B.N. Kripal, J.
(1) The respondent (hereinafter referred to as 'the landlady') on 1st March, 1977 filed an application under Section 14(l)(e) of the Delhi Rent Control Act, 1958 for the eviction of the petitioner (hereinafter referred to as 'the tenant').
(2) In the eviction petition it was stated that the family of the landlady consisted of herself and her two sons. The elder son was married and had one son of about 1' years and the other son was still a student of B. Pharma. It was contended that she was in occupation of only four rooms on the ground floor besides a kitchen, a bathroom and a W. C. and she had one small store room on the first floor. It is further mentioned that one room was being used as drawing-room and another as dining-room. Another room was being used as bed-room by the elder son of the family. The only remaining room was being shared by the landlady and her younger son. It is also alleged that there was no guest-room in the possession of the landlady and guests often visited her. The elder son was stated to be a Charteredccountant and was working as an Accounts Officer in the Indian Oil Corporation at New Delhi. It was alleged that he required a separate room for his study. Mention was also made of a guest who was residing with her, namely, the brother-in-law of the elder son. The accommodation which is in the occupation of the tenant is of two rooms, kitchen, bath and W.C. and a common courtyard on the ground floor.
(3) On summons being issued under Section 25B the tenaut moved an application and an affidavit for leave to contest the case on merits. The Additional Rent Controller, Delhi, granted the leave sought for. The case of the tenant before the Rent Controller was that the landlady did not bona fide require the premises which were being occupied by him. According to the tenant, the landlady had four big rooms on the ground floor and another big room and a store on the first floor. Other pleas were also raised by the tenant but it seems only two other pleas were agitaed before the Additional Rent Controller. The first such plea was that the petition was not maintainable as the word 'reasonable' had not been mentioned therein and secondly that the petition was bad in law as it had been filed only for a part of the tenanted premises. During the pendency of the proceedings before the Additional Rent Controller one of the rooms which was in the occupation of the landlady was coverted into a chemist shop. According to the landlady, her younger son had obtained the degree of B. Pharma and had become eligible to run a chemist shop. Despite best efforts it was not possible to a rent shop because of the high rents demanded by the owners of various shops. Under these circumstances the landlady approached the Governmental authorities and on permission being granted in October, 1978 one room was converted and the second son started running a chemist shop. The parties led evidence. After hearing the counsel or the parties the Additional Rent Controller, by his order dated 22nd March, fl980, held that the follawing three points arose for determination in the case.:-
'(1)Whether the premises are required bona fide by the petitioner and the petitioner has no other reasonable suitable accommodation (2) Whether the petition is not maintainable on account of the word 'reasonable' not mentioned in the petition (3) Whether the petition is bad being for partial eviction ?'
(4) With regard to the first point the Additional Rent Controller held that the family of the landlady consisted, at the time of passing of the eviction order, of herself, her two sons, son's wife and two grandchildren. It was also admitted before him that the elder son was working in the Indian Oil Corporation and the younger had started running a chemist shop. The Additional Rent Controller found that there was no store-room on the first floor as had been alleged by the tenant. There was a room on the first floor measuring 14' x 10'. This was being used by the landlady. According to her, this was a store. The Addl. Rent Controller, however, held that such a big room could not: be registered as a store and was thus available to her for residential purposes. He further held that the conversion of one of the rooms to a shop by the landlady was not mala fide. Relying upon the judgment of Punjab and Haryana High Court reported as Brij Lal v. Smt. Mohini Tandon, 1979 (1) R.L.R. 58 he came to the conclusion that the said room in which the shop had been opened could not be taken into consideration in judging the needs of the landlady. After exclusing the said room from consideration he found that the landlady was left with four rooms. According to the Additional Rent Controller, the minimum number of rooms required for the family were 5, including one room for guests. He thereafter held that the elder son required two rooms for a comfortable living and the family, thereforee, required 6 rooms. The accommodation available with the landlady, according to the Additional Rent Controller, was short of the reasonable requirement and cansidering the family status and need of the landlady he found that the premises of the tenant would be required by the landlady. With regard to point No. 2 he observed that it was not necessary that in the eviction petition the word 'reasonable' should have been stated. With regard to the extent of the tenancy premises the Additional Rent Controller found that the roof never formed part of the tenanted premises and, thereforee, the petition could not be said to be bad for partial eviction. As already noticed the Additional Rent Controller ordered the eviction of the tenant but held that the eviction order shall not be executed for a period of six months from the date of the order.
(5) Against the aforeseid order of the Additional Rent Controller the present revision has been filed under section 25B(8) of the Rent Control Act. The only contention which has been raised before me by the learned counsel for the tenant is that the landlady does not bona fide require the premises in occupation of the tenant for her personal use. In this connection the first submission of the learned counsel is that after the filing of the application for eviction the landlady cannot change the user of a residential room which was in her occupation and thereafter claim that the accommodation with her is insufficient. It was submitted that if a room could be spared by the landlady for running of a shop then obviously an extra room was not required and it was evident that the landlady and members of her family could live in the remaining accommodation.
(6) A general proposition of law, that such conversion of the residential premises to commercial purposes is to be ignored while judging the bona fide needs of the landlady, cannot be accepted. Such a question arose in the case of Gurcharan Singh v. Mukand Singh, Civil Revision No. 229-D of 1959 decided by Falshaw C. J, on 1st February, 1962. In that case the landlord was a retired Government servant. Before taking proceedings for the eviction of the tenant the said Government servant had converted part of the residential accommodation, which was in his possession, into shops and he let them out. Thereafter he sought the eviction of a tenant from another portion of the premises. The contention of the tenant was that the requirement of the landlord was bona fide. Repelling this contention it was observed by the Chief Justice that the word 'bona fide' merely meant that the landlord must really want the premises in dispute for his own accommodation and that he was not putting forward the claim for some ulterior purposes. In other words the mere fact that previously a part of the residential accommodation had been converted into commercial premises cannot be the sole ground for rejecting the landlord's application for the eviction of a tenant, if it is shown that the requirement of the landlord is bona fide.
(7) The aforesaid decision in the case of Gurcharan Singh was followed by the Circuit Bench of the Punjab High Court at Delhi in a decision reported as B. K. Khanne v. M. R. Batra, 1966 Vol. Ii, Dlt 306. In this case the landlord was a lawyer. He wanted the eviction of the tenant, inter alia, on the ground that he wanted to use the accommodation in his possession for professional purposes. It was the case of the landlord that considering the size of his family and his requirement for an office the present premises in his occupation were insufficient. The Rent Control Tribunal had held that since the landlord intended to convert the existing residential accommodation in his possession into an office and library for the use of his clerk and clients such a user was not permissible in law. This finding was reversed by the High Court. It was observed by the learned Judge as follows :-
'ITseems to me that the Rent Control Tribunal was clearly in error in thinking that merely because the appellant wanted to use the accommodation in his possession for professional purposes he could not claim the benefit of the provisions contained in clause (e) of the proviso to Section 14(1) of the Act. It was this error which led to the conclusion at which the Rent Control Tribunal arrived upholding the decision of the Controller on the second point, namely, the requirement of the appellant on personal grounds.'
(8) The ratio of this decision appears to be that the use of a part of the premises by the landlord for his own professional use would be a relevant consideration in deciding the requirement or the need of residential premises by him.
(9) In the case of Manohar Lal v. Mool Chand, 1976 R.C.J. 102 the landlord was using three rooms for tethering cattle and he himself was living in two rooms. He filed an application for eviction of the tenant from another room which was in the occupation of the tenant. The contention of the tenant was that the landlord could easily acquire vacant possession by tethering his buffaloes outside the rooms and that the landlord's application for eviction of human beings while housing his buffaloes was not bona fide. Repelling this contention it was observed by B. C. Misra, J. as follows :-
'THEonly question that the rent control authorities are required to determine is whether the landlord bona fide needs the premises for his residence and he has no other suitable accommodation available. But in what manner other accommodation has been used by the landlord and for that matter whether that is in the occupation of some other tenant or it is being used for commercial purpose or for tethering cattle is not germane to the dispute so long as the landlord succeeds in his case that his need is bona fide in respect of tenanted premises that is in dispute. Consequently, I hold that the submission of the counsel for the appellant that the respondent should make arrangements for tethering buffaloes at some other place has been rightly repelled by the Tribunal.'
(10) A somewhat different view seems to have been taken by Prithvi Raj, J. in Aja Kumar v. Balvinder Singh and others , No. 21 of 1968 decided on 29th July, 1970. In this case the grandfather of the landlords had let out portion of the property by converting it into shops. The Court observed as follows :-
'ACCORDINGto the lease deed granted by the Government, the premises in dispute were to be constructed for residential purposes and it is on record that previously there were no shops in this area but if the landlord with a view to increase his income converts the residential rooms into shops and earns rent out of it he cannot make a grievance that remaining premises in his occupation are insufficient for his accommodation.'
(11) In the aforesaid case the learned Judge made no reference to the three cases referred to earlier. What appears to have influenced the learned Judge, and that seems to be the basis of the decision, is that according to the lease deed entered into between the landlord and the Government the premises could be used only for residential purposes. This would mean that the conversion of rooms into shops was unauthorised and it was in that context that it was observed that the landlord cannot so convert his residential rooms into shops and then plead insufficiency of accommodation In the present case, however, there is no dispute that one room of the premises had been converted into a shop after the landlady's son had obtained a license for opening the said shop from the Delhi Administration.
(12) The shortage of residential accommodation with the landlady may be due to various reasons. In deciding an application under Section 14(l)(e) what is relevant to see is as to whether that shortage was created with a view to oust the tenant. If the landlady alters the use of the residential premises with her, for example by using them for commercial purposes, and this has been done so as to create the shortage of residential accommodation with her with a view to seek the eviction of a tenant, then in such a case the landlady would not be entitled to any relief. On the other hand, the change of user of the residential premises for commercial or professional purposes may be bona fide for the purposes of earning a livelihood If the changed user is in ace ordance with law then, if the remaining residential accommodation with thaandlady is insufficient, the landlady can justifiably move an application and seek the eviction of a tenant under section 14(l)(e). Where the bona fides of the landlady are not in doubt, the tenant will no. be heard to say that the shortage of accommodation is due to the landlady's own creation and the tenant's eviction should not be ordered. A landlady is entitled to use the accommodation with her in any way she pleases. If the use of the accommodation for commercial purposes is bona fide and in accordance with law then she would be entitled to plead that the remaining accommodation with her is insufficient for residential purposes,
(13) As already noted, in the present case the change of user of one room into a chemist shop was effected after necessary license had been obtained from the Delhi Admn. It has come in evidence, which has been accepted by the trial court, that the younger son of the landlady had obtained the degree of B. Pharma and had not been able to get a shop. It was necessary, thereforee, in order to rehabilitate him, that a room in the residential premises be converted into a shop for the purposes of running a chemist shop. Such change of user cannot be said to be mala fide. If the remaining residential accommodation is insufficient with the landlady then she would be entitled to ask for the eviction of the tenant and, while deciding this issue, the room in which the shop is being run will have to be excluded from consideration.
(14) It was then contended that the very fact that one of the rooms could be spared for a shop would mean that the landlady had sufficient residential accommodation available with her. Merely because the chemist shop was opened in a room, which was previously being used for residential purposes, would not, by itself, prove or show that the landlady had sufficient residential accommodation. It may be necessary, as in this case, that the son of the landlady must start earning a livelihood. In order to do so the landlady had sacrificed her comforts and altered the use of the room. The use was altered because of necessity. For reasons beyond the landlady's control it became necessary that one of the residential rooms should be used for a shop. It may be that the accommodation which remained with the landlady may still be sufficient and adequite for residential premises, but the mere fact that a room was converted into a shop would not, by itself, prove that the accommodation that remained with the landlady was sufficient.
(15) It was next contended that it had not been proved by the landlady that the sons were dependent upon her for residential accommodation. This question does not appear to have been argued before the trial court. In any case in the eviction application it was stated by the landlady that the premises in suit were required by her for her personal use and for the use of her family members dependent upon her. In the reply it was admitted by the tenant that the family of the landlady consists of herself, her two sons, her daughter- in-law and two grandchildren. In her statement the landlady has spelt out the need of the premises for her two sons. There has been no serious crossexamination of the landlady on the question that the two sons were not dependent upon her. In my opinion the landlady did make out a case that the two sons were dependent upon her for accommodation.
(16) It was then contended that the trial court erred in taking into consideration the alleged requirement of a guest-room. It will be seen that the trial court came to the conclusion that the landlady required a minimum of five rooms. According to the trial court one room was required for the landlady, one for the elder son and his wife, one for the younger son and his wife, one for the drawing-room and one room for guests. The submission of Shri Kanwal Narain is that the Additional Rent Controller fell in error, while computing the need of the landlady, in taking into consideration the requirement of a guest-room. The objection is well founded. Under section 14(l)(e) the bona fide residential requirement is to be of a landlord or any member dependent upon him or for any person for whose benefit the premises arc held. Apart from the members of the family, whose requirements have obviously to be taken into account under section 14(l)(e), the word 'himself' has also been interpreted to include those persons with whom the landlord is normally accustomed to live. It is for this reason that the requirements of the married daughters have been taken into consideration. It would also be legitimate in this context to take into consideration the requirements of other persons who live with the landlord whether they be servants or other persons who may be there to look after him. The requirement of casual visitors, however, cannot be taken into consideration. It is for the landlady to show and prove her bona fide requirements. She has been able to show that her sons, daughters-in-law and grandchildren are dependent upon her for accommodation. There is no evidence to show that she has any member of the family who lives outside Delhi and comes to visit her for whose purpose she requires guest room. There is no evidence which has been led by her to show that she requires a guest room for a companion of hers or for being occupied by some person with whom she is accustomed to live. The requirement for occasional visitors from outside, who do not fall in the aforesaid category, cannot be regarded as the requirement of the landlady as envisaged by section 14(l)(e).-
(17) The trial court came to the conclusion, as already noted, that the minimum rooms required by the landlady were five. If the guest-room is not to be taken into consideration then the minimum accommodation which would be required by the landlady would be four rooms. In the present case the landlady admittedly has four rooms in her occupation apart from kitchen, bath-room etc. She has three rooms on the ground floor and one room on the first floor, besides having the entire terrace on the first floor. At the time when the petition was filed there were only four adult members of the family. Now with the marriage of the younger son the number of adult members of the family has risen to five. At the time when the petition was filed the number of rooms available with the landlady were five because at that time one room had not been converted for being used as a shop. The landlady, to my mind, had sufficient accommodation in her possession Shri Bhuchar, the learned counsel for the respondent has contended that what is the requirement of the landlady is a question of fact which has been decided by the trial court and which should not be gone into by me under sub-section (8) of section 25B. In this connection reliance is placed by the learned counsel on Kasturilal Nandraj v. Bakshi Ram, 1981 R.L.R. 380 and Parvin Sarin v. Manbir Singh, 1981 Rlr 468. There can be no quarrel with the proposition laid down in the aforesaid cases. In Kasturilal's case the Chief Justice has observed that the order of the trial court can be interfered with if it suffers from any gross illegality or material irregularity or jurisdictional error. In the present case the taking into consideration of the alleged requirement for a room for guests was wholly unwarranted. As already noted, the requirement of casual visitors could not be taken into consideration and the trial court acted with material irregularity by observing that one room was required for guests, in the absence of the landlady ving established any such requirement in accordance with law. A bald statement by the landlady that visitors come is not sufficient. It was for her to prove that an extra room was required for the purpose of residence of members of her family who come and visit her or for other persons with whom she is accustomed to live. If the requirement of a guest-room is not taken into consideration then the minimum requirement of the landlady which had been computed by the trial court at 5 rooms would stand reduced to 4 rooms. Admittedly the landlady is in possession of the minimum rooms required by her. There is no reason given by the trial court as to why he has observed that Krishan Kant require two rooms for himself. The trial court has obviously overlooked the fact that apart from an exclusive room being earmarked for Krishan Kant he also has the use of a common drawing-room. Considering the ages of ais children there was no evidence on which the trial court could come to the conclusion that Krishan Kant required more rooms. It may be that when .his children grow up and his brother's family also increases that the accommodation which is now available with the family may become insufficient. If and when the requirement increases the landlady would be entitled to move a fresh application. At the present moment, however, there is no evidence on record which can possibly justify the landlady requiring more than four rooms as residence for herself and for members of her family,
(18) For the aforesaid reasons the revision petition is allowed, the order of the trial court dated 22nd March, 1980 is set aside and the eviction petition is dismissed. Parties to bear their own costs.