G.C. Jain, J.
(1) This is the landlord's petition under Section 25B(8) of the Delhi Kent Control Act, 1958 (for short 'the Act').
(2) On 7/05/1976, the petitioner, Harbhagwan Dass filed an application under proviso (e) to Sub-section(1) of Section 14 read with Section 25B of the Act seeking eviction of the respondent Kharak Singh from the premises in suit, consisting of two rooms, kitchen, bath room, latrine,verandah on the first floor and a terrace on the second floor of Flat No. 14,Jangpura Extension Market, New Delhi. It was averred that the petitioner was the owner of the said premises and had let out the same to the respondent on 15/05/1972 on a monthly rent of Rs. 250.00 for residential purposes only.The family of the petitioner consisted of himself, his wile, two sons and fourdaughters, all grown up and studying. The accommodation in his possession consisting of one room which had been divided into two compartments was insufficient and he bonafide required the premises in suit for himself and the members of his family dependent on him.
(3) The respondent resisted the petition. It was averred' that the latrine was on the ground floor and not on the first floor, and the application was,therefore, not maintainable. The respondent had constructed a room on the terrace with the consent of the petitioner and had spent Rs. 3500.00and was entitled to compensation in case of eviction. The said construction was of permanent nature and he had thereforee become a permanent tenant. The said room was not included as a part of the tenancy premises and the application was not maintainable. The premises in dispute had been taken by the respondent for and on behalf of the firm Hazara Singh and Sons of which was the sole proprietor, for residential-cum-commercial purposes answer later on used by the family firm of Kharak Singh styled as KhurmiSons. It was also stated that the petitioner was not the owner of the premises in suit and was in occupation of a reasonably suitable accommodation and has no bonafide need.
(4) The learned Rent Controller vide Order dated 5/07/1979 held that the petitioner's family consisted of himself, his wife, two sons and fourdaughters. The children were grown up. He was in occupation of a courtyard, verandah and one room which had been created by partitioning ahall. The other side of the hall was being used by the petitioner as a barbershop and the said accommodation was insufficient for all these family members.She however found that there was no change in the petitioner's financial status after the letting and thereforee his need was not bonafide. She further held that the premises had been let out for residential cum-commercialpurposes. In view of these findings the petition was dismissed. Feeling aggrieved the landlord has filed this petition.
(5) The respondent had pleaded that the application was bad being for partial eviction because the room on the terrace had not been shown and the latrine was on the ground floor but had been shown on the firstfloor. The latrine has been included as a part of the tenancy premises.Admittedly the latrine meant for common use of the parties was on the ground floor. This mis-description of floor however is not sufficient to reject the petition when the parties were aware of the correct position.According to respondent's own case the temporary room on the terrace had been constructed by him with the consent of the petitioner. He was to take away the malba at the time of vacating the premises. The said room was thereforee not a part of the tenancy premises. This is further clear from the terms of tenancy contained in memorandum Mark-B relied by the respondent. The application for eviction was thereforee not bad for partial eviction. This please a matter of fact was not pressed.
(6) Learned counsel for the respondent also did not press the plea that the respondent had become the permanent tenant. By constructing a room with the consent of the landlord with the understanding that the malba would be removed at the time of vacating the premises, a permanent tenancy cannot be acquired.
(7) That the petitioner was the owner of the premises in dispute stands proved from the admission of the respondent as Rw 1 as well as from Ext.AW7/l, copy of the lease and conveyance deed in respect of this property which was duly proved by Aw 7, Nawal Kishore a L.D.C.in the office of the Land and Development Officer, New Delhi.
(8) The petitioner as Aw 1 deposed that his family consisted ofhimself, his wife, two sons aged 23 and 14 years and four daughters aged24 years, '22 years, 21 years and 27 years. To the same effect is the statement of Aw 5, Om Parkash There is no evidence in rebuttal. No in firmityin this evidence was pointed out to me. This evidence was accepted as correct by the learned Rent Controller and this finding has not beenassailed.
(9) Similarly the correctness of the finding of the learned Rent Controller that the petitioner was in occupation of one room which accomodation was insufficient for all the members of his family was not challenged.This finding is based on the unrebutted testimony of Aw 1 and Aw 5 and iscorrect.
(10) Learned counsel for the petitioner however assailed the finding that the need was not bonafide. It was argued that children of the petitioner had since grown up and in any case a poor barber also had a right to make himself more confortable.
(11) The expression 'bonafide' used in the proviso (e) to Sub-section(1) of Section 14 means genuine and not fanciful. The landlord must prove that he needed the premises, the need was genuine and not a frivolous one.It is also to be seen whether the landlord was motivated by extraneous considerations in trying to recover the possession from the tenant. In the present case, the family of the landlord consists of 8 members, all grownup. It is difficult to understand how all the grown up family members could even sleep on the floor of one room which is about 11'-4' X 13'-'2'asper plan Ext. Aw 4/2. The fact that the petitioner was a barber and there was no change in his financial status is of no significance. He had a right to live properly and comfortable. The circumstance that earlier he let out the premises does not debar him from making himself comfortable. It cannot be ignored that during the five years' time his children homegrown up considerably, creating a lot of shortage of accommodation andinconvenience. There is nothing on the record to suggest that the petitioner has no genuine desire to occupy the premises or had a mind to let out the premises in suit after getting it vacated. It is correct that the respondent soon after the creation of tenancy in his favor filed an application for fixation of standard rent and the standard rent has been fixed at Rs. 150.00per month and the appeals are pending. This itself however is not sufficient to hold that the petitioner landlord was motivated by extraneous circumstances keeping in view the number of the family members of the petitioner and the extent of accommodation with him. His need was genuine andbonafide. Finding of the learned Controller was illegal.
(12) To succeed, the landlord has also to prove that the premises in question had been let out for residential purpose. It is settled law that the burden to prove the fact rests on the party who substantially asserts the affirmative of the issue and not upon the one who denies it. thereforee, it was the duty of the landlord to prove that the letting purpose was residentialonly. The contention of the learned counsel for the petitioner to the contrary cannot be accepted.
(13) There is no formal rent note or lease deed. The petitioner has relied on the memorandum marked-A containing the terms of the lease.The respondent on the other hand, has produced another document marked-B which purports to be a copy of the rent note. None of these documents has been duly proved. In any case, none of these documents provides for the letting purpose.
(14) Both the parties, however, have led oral evidence consisting of their own statements. The petitioner besides his own statement examined AW 2, Gian Chand, who deposed that the terms of the tenancy were settled in his presence and the premises was let out for 'Akhand Path' and the respondent was to vacate it after the 'Akhand Path'. This evidence was rightly rejected by the Rent Controller because it was not the case of the petitioner that the respondent was to vacate the same after the'Akhand Path'.
(15) The respective statements of the parties have to be examined in the light of the surrounding circumstances at the time of letting. The factors to be examined for letting purpose are the nature of the premises,the location of the building, the dominant use to which it was put and other relevant circumstances.
(16) An examination of Aw 7/1, copy of the lease and conveyancedeed, reveals that the building was a shop-cum-flat shop on the ground floor and the flat on the upper floor. Even in the document marked-B which was produced by the respondent the premises were described as a 'flat'.The word 'flat', according to the Concise Oxford Dictionary, means astorey, a suite of rooms on one floor as residence, an apartment. Admittedly the premises in dispute is on the first floor. Passage to the premises is from the back lane. Thus, the nature of the premises indicates that the premises are residential.
(17) RESPONDENT'S case as set up in para 6 of the written statement is that the premises in suit had been taken on lease for and on behalf of Hazara Singh and Sons of which the respondent was the sole proprietor.Later on business in these premises was carried on in the name of 'KhurmiSons'. Admittedly at the time of letting Hazara Singh and Sons had a regular business premises at A-333, defense Colony, New Delhi. There is no suggestion even that any branch office of this firm was opened in the premises in suit. No evidence except the respondent's oral statement has been produced that any business of Hazara Singh and sons was started in the premises soon after taking the premises on lease. Respondent has produced receipts Ex. Rw 1/3 to Rw 1/5 which are on printed voucher form of this firm. It shows that the firm maintained vouchers. The respondent admitted that he had bills since 1972. No such document showing any business transaction at these premises has however beenproduced. In these circumstances respondent's statement that business was carried on here since the inception of tenancy cannot be accepted.Moreover even the plea in the written statement was that business in the premises was started later on in the name of 'Khurmi Sons'.
(18) There is no satisfactory evidence to prove that any business was carried on these premises in the name of 'Khurmi Sons' and if done sincewhen. Rw 1, the respondent stated that when he started business in the premises he shifted his telephone here from defense Colony. He admitted that he received the bills for the telephone installed in these premises in 1975.Thus according to his own case business in the name of Khurmi Sons was started here in 1975 i.e. after about three years of the creation of thetenancy.
(19) There is no satisfactory evidence to prove that any business in the name of Khurmi Sons was carried on at any time. Respondent has not produced any cash memo, bill, books of account, any order placed by the firm and/or on the firm.
(20) The Rent Controller, it appears, has been influenced by some documentary evidence which, in my opinion, has no intrinsic value. RW1/1is a license which was issued to the respondent on 13/07/1977 under the Delhi Shops and Establishments Act, 1954- in respect of the establishmentKhurmi Sons, first floor, 14 Jangpura Extension Market, New Delhi. The respondent's statement shows that he applied for the license four months before it was granted to him. Thus, it is clear that the application for grant of the license was filed long after the filing of the present petition.This certificate thereforee has no evidentiary value.
(21) RW1/2 is a letter dated 13/10/1972 from the Registrar of Trade Marks addressed to the respondent at the address of the premises in dispute. He was informed that the scratch had been made in respect of electric heater and heating elements etc., and there did not appear to be any mark on record which resembled to his mark 'Royal'. This is just correspondence addressed in the respondent's personal name and from this letter it cannot be said that he was carrying on business at the premises in dispute. It simply shows that the respondent was taking steps for getting the trade mark 'Roy ai' registered and nothing more.
(22) RW1/3 to RW1/5 are the rent receipts on the vouchers of HazaraSingh & Sons signed by the respondent. Respondent in cross-examination has admitted that the premises had been taken on lease in Ins own name.On these documents the address given is that of defense Colony. these documents do not show that business was carried on in these premises in dispute.
(23) RW1 /6 to Rw 1/7 are the money order coupons whereby some amount was sent to the respondent and the sender's name has been mentioned as 'Khurmi Sons'. These payments were made after the filing of the petition.The petitioner is, admittedly, an illiterate barber and the fact that he received rent sent by Khurmi Sons is no circumstance to show that premises were used at the time of letting or thereafter for the purposes of residence.
(24) The respondent has also produced on record document marked A, is a copy of the license granted to him by the Municipal Corporation.This again is for the year 1977-78 and thereforee is of no help. It is admitted that the name 'Khurmi Sons' is printed on a glass pane of a room of disputedpremises. This in itself is not sufficient to prove that business was carried onthere.
(25) The description of the premises in dispute, the nature of the premises, the user to which it was put immediately after the letting and even thereafter till the date of filing the application corroborate the statement of the petitioner that the premises in dispute had been let out only for residential purposes. The Rent Controller was not at all justified in recording the finding to the contrary.
(26) Learned counsel for the respondent contended that this was a revision and not an appeal and finding of fact recorded by the Rent Controller was not liable to be reversed in revision. It is correct that under Section 25B(8) of the Act the High Court exercises only revisional and not appellate jurisdiction. This power, however, is wider than that under Section 115 ofCPG. This court is competent to examine the record in order to satisfy itself that the decision of the Controller was according to,law. Finding of fact recorded by the Controller which was perverse or contrary to evidence or based or no evidence could be set aside. In the present case, the entire approach of the Rent Controller was wrong. She did not take into consideration the factors which were required to be considered for the lettingpurpose. She was influenced by evidence which had no intrinsic value.Her finding in such circumstances was preverse and liable to be set aside in exercise of revisional jurisdiction of this Court.
(27) All the ingredients of proviso (e) to Sub-section (1) of Section 14 having been proved the petitioner is entitled to an order of eviction. I, accept the petition, set aside the impugned order and grant an order of eviction in favor of the petitioner against the respondent in respect of premises in dispute under proviso (e) to Sub-section (1) of Section 14. The respondent is allowed six months time from today to vacate the premises.He would be entitled to remove the 'mnlba' of the temporary room constructed by him on the terrace, while vacating the premises in dispute. The parties arc, however, left to bear their own costs.