ORDER
Manmohan Sarin, J.
1. This revision petition has been filed by the petitioner/landlord against the judgement dated 06.05.1995, passed by the learned Additional Rent Controller, dismissing the eviction petition filed on the ground of bonafide requirement of the tenanted premises. The eviction petition was filed by the petitioner on 11.2.1985. The tenanted premises in question are a room on the ground floor of house No.112-A, Kamla Nagar, Delhi.
2. Petitioner’s family, admittedly, comprises the petitioner himself and his wife; two married sons, viz. Rajesh Kumar and Mukesh Kumar, and their wives and children; three married daughters; and an unmarried son. Petitioner claims that accommodation available to him at the time of the filing of the petition was one room, a kitchen and a store on the ground floor of House No.112-A, Kamla Nagar, Delhi, as shown in green in the plan annexed to the eviction petition. Petitioner admits that another room, kitchen and
a store on the first floor, marked ‘ABCD’in Exhibit A/2, has been vacated by another tenant during the pendency of the petition and is available to the petitioner. Petitioner claims the total accommodation now available is still insufficient.
3. Respondent/tenant had sought leave to defend the petition which was granted. Parties went to trial. Evidence was led by both the parties, who examined themselves and their witnesses. The respondent/tenant had questioned the ownership, the letting purpose as well as the bonafide need.
4. The learned Additional Rent Controller by the impugned judgement held that the petitioner had duly proved the ownership as well as the letting purpose being residential. The plea regarding the petition being for partial eviction was also not accepted. The learned Additional Rent Controller, however, reached the conclusion that the premises were not bonafide required by the petitioner for the residence of family members dependent upon him. He held that petitioner had sufficient and reasonably suitable accommodation available to him within the house. The extent of available
accommodation is, thus, the bone of contention between the parties.
5. It is pertinent to mention that petitioner had also filed an eviction petition on the ground of bonafide need against another tenant, viz. Sushil Kumar, who was in occupation of the room, kitchen and the garage with bathroom and W/C. The said eviction petition, viz. E.87/90, was allowed by the learned Rent Controller vide order dated 14.10.1996. The said order of eviction was challenged by way of Civil Revision Petition No.191/97. The said revision petition was disposed of vide order dated 15.5.1998, whereby
petitioner/tenant did not press his petition on time being granted to him to vacate the tenanted premises by 31.12.1999. These facts are being noticed since the respondent has urged that the petitioner in the present revision petition had obtained another eviction order and more accommodation would be available to him.
6. Coming to petitioner’s family and the accommodation available to it, the family comprises:
(i) Petitioner and his wife;
(ii) Eldest son Rajesh kumar and his wife;
(iii) Second son Mukesh Kumar and his wife;
(iv) Unmarried son Prashant;
(v) Three married daughters – one of the daughters has since expired. Her husband and children keep visiting the petitioner.
(vi) Grandchildren.
The learned Additional Rent Controller has held them to be dependant on the petitioner for the purposes of accommodation. Petitioner’s case is that for the aforesaid family, living accommodation available is two rooms, two stores and two kitchens, which is grossly insufficient for three married couples.
7. The learned Additional Rent Controller on the other hand had reached the conclusion that petitioner has the undermentioned accommodation available to him:
GROUND FLOOR: (G.F.):
(i) One room marked X-1 in Exhibit A-1 of size 14′ x 12′.
(ii) A room in the rear portion, below the jaal (iron mesh) on the first floor;
IST FLOOR: (F.F.):
(i) One room, one store and one kitchen;
(ii) One room, one store and one kitchen vacated by the tenant;
(iii) One room recently constructed over the jaal;
(iv) Mezzanine floor.
8. Learned counsel for the petitioner has assailed the findings of the Additional Rent Controller primarily on the ground that accommodation alleged at G.F.(ii); F.F.(iii) and (iv) is not in his possession and in any case does not constitute habitable living accommodation. Petitioner states there is no room on the ground floor below the jaal of the first floor. Even otherwise, the dimensions are 9′ x 6′, which would not make it a habitable room.
The room on the ground floor of size 14′ x 12′ is stated to be in commercial use since 1983-84, i.e. prior even to the filing of the eviction petition, by the eldest son of the petitioner. It is claimed that even the earlier tenant was using it as a godown. The finding of the learned Additional Rent Controller that the commercial user was created to create scarcity of accommodation was unwarranted. A subsequent date of registration for the purposes of sales tax would not always exclude earlier commercial user since registration can be subsequently obtained.
9. Coming to the accommodation available on the first floor, it is claimed that the room marked ‘X’ in Exhibit A/2 is a room which is in possession of petitioner’s brother Om Prakash and this is so by virtue of a Gift Deed executed by the grandfather of the petitioner, who was the owner of the house in terms of which the possession of petitioner’s brother Om Prakash was not to be disturbed. The room over the Jaal, marked ‘E’, ‘F’, ‘G’ and ‘H’ cannot be used for dwelling purpose. It measures 6′ x 9′ and does not even have a pucca roof. It has a tinned shelter.
10. As regards the mezzanine, it is submitted that it has come out clearly in evidence that the same is in the tenancy of one Kishore Chand Katwaria, a tenant, and the learned Trial Judge has misread the evidence in holding that the mezzanine is in petitioner’s possession.
11. After hearing the learned counsel for the parties as well as going through the trial court record, I find that the conclusions reached by the learned Additional Rent Controller with regard to the extent of accommodation available to the petitioner cannot be sustained and are either based on misreading of evidence or are vitiated by on-consideration of relevant material. It has come in evidence that the room on the ground floor has been in commercial use well before the filing of the present petition. Petitioner’s son has deposed that he has been running his electronic repair
shop from there and was earning around Rs.800/- per month at the time of recording of the evidence in 1987. The said portion of the premises had not been used for residence either by the petitioner or even the earlier tenant.
12. Coming to the question of the room over the jaal (iron mesh) on the first floor as well as the alleged room on the ground floor below the jaal, it has come in evidence that the said portions are of the size of 9′ x 6′. These cannot, therefore, be considered habitable accommodation, apart from the fact that it has a tin roof. Learned counsel for the petitioner, during the course of arguments, submitted that indeed if the respondent considered the accommodation below the jaal on the ground floor and the one above on
the first floor over the jaal with tin roof habitable living accommodation, petitioner would have no objection to respondent occupying the same in exchange of the room in respondent’s occupation. Understandably, there was no response to it.
13. As regards the room on the first floor directly above the tenanted premises, it has come in evidence that the said room is in the occupation of the brother of the petitioner, Om Prakash, in pursuance of the terms of the Gift Deed executed by his grandfather. The Municipal Survey records, as old as of the year 1972, have shown the said room to be in possession of petitioner’s brother. The learned Additional Rent Controller erred in ignoring the House Tax Survey and Corporation records on the ground that the particular room in possession of petitioner’s brother was not specifically mentioned and there could be shifting from one room to the other. Once the factum of occupation of residence by petitioner’s brother in the room on the first floor is established by unimpeachable documentary evidence, there is no reason to disbelieve the petitioner’s version with regard to his brother being in occupation of one room, as a sequel of the Gift Deed.
14. As regards the mezzanine floor, petitioner’s case is that the same is in possession of another tenant, Kishore Chand Katwaria. It is significant that it was not even the respondent’s case that petitioner was in occupation of the mezzanine floor. I find considerable merit in the contention of learned counsel for the petitioner that the statement of Kishore Chand Katwaria has been misread. Kishore Chand Katwaria appeared as a witness and deposed that he was a tenant in the mezzanine floor for the last 10 years.
Petitioner had moved an application for placing on record the original birth certificates of the children of Kishore Chand Katwaria, showing the date of birth as far back as 28.8.1980 in the premises in suit at 112-A, Kamla nagar, Delhi. The mezzanine is stated to be of a height of less than 7′. The statement of Mr. Katwaria, coupled with petitioner’s statement, establishes that petitioner is not in occupation of the mezzanine for the last 10 years. There is no challenge in the cross-examination to the evi-
dence of these witnesses.
15. Learned counsel for the respondent submitted that another tenant of the petitioner, as noted in para 4 above, viz. Sushil Kumar who had suffered an eviction order, has undertaken to vacate the premises in his possession by the end of 1999. Thus, additional accommodation of a room, kitchen and garage would be available to the petitioner in future, who, therefore, does not need the premises in suit. I am afraid, this cannot non-suit the petitioner and cannot be a ground to deny relief to the petitioner, who otherwise had a growing family.
16. On a careful consideration of the material and evidence on record, I find merit in petitioner’s case that accommodation available to him is only one room, a kitchen and a store on the ground floor of House No.112-A, Kamla Nagar, Delhi, as shown in green in the plan annexed to the eviction petition and another room, kitchen and a store on the first floor, marked ‘A’, ‘B’, ‘C’ and ‘D’ in Exhibit A/2, which has been vacated by another tenant during the pendency of the petition. The accommodation over and
beneath the jaal; the room in occupation of petitioner’s brother Om Prakash since 1972; and the room on the ground floor which has been in commercial use cannot be considered, while computing the habitable and living accommodation available to the petitioner. The petitioner requires the tenanted premises in suit bonafide for his use. It cannot be lost sight of that petitioner is a retired gazetted officer and has two married sons who are working. Petitioner claims that they have status in life and possess a car
and a scooter. There are three married couples in the family. Petitioner is entitled to live comfortably with his family, apart from the families of the married daughters who come and visit the petitioner. The learned Additional Rent Controller rejected the submission of the petitioner’s counsel for a drawing-cum-dining room and a guest room, observing that the petition when filed was on the basis of requiring space for studies by his sons who were students at that time. The learned Additional Rent Controller goes on
to hold that petitioner never claimed that he required a drawing room or a dining room. This approach does not commend well to me. The petition was filed in the year 1985. More than 13 years have gone by. There is change of circumstances. With the growth of family, petitioner’s claim for having a drawing room, a dining room or a guest room where guests of the petitioner and his married daughters and their family members can come and stay, cannot be considered by any standards as unreasonable.
17. In view of the foregoing discussion, the revision petition is allowed. The order passed by the learned Additional Rent Controller, dismissing the eviction petition is set aside. Eviction order in respect of premises No.112-A, Kamla Nagar, Delhi, as marked red in Exhibit A/1 is passed. Respondent, however, would have the benefit of Section 14(7) of the Act. The eviction order would not be executable for a period of six months from today.