M.L. Jain, J.
(1) The petitioner is a tenant and the respondent is the landlord. The tenanted premises are in the second floor of the house. The landlord terminated the tenancy by a notice dated February 18, 1976. He made the eviction application on April 6, 1976. In the application the tenanted premises were said to be one Barsati with temporary kitchen, one open bath-cum-latrine on the second floor which were also shown in red in the plan attached. The portion in red did not include the open space. The ground for eviction was that the landlord required the premises bona fide for residence of himself and the members of his family dependent upon him as the first floor in which the family was residing had become insufficient for their requirement.
(2) The tenant filed a written statement on August 25, 1976. He contended that he was a tenant of the entire second floor including the open space and one bath-room on the ground floor which was illegally occupied by the landlord. He also denied that the portion in occupation of the landlord was insufficient for his requirements. Besides this, the accommodation in the ground floor has been falling vacant which he had been renting out meanwhile to several tenants from time to time at higher rent. The only purpose for eviction proceedings was to secure vacant possession and then re-let the premises similarly at higher rent. On September 28, 1976, replication was filed by the landlord saying that the open space on the second floor was never let out and the roof was being used by his family for the purpose of sleeping and placing their cots and storing other articles. The temporary bath-room on the ground floor was never let to the tenant and it was demolished upon the directions of the Municipal Corporation.
(3) On September 15, 1977, the tenant filed a suit in the court of the Sub-Judge 1st Class, Delhi, asking for a permanent injunction restraining the defendant from entering the second floor without his permission and also directing him to remove his cots from the second floor. The learned Sub-Judge decreed the suit on October 3, 1978. He held that the tenancy comprised the entire second floor of the suit premises.
(4) On March 26, 1979, the Additional Controller made an order for possession in the eviction proceedings. He held that the entire second floor was not let out to the tenant. It was pointed out to him that the order of the Sub-Judge had held otherwise. He observed that the order of the Sub-Judge was already under appeal and thereforee, no importance could be attached to it. He found that the application was made in good faith. The present accommodation in possession of the landlord consisted of two bed rooms and one drawing-cum-dining room and two closed verandas. The family comprised the landlord, his wife, 3 sons and 4 daughters. Out of the sons, one was in the Army, who often visited him and another son had been transferred from Chandigarh to Delhi. One of the daughters has married. Yet another daughter has been adopted by his sister and has married but both of them often kept on coming. One son and two daughters are studying. The children are growing and marriages of the grown-up sons were to take place in immediate future. The landlord was a well-to-do gazetted officer having all the modern amenities such as Tv, fridge, dining table, sofa set etc. The present accommodation was thus short of his genuine requirement. Hence, this revision.
(5) Now, the findings as to bona fide requirement are findings of fact and there is not much scope for this court to interfere. I agree with the learned Additional Controller that the 3 rooms will be insuflicient for the landlord to meet satisfactorily the requirements of the family with soms status. It is for the landlord to choose which portion he likes to keep and thereforee, the fact that the landlord is renting out the ground floor to various tenants at various times increasing rent all the time will not affect the bona fide requirement at all. The respondent's counsel relies for this proposition upon Surjit Singh v. 1. J. Chawla, 1979 (1) R.C.R. 4. In that case also, the landlord wanted the Barsari. During the litigation,, first floor fell vacant and the landlord rented it out at higher rent. It was held that there was nothing sinister in it. Like any prudent person, he would let it at the maximum rent then available. No rule of law expects him to do charity to establish his bona fides. If the landlord wanted only one room and not more and wanted to use his property to the best advantage, he was entitled to do so. The tenant 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. Again, this has been the consistent view of this court that the landlord is entitled to live in reasonable comfort and the requirement of the married daughters has to be taken into consideration while deterininiag the residential requirement of the landlord. It was contended that the findings of the court below cannot be sustained because the learned Additional Controller had taken into consideration factors which were not even pleaded. The landlord had not pleaded that the marriage of his children was impending. He had also not pleaded the use of terrace by him. Yet, all this was taken into consideration. The learned Additional Controller should not have taken into consideration the requirements of the married daughters specially the one who has been given in adoption to his sister. The Additional Controller also failed to consider that not only the sons are mostly out but he himself remained out on duty for half the month. I have examined these contentions and none of them seems to me such as should not have been considered or was required to be considered but was omitted from consideration. It is not unusual in Hindu families that even the children given in adoption do often visit their parents though in law they have severed their connection with them. It will be absurd to omit from consideration the requirement of the owner because he has to be out on duty for a large part of the month.
(6) It was contended further on behalf of the petitioner-tenant that the application of the landlord should have been rejected because it failed to state one of the ingredients under S. 14(l)(e) of the Delhi Rent Control Act, 1958, that the landlord had no other reasonably suitable residential accommodation in his possession. But this argument is no more available because the defect was cured by an amendment of the application allowed at the stage of the arguments.
(7) It was next submitted that the lanlord failed to give the details of the accommodation in his possession; the plan filed by him was also wrong. The Local Commissioner had reported that the plan was not in accordance with the position at site. He had thus, not come with clean hands and the application deserved to be rejected. This argument is wholly devoid of substance. The landlord had supplied all the details which were necessary to be supplied and mere omission of some details in the plan would not show that the application was mala fide.
(8) The last, and by far the most important, argument is that the order of recovery of possession could not be maintained as it purported to split the tenancy which could not be done in view of Miss S. Sanyal v. Gian Chand, : 1SCR536 , and Kanwar Behari v. Smt. Vindhya Devi, . The finding of the civil cout that the entire second floor including the open roof was within the tenancy operated as rest judicafa and the Additional Controller was bound by that finding. The order of the Additional Controller by excluding the roof has split the tenancy. This point involves consideration of the jurisdiction of the Controller vis-a-vis the civil court. However, S. 11 (read with Explanationn 1) Civil Procedure Code requires that if an issue between the same parties is directly and substantially in issue in two suits and if it has been decided earlier in a court which was also competent to try the other suit, then the other court cannot try that issue. Now, the court of the civil judge was not competent to decide the eviction proceedings in which the issue had been raised and thereforee, the principle of rest judicata would not apply. Explanationn Viii will not be attracted in this case because the court of the Sub-Judge was not a court of limited jurisdiction. Moreover, the decree of the Sub-Judge was under appeal and the matter was again rest sub-fudice and not final. I, thereforee, hold that the finding of the Sub-Judge was not binding upon the Additional Controller. As a matter of fact the matter had been raised for the first time on August 25, 1976, before the Additional Controller, a court of limited but exclusive jurisdiction. Sub-section ( 1 ) of S. 50 of the Delhi Rent Control Act, 1958, says that the jurisdiction. of the civil court shall stand barred in matters inter alias relating to eviction of any tenant from the premises to which this Act applies. For the eviction purpose, it is necessary for the Controller to decide which premises are in the tenancy from which the tenant should or should not be evicted. The matter thereforee, squarely fell within the jurisdiction of the Controller. The learned counsel for the petitioner relies upon sub-section (4) of S. 50 which lays down that in spite of the provisions of sub-section (1), a civil court shall not be prevented from entertaining any suit or proceeding for the decision of any question of title to any premises. The question of the extent of premises under a tenancy is a question relating to title and did not fall within the exclusive jurisdiction of the Controller and thereforee, the Controller was bound by the findings given by the civil court with regard to such title, that is entitlement to tenancy. He supported his contention by a Division Bench decision of this court in Smt. Vidyawanti v. Tokan Dass, 1974 R.L.R. 23. But, this decision does not support the contention. At para 13 of the report, it is observed that the Controller has to decide the relationship of landlord and tenant as it existed before the eviction application and the decision binds the parties for the purpose of the proceedings before the Controller. It is not, however, final for under sub-section (4) of S. 50 of the Act, the person aggrieved by the decision can go to the civil court to get the question of title decided by it which he is already doing in the appeal. The impugned order of recovery of possession thereforee will stand in so far as the portion on the second floor other than the open space is concerned.
(9) But, I would like to view the matter from yet another angle, The position is that the tenant claims a larger portion of the premises to be in his tenancy than the landlord concedes. The civil court has upheld his claim. The Controller could also decide this dispute and he has done so. By no stretch of imagination can it be said that in doing so he has split the tenancy. If the Controller had upheld the tenant's claim, there was nothing to prevent him from passing the decree of recovery of possession of the larger premises so claimed by the tenant. Nor will it amount to granting of a relief more than prayed for. It will be an order rendering complete justice between the parties. Order 7, Rule 7, Civil Procedure Code empowers a court to grant any general or other relief to the same extent as if it has been asked for. The general rule Is that a relief not founded on the pleadings should not be granted. Even that has exceptions. Where a landlord claims a particular portion to be in tenancy, it is open to the tenant in the eviction proceeding to contend whether the tenanted premises were more or less in extent and it is also available to the Controller to find in favor of one or the other and to pass an order of eviction accordingly. Now, if the tenant is correct, then the ends of justice can be met by modifying the order of the court below that the tenant shall be ousted from the entire second floor.
(10) Iii Miss S. Sanyal (supra), the landlord set up a claim for a decree in ejectment in respect of a house a part of which was used for a girls school and the rest whereof was used for residential purposes. The High Court held that an ejectment limited to the portion which was used for residential purposes could be granted. The Supreme Court reversed the order of the High Court observing that the contract of tenancy is a single and indivisible contract and in absence of any statutory provision to that effect, it is not open to the court to divide it into two contracts, one of letting for residential purposes and other for non-residential purposes and to grant relief to the landlord limited to the portion which is being used for residential purposes. A similar approach was adopted earlier in more or less similar circumstances by the Punjab High Court Kanwar Behari (supra). The building let for residence was the entire premises and it was not open to the court to further sub-divide the premises and order eviction with respect to a part thereof. The court was not empowered to ration the accommodation. These are cases where the extent of the premises was not in dispute and the court could not divide the premises into residential and non-residential premises or to take out the portion which will meet the requirements of the landlord. These have no application here. The case before me requires the Controller to determine the extent of the premises and not to apportion them between the parties. He held that the tenanted premises excluded the open space. The tenant maintains that the premises included the open space. If that be so, there is nothing to prevent the Additional Controller or this Court to hold that the tenant shall be evicted from the entire tenanted premises. There is no splitting of the tenancy in this case by the landlord or by the court. The entire premises within the tenancy are sought to be vacated and it can be so directed. That also does not involve granting of any relief greater than prayed for.
(11) I, thereforee, maintain the order of recovery of possession and dismiss the revision with the observation that the tenant is liable to be evicted from the entire second floor. No costs.
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