T.P.S. Chawla, J.
(1) This is a second appeal under section 39 of the Delhi Rent control Act 1958. The appellant is the tenant of the second floor of a house No. 6/29, Old Rajinder Nagar, New Delhi. The premises in his possession comprise just one room, the barsati. He was inducted into the premises on i2th December 1968 at a rent of Rs. 130.00 per month.
(2) On 19th August 1972, the respondent who is the landlords, instituted a petition for recovery of possession against the appellent. A number of grounds were taken in that petition, but the Additional Rent Controller made an order for recovery of possession only under section 14(1)(e) of the Act on the ground that the premises were required bonafide by the landlord for occupation as a residence for himself and the members of his family dependent on him. The other grounds were rejected. This order was made on 1st March 1974. An appeal by the tenant was dismissed by the Rent Control Tribunal on 6th January 1978, and the findings of the Additional Rent Controller were affirmed.
(3) At one time the Supreme Court said that the question whether a land lord required bonafide a premises for his own use and occupation was a mixed question of law and fact which the High Court could go into in second appeal: see Smt. Kamla Soni v. Rup Lal Mehra 1969 Rcr 1017 . Later, however, the Supreme Court expressly dissented from that view and categorically held that it was a pure question of a fact, and the finding thereon could not be impugned in second appeal unless it could be shown that there was an error of low in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse' : see Mattu Lal v. Radhe Lal, : 1SCR127 . Counsel for the appellant concentrated on some events which had taken place whilst the appeal was pending before the Rent Control Tribunal to bring the case within the exceptions. In order to deal with his submissions it is necessary to explain how the case developed.
(4) The landlord was employed as a Pay and Accounts Officer in one of the departments of the Government of India. He built the house in question in 1965 and took a loan from the Government for that purpose. The loan was to be repaid in Installments. He occupied the ground floor himself. It comprises one drawing-cum-dinning room, two bedrooms, one kitchen, one bathroom and a store. The first floor has the same accomadation. It has been let to various tenants from time to time. The second floor comprises just the barsati. That two, was let to various tenants before it was let to the appellant on 12th December 1968.
(5) In this petition for eviction filed against the appellent on 19th August 1972, the landlord said that he required the premises for use as a residence for himself and the members of his family dependent on him. He said that 'the accomodation already in his occupation (was) not sufficient for the growing needs of his family and he (had) no other reasonably suitable residential accomodation.' These allegalions were denied by the appellant in his reply. He maintained that the accomodation with the landlord was sufficient. and in corroboration said 'the first floor has been let out and it has fallen vacant several times and the same has been let out to different tenants.'
(6) In his evidence the landlord said that he had four daughters and a son. Three of the daughters were married, and two of them resided in Delhi. The son was married on 13th May 1973, when the petition was pending. Thus, at the time of decision by the Additional Rent Controller, the landlord's family comprised of himself, his wife, an unmarried daughter who was studying for the Higher Secondary Examination, a son and a daughter-in-law. The landlord said that after securing the barsati from the appellant he intended to give it to his son. The Additional Rent Controller found that the accommodation with the landlord was inadequate for his needs, and, thereforee, made the order for recovery of possession, which as I have said, was affirmed by the Tribunal.
(7) Now, in order to meet the allegation against him that the first floor had previously fallen vacant a number of times and had been let out again on each occasion, the landlord gave an Explanationn for his conduct. He said that as he was repaying the loan taken from Government he was in need of money, and the first floor produced a much higher rent than the second floor. The rent of the first floor at that time was Rs. 275.00 per month. It was also argued on behalf of the landlord that his need was for one room and not three. The Additional Rent controller found that the Explanationn given by the landlord was genuine and reasonable.
(8) The appeal before the Rent Control Tribunal was filed on 8th July 1974. The tenant of the first floor at that time was one Mr. Moti Lal Chandwani who was working in the Directorate General of Border Roads, Kashmir House, New Delhi. It appear that in February or March 1976 he was transferred to Bhutan. But he did not vacate the first floor immediately as his children had to take their examinations. There is a dispute as to the date on which he did actually vacate the first floor. According to the appellant it was either on the 10th or the 20th of May 1976. On the other hand, the landlord maintains it was on 30th April 1976. It appears that the appellant got to know sometime in advance that this tenant was going to vacate the first floor. So, on 3rd May 1976, he sent a telegram to the landlord, followed by a letter from his counse, and also filed and application before the Rent Control Tribunal. His purpose was to put the landlord in a quandary. The landlord was asked either to occupy the first floor himself or let it to the appellant, in which event the appellant offered to vacate the barsati. It was proclaimed that if the landlord now let out the first floor to someone else, that would expose the hollowness of his claim for the barsati.
(9) The landlord replied to the application on 16th August 1976. He said that Mr. Moti Lal Chandwani had vacated the first floor on 30th April 1976, and on the very next day, that is, 1st May 1976, it had been let out again to a Mr. M.N. Kantak at a rent of Rs. 550.00 per month. He said that since the first floor had already been let before he received the telegram and letter tent by the appellant, the question of giving it to him did not arise. As for occupying it himself, he said his need was for one room and not more. In addition, he said, that a part of the loan which he had taken from Govern ment still remained to be paid, and, thereforee, he preferred to let out the first floor.
(10) The appellant then moved another application before the Tribunal on 16th August 1976, praying that the petition for recovery of possession be dismissed because it was obvious that the landlord did not need the premises as otherwise he would hot have relet the first floor. On 28th October 1976, the appellant moved yet another application before the Tribunal. In this application he prayed for permission to lead evidence to prove that Mr. Chandwani had, in fact, vacated the first floor on 20th May 1976, and not 30th April 1976, as alleged by the landlord.
(11) The Tribunal declined to admit additional evidence. It thought that it was immaterial on which date the first floor was let to Mr. Kantak, since it was admitted that it had been let to him during the pendency of the appeal, and for a higher rent. In my opinion, the Tribunal was perfectly right. The exact date on which the first floor was let to Mr. Kantak is of no consequence, and the other facts on which the appellant wished to rely were admitted.
(12) Counsel for the appellant submitted that if the claim of the landlord for additional accommodation was bona fide, there was no reason why he should not have occupied the first floor when, fortuitously, it happend to fall vacant in April or May 1976. It is admitted that, soon afterwards, the landlord retired from service on 31st August 1976, and the loan which he had token from Government for constructing the house was fully repaid by that date. thereforee, it was argued, the financial reason which the landlord had hitherto pleaded for not occupying the first floor no longer carried any weight.
(13) I accept that a landlord is bound to give a satisfactory Explanationn for not occupying any other premises belonging to him that have fallen vacant shortly before a petition for recovery of possession is filed or whilst it is pending : see P.S. Devgun v. S.P. Walia 1975 Rlr 71 : Satya Pal v. Smt. Parsani Devi 1974 Rcr 508. This really follows from the requirement of section 14(1)(e) that the land lord has 'no other reasonably suitably residential accommodation'. But, the other accommodation must be 'reasonably suitable'. And, it should be remembered that the landlord has the primary right to decide which accommodation is suitable for his needs, and, can, thereforee, choose which tenant he would like to evict: see Manohar Lal v. Mool Chand l976 Rcr 237. In judging the conduct of the landlord the real question is whether he has acted honestly or was inspired by some ulterior motives : see Chandraleka v. P.K. Suseela Rani 1969 Rcr 572. Of course, one must look at all the surrounding circumstances and decide each case according to its own particular facts : see Neta Ram and others v. Jiwan Lal and another. Air 1983 Sc 499.
(14) Looking at the conduct of the landlord in the present case I ean find no ground for suspecion. He had the right to decide how much additional accommodation he needed, and in doing so he would naturally be influenced by financial considerations. A landlord, like anyone else, is entitled to cut his coat according to his cloth. Having taken stock of his position, the landlord made known his mind on 19th August 1972 when he instituted the petition against the appellant. That action implied that he did not want the first floor, either because it was to large or he could not afford it, or both, Or, may even have been some other reasons. If his choice at that point of time was bonafide, and no suggestion was made that it was not, the fact that subsequently the first floor became vacant was totally irrelevant. The first floor had now to be excluded from the reckoning, having already been implicitly found unsuitable for the landlords purpose. The manoevres by the appellant when the first floor became vacant were, thereforee, misconceived. That the loan was nearly repaid was only one aspect of the matter. It still remained the fact that the landlord wanted only one room and not three, and wished to use his property to the best advantage, as he was entitled to do. The appellant could not arrogate to himself the right to manage the affairs of the landlord, and compel him to occupy more accommodation than he thought he needed.
(15) Nor is there anything sinister in the fact that the landlord let the first floor to Mr. Kantak for a higher rent. Like any prudent man he would let it at the maximum rent then available. No rule of law aspects him to do charity to establish his bona fides.
(16) The appellant's demand that he should have been given the first floor when it fell vacant during the pendency of the appeal, was not worth a moment's consideration. He did not say that he was willing to pay the market rent ; nor did he even name the rent that he was willing to pay. Even if he had offered to pay the market rent, there was no law by which he could claim a pre-emptive right to other premises belong to the landlord that happened to fall vacant. The whole thing was a tactic to somehow catch the landlord on the wrong foot. As it turns out nothing adverse to the landlord has emerged.
(17) I agree with the Rent Control Tribunal that there is nothing to show that the petition of the landlord is not bona fide. In any case, the finding of the Tribunal is not vitiated by any error of law, nor is it arbitrary unreasonable or perverse. And, there was certainly evidence on the record on which the finding could be based. So, even if I had differed from the Tribunal, I should have no jurisdiction to interfere. For these reasons, this appeal is dismissed with costs. Counsel's fee Rs. 300.00.