M.L. Jain, J.
(1) The appellant Harmohan Das Bagai took on rent a shop in the ground floor in a building at 5, Arakashan Road, Pahar Ganj. A room in the first floor above the shop was taken for purposes of residence on 7.1.55, at Rs.70 p.m. One more room was taken on the first floor on rent on 1.9.56 at Rs. 50 p. m. An eviction petition was filed against him on 15.4.68 u/s 14(l)(e) of the Delhi Rent Control Act, 1958 (the Act). In the W/S, he appears to have contended that there were two tenancies ; the first one was taken for residential cum-commercial purposes, while the second was taken exclusively for business purposes. The petition ended in a compromise and was dismissed as withdrawn on 29.1.73. According to the compromise, the rent was increased to Rs. 120.00 for the first tenancy and Rs. 80 for the second ; in all Rs. 200.00. A receipt was issued on 29.1.73 for the flat in the name of Mohan Bagai. On the receipt issued on 14.5.75, the words 'residential flat' has been written on the top thereof. Same is the position in respect of receipt ofl7.12.75 and receipt of 21.8.76. In receipt of 11.3.77, the two rooms have been shown as residential. On 5.7.77, the landlord sent notice of termination to the tenant that he was the tenant in the residential flat on the first floor consisting of two rooms, etc. at the rate of Rs. 200.00 p.m., that he had acquired vacant possession of a residential flat No. 17 in Revindra Apartment on the 4th floor, 45 Shamnath Marg, and that the tenant had kept the disputed premises locked. In purely dated 22.7.1977, the tenant said that the premises were taken by him for business and residential purposes and are being used for the said purposes, that the tenant had acquired the said flat in early 1972 and this fact was in the knowledge of the landlord. He maintained that there were two separate tenancies and the receipts were issued in the name of Mohan Bagai which was the business name of the tenant. Fresh notices were given & the eviction petition was filed which was decreed by the Additional R.C. on 21.12.82 on both the grounds. The learned Rent Control Tribunal by its judgment dated 19.11.83 upheld both the grounds of eviction and dismissed the appeal. Hence, this second appeal.
(2) There is no doubt that the findings of the Tribunal below are of fact and are not amenable to interference, vide Karam Chand V. Om Devi 1980 Raj. L.R. 432.
(3) However, the first question that falls for determination u/s 14(l)(d) and (h) of the Act is whether the premises in question were let out for residential purposes only. This is clear from the words of clause (d) itself and in respect of clause (h), it was so held in Hari Shankar v. Musaddi Lal 1970 Rcr 782. The contention of the tenant is that the purpose of letting was not exclusively residential. The basis for so contending firstly is that after 29.1.73 the tenancy has changed in the name of Mohan Bagai and the rent receipts were issued in the name of Mohan Bagai which is the business name of the tenant Harmohan Das Bagai, and secondly, is that he has been conducting his business in & from these premises.
(4) He stated that he was an agent of M/s Associated Apparels P. Ltd., M/s Eves Apparels P. Ltd., and Metropolitan Trading Co., all three of Bombay, engaged in manufacture of garments. He has been receiving business letters from all these three firms in the name of Mohan Bagai. He kept their samples in the disputed premises for the customers who used to come to him for placing orders. His turn-over in respect of the said three concerns was nearabout Rs. 60 lakhs a year. He also had a shop Greenland Apparels at 1/C Ram Nagar, Delhi, vide acknowledgement Ex-A-4. Part of his office was in F-66 Bhagat Singh Market. The shop below the disputed premises was known as India Apparels which was commenced in 1973-74. But that shop was used as a store and no work was done in that shop. He, however, admitted that the office of India Apparels was 5, Arakashan Road. He did say that India Apparels was a partnership firm with three partners, Mohan Bagai, Man- mohan Bagai and Atui Bagai. He further said that he used the name Harmohan Bagai in his domestic matters and in business, he is known as Mohan Bagai. But that does not mean that Mohan Bagai was the name of his concerns. He admitted that he never used M/s or Messrs against that name. He had filed an affidavit (Marka) of 18.2.1975 in the Sales-tax Department in the name of Mohan Bagai, s/o D.D.Bagai to the effect that he is a partner of the firm M/s India Apparels. Thus, Mohan Bagai cannot be a business name because business name cannot swear an affidavit. Even if one were to hold that in the business circles, Harmohan Das Bagai was known as Mohan Bagai and the rent receipts were issued in the name of Mohan Bagai, it does not follow or even raise presumption that the premises were let both for residential and business purposes. The respondent also produced two invitation cards, one of 1.2.1960 (Ex. A-39) and the other of April 1974 (Ex. A-40) issued by him. In them, he did not give his name as Harmohan Das, but as Mohan Bagai. These invitation cards further belied the stand that Mohan Bagai was a business name. The Tribunal, thereforee, rightly concluded that the original documents stated that the premises were taken for residential purposes and continued to be residential and that Mohan Bagai is not the business name but that Mohan Bagai and Harmohan Das Bagai are two names of the same person. The Tribunal rejected as unreliable the oral evidence of his witnesses to the contrary. Shri Sabharwal on behalf of the landlords submitted that the tenant in the W/S took up the plea that there were two tenancies. If that is so, then the documentary evidence from the commencement of the said tenancy shows that the premises were taken for residential purposes only. Now, he cannot turn round had take a different stand as he has done in his statement that after 29.1.1973 there was one consolidated tenancy which was for business purposes as well. Moreover, he has failed to show that the purpose had undergone a change,
(5) The learned council for the appellant referred to Dr. Gopal Dass V. Dr. S.K. Bhardwaj : 2SCR678 , wherein in connection with S. 13(l)(e) of the 1952 Rent Act (now S. 14(l)(e), the Supreme Court observed that 'the professional use of a substantial part of the premises with the consent of the landlord takes the case outside S. 14(l)(e). In other words, where premises are let for residential purposes and it is shown that they are used by the tenant incidentally for commercial, professional or other purposes with the consent of the landlord, the landlord is not entitled to eject the tenant even if he proves that he needs the premises bonafide for his personal use because the premises have by their user ceased to be premises let for residential purposes alone.' In Munshi Ram Sakhya v. Ram Pershau 1981 L.R. 20, the tenant was using one room as a clinic to the full knowledge of the landlord. It was held that the landlord cannot seek eviction u/s. 14(l)(e). It was contended that the room came to be used for business purposes as well and that fact being in the knowledge of the landlord, the premises ceased to be let for residential purposes alone. But, it appears to me that where a substantial portion of the premises in dispute is used for purposes other than residential to the knowledge of the landlord, then, letting may in certain circumstances amount to one for residential cum-non-residential purposes. In this case, from the evidence on record, it clearly appears that the premises were let for residential purposes alone and the purpose does not change even if they were incidentally used for business purposes. As a matter of fact, there is no credible evidence that they were at all so used. With seven members residing therein, it was indeed not possible to do so.
(6) Having now known that the premises were let out for residence only, let us now see if the landlord has been able to show that the tenant had acquired other residence within the meaning of clause (h) which entitles him to eviction. The tenant admitted in the written statement that he acquired the premises in 1972 and the landlord knew about it on 29.1.1973 when the previous petition was compromised. But it was urged, the ground of clause (h) was taken as late as in they year 1977. Such an inordinate delay deprives the landlord of the cause of action under this clause. Shri Arun Kumar relies upon Battu Mal v. Rameswar Nat/i. etc. 1970 Rcj 635, for this contention, but what was held in that case is that ''where the landlord files the eviction petition too long after the tenant occupies vacant possession of a residence for himself, then the tenant may defend the eviction petition on the ground that he had in the meanwhile let out his own residence to some other person as he was not bound to keep it vacant waiting for the landlord to file an eviction petition, 'Following Battu Mal (supra) I said in Smt. Sheel Uppal v. Hari Chand 1979 Rlr 345 :' It is possible that in some cases, the landlord, if he unduly delays his action, may be defeated not be- cause there exists no ground or cause of action but because it lacks bona fides or is barred by estoppel.' But this is not the case here. Here vacant possession was available to the tenant and he had shifted to the premises. It is not his case that acting upon an express or implied assurance Seat this clause (h) will not be used against him, he disposed of the premises or gave them on rent to some one else. The defense of delay does not arise in this case. Apart from this, the tenant could not succeed in showing that there has been any inordinate delay. The letters Ex. Aw 3/2 and Ex. AW/3 written by the tenant to the Municipal Corporation on 26.11.1971 and 25.2.1971 show that the flat is lying vacant since 1971. In this written statement he said that he got possession of the flat in Revindra Apartment in 1972, but in his cross-examination he deposed that he got it in 1970-71 and had shifted there in 1971, and the landlord never objected. He further clarified in cross-examination that his two sons after their marriages had occupied it in 1974. He himself had shifted there only in 1980 when he suffered a heart attack. thereforee, it is difficult to say that it was within the knowledge of the landlord that the flat has been acquired in 1970 and shifting had even taken place in 1974. Even if the landlord came to know of the acquisition of the flat in 1973 or 1974, the delay in filing the petition is not in the circumstances of the case long enough to disentitle the landlord to seek eviction. Shri Sabharwal explained that the tenant took considerable time to collect the evidence in this regard before he could hasten with the eviction application. I see force this contention of the landlord. I uphold the decision of the Tribunal below in this respect.
(7) The second ground of eviction was that the tenant was not living in the premises for six months immediately preceding the filing of the petition. Both the Tribunals have found against the tenant. The learned counsel for the landlord pointed out that the record of the Desu Ex. AW/2 shows that the disputed premises were found locked on 12.5.77 and 16.5.77. The Corporations' tax department's inspection report Ex. AW5/1 further disclosed that on 14.5.79 the premises were again found locked. thereforee, the landlord's case that the tenant ceased to reside in the promises more than six months prior to the institution of the petition has to be believed. That some members of the family were living in the premises is based upon the question put in cross-examination to Sataypal Vig, (RW5), whether his son Harish and no one else was living in the premises. Shri Arun Kumar urged that this suggestion shows that the landlord admitted that Harish was living in the premises. And son being a member of the family it cannot be said that no member of family has been residing in the premises. But one cannot ignore the statement of the tenant that his is on Harish had shifted to the new premises in 1974.1, thereforee, see no reason to disturb the finding of fact arrived at by the courts below that the premises were lying locked continuously for six months before the petition was filed.