1. This judgment will dispose of two civil revisions Nos. 645 and 659 of 1951. They axe both directed against an appellate decree, passed by Mr. Tek Chand Vijh, Senior Subordinate Judge, dated 3-8-1951, by which he upheld the decree for ejectment of the defendant from the premises in dispute and also made an order that the defendant could stay in the upper flat and the plaintiff could occupy the ground floor. Both the parties have come up in revision to this Court.
2. Basheshwar Nath Gupta, the petitioner, took on lease the ground floor of 'Satya Niwas' on 1-10-1946, on Rs. 100/- a month for the purposes of residence, office, garage and godown. On 22-1-1948, Dr. Satya Wati, who is the owner of the premises, sent a notice to Easheshwar Nath Gupta, the defendant terminating the tenancy and asking him to vacate the premises on the ground of perversion of user as a school and on account of personal needs. she mentioned in this notice thatshe was suffering from heart trouble. In reply the defendant denied these allegations and sent arrears of rent due from 1-6-1947, to 31-12-1947, plus the rent for the months of January and February, Rs. 900/- in all, which were accepted by the landlord.
3. On 27-4-1948, Dr. Satya Wati again sent a notice on the same grounds. Nothing was done for fifteen or eighteen months, but it appears that even after this notice the rent was received by the landlord.
4. On 26-9-1949, the landlord again gave notice asking for the vacation of the premises on four grounds, namely (1) that there was perversion of user, (2) that the premises had been sublet, (3) that the premises were bona fide required by the landlord herself and (4) that the defendant was creating a nuisance. As the premises were not vacated, on 8-12-1949, a suit was brought by Dr. Satya Wati against the defendant for ejectment, the grounds of ejectment being (1) that the premises were let out to the defendant for residence, but he was using them for business, (2) that the defendant had sublet the premises without the consent of the plaintiff, (3) that the plaintiff reasonably and 'bona fide' required the demised premises for the residence of herself and other members of her family and she had not been able to secure other suitable accommodation for her family and (4) that the defendant had made a nuisance of himself by treating the plaintiff and the neighbours badly, by making noise and by not keeping the place 'neat and clean'. These allegations were denied by the defendant.
5. On 8-2-1950, Mr. Naubat Ram, Advocate of the plaintiff, stated before issues 'I cannot say at this time as to who are the members of the family for whom the plaintiff requires the premises'. The Court framed the following two issues :
1. Were reasons for ejectment given in para 2 of the plaint correct and sufficient for ejectment of the defendant?
6. Mr. Taneja, Subordinate Judge 1st Class, found that there was perversion of user and that the plaintiff was suffering from a heart disease and therefore it was necessary that she should live on the ground floor, and he, therefore, decreed the plaintiff's suit. On appeal being taken to the Senior Subordinate Judge, he upheld the finding in regard to perversion of user and also found that the plaintiff 'bona fide' required the premises for her personal use as 'her staying on the ground floor is a genuine need.' He, therefore, upheld the decree but added a rider that if the defendant was willing to occupy the first floor he would be allowed to do so and the landlord would not interfere.
7. For the tenant it is submitted that after the breach of the terms of the tenancy and use of the premises as a school, the plaintiff had on two occasions received the rent although she gave notice on 22-1-1948, and on 27-4-1948. This acceptance of rent by the plaintiff amounts to a waiver and cannot be a ground for ejectment and reliance is placed on a judgment of this Court, -- 'Messrs New Garage Ltd. v. sardar Khushwant Singh', AIR 1952 Punj 82 (A), where a Division Bench held;
'If the lessor is aware of a continuing breach by the lessee and acquiesces in it for a long period where, for instance, with full knowledge, he receives rent, it will be presumed that he has either released the covenant or granted a licence for the user.'
In an English case, decided by a Court of Appeal, -- Tideway Investment and Property Holdings, Ltd. v. Wellwood', (1952) 2 All ER 514 (B), a similar view was taken. I am therefore of the opinion that no eviction can be ordered on the ground of perversion of user.
8. The other ground on which eviction has been ordered is the 'bona fide' needs of the landlord. In the plaint all that was stated was that the plaintiff reasonably & 'bona fide' required the premises for the residence of herself and other members of her family, and before the issues the plaintiff's counsel did not know as to who were the members of the family for whom the premises were required. In her evidence as a witness, Dr. Satya Wati stated that since 1945 she was suffering from heart disease, that she was a widow and had no son but had an unmarried daughter who was a Law student, that her one son-in-law was living in Agra who was shifting to Delhi for business purposes and that she wanted the premises for her other son-in-law S. P. Khanna who was married to an adopted daughter of her husband. She also stated that she had given instructions to her advocate that she wanted to get the suit premises for this son-in-law S. P. Khanna and also that she was suffering from heart disease and wanted an additional accommodation for this son-in-law who would be in a position to look after her. She admitted :
'My present accommodation is sufficient for my purpose but as I wish that my son-in-law and adopted daughter only to live with me so it is insufficient.'
After this statement I do not think any finding could be given that the premises were bona fide needed for her and for the members of her family. A daughter, her husband and children may or may not be covered by the words 'members of the family' in Section 9(1)(e), Delhi and Ajmer Merwara Rent Control Act, 1947, but certainly an adopted daughter and her husband cannot be included in this phrase.
9. The two Courts below seem to have gone quite outside the pleadings. I am therefore of the opinion that no 'bona fide' needs of the plaintiff have been proved and the requirements of Section 9 (1) (e) have not been complied with in this case.
10. In view of what I have held above, it is not necessary to give any opinion on the legality or otherwise of the rider which has been added to by the Senior Subordinate Judge.
11. In the result, this petition for revision brought by the tenant is allowed and the rule is made absolute, and the suit brought by the landlord is consequently dismissed and the rule is discharged in that case. As a consequence the landlord's petition fails and is dismissed.
12. In the circumstances of this case, the parties will bear their own costs throughout.