J.D. Jain, J.
1. The facts giving rise to this appeal under Section 39 of the Delhi Rent Control Act (hereinafter referred to as the Act) succinctly are that the appellant Sardari Lal Jain is a tenant under the respondent/ landlord with respect to one room (garage on the backside) on the ground floor of property bearing No. 56-D, Kamla Nagar, Delhi with amenities of a common bath-room on the second floor and latrine on the 3rd floor thereof. As far back as May, 1970 the respondent instituted eviction procredings against the appellant, being suit (E. 340/70) on the grounds embodied in clauses (e), (d) & (h) of the proviso to Sub-section I of Section 14 of the Act. It was averred that the premises in dispute had been let out to the appellant for residential purposes only but the same were being used by him for commercial purposes, that he had acquired another residence at 4, U.A.,Jawah
2. The Additional Rent Controller vide his order dated 6.10.1972 directed eviction of the appellant under clause (d) of proviso to Section 14(1) of the Act while dismissing the same on the other grounds. He specifically held that the premises in question had been let out to the appellant for purely residential purposes and that neither the appellant nor any member of his family had been residing there for more than 6 months immediately preceding the filing of the eviction petition. He found that even though premises No. 4, U. A. Jawahar Nagar, Delhi had been taken on rent by the son of the appellant and not by the appellant himself, the later had been residing there along .with member of his family and had foresaken the user of the premises in question for residential purpose. The appeal preferred by the appellant against the said order proved fruitless and was dismissed by the Rent Control Tribunal vide order dated 26.8.1974. Hence this second appeal.
3. Both the parties adduced good deal of evidence to substantiate their respective contention. During the course of proceedings Shri Ravinder Nath Suri, Advocate was appointed as a local commissioner at the instance of respondent/landlord and after inspection of the premises in dispute on 9.6.1970 in the presence of both the parties he submitted his report in the matter. He found that the petitioner and his wife were in occupation of the premises in dispute at that time and boxes were being manufactured by them. Some utensils, a machine, a cycle and some wheat were also lying there. He testified to the correctness of his report Ex. A.W. 4/A and asserted that whatever articles were lying in the premises at the time of his visit and were brought of his notice were only mentioned in his report as Ex. A. W. 4/2. Further according to him both the parties signed proceedings Ex. A. W. 4/A recorded by him at the spot in his presence. He denied the suggestion that the appellant had brought on his notice that meals had been cooked and were lying there.
4. The learned counsel for the appellant has canvassed rather fervently that both the Courts have acted with material irregularity inasmuch as they have misconstrued the report of the Commissioner by not considering it in right perspective. Further it is urged that the evidence adduced by him is unimpeachable in character and amply establishes that he had all along been residing in the premises in dispute. Further both the courts below have given contradictory findings in that while holding that the premises hearing No. 4, U. A., Jawahar Nagar, Delhi had been taken on rent by Chander Prakash son of the appellant and not by the appellant, they wrongly held that the appellant had shifted to the said premises along with members of his family and had been residing there for more than 6 months prior to the institution of the eviction proceedings and abandoned residential user of the premises in dispute.
5. I have carefully gone through the entire evidence on record and judgments of both the courts below. It is to be noted that the report of the local commissioner has been used only as corroborative piece of evidence by drawing adverse inference that absence of house-hold goods like beds and cooking apparatus etc. was suggestive of non-user of the premises in dispute for residential purposes. So the testimony of the plaintiff himself as also some of the witnesses examined by him, was found to be trustworthy. The learned Tribunal notices that the son of the appellant had taken a two-room suits at 4, U. A., Jawahar Nagar, Delhi, some time in 1969 even through he was unmarried and was not in need of so much accommodation. On the contrary it was admitted by Chander Prakash, himself that the appellant had only one room in his tenancy and in the absence of any separate kitchen he used to cook meals in that very room. Not only that they would also make card board boxes at that very place. Thus I find considerable force in the: observation of the learned Tribunal that in the absence of any special reason compelling the son of the appellant to live separately by taking a two-room suit on rent it could be legitimately inferred that he took the premises at 4, U. A., Jawahar Nagar, Delhi on account of paucity of accommodation with the appellant in the premises in dispute, more so when nothing had come on the record that his relations with the appellant were somehow strained. Thus it was not believable that the son who had shifted to another premises due to shortage of accommodation would have been living alone all along in Jawahar Nagar premises while the appellant continued living in the premises in dispute with his wife and children despite plenty of spare accommodation being available with his son. The Tribunal further noticed that the premises in question were even otherwise uncomfortable in the sense that the latrine thereof was on the third floor while bath room was on the second floor. He was not convinced that for no rhyme or reason the son of the appellant would have been residing away from his parents and that sometimes he would be taking meals with them and sometimes go to bazar for eating. Non-production of material evidence like ration card to show that the appellant had been residing separately from his son in the premises in dispute also weighed with the learned Tribunal.
6. On a consideration of the whole evidence I find that the reasons given by the learned Tribunal are weighty and cogent. The circumstances of the case speak out quite eloquently what must have been the true state of affairs. Besides that I find that the evidence of Shri Suraj Kishan (A. W. 7) and Shiv Kumar (A. W. 8) both of whom are independent witnesses is a quite trustworthy. The former is resident of 17 U. A. Jawahar Nagar, Delhi which is at a distance of about 100 yards only from 4 U. A., Jawahar Nagar in which the premises taken by the son of the appellant on rent are comprised. So his testimony that the appellant had been residing with his son at 4 U. A. Jawahar Nagar inspires confidence. As far Shiv Kumar (A. W. 8) he is resident of57-D, Kamla Nagar which is adjacent to the premises in dispute. He deposed that the defendant used to live in the premises in question formerly but he had shifted there from three years ago and was no longer living there. There is nothing on record to suggest that these witnesses are either friendly towards the respondent/landlord or inimical towards the appellant. Further, I find that the appraisal of parties' evidence by the Courts below does not suffer from any apparent infirmity on account of misreading or misappreciation thereof and criticism of appellant's evidence by the learned Tribunal is perfectly sound. Hence, the findings given by the courts below call for no interference by this Court.
7. That apart Section 39 of the Act which provides for second appeal clearly lays down that jurisdiction of the High Court in such appeals is confined to determination of substantial questions of law only. Where the question for determination is clearly one of fact, as in the instant case, and both the Controller and Tribunal have given concurrent findings on the same, it is not open to the High Court to re-assess the evidence in second appeal. In other words jurisdiction of the High Court under Section 39 of the Act is confined to determination of substantial questions of law and does not extend to reversing the finding of fact arrived at by the Tribunal. See Smt. Krishnawanti v. Bans Raj 1975R.C.J.164(S.C.). Evidently no question of law such less substantial question of law is involved in the instant case. Hence I see no cogent ground to interfere with the concurrent findings of fact.
8. To sum up, thereforee, there is no substance in this appeal. It is accordingly dismissed. However the appellant is allowed three months to surrender vacant possession of the premises in dispute to the respondent/ landlord The parties are, however, left to bear their own costs.