V.D. Misra, J.
(1) This is landlord's second appeal under Section 39 of the Delhi Rent Control Act against the order of Rent Control Tribunal up-holding the order of the Addition Rent Controller dismissing the appellants petition for eviction.
(2) The appellants are the owners of the property in dispute and bad let out H. NO' 2737, Nal Sarak, Delhi to respondents, who happen to be their near relations, for residential purposes. The appellants filed an application for eviction on the ground of non-payment of rent and for bonafide personal requirements of the appellants under Sections 14(l)(a) and (e) of the Delhi Rent Control Act.
(3) The respondents opposed the application on the ground that the accommodation with the appellants was sufficient for their needs and the application was made malafide. The arrears of rent, however, were duly deposited. The Additional Rent Controller found that even if the portion of the ground-floor in possession of the appellants be discarded as being unfit for habitation, the accommodation on the first floor and the roof is quite sufficient to meet the requirements of the appellants since the total number of the family members for whom the accommodation was needed was the same as it was a few years ago. He did not take Into account the requirements of Harbans Narain, appellant, since he was at that time serving in Nepal a* an over-seer. He thus found that the appellants have failed to prove the bonafides of their alleged requirements. In appeal the learned Tribunal found that two of the rooms on the ground-floor could be used for residence and one of the roofs on the first floor of the size of 28' x 7'.6' having been partitioned into two rooms, each of the six of 14' x 7'.6', constituted sufficient accommodation available for the appellants and 80 dismissed the appeal.
(4) The learned counsel for the appellants submits that Harbans Narain has since come back to Delhi from Nepal where be had gone temporarily during the coarse of his service and his need should be taken into consideration. Harbans Narain is one of the applicants who had prayed for eviction of the respondents. There after he had to go to Nepal during the course of his employment. He is admittedly one of the owner-landlords. The learned counsel for the respondents does not dispute these facts.
(5) The learned counsel for the appellants submits that the order of the learned Tribunal is tainted with serious legal infirmities and deserves to be reversed. He submits that the finding of the learned Tribunal that the room on the first floor measuring 28' x 7'.6' Is partitioned into two rooms each of the size of 14' x 7'. 6', is against facts on the record. He further contends that the approach of the learned Tribunal was erroneous and involved substantial question of law in as much as the order of the learned Tribunal seems to suggest that as long as appellants bad in their possession any accommodation apparently sufficient, the requirement cannot be considered to be bonafide.
(6) The learned counsel for the respondents contends that the learned Tribunal' findings are finiiags of fact and so cannot be challenged in appeal, under Section 39 of the Act.
(7) Hari Narain's family consists of 6 members, including his wife, two none aged 3 and 15 years and two daughters aged 8 and 6 years. Harbans Narain is aged about 25 years and is alleged (o be awaiting marriage. Smt. Shakuntla is a widow and is the mother of Hari Narain and Harbans Narain. The accommodation available to them is shown in the plan Exh. A.W.4/1. The ground- floor is shown to consist of 4 rooms, three of which have been described as stores and one As a room. The measurements respectively are 10'.06* x 7'.4*. 16'.6' x 7'.4'. 14' x 10' and 16'.6' x 7'. On the first floor there are two rooms of the size 28' x 7'.6' and 14' x 8'.3*. On the roof there is a barsati shown as a room of 8'.9*. The ground floor has two lavatories and a bath. whereas the first floor has a kitchen in addition to the two rooms.
(8) The learned counsel for the respondents does not dispute the fact that there is Po material on record from which the learned Tribunal could have come to the conclusion that the big room of the size of 28' x 7'.6' on the first floor has been partitioned into two rooms each of the size of 14' x 7'.e'. This finding of the learned Tribunal being without evidence on record is hereby set aside.
(9) It is contended by the learned counsel for the appellants that the learned Tribunal had found that there was a six feet wide lane only abutting the ground floor on two sides and the whole of the ground floor area was covered and all the houses in the street were 2/3 storeyed- The Tribunal had thus concluded that two rooms of the size of 14' x 10' and 16'.8'x 7'.4' were not ventilated and received no light and could be used only for storage of house-hold goods and for no other purpose. The learned Tribunal found that the other two rooms of the size of 16'.6' x 7 ft. and 10'.6' x ',' 4. about on the streets and so came to the conclusion that they Could be used for residence. It is contended that there is nothing on record to show that these two rooms are either ventilated or receive any light from any direction. The learned counsel for the respondents could not show anything from record that these two rooms received any light or were otherwise ventilated. He, however, referred to the statements of the respondents that at one time one Amir Nath was residing in the ground-floor, and that they had also at one time occupied the same accommodation. From this it was sought to be shown that the rooms could be used for residence.
(10) This court in 0m Parkash Singal v. Roshan Lal Khanna, considering the import of the woid 'bonafide' observed as under :
'The word 'benafide* as used in proviso (e) has been considered judicially in a number of decisions and this interpretation is no longer in controversy. It means genuinely or in good faith and it convey an idea of absence of intent to deceive, it the owner-landlord is not considered to be seeking eviction on false pretext of acquiring additional accommodation With some collateral purpose or oblique motive and his requirement cannot be considered to be inspired by a pure fanciful whim, the plea of bonafide requirement put forth by the landlord-owner, deserves ordinarily to be upheld. As a broad workable rule, the landlord must be left to assess his requirement in the background of his position, circumstances, status in life and social and other responsibilities and other relevant factors. While considering the question of ejectment on the ground of bona fide requirement of the landlord-owner it is eminently desirable to strike a proper and just balance between the rights of the owner on the one hand and these of the tenant as protected by the law on the other. The owner is entitled to make himself comfortable and is normally speaking the best judge of his own requirements. Unless he can be considered or to be abusing or misusing this right to acquire possession of his property in eviction proceedings which means that he is seeking to get possession under the veil of bona fide requirement, but for some other purpose, his claim demand acceptance. Of course. In same rare cages, when his claim prima facie appears to be wholly unreasonable when considered in the background of his status, position and other family circumstances the Controller or the Tribunal may be persuaded judicially to negative his bonafides,'
In the instant case the appellants require accommodation for 8 members. According to appellants Harbans Narain had not yet married because of the paucity of accommodation. Two married daughters also continue visiting Smt, Shakuntla, their mother. I find that the approach of the learned Tribunal was that if the appellants could be said to have two rooms for residence on the ground-floor then they did not bonafide require premises in disputes for their residence. This was in my view erroneous and involves a substantial question of law. Before it can be said that the landlords had sufficient accommodation it was not enough to say that the said rooms could be used for residence. It was further necessary that these rooms amounted to reasonably suitable accommodation. The only openings in these rooms are the doors. In one room, two doors open in the store and one door opens on the street. In the other room, one door opens on the other street and another door connects it with the other room. Admittedly these do not have any ventilators or windows. No sunlight is shown to reach these rooms, The only light which can possibly come in these rooms is through the doors opening on the streets. The moment doors are closed, there is bound to be pitch darkness, there is no ventilation. In these circumstances it cannot be said that it will not be injurious for a person to live in those rooms. It may be that Amir Nath lived in tnesa rooms for sometime but that by itself cannot make this accommodation reasonably suitable. The great paucity of accommodation in the city of Delhi many a time forces the persons to live in hovels and dark rooms in order to have a roof over their heads. But before an accommodation' can be said to be 'reasonably suitable residential accommodation' the accommodation should be fit to live in according to reasonable standard of health. A room which does not receive sunlight and is not ventilated properly cannot be said to be a -reasonable suitable accommodation.
(11) The requirements of the appellants cannot in these circumstances be said to be fanciful and having been pat forward with some ulterior motive. The husband of Smt. Shakuatla was a Professor. Harbans Narain is employed as on overseer. With such a status of the family, if the appellants refuse to live in dark and dingy rooms on the ground floor their reqairements cannot be said to be lacking in bonafide. I do not agree with the contention of the learned counsel for the respondents that the finding of the Tribunal that the appellants requirements are not bona-fide, is a finding of fact and cannot be interfered in Second Appeal under Section 39 of the Act. As already discussed the learned Tribunal's finding that the big room on 1st floor in occupation of the appellants had been partitioned into two rooms was Without evidence on record. The learned Tribunal failed to consider whether the two rooms on the ground floor, which could be used for residence, amounted to reasonable suitable accommodation for the appellants. The fact that the two daughters of Smt. Shakantla who visit her had to be provided with rensonable suitable accommodation during their visits was also ignored by the learned Tribunal while deciding the question of bona-fide requirements. Their Lordships of the Supreme Court in Smt. Kamla Soni v. Rup Lal Mehra, while discussing about the jurisdiction of the High Court under Section 89(2) of the Act, held.
'The argument for the landlord that the Judges of the High Court exceeded their jurisdiction under section 39(2) of the Delhi Rent Control Act, when they reversed the finding of bona fide requirement of the appellant, has no substance. Whether on the facts proved the requirement of the landlord is bonafide, within the meaning of section 14(1)(e) is a finding on a mixed question of law and fact. The inference that the requirement of the appellant in the present case was bona fide could not be regarded as conclusive.'
(12) The learned counsel for the appellant also contends that there has been a partition in the Joint . Hindu Family of the appellants and the premises in dispute has fallen to the share of Hari Narain. appellant. He also contends that the observation of the learned Tribunal that the alleged partition was not pressed by the appellants counsel daring arguments is incorrect and he had filed an affidavit in respect of it. Learned counsel for the respondents has filed an affidavit staling that the point regarding partition was not pressed before the Tribunal. Since I am allowing the appeal on another ground I do not decide the question whether this point was urged or not.
(13) The result is that the appeal is allowed and the order of the learned Tribunal is set aside. The appellant prayer the ejectment of the respondents is granted.
(14) There will be no order as to costs.