Rajindar Sachar, J.
(1) This is a revision by the landlord against the order of the Additional Rent Controller, who by his order dated 26.4.1978 dismissed the application for eviction brought under Section 14(1)(e) read with Chapter Iii of the Delhi Rent Control Act (hereinafter to be called the Act).
(2) The admitted facts are that the family of the petitioner consists of himself, his wife and a son about 7/8 years old. The petitioner is Accounts Officer and is drawing total emoluments of about Rs. 1700.00 per month. On the ground floor of the house there are two sets of two rooms each, being independent units. The respondent is a tenant in one of these sets namely- flat No. 2. The accommodation with the respondent/tenant is shown in red in plan Ex. A-2. The petitioner was previously posted at Kanpur and was transferred to Delhi sometime in February, 1977. The(petitioner filed application for eviction in May, 1977 on the ground that he required all the four fooms for his bonafide use/ it was also alleged that one of the tenants, Bhardwaj who was occupying one set had promised to vacate the premises but as the respondent had refused to vacate the premises the eviction petition was being filed against him. During the pendency of the eviction petition Bhardwaj vacated the portion occupied by him. The same was immediately occupied by the petitioner. He nevertheless maintained that the accommodation was less than his need and he still required the accommodation with the respondent.
(3) The respondent denied that the need of the petitioner was genuine and maintained that the accommodation with the later was sufficient for his purpose. The Rent Controller found that though he had nothing against the petitioner and the scale appears to be even he was of the view that the two room accommodation at present with the petitioner was sufficient for his purpose and thereforee the demand for extra additional accommodation in dispute by the petitioner was unreasonable. He thereforee, dismissed the eviction petition.
(4) The plan shows that the accommodation which was vacated by Mr. Bhardwaj and which is now with the petioner is two rooms 16'3'xl0' and 12'x9'6' with latrine, bath and store. There is also a verandah 8 feet wide next to the room 16'3x'10'. Mr. Makhija the learned counsel for the petitioner strongly contended that the petitioner was atleast entitled to have an extra bed room for his son and for the need of other guests of the family, and so calculated there was no accommodation available with him even for sitting purpose. In that connection he referred me to the proposition that the statute is not intended to deprive a landlord of his bonafide desire so long as the desire is confined within reasonable limits judged from a practical and not fanciful point of view, to be more comfortable by occupying his own house. The law does not require a landlord to sacrifice his own comforts and requirements merely on the ground that the premises are with a tenant. (Vide 1966 D.L.T. 205 Roop Lal Mehra v.Smt. Kamla Soni. See also 1969 R.C.R. 236 Krishan Kumar and another v. Vimla Saigal. The proposition as such is unexceptionable. But the question of bonafide need has to be decided on the facts of each case. No universal rule can be applied to all the cases. The finding reached by the Court on appreciation of evidence that the landlord does not bonafide require the premises is a finding of fact and not a finding of mixed law and fact, and it cannot be interferred with by the High Court in second appeal unless it is shown that in reaching it a mistake has been committed by the Additional District Judge or it, is based on no evidence or is such as no reasonable man can reach (Vide 1976 R.C.R. 249 Krishan Kumar & Anr. v. Vimla Saigal. See also various other cases mentioned at Page 505 of Delhi Rent Control Act by Jaspal Singh. The question, thereforee, that arised is can one say that the finding by the Rent Controller is so vitiated as to be corrected within the limitation of Section 25B(8) because this power is only to satisfy itself that the decision as a whole is according to law and it refers to overall decision which it would not be if there is mis-carriage of justice due to mistake of law. This power, however, cannot be treated to be a power permitting this court to interfere certainly not on a mistaken decision on facts or even on a fact simplicitor.
(5) Mr. Makhija greatly relied on (1976 R.C.R. 249) Krishan Kumar v. Vimla Sehgal and urged that the landlord was atleast entitled to one room for each member of his family. The facts of that case were rather peculiar. The Controller and the Tribunal dismissed the landlord's application filed on the ground of bonafide need by assuming that the members of the family consisted of the husband and wife and two sons only. The High Court however, found that there was undoubtedly a daughter whose need had not been taken into account. The learned Judge also noted that the Controller in allocating the accommodation had suggested that the younger daughter and son could be accommodated in one room. The single Judge rightly characterised this suggestion as unacceptable. It was because of these findings of fact which were against the evidence on record that the learned Judge found that it was possible to interfere in the finding of the tribunal on a question of personal requirement which is a finding of fact. That case is of no assistance to Mr. Makhija. Reference to (1980 R.L.R. 463) Mrs. R. Badhwar v. Maharaj Kumar M. Singh cannot also advance the matter. In that case it was found that there were only two rooms. One of which was required by the husband and wife and the other for two children of the landlord. It Was also found that landlord's mother also lived for about 6 months with him and his grandmother also frequently stayed with him. Requirement of the mother and the grandmother naturally necessitated an extra room and the landlord's need was held to be bonafide.
(6) Now in the present case the Rent Controller found on evidence that the portion which now landlord is occupying was originally occupied by one Mr. Bhardwaj an Engineer, who was drawing about Rs. 3,600.00 per mensem. This factor he took into account for the purpose of finding' that the accommodation with the petitioner/landlord was not such which could not be said to be reasonable keeping his status and the number of his family members. It is relevant to mention that Mr. Bhardwaj had a family of himself, his wife and three children. It cannot be said that this was an irrelevant consideration for assessing the bonafide need of the petitioner. The point which apparently appealed to the Rent Controller was that if the person of the status of Mr. Bhardwaj could live for about 9 years in this accommodation, the same cannot be said to be insufficient for the petitioner whose family almost consists only of his wife and a small child of 6 years and his pay was about half of that Mr. Bhardwaj was getting.
(7) Now the portion in dispute had been given on rent in 1968 when the petitioner had been transferred to Meerut. It is in evidence that the petitioner had come back in 1972 on transfer to Delhi. He had however, then lived in a government quarter at Moti Bagh. He has not proved that the government accommodation was more than the accommodation which he is now having at present in the portion vacated by Mr. Bhardwaj. Mr. Makhija very strongly contended that it would be very hard and harsh that the petitioner who was getting Rs. 1700.00 per month pay and was also having a rental of about Rs. 1000.00 per month, should be denied the possession of premises in dispute. According to the counsel one room was necessary for the small son and the other room for drawing and dining and one more for various guests, and thereforee he required more than two rooms which are at present with him. The effort of Mr. Makhija obviously was to persuade me to hold that had I been trying this matter in the first instance I would have held that the present accommodation with the petitioner was less than his bonafide requirement. But this exercise is not permitted to this court. The statute has made the Rent Controller the Judge of fact. The Rent Controller has not mis-directed himself on a question of law. On a broad consideration of the situation and on appraisal of the evidence on record the Rent Controller has come to a finding of fact that the present accommodation with the petitioner is sufficient for his bonafide need. In this he has taken into account various facts like the past occupation of the petitioner himself in Moti Bagh rather than asking for accommodation in his own house and also the fact that the same accommodation was found suitable for a person like Mr. Bhardwaj who had double family members and almost double pay than the petitioner I cannot say that these considerations are in any irrelevant or extraneous or that it is a finding which no reasonable man could have arrived at. It is true that the landlord has not to take on an unnecessary discomfort but it is equally true that the mere desire of the landlord to seek eviction is not enough; he has to prove that his requirement is genuine. The bonafide need put forth by the landlord has to be judicially assessed by the Rent Controller. In this case the finding has been given against the petitioner and sitting in revision I find myself unable to interfere with it.
(8) I may however, mention that during the course of the hearing I had examined the plan Ex. A-2 with the help of the counsel for the parties (both the parties were also present in court). I was told by the respondent/ tenant that he almost invariably in order to enter the house uses the front compound to enter his living room (17'9'x 11'9') and that he seldom uses the main entrance. He told me that there was entrance, which I have marked 'X' in the plan, to the living room. I find that there is a verandah 8 feet wide on the West side of this living room of the tenant (17'9'x'11'9). Though a door opens into the said verandah the tenant was agreeable that this door may be closed permanently and that he will not use it to enter the verandah. This will not in any manner interfere with the use of his portion because from the living room there is a connecting door to his other room (ll'9'xll') : this room has a door opening out in the passage which would permit the tenant without any inconvenience to go to his kitchen and bath etc. The respondent/tenant also agreed that the Verandah 8' wide may be put to any use by the landlord, and he will not raise any objection to it. He also stated that these concessions and agreement by him will not in any manner affect his liability to continue to pay the 'agreed rent as of like the present. I am recording and noting this concession and agreement by the tenant because this will permit the petitioner/landlord to make use of the Verandah 8 wide in any manner he likes without any fear of being disturbed or interrupted by the user of this verandah by the tenant. This will certainly make available to the landlord some extra exclusive accommodation so as to increase his accommodation that is at present with him. This concession and agreement not to use the verandah 8' wide was specifically agreed to by the tenant before me and that is why I have recorded it in my order. Though thereforee the petition will be dismissed the landlord petitioner will be entitled to make use of the verandah 8' wide in any manner he likes. Further the user of this will not be claimed by the respondent/tenant for any purpose including for the purpose of the entry of his portion or from going from one room of his to the other. The respondent/tenant had without any hesitation given this concession because according to him he uses only the front compound for making an entry to his portion of the house. Asa result the petition is disposed of as above subject to what I have stated about the rights of the landlord about the verandah. There will be no order as to costs.
(9) Though in this case because of the concession an arrangement has been adopted which it is hoped will apprently satisfy the requirement of both the landlord and the tenant. This case however, discloses a serious lacuna in the Delhi Rent Control Act which needs to be corrected. In the Rent legislations elsewhere not only is the Rent Controller entitled, even after finding that the premises are required bonafide by the landlord, not to pass a decree for eviction if the court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant greater hardship would be caused by passing a decree than by refusing to pass it. See :
(I)Section 13(2) of The Bombay Rent, Hotel and Lodging House rates Control Act 57 of 1947 : (ii) Section 14(2) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950; & (iii) Proviso to Clause (h) of Schedule I of Rent Restriction Act 1933 (of England).
This provision thus enables the Rent Controller to evaluate the comparative hardships and comparative need between the landlord and tenant and work out an equitable arrangemcnt
(10) Similarly another lacuna in Delhi Act is that there is no jurisdiction in the Rent Controller to pass a decree in respect of the part of the tenanted premises. To illustrate in the present instance if the tenant had not agreed, it may have been difficult to make any direction in regard to the verandah which I have done. Now admittedly by the concession the landlord has had some relief without in any way causing any real inconvenience or hardship to the tenants. That is why the other Rent legislations provided that where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing a decree in respect of a part of the premises the court shall pass a decree in respect of such a part only. See :
(I)Section 14(2) of the Rajasthan Premises; (Control of Rent and Eviction) Act 1950 : (ii) Section 13(2) of the West Bengal Promise Tenancy Act, 1956; and (iii) Section 13(2) of the Bombay Rent, Hotel and Lodging House rates Control Act 57 of 1947.
This provision also gives a certain amount of elasticity to meet the requirement of situation to the Rent Controller. In the absence of such a provision the order of the Rent Controller may have to apply rigid formulae and thus though technically and legally it may be correct it may not be able to do full justice between the parties.
(11) It is understood that the Parliament is amending the Delhi Rent Control Act. It is to be hoped that the Parliament will look into these aspects also.