the premises were needed by the respondents for their bona fide personal use because of the illness of the mother of respondent no. 2. Great stress was laid on the fact that this lady was not examined and also on the medical certificate. Learned counsel for the petitioner tried to point out some discrepancies between the pleadings and the statement of AW1 Ashok Kumar regarding the nature of illness of his mother. Learned counsel for the petitioner attacked the certificate given by Dr. Shiv Nath Singh on the ground that though the certificate indicates that the clinic of Dr. Shiv Nath Singh was situated at Sadar Bazar, in his statement. Dr. Shiv Nath Singh has stated that he lives in Green Park and, therefore, his deposition should be disregarded. He also referred to the statement of Awi Ashok Kumar made on oath to show that the wife of respondent no. I and the mother of respondent no. 2 was in good health and since he stayed in the same building, he could see this lady doing all her household works without difficulty. It was submitted that though Dr. Shiv Nath Singh had given the certificate that the wife of respondent no. 1 was suffering from chronic sort of Asthama, she did not require the premises on ground floor. A particular emphasis was laid on the fact that neither respondent no. 1 nor his wife came in the witness box and, therefore, the evidence of respondent no. 2 had to be disregarded and the certificate given by Dr. Shiv Nath Singh remained uncorroborated.
(9) I do not think the discrepancies pointed out by the learned counsel for’ the petitioner in the certificate can in any way improve his case because these discrepancies are of a very minor nature. Moreover, no question in this regard was put to Dr. Shiv Nath Singh in the cross-examination. This witness has categorically stated that it would be advisable for the lady to live on the ground floor. Moreover, the fact that she is aged is not denied by the petitioner. I also find no force in the contention that because respondent no. 1 and his wife were not examined the evidence of respondent no. 2 has to be disregarded. Respondent no. 2 is the son of respondent no. 1 and the lady is his mother. He would thus equally be aware of the health of his mother. Since the doctor was also examined no further corroboration was necessary. It cannot, therefore, be said that the finding of the court below regarding bona fide need of the respondents is perverse.
(10) In the result, the petitioner fails and is dismissed. However, since the petitioner has been residing in the premises for long number of years, he is given six months time to vacate the premises. No Costs.