Yogeshwar Dayal, J.
(1) This is a second appeal by the lanadlord and is directed against the order of Rent Control Tribunal dated 18-11-1974 setting aside the order of ejectment dated 4-10-1973 passed by the learned Additional Rent Controller, Delhi, in favor of the appellant and thereby dismissing the ejectment application filed by the landlord on the ground of his bona fide personal requirement of the premises in dispute.
(2) This appeal is an instance of how tortuous delay in the process of court can work injustice.
(3) The petition for ejectment itself was filed by the appellant as far back as 2nd August, 1972 on the ground of bona fide personal requirement of the appellant. The premises in dispute of which the ejectment was sought is a residential house No. C-27, Lajpat Nagar Iii, New Delhi. The application itself was filed on the simple ground that the premises are required bona fide by the landlord for occupation as residence for himself and for the members of his family dependent on him and on the ground that he is the owner of the premises. In column No. 19 relating to any other relevant information' it was stated that the appellant is retiring from service on 30-9-1972 and after retirement wants to settle down in Delhi.
(4) In the written statement no dispute was raised by the tenant as to the purpose of letting or to the ownership of the premises.
(5) The tenant really contested the petition mainly on the ground that the real intention of the landlord is to sell the premises and not to live in its himself.
(6) Another ground taken in the written statement was that the petition lacks in essential particulars in as much as it has not been mentioned by the landlord whether he has any other reasonably suitable residential accommodation or not.
(7) The averment of the appellant in paragraph 19 of the petition noted earlier was simply denied for want of knowledge.
(8) The landlord filed a replication and insisted that he had given all the particulars in accordance with law.
(9) Regarding the plea of the tenant that the real intention of the landlord was to sell the premises and not to live in them was specifically denied and it was stated that the landlord has no such intention whatsoever to sell the house. It was further stated that the appellant has retired from the army and wants to settle down in Delhi.
(10) Before the trial Court the landlord-appellant examined himself as his own witness as AW.I and he inter alias stated in examination-in-chief that he has another house in Delhi, which is on rent and it is not vacant. When the landlord was cross-examined he further stated in the crossexamination that the other house is on rent of Rs. 1000 and he has no intention to sell it. In cross-examination the landlord appellant was confronted by the tenant-respondent with three letters dated 18-2-1971; 19-3-1971 and 1-6-1971. He admitted those letters but stated that he wanted to sell the house in dispute as the tenant wanted to purchase it and at the time when he wrote the letters he was not sure whether he would get extension or not.
(11) No objection was raised on behalf of the tenant to the admissibility of evidence on the question of 'other reasonably suitable residential accommodation being available to the landlord and in fact the tenant had also crossexamined the landlord in that behalf.
(12) The Additional Rent Controller in paragraphs 16, 17, 18 and 19 dealt with the question of bona fide requirement of the landlord.
(13) The Additional Rent Controller after considering the oral as well as documentary evidence on record found that the landlord had tried to sell the house in March, 1971 only as he was not sure up to that time whether he would get extension or not. The Controller also found that the landlord has retired from service and that there was nothing on the record to show that after March, 1971 he attempted to sell the house. The Controller also found that the existing position of the landlord was entirely different from that in March, 1971 when he was in service. The Additional Rent Controller also considered the effect of the other house in defense Colony owned by the landlord and found that the same was occupied by the tenant and it was fetching much more rent than the premises in dispute. The Controller also felt that the retired person must have that rent for his own maintenance. The approach of the Additional Rent Controller was that the retired person has a right to choose the house which he wants to get vacated and that it was not shown that the landlord has any other reasonably suitable residential accommodation. Consequently the Additional Rent Controller held that the appellant bona fide need the premises in question and, thereforee, made the order for eviction under clause (e) to the proviso to sub section (1) of Section 14 of the Delhi Rent Control Act. 1958 (hereinafter referred to as 'the Act') against the respendent-tenant.
(14) Although, the tenant had pleaded in the written statement that the petition lacked in particulars inasmuch as it did not mention whether the landlord has any other reasonably suitable residential accommodation or not, yet this objection was neither pressed at the stage of evidence not at the hearing of the case before the Additional Rent Controller.
(15) The respondent-tenant appealed to the Rent Control Tribunal against the aforesaid order made by the Addl. Rent Controller, Delhi, dated 4-10-1973. Several grounds in appeal were taken. There was no ground taken regarding defect or deficiency, if any, in the pleadings. Further there was no ground that the rent from the other house in defense Colony was a means turn maintenance of the landlord after his retirement from service.
(16) Before the Tribunal, the respondent-tenant contended that the need of the landlord was not bona fide as his intention was to sell the premises in question and relia nce was again placed on the aforesaid three letters dated 18-2-1971 : 19-3-1971 and 1-6-1971.
(17) The Tribunal, as stated earlier, accepted the appeal as the Tribunal was not satisfied that the requirement of the landlord is bona fide and dismissed the ejectment application.
(18) This conclusion was arrived at by the Tribunal primarily for two reasons ; (i) because the Tribunal felt that the landlord has given no Explanationn as to when the intention was changed from selling to living in the house and (ii) that title landlord has not actually shifted to Delhi till the hearing of the appeal.
(19) Before I deal with the submissions of learned counsel for the landlord in assailing the judgment of the tribunal, an objection raised on behalf of the respondent-tenant may be noticed.
(20) The submission was simple that the finding as to the bona fide requirement of the landlord is essentially a finding,of fact and cannot be interfered in the second appeal by this court as the second appeal lies only if it involves substantial question of law.
(21) Reliance in this connection was placed on behalf of the respondent-tenant on the decision reported as 1966 M P L J 26 : Sarvate T.B. vs. Nemichand. ( I ) It will be noticed that on peculiar facts of the case it was held that the High Court could not reappreciate the evidence and on those facts it was held that it was question of fact.
(22) On the other hand Mr. A. B. Saharya, learned counsel for the appellant, brought to my notice two other decisions of Supreme Court reported as 1970 R. C. J. 34 : Smt. Kamla Soni v. Rup Lal Mehra(2) and 1971 R. C. J. 749 : Madan Lal Puri vs. Sain Dass Berry (3) In the case of Smt. Kamla Soni the Bench of J. C. Shah, Ramaswami and A. N. Grover, JJ. observed that the requirement of landlord must be judged in the light of the status in life intending to occupy, his age, stage of health, the way in which he is accustomed to live, the accommodation which he occupies or otherwise has available to him and other relevant circumstances. The landlord must require the premises bona fide. It is for the court which is invested with the power to determine whether the landlord requires the premises for occupation and whether the requirement is bona fide. It is further held at page 36 of the report in paragraph 4 of the judgment '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 bona fide, within the meaning of section 14(1)(6) is a finding on a mixed question of law and fact. An inference that the requirement of the appellant in the present case was bona fide could not be regarded as conclusive'.
(23) To the similar fact in the case of Madan Lal Puri before a Bench consisting of Vaidialingam, A. N. Ray, Palekar, JJ., the decision in the aforesaid case of Smt. 'Kamla Soni was again affirmed and at page 753 of the report Vaidialingam, J. speaking for the Supreme Court observed ; ' that finding as to bona fide requirement is a finding of mixed question of law and fact and it will be open to the High Court when he exercise under Section 39(2) of the Act to consider the correctness or otherwise. The findings recorded on such an issue by the subordinate Tribunals are not conclusive'.
(24) It is true that Palekar, J. and Bhagwati, J. in the case of Mattu Lal vs. Radhe Lal : 1975 R. C. J. page 86(4) expressed their doubts in paragraph 10 at page 91 about the correctness of the aforesaid decision in Smt. Kamla Soni and Madan Lal Puri cases.
(25) With all due respect to learned counsel for the respondent it cannot be said that Mattulal's case will govern all cases of bona fide requirement of the landlord which come before the High Court in second appeal or the cases of Smt. Kamla Soni and Madan Lal Puri will govern all cases. It will depend on the facts and circumstances of each case, whether the finding is a pure finding of fact or finding is such that it is a mixed question of law and fact which may call for interference by the High Court.
(26) As I noticed earlier, the finding of the Tribunal that the requirement of the landlord is not bona fide was based on the aforesaid two consideration ; (i) because the Tribunal felt that the landlord gave no Explanationn as to when the intention was changed from selling to living in the house, and (ii) because the landlord has not actually shifted to Delhi till the hearing of the appeal.
(27) It will be noticed that the second reason given by the learned Tribunal really vitiates the finding of the Tribunal as to the bona fide requirement of the landlord. It will be too much to expect from. a Government servant, who is due to retire to wait for retirement, come back to Delhi, hunt for a house or stay with relation or stay in a guest house and then to file petition for ejectment after showing that he has shifted to Delhi. To say the least, this approach is absurd and most unreasonable. On this short ground only because of this fallacious approach the finding of fact as to the bona fide requirement stands vitiated in law.
(28) It will be noticed that the appellant filed the petition for eviction in August, 1972 and he retired finally from the Army as a Brigadier in September, 1972. This is clear not only from his own statement but also from the order (Ext. A/2) filed on the record which shows the retirement of the appellant was on or about 28th September, 1972. The appellant thought that three months before filing the petition was sufficient for put him in possession of the house to shift to Delhi as soon as he retires.
(29) Now I would like to deal with the other finding given by the Tribunal that it is not explained by the landlord as to when his intention was changed-from selling the house to the living in house.
(30) I have gone through the aforesaid three letters in this behalf dated 18-2-1971 (Ext. R-6), 19-3-1971 (Ext. R-2) and 1-6-1971 (Ext. R-3). Exhibit R-6 purports to have been sent to the tenant by Mrs. B. L. Bhagat. This letter reads as under : 'Dear Mr. Raman, My brother Brig. P. P. Singh was very keen to show house No. 27-C, Lajpat Nagar-lll to Shri Roshan Lal but when he was here last week Shri Roshan Lal did not contact us. Brig. Singh is coming again next week and will most probab ly meet you. I would appreciate, if you could kindly let Shri Roshan Lal and party see the house. Yours sincerely sd/- Mrs. B. L. Bhagat'
(31) The next letter dated 19-3-1971 (Ext. R-2) was sent by the appellant from Poona to the respondent tenant which reads as under : 'Dear Mr. Pattabiraman, I thank you for your letter of 11th March. We would be delighted if you takeover the house, as you have been in the house and our mother had no trouble with you. I have found out the rates in that area and we are willing to dispose the house at Rs. 75,000.00 . This price is for you only. You will realise that this is not my house and I have to listen to four other members of the family, who have been already pestering me that the rent of the house is too low. I think this is a reasonable offer and if you agree, we could settle it, this year. The house is well located and it is not a bad buy for the sum. The above price is valid till 30 Apr. 71. With kind regards. P. S. Prices of property at Delhi are going up day by day due to the situation, at Calcutta'.
(32) The third letter is dated 1-6-1971 (Ext. R-3). This again was sent from Poona to Delhi and reads as under : -- 'My dear Mr. Pattabi Raman, I was in Delhi, but some how could not contact you. My sister has spoken to you and I would be thankful if you let me know whether you are interested in purchasing the house at the price mentioned by my sister. This is 9. special rate for you and I would like to finalise the sale of this house by the end of this month. You may please speak to my sister and tell her the position. One outside party is very keen to purchase the house. With kind regards, Yours sincerely, sd/- Shri V. Pattabi Raman, III-C/27, Lajpat Nagar, New Delhi-24'
(33) It appears to me from these three letters that at one stage the property in occupation of the tenant in dispute was owned by the family of Brig. Pritam Pal Singh, appellant and his brother and sisters. It also appears that his brother and sisters were keen to sell the property as the rent was too low and the appellant had joined his other brother and sisters in making an offer to the tenant to buy the house. The appellant was really following the common desire of other co-owners. He was himself at that time posted at and was a full Brigadier in the army. He was expecting extension of service either by way of promotion or extension and this is a common well-, known fact and particularly in a service like army where the age of retirement or time of retirement depends on the rank which an officer held. For example normally people in the army retired as Lt. Colonel and the age of retirement is nearabout 48 years. If one is promoted as a full Colonel he may retire at the age of 52 and so on. This is a well known fact in the armed forces .and I can take judicial notice of it. While in civil services where the age of superannuation or retirement is pre-determined, the age of retirement in the armed forces is not predetermined for any officer. It depends always on what rank the officer retires and the age of retirement is thus not predetermined and the officer expect promotion from one rank to the other till the last moment, and they are not sure when the retirement will take place.
(34) It is, thereforee, not surprising that when the appellant was serving as Brigadier in Poona he was expecting a further extention in service and in that account he joined his other family members to dispose it off. because the return was only Rs. 2251- per month and he did not immediately need it for personal occupation. The relations between Brig. Pritam Pal Singh and the respondent-tenant was very cordial and naturally because of past relations with him and his inother he wanted to offer it to the resplendent, if he could buy the house.
(35) It will thus be noticed that instead. taken by the tenant that there was any other co-owner or co-landlord of the property in dispute and it was in these circumstances that the appellant was confronted with these three letters which he honestly admitted to have been sent to the tenant. Instead of appreciating the predicament of a retired person or a person who was facing imminent retirement the court below thought that it was mala fide on his part to claim eviction on the ground of bona fide requirement and that his intention was to sell the house It appears to me that even if there was any such intention. there was no such necessity of pleading change of intention in the replication as observed by the Tribunal.
(36) Ill the written statement as soon as this plea was taken by the tenant that the real intention of the appellant was to sell the house, the appellant infact pleaded in replication that 'it is specifically denied that the petitioner has any intention whatsoever to sell the house. The petitioner has retired from the Army and wants io settle down in Delhi'.
(37) In cross-examination the appellant further stated 'I tried to sell the house in 1971 because the defendant wanted to purchase it. At that time I was not aware whether I will get extension or not'.
(38) There is no reason whatsoever to disbelieve the statement of the appellant.
(39) I have embarked upon this inquiry of re-appreciating the evidence as to the bona fide requirement of the landlord in view of the fact that I have already held that the finding of fact as to the bona fide requirement of the landlord stood vitiated due to the palpably wrong approach of the Tribunal.
(40) The second appeal was filed in this court as far back as December, 1974 and inspire of repeated applications being filed by the appellant for expediting the appeal. this court was unable to expedite the hearing of the appeal and the appeal ultimately came up for hearing before me in view of the order of Chawla, J. dated 20-2-1980.
(41) When the appeal came up for hearing before me, the respondent-tenant filed an application inter alias staling that the appellant has a double storeyed house No. 386, in defense Colony, New Delhi, and is living in the first floor accommodation thereof and has let out the ground floor to other tenant and it was submitted in this application that these subsequent events be taken into account before disposing of the appeal.
(42) These subsequent events were recited by the respondent-tenant by way of an application (C.M. No. 5232of 1980). In this application apart from urging that subsequent events be taken into account, it was also urged that the ejectment petition itself was incompetent and should be dismissed as it was not mentioned in the ejectment application 'that the landlord has no other reasonably suitable residential accommodation available to him'. It was inter alias mentioned : '(i) the appellant owns a double storey house in the prestigeous defense Colony at New Delhi No. D/386. (ii) The appellant is comfortably living in the 1st Floor accommodation of the above house. (iii) The accommodation in the house being surplus, he has let out the ground floor accommodation to another tenant. (iv) The premises in question is only a poorly built accommodation fit for accommodation of refugees, and is unfit for residence of the petitioner/appellant both position wise and location wise of the accommodations'.
(43) On this application having been filed I gave notice to the appellant and he filed an affidavit in reply dated 3-1-1981 and in relation to subsequent events in paragraph 7 he deposed as under : 'With reference to para 7 of the application it is submitted that the respondent has twisted and misrepresented the facts to mislead this Hon'ble court. (a) At the time of the institution of the eviction petition, only the ground floor of the house at defense Colony was built. It was already in occupation of a tenant. The landlord did not have it for his residential accommodation. There is evidence also available of this aspect on record, Even after retirement, the landlord had to stay back in Poona for want of residential accommodation in Delhi. He had to continue staying at Poona even during the pendency of the appeal before the Tribunal. These are facts undisputed and clearly discernibly on the existing record of the case. (b) Delay in final and conclusive disposal of the claim of the landlord for eviction of the respondent from the premises in question placed him in a serious and peculiar dilema. On one hand, the Tribunal drew an adverse inference against the landlord for his staying back at Poona even after his retirement and doubted his bona fides on that score. On the other hand, the landlord found it exceedingly impossible to continue to stay at Poona. After retirement from service he was staying in Poona in a village (Gorbudhruk) some 25 Kms. from the town with no one nearby. His wife was there with him. They had a grown up daughter to' wed. Stay at Poona was ileither free from trou ble nor was it convenient in view of the appellant having already retired from service and crossed 60 years of age. Under hostile and difficult circumstances, the appellant had to decide to take a plunge and so started constructing the first floor of the defense Colony house in the later half of 1978, after waiting desperately for over three years for a decision of the present appeal which was pending since 1974. The appellant had scarce and limited savings of his life time and other resources to go by. He staked all his savings and also sought financial assistance from various sources. He was able to raise some loans from a hank and some relatives as well as from the tenant in occupation of the ground floor of the defense Colony House, in addition to his cooperation, to commence construction of the first floor of the house at defense Colony in the later half of 1978, as aforesaid. (c) One of the factors, which persuaded the appellant to construct above the ground floor of the house at defense Colony was the expectation of occupying the premises in question for his personal residence on getting them vacated from the respondent and being able to supplement his income by letting out the portion which was proposed to be constructed to meet his expenses after retirement and also to provide some security for his wife and himself to meet unforeseen and uncertain situations inherent in old age. (d) Construction of the defense Colony house above the ground floor cost the petitioner approximately Rs. 1,70,000.00 . He met the cost by liquidating all his fixed deposits amounting to approximately Rs. 17,000 and by raising loans from various sources aggregating to a sum of Rs. 1,56,000 out of which the tenant on the ground floor of the building was kind enough to have advanced money to the appellant amounting to Rs. 59,500 which was to be adjusted against rent of the ground floor which was at that time at the rate of Rs. 1,700 per month. (e) Most of the construction work above the ground floor of the defense Colony house finished by November, 1979. Water supply became available in the newly constructed portion in February 1980. Without waiting for completing fittings and finishing of the house for paucity of funds the appellant moved into the first floor of that house in July 1980. Fitting and furnishing of the first floor was carried on gradually and is still no complete. Thee phase power electric supply has yet to be fitted in the newly constructed portion. (f) However, in an anxiety to expedite the repayment of collosal debt, the appellant let out the barsati of the newly constructed portion to a tenant at Rs. 800 per month. (g) At present the appellant is in heavy debt and has yet to pay back approximately Rs. 77,000 more to his creditors which includes a sum of Rs. 9,200 still due to the tenant on the ground floor of the defense Colony house which had to be adjusted towards rent payable in future. (h) In the aforesaid circumstances, the appellant is not getting in hand any return from the ground V. P. Raman floor of the defense Colony house. His personal income, including his pension now available to him, is as follows: Pension .. Rs. 657.OOP.m. Rent of Barsati which had to be furnished in Feb. 80 to be let out to get some return from it to repay the outstanding loans. Rs. 800.00 p.m. Rent of Lajpat Nager House. Rs. 225.00 Dividends Rs. 40.00 Rs. 1722.00 (i) Out of the above resources, the appellant has yet to repay his debts as aforesaid apart from meeting the day to day expenses and necessities of life for his wife. himself and also his son and daughter in law as the son is not in gainful employment at present, for unfortunate reasons beyond the control of the appellant. Apart from these necessities the appellant has yet to wed his grown up daughter who is of marriageable age and is presently employed at Bombay. (j) It is unavoidably necessary to let out the newly constructed first floor also of the defense Colony House to enable the appellant-landlord to liquidate his onerous liabilities existing at present. to meet the ever growing costs of day to day living and also, if possible, to save some money and reserve it to be available as security for unforseen contingencies in the period of remaining life of the appellant and his wife, apart from the requirements of his son, daughter-in-law and the daughter. (k) Apart from the financial aspect, the appellant submits that the residential accommodation on the first floor of the defense Colony house which he now has is not suitable due to the physical condition and age of the appellant and also of his wife due to old age. The appellant has already suffered four attacks of severe tachcardia which lasted for several hours together each time. He is also suffering from fluctuating blood pressure. As time passes, physical health of the appellant and his wife is bound to deteriorate further. In such circumstances it is most humbly and respectfully submitted that the appellant cannot be reasonably expected to continue to reside in the first floor of the house at defense Colony and to deny him the benefit of residence in the premises in dispute, which alone could be of avail, help and assistance to the appellant at the present stage of his old age and to enable him reasonably to meet his necessary obligations in life. (1) The respondent has attempted to mislead this Hon'ble court by suggesting in sub para (iv) of para 7 of the application that the premises in question are unfit for residence of the appellant both positionwise and locationwise of the accommodation. The suggestion is misconceived and appears to have been made in total ignorance of and disregard to the present condition and circumstances of the appellant. (m) In the aforesaid circumstances, the appellant still bona fide requires the premises in question for residence for himself and members of his family dependent on him.'
(44) This immediately raised the question whether now the appellant has acquired other reasonably suitable residential accommodation and, thereforee, the cause of action which may have been there when the application for ejectment was filed has now disappeared. Since it raised a disputed question of fact I permitted the parties to lead evidence.
(45) I had called upon the appellant to examine his witnesses first and he inter alias examined Dr. V. K. Chopra, Registrar, Intensive Cornorary Care Unit, Sir Ganga Ram Hospital, Delhi as Awi and Dr. Jitendra Bajaj' a specialist in Orthopedic branch of Surgery as AW2. Brig. Pritam Pal Singh examined himself as AW3. Sri Sudhir Datta Sharma, clerk of Vijya Bank, defense Colony, New Delhi, appeared as AW4. The appellant also examined Shri Ganga Dhar Chahal, a clerk of Bank of Maharashtra South Extension, New Delhi, as AW5, Shri B. P. Singh brother of the appellant as AW6 ; Mrs. Pushpa Bhatia and Mrs. Prerr-alya Nirmaijit Singh, sisters of the appellant, as AW7 and AW8; and Mrs. Bimla Singh wife of the appellant as AW9.
(46) On the other hand respondent Shri V. P. Raman examined himself as his own witness.
(47) Dr. V. K. Chopra stated that he examined Brig. Pritam Pal Singh on 10-3-1981 and had stated that the appellant had given him a history suggesting 'Paroxysmal Atrial Tachcardia' for a number of years and there was a documented episode recorded from Poona on 9-4-1973. He also mentioned that during these attacks he used to giddiness and marked fatigue. At time lie used to get a feeling of Syncope i.e. near unconsciousness, and he advised him to take tablet Isopten and to avoid strains, physical exertion like running, climbing up-stairs, lifting weight. The witness further deposed that on 3rd April, 1981 he saw the appellant at 10.15 P.M. when he had an actual attack. Previously the appellant was able to control these attacks by certain manoeuvers which is usual with such patients but this time he was unable to do so. The blood pressure of the appellant during the attack was 90-70 mm of mercury. He further deposed that after the witness prevented the attack the blood pressure goes to 115180 mm of mercury. He produced in Court the E.C.Gs. of 9-4-1973 and 3-3-1981 as Exts. Apwiu and Apw 112. The witness also deposed that since the appellant's episodes of tachcardia are becoming more frequent and usually come on exertion I had advised him not to undertake heavy physical exertion or climbing upstairs.
(48) In reply to Court question the witness deposed that the blood pressure of the appellant in normal state would be 110170 to 145195 mm of mercury. The blood pressure of the appellant was very low during the attack. According to Ecg which the witness had filed, the heart rate was practically about 160 beats per minute whereas it should normally have been less than 100 beats per minute so far as the appellant is concerned. Increasing heart beat in medical treatment is called tachcardia. The tachcardia from which Brig. Pritam Pal Singh is suffering is 'Intermittent Tachcardia'.
(49) The only suggestion given to this witness on behalf of the tenant was that he had only given certificate to Brig. Pritam Pal Singh but he asserted that he in fact treated the appellant first on 10-3-1981 and thereafter on 3-4-1981.
(50) This evidence has been led by the appellant to show his physical state of health.
(51) I had examined the appellant last year and at that time he was 63 1/2years and now he is practically 65 years of age. Regarding his health the appellant stated that he finds physically impossible to live on the first floor in view of his own ailment and the physical ailment of his wife. He further stated that he is suffering from Tachcardia and gets this trouble while walking or climbing stairs. He also deposed that earlier by taking medicines he could control Tachcardia and could also control physically, and now in old age he cannot control it. He further deposed that even while he was in service he was suffering from Tachcardia but he did not bother as it was intermittent and he could control it. The appellant also stated that while in the army he took treatment from military hospital and was availing the services of military hospital while he was in Poona.
(52) In cross-examination the appellant deposed that there is an Army Hospital in the cantonment but it is very difficult for him to take help from military hospital in Delhi, since the hospital is in cantonment area and is far from the places where he is residing and he purposely got himself treated from the private doctors so that there may not be any feeling that brother doctor are supporting him. He also stated that he never visited Dr. Chopra as such but after he had a heart attack he was sent for. He was sent for once when he was attacked.
(53) Dr. Jitendra Bajaj was examined by the appellant to prove that the appellant's wife Mrs. Bimla Singh is suffering from ailment of hip joints, which means dislocation of the hip joints with the destruction of cup of the joint also. Dr. Jitendra Bajaj even produced original 'X'- Ray (Ex AW2)1) which was brought to him by Mrs. Bimla Singh along with the report of Radiologist (Ext. AW2/2). He stated that his clinical findings tally with the report of the Radiologist and the clinical prescription prescribed by him was filed as Ext. AW2/3. He brought his own clinical findings which was exhibited as Ext. AW2/4.
(54) He stated in cross-examination that ha never examined Mrs. Bimla Singh earlier and he has no 'X' Ray arrangement of his own but he operates the patients and in that form give treatment. He also stated that. he did not operate upon Mrs. Bimla Singh and Mrs. Bimla Singh had come to her along with some other lady whom he did not know. He denied the suggestion that he had made the statement only to help Brig. Pritam Pal Singh.
(55) It will be noticed that both Dr. P. K. Chopra and Dr. Jitendra Bajaj are working in well known, well reputed hospitals of Delhi. Dr. V. K. Chopra is working with Sir Ganga Ram Hospital in the Intensive Coronary Care Unit and his experience as a doctor was never challenged in his cross examination. Whereas Dr. Jitendra Bajaj is a private consultant for hospitals in Delhi including Tirath Ram Hospital and Sir Ganga Ram Hospital. He is M. S. and is specialist in Orthopedic branch of Surgery. There is no reason whatsoever to imagine that these two doctors are tool in the hands of the appellant. I have no reason to disbelieve the statements of these two doctors.
(56) It must, thereforee, be held that the appellant is suffering from Tachcardia and suffered the attack of Tachcardia as recently as on 3-4-1981.
(57) Mrs. Bimla Singh, wife of the appellant, also appeared in the witness box and deposed on oath that she is suffering from dislocation of hip and it is very difficult for her to walk. She also stated that she is suffering from it for a quite long time, practically 15 to 16 years. She also deposed that earlier it was not so bad as she used to move about not now she finds it very difficult to move about for the last about I or l-l/2 years. She also stated that it is very difficult for her to climb up. She further deposed that after coming back to Delhi she has gone to two doctors in connection with her trouble. She also deposed that she consulted Dr. Jetinder Bajaj and Dr. S. S. Arora and she was 'X' Rayed in this connection in Mool Chand Kahirayati Ram Hospital. She also stated that she then took 'X'-Ray to her doctor who gave the prescription according to the 'X'-Ray and the report.
(58) In cross-examination she deposed that this was not the first time when she was 'X'-Rayed. She stated that since she was having pain she had gone to the hospital where the 'X'-Ray was taken. She deposed that she had gone to the Opd of the hospital and her husband had accompanied her for the 'X'-Ray. She stated that she recollect that her sister-in-law accompanied her when she visited Dr. Bajaj.
(59) It is true that the doctor who actually took the 'X'-Ray has not been examined. But there is no good reason for me to doubt that Mrs. Bimla Singh has gone to the extent of collecting 'X'-Ray of a different person and when go to Dr. Bajaj for taking his opinion. At old age these troubles are very common and there is no reason to disbelieve that Mrs. Bimla Singh, wife of the appellant, is suffering from pain in the joints and dislocation of hip.
(60) The position, thereforee, boils down to this that the appellant is suffering from Tachcardia, a serious ailment, at this age of the appellant, and his wife is a suffering from pain in the joints including dislocation of hip.
(61) I should have thought that this alone was sufficient for landlord to desire to live in an accommodation situated on the ground floor but during evidence of Brig. Pritam Pal Singh it came out that his pension in the beginning was Rs. 397 per month and now with revision it is Rs. 707, per month in view of the increase in D.A. etc. and the previous tenant residing on the ground floor of defense Colony house was ejected through process of the Court in view of sub letting by him and at that time the rent of the defense Colony house was Rs. 1000 but it was single storeyed house and he got possession of that house on 3-5-1978. He started construction of the first floor near about the month of September, 1978. While the construction of the first floor was going on he let out the ground floor again to one Mr. Duru on 12-7-78.
(62) Thus it will be noticed that the appellant got possession of the house in defense Colony on 3-5-1978 and within two months he let it out to Mr. Duru.
(63) Learned counsel for the tenant-respondent submitted that during the pendency of the appeal, he had acquired vacant possession of a suitable accommodation yet it was let out to Mr. Duru and was not occupied by the appellant and this shows that the appellant did not bona fidely requires the premises in dispute.
(64) A question was directly put in the cross examination to Brig. Pritam Pal Singh as under : Why did you not occupy the premises on ground floor when you had got the vacant possession? The appellant answered : A. The question was how to live. I had nothing else apart from the pension and my appeal for ejectment was also pending in the High Court.
(65) He further deposed in cross-examination that he had to build the first floor and the Barsati floor in order to create income to live and he thought the same to build only because that chap (tenant) was ready to pay the advance; otherwise it was impossible for him to build it. It was in fact a part of the terms with the new tenant to give loan in advance which will be adjustable towards future rent.
(66) If we look at the stage at which the house of defense Colony became available when order for ejectment was obtained against the previous tenant on the ground of subletting and the fact that the appeal of the appellant for obtaining possession of the present premises was still pending coupled with the fact that the appellant is a retired Brigadier, has a very meager pension I am not prepared to hold that the availability of that accommodation in May 1978 and its letting in July, 1978 shows mala fide of the appellant.
(67) Another factor which does not show mala fide is that the letting to Mr. Duru was not a simply letting. It was coupled with a financial transaction also inasmuch he advanced money to build the first floor. thereforee, I am not prepared to hold that it was mala fide on his part to have let it out to Mr. Duru.
(68) Though physically it may have been suitable for him but economically it was not suitable for him in the peculiar situation in which the appellant was placed.
(69) There is no doubt that the appellant is now living on the first floor accommodation which he newly built at the defense Colony house and owned by him. The appellant also led evidence to show that he had built the first floor of the house by borrowing money from his brother and sisters who appeared in the witness box and also took advance from the tenant of the ground floor and he has not been able to return the loans taken from his relations. The advance taken from the tenant of the ground floor of course adjustable from future rents. But it cannot be said that because he has to return those loans he must get another tenant to vacate the premises and cannot be said for that reason that 'the landlord has noother reasonably suitable residential accommodation.'
(70) I am afraid it will be stretching the language of the aforesaid requirement little too far. What is contemplated by the expression 'has no other reasonably suitable residential accommodation' is as reference to the physical suitability for residential purposes to the landlord when the accommodation is owned by him and not the financial suitability. There may be cases where landlord is living in a house and the rent of that become uneconomic for landlord to pay and in that situation it may be said that he has noother reasonably suitable residential accommodation. But the economic consideration will be out of place where the landlord is occupying his own house.
(71) For alternative premises being reasonably suitable for residential accommodation one may take into account, as I have stated earlier, physical suitability which will include the location of the house, accommodation, size of the accommodation and such like criteria.
(72) I am conscious of the fact that in various decisions economic considerations are allowed to be taken into account for considering the bona fide requirement of the landlord. But those are cases where the landlord has got no accommodation and he has a choice to eject a particular tenant, may be for economic reason the choice is made. I am very doubtful if the economic consideration can be imported while interpreting the aforesaid part of the provision of clause (e) to the proviso to sub-section (1) of Section 14 of the Act. I am. thereforee, not discussing the evidence led by the landlord regarding the financial obligation which he had to undertake for building the first floor occupied by him and which have yet to be discharged.
(73) Thus in view of my finding earlier that the landlord is suffering from heart trouble known as 'intermittent Tachcardia' and he has recently even suffered an attack in April, 1981 coupled with the fact that his wife is also suffering from deformed pelvis and find it difficult to climb stairs and doctors advised that they should avoid climbing stairs, it must be held that the first floor accommodation in which they are living in defense Colony has become unsuitable for them and the appellant cannot be said to be in occupation of 'other reasonably suitable residential accommodation.'
(74) The physical condition as well as the advance age of both the landlord and his wife show that first floor accommodation is not suitable for the requirement as residence for the landlord.
(75) Mr. Harbans Lal, learned counsel for the tenant, however brought to my notice a suggestion which was put on behalf of the tenant to the landlord when he was in the witness box as to whether he would be willing to let the first floor of defense Colony house to the tenant at the rate of Rs. 225 per month which he is already paying for the disouted premises. The landlord replied that he would be willing provided the tenant pays market rent. He submitted that this shows the mala fide.
(76) I am afraid no such inference can be drawn from this statement. On the other hand it shows the bona fide of the landlord that he will be willing to exchange the premises provided the tenant pays the market rent. It is not the legislative policy behind clause (e) to the proviso to sub-section (1) of Section 14 of the Act that the landlord should look after the needs of the tenant and the offer made by the landlord cannot be said to be mala fide. In fact the offer was fair.
(77) Another submission in the aforesaid application for taking into consideration subsequent events was that the disputed premises are not fit for the person of a status Tike the appellant. 14 HCD/82 8
(78) I am afraid that this is not a matter of subsequent events and should have been taken and or urged, if at all, when the written statement was filed by the respondent.
(79) The last point which was taken in the aforesaid application was that the ejectment application was not. maintainable as the landlord had not avered in the ejectment application that he ha' no 'other reasonably suitable residential accommodation available to him in Delhi.'
(80) It may be noticed that this plea has been taken for the first time during the hearing of the second appeal. The plea was taken m the written statement that the ejectment application is lacking in essential material particulars but during trial the landlord stated that he has 'no other reasonably suitable residential accommodation in Delhi' and the landlord was even cross-examined in that behalf by the tenant. During arguments before the learned Additional R-ent Controller no such objection was urged.
(81) Again when the Additional Rent Controller accepted the application for ejectment, no ground was taken in the grounds of appeal filed before the Tribunal for any such defect nor was any argument advanced before the tribunal in that behalf during the hearing of the appeal. It is true that the decision reported as Air 1930 Privy Council 57, Siddik Mahomed Shaha v. Mt. Saran and others (5). It was observed' that no amount of evidence can be looked into upon a plea which was never put forward and again Mahajan, J. in the matter : 4SCR789 . Messrs Trojan and Co. v. R. N. N. Nagappa Chettiar (6) held that the decision cannot be based on grounds outside the pleadings and it is a case pleaded that has to be found. It was also observed that without amendment of plaint, the Court is not entitled to grant the relief not asked for.
(82) HOWEVER. Venkatarama Ayvar, J., in the matter : 1SCR451 Nagubai Ammal and others v. B. Shama Rao and others (7). In paragraphs 11 and 12 explained the aforesaid Privy Council decision and it was held that the rule laid by the Privy Council has no application where parties actually lead evidence and go to trial with knowledge of the issues involved.
(83) A Division Bench of the Punjab High Courr in : Chandan La] Joura v. M/s. Amin Chand Mohan Lal, partership firm and others (8) took the view that the party should not be taken by surprise. Every 'variance between pleadings and evidence is not fatel. They also went to the question of finding out what was the basic nature of the case which was known to the parties.
(84) The two tests were laid down by Gajendragadkar. CJ. speaking for the Supreme Court in the matter : 2SCR286 , Bhagwati Prasad v. Chandrarnul (9) wherein at page 738 in paragraph 10 Gajendragadkar, CJ. observed as under : '10. But in considering the application of this doctrine to the facts of the present case. it is necessary to bear in mind the oilier principle that considerations of form cannot over ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily dis-entitle a party from relying upon it if it is satisfactorily proved By evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the is sues, and evidence has been led about them, the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is; did the parties know that the matter in question was involved in the trial and did they lead evidence about it If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do in justice to another.'
(85) Similar view as taken by Dua and Capoor, JJ. in the matter ; Didar Singh Chheeda v. Sohan Singh Ram Singh and others 10. (Full Bench) Banke Ram v. Smt. Sarasti Devi (II) 1978(2) Rcj 40 Paramjit Singh and others v. Bawa Gurdas Ram and others 12. 1979(1) Rent Law Reporter 327 Shri Gurdial Nagdev v. Smt Devi Bai. (13).
(86) In fact there is a catena of authorities in that behalf and as observed by the Supreme Court- the tests are that where the parties inspire of something missing in the pleadings go to trial with full knowledge of the issues involved and both parties lead evidence in that behalf and there is no prejudice caused to either party it would not prove fatel to the suit.
(87) In the present case, on the facts noticed earlier, it cannot be said that any prejudice has been caused to the respondent and, thereforee, there is no merit in this point either.
(88) The result is that inspire of taking into account the subsequent events as discussed earlier I find that there is bona fide requirement of the landlord to occupy the premises in dispute for himself and members of his family and that he has no other reasonably suitable accommodation available to him.
(89) I, thereforee, accept the appeal, set aside the impugned order of their Tribunal dated 18-11-1974 and restore the order of Shri V. S. Aggarwal, Additional Rent Controller, Delhi, dated 4-10-1973.
(90) The respondent is, however, allowed six months' time to vacate the premises.
(91) Parties are, however, left to bear their own costs throughout.