Sultan Singh, J.
(1) This is an appeal on behalf of the landlord under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') challenging the judgment and order of the Rent Control Tribunal dated 23rd November, 1977 reversing the order of eviction passed by the Controller under Section 14(1)(e) of the Act. The appellant is the owner of a building F-79, Lajpat Nagar-I New Delhi on a plot of land measuring about 200 sq. yards. The respondent is a tenant in a flat consisting of two rooms, kitchen, bath and latrine located on the ground floor of the said property at a monthly rent of Rs 260.00 . The premises were let to him in July, 1969. The entire property has four similar flats i. e. two flats on the ground floor and two on the first floor. In the other flat on the ground floor the landlord and his family have been residing. The two flats on the first floor have been in occupation of the tenants. There has been change of tenants in the flats on the first floor from time to time. The eviction petition out of which this appeal has arisen was filed on 3rd October, 1972. The only dispute in this appeal is whether the premises in question are required bona fide by the appellant for occupation as a residence for himself and for members of his family.. It is not disputed that the premises were let for residential purposes and the appellant is the owner thereof. It has also been held both by the Tribunal and the Controller that the flats on the first floor as compared with the premises in suit under the tenancy of the respondent are not suitable for the appellant and his femily members.
(2) The family of the appellant admittedly consists of himself, his wife, seven grown up daughters and an ailing mother. All the daughters were unmarried when the eviction petition was filed. It is now admitted at the bar that three daughters have since been married. It is however submitted on behalf of the appellant that one of the married daughters is staying with the parents-on account other strained relations with her in-laws which is disputed by the respondent. In any case, the question for consideration still remains whether the premises are required bona fide by the appellant. The Tribunal held appellant's requirement not to be bona fide on the ground that he let out one of the flats on the first floor prior to the filing of the eviction petition and again he let out flats on the first floor which fell vacant during the pendency of the eviction proceedings. It is admitted that one of the flats on the first floor fell vacant a few months prior to the filing of the eviction petition and the same along with one room on first floor in possession of the appellant was offered to the respondent. This flat on first floor is just above the dispted flat and identical. It was offered to him without any increase in rent but the respondent did not accept the offer. It is also admitted that during the pendency of the eviction proceedings when the flat on first floor fell vacant it was offered to the respondent and again he did not accept the offer. The offers by the appellant to the respondent to occuy the flat on the first floor and his refusal to accept the same in the circumstances of this case goes to show the bona fide requirement of the appellant. The Tribunal has observed that the appellant with a view to earn rental income has been letting out the flats on first floor at the cost of having insufficient accommodation with him, that he has not placed on record any material to show improvement in his financial status which could prompt him to sacrifice the rental income and use the accommodation for his comfortable living. The Tribunal further says that the appellants needs more income for maintaining himself, for performing, the marriages of his grown up daughters, and there has been no change in the number of family members since the time of the letting of the premises. On these facts, the Tribunal held that the appellant has failed to prove his bona fide requirement.
(3) This is second appeal. The Supreme Court in Mattulal v. Radhe Lal, : 1SCR127 has observed :
'IT is settled law that the High Court in second appeal cannot reappreciate the evidence and interfere with findings of fact reached by the lower appellate court. The lower appellate court is final so far as findings of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate court is contrary to law. It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. If the finding recorded by the lower appellate court is one of law or of mixed law and fact, the High Court can certainly, examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse.'
(4) The learned counsel for the appellant has contended that the various observations of the Tribunal are based on no evidence at all and the same are arbitrary, unreasonable and perverse. He further submits that the finding that the requirement is not bona fide, is contrary to law.
(5) The Tribunal, as stated already, held that the flats on the first floor as compared with the demised premises i.e. the flat on the ground floor, are not suitable for the requirements of the appellant. In face of this finding the Tribunal held that the requirement is not bona fide because the flats on the first floor whenever fell vacant, were let out by the appellant. The two conclusions are contradictory. A landlord is not supposed to keep the premises vacant, if the same are not suitable for his requirements. He has every right to let out and. accept the rent offered to him. Thus if the appellant did not require the vacant flat on the first floor as the same were not suitable for him and lets out the same from time to time, it cannot be construed that his requirement for additional accommodation is not bona fide. The respondent did not challenge as to what the-appellant was doing, how he would maintain if one of the flats is vacated arid his monthly rental income is reduced by Rs. 260.00 . The Tribunal lost sight of the fact that if the flat on the first floor had not been let out but occupied by the appellant, he would have been loser of rental income from one flat on first floor. Similarly, if he occupies the disputed flat on ground floor he would lose the rental income from one flat. In other words, it is immaterial whether he losses income from one flat on the ground floor or from the flat on first floor because in either case he would have to sacrifice rental income from one flat to satisfy his requirement for accommodation. His requirement cannot be said to be mala fide on the ground that instead of occupying the flat on the first floor not suitable for him he lets out the same and desires to occupy the disputed flat on ground floor. The landlord is ordinarily the best judge of his requirements unless mala fides, if any, are pointed out.
(6) The Tribunal next observes that there was no change in the family members of the appellant since the letting in July, 1959. The Tribunal's judgment is dated 23rd November, 1977. Admittedly the children have grown up. The younger ones may be accommodated in one room but when they are grown up all cannot be accommodated in the two rooms measuring 10'' x 14.3' besides kitchen and both on the ground floor and one room measuring 9.3' x 9'' on the first floor. If the appellant with his family accommodated himself in two room flat on the ground floor in 1969 it cannot be said that for all times to come he should continue to occupy the said two rooms only and he should not beallowed to have additional accommodation even when he is genuinely in a need of the same. Further the family of the appellant has been residing on the ground floor accommodation while the room on the first floor is being admittedly used as a store. It is not reasonable to expect the four unmarried daughters, the appellant, his wife and aged mother to be accommodated in the two rooms when all are grown up parsons. It is now more than 10 years that the premises were let to the respondent. It is in evidence that during the pendency of the eviction proceedings the mother of the appellant met with an accident and her leg was fractured. She is bed ridden and she has weak eye sight. She is admittedly aged about 80 years.
(7) In the written statement the objection on behalf of the tenant- respondent is that the flats on the first floor fell vacant from time to time and the same were let out. These facts are not denied. But when the flacts on the first floor are not suitable for the requirement of the landlord they have to be let out and on that score it cannot be said that there is any mala fide on the part of the appellant-landlord. The other objection in the written statement is that the appellant has got sufficient accommodation for himself and for his family members. This objection is not tenable in view of the size of the family and the accommodation with the appellant. He and his wife require one bed room, his mother requires another bed room, the four unmarried daughters require at least two bed rooms considering the measurement of the various bed rooms in the house and the married daughters who are supposed to be visiting their parents in the Hindu Society also require one bed room, besides drawing room and dinning room. It thus, appears that the appellant requires seven rooms. The capacity of the appellant to maintain himself and his family is not challenged either in the pleadings or in cross. examination of the appellant and his witnesses. The respondent does not challenge the financial status of the appellant who is an income-tax asscssee. It is thereforee to be presumed that the respondent admits his status and his financial capacity to maintain himself. Further neither there is any plea nor any evidence or suggestion that the appellant requires money for performing the marriages of his daughters. The observation made to this effect by the Tribunal is thus based on no evidence and thereforee the finding of the Tribunal can be reversed in second appeal. No other mala fide act has been alleged. It is also observed by the Tribunal that the flats on the first floor have been let out at enhanced rent. It is admitted that when the flat fell vacant it was offered to the respondent without any change in rate of rent. It is well known that the rents are increasing every day. If a landlord does not require an accommodation the same being unsuitable he has to let it out, and there appears nothing wrong if he accepts higher rent from the new tenant of the flat on the first floor. Merely getting high rent does not show mala fides or want of bona fide on the part of the landlord. Letting of the premises on high rents may be treated as mala fides or want of bona fides if the portion let out by the landlord was suitable for his requirement. The portion in occupation of the respondent-tenant is adjacent to the portion in occupation of the appellant. Thus the accommodation on the ground floor is best suited for the appellant and his family. A mere look at the plan shows that in fact the entire ground floor initially was one unit consisting of three bed rooms) one dinning-cum-drawing room besides bath, kitchen and W.G. Similar is the accommodation on the upper floor. It appears that the appellant converted the ground floor into two flats of two rooms each and the first floor into two flats of two rooms each. Merely because some portion of the house was let out by the appellant as the same was not suitable for his respondent it could not be construed to suggest either mala fides or want of bona fide on his part in seeking a portion of his own property for his residence. In Kharati Lal v. Sardari Lal, S. A. 0. No. 86 of 1972 decided on 16th November, 1972 by Avadh Behari J. there were similar facts. The Controller and the Tribunal had dismissed the eviction application but same was allowed by this Court.
(8) On a consideration of the entire evidence and circumstances of the case, I am of the view that the finding of the Rent Control Tribunal that the appellant's requirement is not bona fide is based on no evidence. It is arbiti atory, unreasonable and contrary to law.
(9) The appeal is, thereforee, accepted and the decision of the Rent Control Tribunal is set aside. An order of eviction is passed in favor of the appellant against the respondent with respect to the suit premises. The order of eviction) however, shall not be executable for a period of six months from today. The parties are left to bear their own costs throughout.