JUDGMENT
K.S. Bhat, J.
(1) The landlord is the petitioner. He sought eviction of the tenant under Section 14(l)(e) of the Delhi Rent Control Act, 1958 (here inafter called the Act) on the ground that he requires additional accommodation and therefore his requirement is a bonafide requirement.
(2) As usual the respondent tenant opposed the prayer. The Trial Court has accepted the contention of the respondent resulting in the dismissal of the eviction petition. Hence this revision petition.
(3) A few facts are to be noted here. The landlord is also residing in the same building and according to the landlord he is inoccupation of three rooms only. The finding is that his family consists of himself, his wife, 2 major sons, out of whom one was married already and a grown updaughter. The tenanted premises consist of two rooms and there are six members in the family of the tenant. Interview of the growth of the children and the need to provide proper accommodation to all the members the landlord sought eviction of the respondent.The landlord also pleaded that his parents are old and they have come to reside with him, and that he has 5 married sisters who frequently visit him.
(4) In the course of the proceedings admittedly the mother died. However, there is a dispute whether the father is residing with the landlord or not. According to the respondent, the landlord’s father is residing in Kaithal.Haryana.The Trial Court has accepted this assertion of the tenant. The respondent also contended that his wife has been carrying on business in one of the rooms and the lease was taken not only for residential purpose but also for commercial purpose. The Trial Court has accepted the plea of the respondent. Thus on both counts as to the nature of the tenancy and the requirement of the landlord, petitioner was no suited . Primarily two questions arise for consideration in this revision petition – (1) whether the premises was let for residential and commercial purposes or not; and (2) whether the petitioner has made out a case that his requirement is a bonafide requirement under Section 14(l)(e) of the Act.
(5) According to the respondent as R.W. 5 the tenancy came into being in the year 1966 and initially his wife carried on some business in Chemicals under the name and style of Jyoti Sales Corporation. This style was altered in March, 1975 and the new concern was referred as Sandeep and Company. The respondent contended that his wife Smt. Saroj Jain is a co-tenant and should have been imp leaded.
(6) Admittedly there is no written lease deed. In the Eviction Petition the petitioner has stated that the premises are residential and the respondent and his family members are residing in thesame(videClauses4&:5oftheform). There is no dispute that the tenancy premises consist of two rooms and one kitchen. The respondent as R.W. 5 has admitted that there are 6 members in his family. The respondent is employed in a private company. The respondent has produced certain documents to show that his wife has been carrying on business at the address of the premises. But all these documents arc of the years subsequent to the issuance of notice by the petitioner on 15.5.1972, (Er. R.W. 5/1). In this notice the petitioner had asserted that the respondent was misusing the premises by using the premises for purposes other than it was let out. There is nothing on record to indicate that the respondent sent any reply to this notice asserting that the premises was let out not only for residential purpose but also for commercial purposes. The report of the Sales Tax Officer also indicates that the address of the business of the respondent’s wife was different from the premises inquestion. Though the respondent was able to point out from the Income Tax proceedings and a few other documents that atleast after the year 1975 the respondent’s wife was showing the address of the premises in question as the address of her business concern. The fact that the tenant has been using the premises for commercIAL purposes by itself is not conclusive to show that the premises was let out for commercial purposes. There should be sufficient evidence to hold that the premises was let for commercial purpose or atleast let for residential and commercial purposes. The intention of the landlord and that of the tenant at the time of the grant of the lease has to be proved for this purpose. There is absolutely no evidence adduced by the respondent in the instant case to show that at the time the premises was let out to him it was agreed that the leased premises could be used for commercial purposes also. It is also relevant in this connection to note that in May, 1972 the petitioner had issued a notice. Thereafter he had filed an eviction petition against the respondent. But he could not pursue the eviction petition for technical reasons. He had to withdraw the eviction petition. In the eviction petition itself the petitioner has pointed out this aspect and the respondent in the written statement has nowhere denied this assertion of the landlord that an eviction petition has been filed earlier which came to be with drawn in view of the technical defect. Admittedly dispute arose between the parties atleast from the date of issuance of the notice and in the absence of any evidence, that from the very ‘inception of the tenancy the premises were being used for commercial purposes, it is not possible to hold that the letting was for commercial purposes also.
(7) I am of the view that the Trial Court misdirected itself in holding that the purpose of the lease included commercial purpose also, from the fact that the wife of the respondent has been carrying on some kind of business in a part of the premises.
(8) The respondent has examined a few witnesses but none of them spoke to the carrying of the business by the wife of the respondent from the date of the inception of tenancy. The nature of the business spoken to by R.W. 4 is that the wife of the respondent was selling Soda, Soap etc. It may be that the respondent’s wife was dealing in some household articles casually, even though she had another business premises.
(9) Learned Counsel for the respondent contended that the finding as to the nature of the tenancy is purely a question of fact and this Court cannot interfere with the same.
(10) It is true that the scope of the revision is quite limited. Under Section 25-B(8) of the Act the Court shall have to be satisfied that the order made by the Controller is according to law or not. The entire decision of the Controller shall have to be examined to see whether it is according to law or not. In the instant case the finding of the Controller is the result of the application of a wrong test altogether. The Controller has inferred the nature of the tenancy from the alleged activities carried on in the premises, ignoring the real test. The Controller should have examined whether the premises was in fact let for commercial purposes also. In othe’r words, he should have also seen whether the material on record discloses that the landlord had agreed with the tenant while letting out the premises, that the premises could be used for commercial purpose in addition to the residential purposes. When the initial approach of the Controller itself is erroneous, it is likely to affect the appreciation of the evidence as happened in the instant case.
(11) As regards the other contention the learned Rent Controller has held that the landlord has not proved that his parents are residing with him, because the father of the petitioner owned property elsewhere and admittedly he was carrying on business in the said place called Kaithal.According to the petitioner, due told age his parents shifted to Delhi. I do not think this has much bearing on the ultimate issue, because even the Trial Court has given the finding that the family of the petitioner consists of himself, his wife, two sons, one daughter in law and one daughter. The number of rooms available to the landlord is only 3 and naturally one room will be occupied by the landlord and his wife and another by his married son. The grown up daughter was studying in College & there is the other grown up son; normally both would require independent rooms. This apart, admittedly the petitioner has five married sisters. They may not be residing with him but the realities cannot be ignored by the Courts. They will be visiting the petitioner frequently, at least during festivals and vacations, especially because the premises is in New Delhi. Having regard to the number of members in the petitioner’s family and the likely guests he will be having it is impossible to hold that his requirement lacks bonafides.
(12) The learned Counsel for the respondent again contended the whether the requirement is bonafide or not is a question of fact and this Court cannot interfere with the finding of the Trial Court. I am of the view that the conclusion arrived at by the Trial Court is a conclusion which is impossible to arrive at reasonably. The Court also cannot ignore the fact that the grown up children require independent rooms for their study and living and there is nothing unreasonable in the petitioner’s desire to provide them with independent rooms. The learned Counsel for the respondent is certainly right when he contends that this Court can not interfere with the finding of fact. The learned Counsel also is justified in pointing out that the entire decision shall have to be examined to see whether it is according to law, vide Hari Shankar and 0thers v. Rao Girdhari Lal Chandhary Air 1963 Sc 698 (Paras 8 & 9). The finding of the Trial Court is also based on the observation that the landlord should have produced the site plan of the construction raised by him on the first floor. I do not find any relevancy of this requirement. The respondent also had add need evidence and the Court shall have to examine the question raised before it with reference to the evidence adduced before the Court by both the parties. Nothing prevented the respondent to have the site plan produced if actually it has any bearing on the case. No adverse inference could have been drawn against the petitioner only because such a site plan was not produced. The Trial Court further observed that the petitioner failed to show that portions marked as D & E arc occupied by Munish Kumar and that the respondent has denied the assertion of the petitioner that these portions are under occupation of a tenant. Trial Court points out that the petitioner should have produced Munish Kumar in the witness box.
(13) Nothing prevented the respondent from producing the Voter’s which would have conclusively shown that Munish Kumar was not residing in a part of the building. Witnesses were examined by the respondent. I do not find any statement made by these witnesses speaking to the factum of the petitioner having other rooms available to him. When the respondent asserts that landlord is in possession of a larger extent than stated by the landlord, it is for the respondent to prove this fact.
(14) The approach of the Trial Court was throughout erroneous in the instant case. In para 7 of the judgment the learned Rent Controller stated that “the petitioner after giving the notice in the month of May, 1972 did not initiate any proceedings until 23.9.1977 i.e. the present proceedings”. This is admittedly a wrong statement of fact. Even R.W. 5, the respondent, does not say so. I have already noted that the petitioner has specifically asserted in the eviction petition that he had filed an eviction petition earlier but the same could not be proceeded with due to technical objections regarding notice.
(15) The respondent as R.W. 5 could have been more specific if actually the petitioner had in his possession any other premises. The oral evidence in this regard is quite vague. A mere assertion cannot by itself shift the burden of proof on the landlord especially when both the parties have led evidence, as already observed by me.
(16) There is a vague suggestion in the order of the Controller that the petitioner had tried to increase the rent earlier and therefore, his present claim lacks bonafides. It is impossible to infer any such lack of bonafides, because at one stage the petitioner seems to have increased the rent by Rs. 2.00 per month.
(17) A very large number of authorities were cited before me by the learned Counsel for the petitioner as well as by the learned Counsel for the respondent as to the scope of the revision and as to when a premises could be considered as commercial or non-commercial. They also cited a few decisions to point out that requirement of close relatives of the landlord can be considered as a valid requirement under Section 14(l)(e). I do not think I should burden this order with all the citations. As to the scope of the revision both the learned Counsel relied on Hari Shankar’s case (supra) which I have already referred. I am of the view that the multiplication of the citations will not advance the case of any one of the parties. 1 Since the finding of the Controller is mainly the result of his erroneous approach, I am of the view that the ultimate finding got vitiated. In the result this revision petition is allowed. There shall be an order of eviction under section 14(l)(e) of the Act against the respondent. The respondent is granted six months time to vacate the premises. However, there shall be no order as costs.
