JUDGMENT
Sultan Singh, J.
(1) This revision petition by the tenant under Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter called ‘the Act’) is directed against the order dated November 25, 1980 of the Additional Controller refusing him leave to contest the eviction application and passing an order of eviction.
(2) The respondent is owner-landlord of a bunglow No. C-22, West End Colony, Rao Tula Ram Marg, New Delhi. He let out the ground floor with motor garage and servant quarter of the said property to the petitioner, on a monthly rent of Rs. 2,000.00, with effect from January 1, 1975 for a period of two years with option to extend for another two terms of one year each. The respondent on January 8, 1980 filed the eviction petition against the petitioner under Section 14(1)(e) read with Section 25B of the Act for its eviction. The respondent alleges that he was in Government (Army) service, living at F-l/10, (first floor) Hauz Khas Enclave, New Delhi, consisting of the living room, dinning room, kitchen, three bed rooms with attached bath rooms. Verandah, servant’s accomodation, W.C.-cum-bath room, terrace and a parking place for motor car, that for personal reasons he sought premature retirement and retired from Army service with effect from July 1, 3975. He also alleges that in ordinary course he would have retired on July 31, 1976 and was eligible for extension of service for a period of another three years and that on retirement he was to vacate government accomodation. He claims eviction of the petitioner alleging that he is the owner of the premises, which were let for residence, that he requires the same as residence for himself and members of his family dependent upon him and that he has no other reasonably suitable residential accomodation. He states that his family consists of his wife, two grown up sons aged 22 years and 16 years and one married daughter, who visits him from time to time and stays with her parents and that the elder son is an Articled Clerk in the firm of Chartered Accountants, and the younger son is a student in school, who need independent rooms. The respondent further alleges that after retirement he Along with his family shifted to D-35 Nizamuddin East, New Delhi, a house belonging to his brother Madan Mohan Lal and his sister Smt. Prem Lal and that his brother and sister Along with two other family members have been living at D-35, Nizamuddin East, New Delhi He further alleges that the house at D-35, is a small house built on a plot of land measuring 200 square yards, that he was living there at sufferance and has no legal right to live there and even otherwise there is not enough accomodation and the owners of D-35 want more accomodation for themselves. The respondent pleads that he sent a letter dated November 28, 1978 to the petitioner company requiring it to vacate and the company vide letter dated January 1, 1979 informed that it would vacate the same as soon as another suitable accomodation for the residence of its Executive Director became available. The petition was tried under the summary procedure contained in Chapter III-A of the Act. The petitioner filed an application for leave to contest the eviction application. The Additional Controller finding that the affidavit seeking leave to contest did not disclose any fact which would non suit the landlord, dismissed its application and passed the order of eviction. Hence this revision petition.
(3) The learned counsel for the petitioner submits that it is entitled to leave to defend. Section 14(l)(c) of the Act reads as under : “S. 14(1) : Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely : (a) * * * * * (b) * * * * * (c) * * * * * (d) * * * * * (e) that the premises let for residential purposes required are bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accomodation; Explanation : For the purpose of this clause, “premises let for residential purposes” include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes”. In order to obtain an order for recovery of possession on the ground of bona fide requirement a landlord has to prove the following ingredients : (1) that he is the owner-landlord of the premises; (2) that the premises were let for residential purposes; (3) that the premises are bona fide required by him for occupation as residence for himself or for members of his family dependent upon him; (4) that he has no other reasonably suitable residential accomodation.
(4) It is not disputed that the respondent is the owner-landlord and the premises were let for residential purposes. It is also not disputed that the family of the respondent consists of himself, his wife, two sons aged 22 and 16 years and one married daughter. The learned counsel for the petitioner however submits that the respondent does not bona fide require the premises for residence and that he has other reasonably suitable residential accomodation. Thus, it is to be seen whether the petitioner tenant has made allegations in his affidavit for leave entitling him to contest the eviction application.
(5) The petitioner in his affidavit alleges that the respondent is the owner of the property at D-35, Nizamuddin East, New Delhi, where he is in possession of 5/6 rooms, that he has been residing there in his own right, that his brother and sister are only benamidars. The respondent in his eviction application as already stated, pleaded that his brother and sister were the owners of the house at D-35, Nizamuddin East. He placed on record certified copy of the lease deed dated December 14, 1959 relating to D-35, Nizamuddin East, New Delhi executed between the President of India and Mrs. Prem Lal and Madan Mohan Lal, sister and brother of the respondent. Thus, this house belongs to the brother and sister of the respondent. Mere allegation by the petitioner that the respondent is the real owner, that his brother and sister are only benamidars does not entitle the petitioner to seek leave to defend. From the lease deed referred to above ownership of the respondent’s brother and sister stands established. The respondent does not claim any ownership right in the house at D-35 Nizamuddin East, New Delhi. The petitioner tenant it seems has no locus standi to raise the plea that the person in whose favor the lease deed exists is benamidar. A person, not being a party to a transfer deed, has no locus standi to raise such a plea. In Ramasamy Chettiar v. Adikhammai, , it has been held that tthird person is not entitled to question the title of the benamidar, when there is no controversy between the alleged owner and the benamidar. The respondent does not claim any ownership rights and therefore there is no dispute between him and his brother and sister and as such the I petitioner cannot be allowed to raise such a plea. In Takhat Singh v. Prem Chand and another, , it has been similarly held that a person not being a party to a transfer deed has no locus standi to raise a plea that the person in whose favor the transfer deed exists is benamidar. In Sree, Meenakshi Mills Ltd., Madurai v. Commissioner of Income-tax, (67), it has been held that the question regarding benami transaction “could arise only between a party to a deed and another who is go nomine not a party to it but claims to be beneficially entitled to properties conveyed by the deed”. Thus I hold that the petitioner is not entitled to raise the question that the brother and sister of the respondent are benamidars and respondent is the owner of the property D-35, Nizamuddin East, New Delhi. Further this house exists on a plot of land measuring 200 square yards. Its ground floor consists of two bed rooms measuring 9′ x 11′, one drawing- dinning room besides bath and kitchen and similar accomodation exists on the first floor. There is also a barsati on the second floor. The petitioner lias not challenged the allegations of the respondent that his brother and sister Along with two other family members live’ in the said house. The petitioner however alleges that his brother Madan Mohan Lal appeared as a witness in a case where he gave his address as Amba Bhawan, Hoshiarpur.’ The respondent in reply submits that his brother used to be at Hoshiarpur till the end of 1978, that he used to come to Delhi off and on and was staying at D-35, Nizamuddin East, that since January 1979 he has permanently shifted to Delhi and has been residing in the said house. The petitioner in his affidavit does not allege that respondent’s brother is not living at D-35, Nizamuddin East as alleged by the respondent in his eviction application. Thus, I hold that there is no challenge by the petitioner to the allegations of the respondent about the occupation of D-35, Nizamuddin East, New Delhi by his brother, sister and two other family members. The respondent no doubt has been residing there at present but he submits that the accomodation in the said house where other family members have been residing, is not even sufficient. Moreover the respondent Submits that he has no legal right to continue to occupy the accomodation at D-35, Nizamuddin East. The learned counsel for the petitioner on the other hand submits that as the respondent has been residing at D-35, Nizamuddin East, he should be deemed to be having a reasonably suitable residential accomodation within the meaning of Section 14(1)(e) of the Act. I do not agree. The Supreme Court in Phiroze Bemanji Desai v. Chandrnkmt M. Patel and others, has held that if a person is in occupation of the other premises on leave and license, they are obviously not available to the landlord for occupation and cannot be taken into account for negativing the need of the landlord for the premises in question. Further the phrase landlord does not have other reasonably suitable residential accomodation’ as used in Section 14(1)(e) of the Act implies that the landlord must have a legal right to reside in the said accomodation and that the same must be suitable for him. (Sec : Smt. Basi Devi, v. Faqir Chand, (1971) 73 P.L.R. (Delhi Section) 19. In Shri Parkash Chandra v. Shii Nirpendra Kumar Aggarwal, (1971) Rcj 474 it has been held that if a landlord (son) has no right to stay in the house of his father he has no suitable accomodation for his own use. I am, there fore of the view that if a landlord has no legal right to keep the existing premises in his possission, it cannot be said that he has got suitable accomodation for his residence. The learned counsel for the petitioner further submits that the respondent did not disclose the existing accomodation in his occupation in the said property. It is immaterial. The respondent has pleaded that he has been residing at D-35, Nizamuddin East but he has no legal right to reside there. This is sufficient pleading.
(6) The next objection raised by the petitioner is that the respondent landlord is the owner of the property at D-35A, Nizamuddin East, New Delhi. This plea on the face of it is insufficient. It is not disputed by the petitioner that no portion of that house is or was lying vacant at any time. The respondent submits that the said property was owned by his mother and after her death the property was inherited by her three sons including himself and two daughters. He says that he is the owner of only l/5th undivided share. He has placed on record certified copy of the lease deed dated June 4, 1960 relating to the plot D-35A, Nizamuddin East New Delhi showing that the plot was owned by Smt. Tara Hari Kishan Lal, i e. mother of the respondent. It is also admitted now that the respondent had filed petition against one of the tenants in that property on ground of non payment of rent in 1971 wherein order under Section 15(1) of the Act was passed and the tenant had complied with the same. Under these circumstances it is submitted on behalf of the respondent that no portion of that property is vacant. Thus, I am of the view that the petitioner has not been able to make out any case for the grant of leave to contest on the ground that the respondent is the owner of a portion of property at D-35A, Nizamuddin East, New Delhi when no portion of it is lying vacant.
(7) Next it is contended that the premises were let with effect from January 1, 1975 and the eviction petition was filed in January 1980 and there has been no change in the circumstances and therefore the respondent is not entitled to an order for recovery of possession. The premises were let six years before. The two sons have grown up, one son of the respondent is an Articled Clerk and is preparing for the examination of the Institute of Chartcred Accountants. The respondent has also retired from Army service after letting of the premises. As already stated the premises were let initially for two years with option to renew the lease for another two years. More than four years have expire since the date of letting. There is thus change of circumstances.
(8) Next it is contended that the present eviction application has been filed with a view to increase the rent or with a view to re-let at higher rent. This plea appears to be an afterthought. The respondent sent a letter dated November 22, 1978 stating that he has retired and he needed premises for his occupation and requested the petitioner to vacate the same. The petitioner in reply dated January 4, 1979 raised no objection of any nature whatsoever but replied that the premises would be vacated as and when suitable accomodation for the residence of the Executive Director became available to it. Further it appears to me that if after getting the premises vacated the respondent ‘lets out the same within a period of three years of his occupation, the petitioner can take proceedings for restitution under Section 19 of the Act. As already stated no allegation was made by the petitioner tenant in its reply to the said letter that the respondent wanted to enhance the rent of the suit premises.
(9) Next it is contended that the respondent is not in a position to keep the premises with him after getting the same vacated. It is alleged that the respondent’s pension is about Rs. 600.00 – 700.00, per month, and the rental income from the suit premises is his source of livelihood and therefore he would relet the premises. The respondent in reply submits that he retired as Lt., Col., getting a pension of Rs. 975.00, per month including dearness allowance. The dearness allowance has since been raised by Rs. 50.00 per month, that he has his income from l/5th share in the property at D-35A, Nizamuddin East, New Delhi, that he has other investments in addition to provident fund. He further says that his son would be a Chartered Accountant shortly. Under these circumstances it cannot be held that the respondent landlord would not be in a position to occupy the premises in suit. In any case I am of the view that if a landlord has no residential accomodation for his residence, he has to reside in his own house or he has to take some premises on rent. If the respondent does not reside in the suit premises after vacation and occupies another premises the petitioner tenant can seek his remedy under Section 19 of the Act. Such a plea does not entitle the petitioner to obtain leave to defend. 10. Next it is contended that the premature retirement was sanctioned on February 5, 1975 while the premises were let on January 1, 1975, that the respondent landlord was aware that he was to retire shortly but he let out the premises inspite of that knowledge. It is submitted that the respondent knowing his requirement after retirement let out the premises with effect from January 1, 1975 and therefore he cannot claim eviction under Section 14(1)(e) of the Act. The respondent in his application for eviction has pleaded that in ordinary course he was to retire on July 31, 1976 and was eligible for extension of service for a period of three years but on account of personal reasons he sought premature retirement which was sanctioned on February 5, 1975. The eviction petition as already stated was filed in January 1980. It was known at the time of letting that the respondent was to retire in July 1976. The contention is that the respondent has not disclosed the date when he made application for premature retirement. To my mind it is immaterial. He might have made the application before letting but no body can be certain that premature retirement would be sanctioned. Moreover the letter sanctioning premature retirement states that he would be liable to be recalled to Army service up to July 31, 1976. The respondent was in occupation of government accomodation when the premises were let. He was of the view that he would retire in ordinary course in July 1976. The learned counsel for the petitioner relics upon Shri Iqbal Chand v. Smt. Kam Kaur, 1978(1) Rlr 496, Freddy Fernades v. P. L. Mehra, 1973 Rgr 53, Delhi Cloth & General Mills v, T S. Bhatia, 1977 Raj. L.R. 153. In Iqbal Chand v. Smt. Rum Kaur, (supra) the landlady was in occupation of the house, and thereafter she deliberately shifted to an unsuitable accomodation and let out the premises. Subsequently she pleaded that the premises where she had shifted were unsuitable and sought eviction from the premises where she was previously residing. This Court in the facts and circumstances of that case set aside the order of eviction and remanded the case for trial in accordance with law. In Freddy Fernandes v. P. L. Mehra, (supra) the landlord had let out the premises which were available to him for his occupation and it was held that he cannot be allowed to say that he did not have reasonably suitable residential alternative accomodation when by his own conduct he had let out the premises which were available to him. In D. C. M. v. T. S. Bhatia, (supra) there were pleas of want of bona fides and availability of sufficient accomodation to the landlord and therefore leave to defend was granted. In the instant case before me no such plea is available to the tenant petitioner. I am of the view that the three cases relied upon by the learned counsel for the petitioner are not at all applicable to the facts of the present case.
(10) Lastly it is contended that the allegations made by the landlord in his reply to the application for leave to defend cannot be looked into for determining whether the petitioner is entitled to leave to defend. He relies upon J. Mahajan v. Smt. Lilu Wati Kapoor, 1980(1) Rcj 264. In that case disputed question of facts arose between the parties and therefore leave to defend was granted. The material facts pleaded by the respondent in his application for recovery of possession have not been challenged by the tenant petitioner in its affidavit for leave to defend and therefore, I am of the considered view that the petitioner is not entitled to leave to defend. There is no infirmity the impugned judgment and order of the Additional Controller. The same is in accordance with law. The revision petition is therefore dismissed with no order as to costs.
