Leila Seth, J.
(1) This revision petition has been filed by the tenant under Sub-section (8) of Section 25B of the Delhi Rent Control Act, 1953 (Act 59 of 1958) (hereinafter referred to as the Act). It is directed against the order dated 7th May, 1977 of the Rent Controller refusing leave to the tenant to contest the petition for eviction. The rent Controller made an order for recovery of possession of the suit premises in favor of the landlady and gave six months' time to the petitioner within which to hand over vacant and peaceful possession. The rent Controller while disposing of the matter observed as follows :
'WHILEparting, I may add a note of advice that the parties may reconsider the proposal of inter-changing their flats towards their healthy relations which shall also enable the petitioner to live on the ground floor immediately.'
(2) The brief facts are that in August, 1970 Mrs. Leela Malhotra, owner-landlady of property No. C/26, defense Colony, New Delhi let out the ground floor to Shri N.N. Khanna, for residential purposes. On 29th July, 1976 she gave a notice terminating the tenancy alleging that the premises are required bonafide for her residential use and also for the members of her family dependent on her. Thereafter on 4th October, 1976 she filed an application under Section 14(1)(e) of the Act seeking eviction of the tenant, on the ground that she bonafide required the premises for her own occupation and for the residence of her family members dependent on her. In the said application she further alleged that she was a widow and was suffering from various ailments including blood pressure and had suffered attacks of angina. That she was living on the first floor and found it difficult and inconvenient to climb stairs.
(3) In view of the amendments made in the Act, and the addition of Chapter Iiia in 1976, the tenant filed an application with affidavit on 21st October, 1976 under Section 25B(4^ of the Act staling the grounds on which he sought to contest the application for eviction and praying for grant of premission to contest the eviction application. He averred therein that the landlady had sufficient accommodation with her on the first floor consising of three-bed rooms, one dinning-cum-drawing room, two combined bath and latrine, kitchen and terrace, that she had no family member dependent on her and her daughter was married and her son living out of India. It was also asserted that to the best of belief of the tenant, the landlady was hale and hearty and not suffering from any disease which would compel her to reside on the ground floor. Fur- ther, in her notice dated 29th July, 1976 she did not mention anything regarding her illness. He would thus seek permission to get her examined by medical experts. That the eviction petition was malafide and had been filed with a view to increasing the rent.
(4) The landlady filed a certificate dated 20th September, 1976 of the Army Hospital, Delhi Cantoment to indicate that she suffered from high blood pressure and got attacks of angina, and that she had been attending the Cardiac Out Patients Unit of the Hospital since December 1974. As there was a dispute as to the question whether the landlady was in good health or not, the tenant's counsel requested that she bs examined by a doctor and the application for leave to defend be disposed of on the basis of the doctor's report. On 3rd March, 1977 the landlady consented to be medically examined by Dr. Ved Prakash Kohli, resident of 108. Golf Links, New Delhi. He reported as follows ;
'HERgeneral condition looked very well, she is very mobile for her age. No breathlessnes on climbing stairs. Pulse rate 84 regular, good volume and tense. No congestine cardiac failure, no pallor or jaundice. No lumphadenopathy. B.P. 125/70 lying down. Both knee Joints show mild osteoarthrIT is (movements are not restricted or painful). Abdomen and lungs did noi reveal any abnormality. Heart does not seem to be enlarged. E.C.G. was within normal limits.'
(5) He advised certain tests of blood, urine. X-ray etc. which she was not willing to undergo. The landlady, however, was thereafter not willing to accept the report of the doctor and alleged that t he doctor had gone out of his way to favor the tenant.
(6) The accommodation on both ground floor and the first floor is similar. There is an observation in the judgment of the Rent Controller that the landlady offered the tenant the first floor premises on the same terms and condtiions if she could shift to the ground floor. But the tenant did not accept this proposal. The fact of this offer seems to have weighted with the Rent Controller in feeling that the condition of the landlady was serious and her need bonafide. This observation by the Rent Controller is challenged as being factually erroneous and a review petition has been filed. In fact it appears that the tenant was willing but not the landlady. This fact seems to be borne out by subsequent events as well. Counsel on various dates sought time even in this court to compromise the matter so that an exchange of floors could be effected but the landlady categorically refused.
(7) The question whether the landlady's physical condition was such that she was entitled to eviction on that basis seems to be a matter which is highly contested. Dr. Ved Prakash Kohli had suggested certain tests but she was not willing to undergo them and in fact criticised the report of the doctor and produced instead a certificate of another doctor. There is clearly conflicting medicaevidence as to the seriousness of her condition and the advisability or the difficulty of her climbing steps. It is certainly a disputed question of fact. The application for eviction had been filed on 4th October, 1976 and though two years have elapsed, it appears that the landlady is still living on the first floor. In this court she was given various opportunities to discuss the question of exchanging floors but after some initial interest, ultimately she finally refused to do so.
(8) Thus it is clear that an issue has been raised with regard to the bonafides of the need of the landlady. In my view the Rent Controller was in error in not granting leave to the tenant to contest the eviction application. I set aside the impunged order dated 7th May, 1977 and grant leave to the tenant. The Rent Controller is directed to proceed with the eviction petition in the moral way. Costs of this revision will abide by the result of the eviction petition.