Sultan Singh, J.
(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958, (hereinafter called 'the Act') is directed against the judgment and order dated 14th February 1978 of the Rent Control Tribun confirming the judgment and order dated 25th September. 1975 and 13th August, 1975 of the Additional Controller whereby an order of eviction was passed against the appellants under Section 14(l)(e) of the Act.
(2) Chhail Behari Lal, deceased, one of the tenants in the suit premises was originally the owner-landlord of the suit property bearing Municipal No. 162/IX, Gali Batashan, Chawri Bazar, Delhi. Smt. Sushila Devi Nigam, respondent No. 1 was a tenant in a portion of the ground floor of the sui property. Chhail Behari Lal sold the property to one Thakur Dass vide a sale deed dated 6th February, 1956 with the result that Chhail Behari Lal and other appellants became tenants under Tnakur Dass. Thakur Dass later on sold this property to respondent No. 1-Smt. Sushila Devi Nigam vide the sale deed dated 12th August, 1960 (Ex. A.2). The appellants thereforee attorney as tenants under respondent No. I by operation of law. Respondent No. 1 brought an application for eviction of the appellants-tenants on 7th November, 1973 under clauses (c),(e)and(j) of the proviso to sub-section (1) of Section 14 of the Act. Eviction order was passed only on the ground covered by clause (e) by the Additional Controller on 25th September, 1975 which was confirmed by the Rent Control Tribunal, as already stated. learned counsel for the appellants contends that the landlady respondent No.1 did not plead all the ingredients of clause (e) of the proviso to subsection (1) of Section 14 of the Act, that the eviction application did not disclose any cause of action and as such the eviction petition is liable to be dismissed He further says that evidence led by the respondent-landlady beyond pleadings should not be looked into. To appreciate the objection and its decision it is necessary to narrate some facts. The landlady in her application for eviction alleges that the appellants were tenants under the previous owner Thakur Dass and they became her tenant when she purchased the property with effect from 12th August, 1960, that the appellants executed rent note dated 15th May, 1956 in favor of Thakur Dass. The ground of eviction under Section 14(l)(e) of the Act as mentioned in the eviction petition is worded as follows :
'THATthe tenanted portion let for residential purposes are required bona fide by the petitioner for use as residence for herself as well as for members of her growing family dependent upon her. The petitioner is the owner of the house in suit and has no other reasonably suitable residential accommodation'.
(3) The appellants-tenants in their written statement deny that the premises were let for residential -purposes or that the same are required bona fide by the landlady for use as her residence or for members of her family dependent upon her or that she is the owner of the premises or that she has no other reasonably suitable residential accommodation at her disposal. Besides this the appellants plead that the landlady previously purchased House No. 159 Gali Batashan, Chawri Bazar, Delhi adjacent to the suit house in 1954 for Rs. 3,000.00 and after getting the same vacated for her bona fide requirement sold the same in 1958-59 for Rs.l0,000.00 , that she desires to sell the suit house at a higher price after getting it vacated with a view to earn profits. The appellants further plead that the landlady is in possession of the whole of the ground floor and' a Barsati on the lop floor, thereforee, she does not require the suit premises for her own use and that her sons are independent and have got ample accommodation independently at their disposal. The landlady in rejoinder re-asserted her requirement. She admits that she has been in possession of the ground floor and the Barsati floor; she asserts that her sons are dependent on her and have no other accomirodation at their disposal : she says that she has four sons One of them was already married at the time when the rejoinder was filed and another son has since been married. She further says in the rejoinder that other sons are grown up. One of them is a student of Higher Secondary and the others a re Government employees. She also says that she has four married daughters who visit her off and on, that the accommodation on the ground floor consisting of two rooms, two stores and a kitchen and the courtyard and Barsati and open roof on the top floor is insufficient for them. As regards the purchase on House No. 159, Gali Batashan, Chawri Bazar, Delhi and its subsequent sale. she says that the said property was on a total area of 25 sq. yards which was insufficient for her needs and the needs of her family, that the said house consisted of only one room and a store on the ground floor and a Barasati on the first floor and that the additional structure was not possible to be erected on account of Municipal Bye-laws. In view of these pleadings, the parties led evidence. The contention of the learned counsel for the appellants is that the landlady has not mentioned her family members and the existing accommodation available so her and thiat she has also not mentioned the requirement of her family members. The objection that the application does not disclose any cause of action was not taken by the appellants in the written statement. It appears to me that at this stage in the second appeal such an objection cannot be allowed to be raised. If the appellants had taken this objection in the written statement, the landlady would have cured the defect. She is now taken by surprise in the second appeal. The objection not raised in the-courts below to which the respondent has had no notice that it is going to be urged cannot be allowed to be urged in the second appeal. It is correct that the landlady did not plead the requirement of her family and she also did not disclose the existing accommodation available to her. These facts were no doubt material to constitute the cause of action for determination of the fact whether the landlady had any other reasonably suitable residential accommodation. From the written statement and the rejoinder, the available accommodation and the family members were made known to the appellants. The appellants have been in occupation of the first floor of the suit house while the landlady has been in occupation of the ground floor. Both the parties i.e. the appellants and the landlady were in the know of the real facts sought to be proved in the case It is correct that no amount of evidence can be looked into a plea which was never put forward. It seems to me that if a plea is not specifically made and yet if it is known by implication to the parties that the said plea was involved in the trial of the eviction case then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. (See Bhagwati Prasad v. Chandramaul, : 2SCR286 ). In the present case the family members of the landlady and the accommodation available with her were expressly known and pleaded by the appellants. The parties have led evidence and it has been held by the two courts below that the family of the landlady consists of herself, her two married sons, one grandchild and two grown-up sons. The husband of the landlady unfortunately died during the pendency of the eviction proceedings. As regards accommodation the plea of the appellants is that the landlady is in occupation of the ground floor and the Barsati floor. A reference to the plan shows that there are only two living rooms besides two stores and a kitchen on the ground floor and there is one Barsati on the second floor. This is the accommodation with the landlady. The allegation of the appellants' counsel is that the landlady has not mentioned the requirement of herself or her family members. The landlady respondent No. 1 by her application requires the suit premises for the residence of herself and her family members. The suit premises consists of two rooms, one store, and one kitchen only on the first floor. This allegation of the landlady that she requires the suit premises for herself and for her family member is a sufficient compliance of her requirement. 1, thereforee, find no substance in the objection raised by the learned counsel for the appellants that the ingredients of clause (e) of the proviso to sub-section (1) of Section 14 of the Act are not pleaded or that the application does not disclose any cause of action. It maybe correct that the ground of eviction covered by clause (e) is not properly worded. Under Order 6 rule 2 of the Code of Civil Procedure (hereinafter called 'the Code') the plaintiff is required to plead material facts on which he relies for his claim. To claim eviction under clause (e) the landlord is supposed to allege that he is the owner, that the premises were let for residential purposes, that he requires the preraises for his residence or for the residence of his family members and that he has no other reasonably suitable residential accommodation. For proving these facts he has also to plead who are his family members, what are their requirements and what is the existing accommodation available to him so that on proof of these facts, the Controller may conclude whether the landlord is entitled to an order of eviction under Section 14(l)(e) of the Act. In the present case although the landlady did not plead the existing accommodation available to her but the tenants-appellants in their written statement pleaded the accommodation available with her which fact is not denied by the landlady. So the only question remains whether the accommodation pleaded by the appellants-tenants and available with the landlady is sufficient for the requirement of the landlady and her family members. In the facts of the present case. I do not find that the eviction petition is liable to be rejected under Order 7 rule 11 of the Code.
(4) The next contention of the learned counsel for the appellants is that the third son Ajay of the landlady-respondent No. I has been residing at Mayapuri with his sister. On a reference to a written statement I do not find any plea. It has been brought to my notice that no such suggestion was given to any of the witnesses of the landlady. The tenant as R.W.4 makes the statement but in cross-examination he admits that Ajay, son of the landlady, cooks the food in the same kitchen in which the landlady cooks. Thus there is no substance in the objection that Ajay has not been residing in the suit premises with the landlady. It is admitted on behalf of the landlady that her daughter resides at Mayapuri but she says that her son Ajay does not reside at Mayapuri. Even if it is assumed for the sake of argument that Ajay resides at Mayapuri with his sister, it seems that he has no right to reside in the house of his sister. If he has no right to continue to occupy the premises at Mayapuri. the property belonging to his sister, it cannot be said that the premises at Mayapuri are available to the son of the landlady.
(5) Another objection of the appellants is that their evidence was closed by order dated 13th August, 1975 by the Additional Controller. As observed by the Rent Control Tribunal, the appellants wanted to summon the ration records of the respondent and her family and wanted to prove that her eldest married son was having a separate ration card. The landlady's husband was appeared as a witness and he admitted that his eldest married son was having. a separate ration card. Thus I find that no prejudice was caused to the appellants by refusing to adjourn the case for summoning the two witnesses from rationing department It appears to me that on 13th August, 1975 when the case was taken up for recording evidence, the notices served on the said two witnesses were not available on record Counsel for the appellants stated that the service was effected. On account of various previous hearings in the case. the Controller did not think proper to adjourn the case. Learned counsel for the appellants has taken me through the summons upon the two witnesses of the Rationing Department which are on the tile. There is a report that the particulars of the summoned record were insufficient and they sought further particulars. On a reference to various applications for summoning of witnesses it appears that the appellants have been summoning the Rationing Departmt records without giving full particulars in spite of objections raised by the witnesses who appeared previously in obedience to the summons issued to them. In any case when a fact which the appellants desired to prove on record is admitted by respondent No. I, it is not necessary to summon that record from the Rationi Department. Thus, it appears to me that no prejudice was caused by disallowing the appellants-tenants summoning the two witnesses from the Rationing Department.
(6) Next objection raised by the counsel for the appellants is that the landlady having sold the previous house in 1959 is not entitled to an order of eviction against the appellants from the suit property. I do not agree. The other house bearing No. 159, Gali Batashan, Chawri Bazar, Delhi was on an area of 25 sq. yards and considering the family of the landlady and the accommodation available in that house and the Municipal Bye-laws regarding addition of structure it appears to me that the house bearing No. 159 situate near the suit house was not suitable house and if she has sold it after getting it vacated it does not mean that she is barred from getting the additional accommodation required by her for the residence of her family members. In any case the other house was sold in 1959 and the present eviction petition was filed in 1973, it cannot be said that the present eviction petition has been filed only with a view to evict the appellants and sell the house. This gap of 14 years is sufficient to dispel the apprehension of the appellants. The landlady, as already stated, has two married sons, one grandson and two grown- up sons. The existing accommodation is not suitable, there cannot be two opinions about it. On the basis of the family of the landlady and the existing accommodation available to her it appears to me that the requirement of the landlady is bona fide and that she has no other residential accommodation for the residence of herself and her family members.
(7) Next point urged by the learned counsel for the appellants is that the landlady has secured an accommodation at Chandni Chowk, Delhi. The landlady's husband was a Deed Writer and he was a tenant in property No. 254-55, Chandni Chowk, Delhi. The appellants allege that after his death the premises at Chandni Chowk, Delhi are available to her for residence. The landlady in reply submits that the premises at Chandni Chowk, Delhi are commercial premises and cannot be used for residential purposes, that her husband was a tenant in those premises where he used to carry on his office as a Scribe. It is also stated by her that there is no accommodation on the second floor and no part of it can be used for residential as the same was let out for commercial purposes only. It is further stated that Vijay Kumar Nigam, her son, after the death of his father started his business in those premises as a Draftsman. Thus there is hothing on record to show that any residential premises other than in the suit house are available to the respondent-landlady. The premises at Chandni Chowk are tenanted premises for commercial purpose and cannot be used as such for residential purpose by the respondent-landlady.
(8) Next it is contended on behalf of the appellants that landlady Smt. Sushila Devi Nigam did not appear as a witness and thereforee no order of eviction can be passed. I may mention that the husband of the landlady appeared .s a witness. He was her general attorney. He has deposed about all the facts necessary for the grant of relief to the landlady. The landlady is to prove the facts in order to obtain an order of eviction. The facts may be proved by her own statement or by the statement of her witnesses or by admission of the tenants. In the present case the ownership of the landlady, the purpose of letting of the suit premises is not now in dispute. As regards the family members and the accommodation available on record there is ample evidence led by the landlady consisting of her husband and others and also admission on behalf of the appellants, in view of the overwhelming evidence in support of the facts required to be proved to obtain an order of eviction it is not mandatory that the landlady should appear as a witness. At best it can be said that the landlady took a risk by not appearing as a witness but the landlady cannot be non-suited simply on the ground that she has not appeared as a witness. The evidence of her husband is sufficient to entitle her to an order of eviction. Learned counsel for the appellants has referred to Nanalal Goverdhandas & Co. & others v. Smt. Sauratbai Lilachand Shah, AIR. 1980 Bombay , a case under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 wherein the landlady was not examined in support of her case and her suit on ground of bona fide requirement was dismissed. With respect to the learned Judge deciding the Bombay case it seems to me that the facts in every case differ. If there is sufficient evidence on record, a plaintiff cannot be non-suited simply on the ground that he has not appeared as a witness. Thus I am of the view that in the facts and circumstances of the present case it was not necessary for the respondent-landlady to appear as a witness and her failure to appear as such does not disentitle her to obtain an order of eviction against the appellants. A learned Judge of this court in Khurshid Haider v. Zubeda Begum. 1979 RLR 161 has held that for proving the ground of personal requirement under Section 14(1)(e) of the Act it was not essential that the petitioner-landlady must herself depose.
(9) Learned counsel for the appellants further contends that the question of alleged bona fide requirement of the landlady is a mixed question of law and facts and thereforee this court should re-assess the evidence on record and record its finding. He relies upon Madan Lal Puri v. Sain Das Berry, 1971 R.C.R. 747. This judgment is based on an earlier judgment of the Supreme Court in Smt. Kamla Soni v. Rap Lal Mehra, 1969 R.C.R. 1017. In Mattulal v. Radhe Lal, : 1SCR127 the said case Smt. Kamla Soni (supra) was not followed. The Supreme Court laid down that the High Court in second appeal cannot re-appreciate the evidence and interfere with. the findings of fact reached by the lower appellate court. The lower appellate court is final so far as findings of fact are concerned. It is further held that the 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 that it is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. Further it is held that the finding recorded by the lower appellate court if 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 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. Nothing has been brought to my notice that there is any error of law in arriving at the finding or that it was based on no evidence at all or was arbitrary, unreasonable or perverse. There is concurrent finding of fact by the Controller and the Tribunal regarding the existing accommodation with the landlady, her family inembers and her requirements to be bona fide.
(10) Lastly, it is contended by the learned counsel for the appellants that the family of the appellants consists of large numbers and it would be a great hardship for them if an order of eviction is passed against them. I am afraid that such defense is not available to the appellants under Section 14(l)(e) of the Act. I thereforee find no infirmity in the judgment and order of the Controller and the Rent Control Tribunal.
(11) There is no merit in the appeal and the same is thereforee dismissed with costs. Counsel fee Rs. 200.00 .