Sultan Singh, J.
(1) This second appeal under section 39 of the Delhi Rent Control Act (hereinafter called 'the Act') filed by Parvin Sarin, tenant, is directed against the judgment and order dated 4th September, 1980 of the Rent Control Tribunal confirming the judgment and order dated 23rd January, 1979 of the Additional Controller passing an order of eviction against the appellant. Respondents I and 2 filed an eviction petition against the appellant being tenant and Ravinder Sarin, Respondent No. 3 the alleged Subtenant on the grounds mentioned in clauses (a), (b) and (e) of the proviso to sub-Section (1) of Section 14 of the Act. The ground under clause (b) has been negatived by the Additional Controller and the Rent Control Tribunal and is no more in dispute before me. As regards non-payment of rent under clause (a) of the proviso to sub-section (1) of Section 14 of the Act, it has been held by the Controller and the Tribunal that the valid notice was served, that the tenant neither paid nor tendered arrears of rent within two months from the notice of demand, and that the appellant-tenant had complied with the order under Section 15(1) of the Act. Under these cirumstances, it was held that the tenant-appellant had enjoyed the benefit of Section 14(2) of the Act and is not liable to eviction on that ground.
(2) The real contest before me is on the ground of eviction mentioned in Section 14(1)(e) of the Act. The Controller and the Tribunal have held that respondents I and 2 are the owners, that the premises were let for residential purposes, that the respondents bona fide required the premises and they have no other reasonably suitable residential accommodation. It has also been held that the eviction petition is not bad for partial eviction. In other words, it was held that the eviction petition partains to the tenancy premises.
(3) Manbir Singh, respondent No. 1 is an Advocate. Respondent No. 2 is his mother. The premises in suit consist of three rooms, kitchen, bath, latrine, Barsati and terrace on the second floor and a garage on the ground floor which are shown in red and blue in the plan Ex. A. W 8/1. S.N.Sarin, father of the appellant who died in December, 1969 had taken these premises in suit and one room on the basement of the property in 1944 or 1949. After his death the appellant became a tenant. The agreed rent was Rs. 60.00 per month besides water and electricity charges but the standard rent was fixed at Rs. 42.50 per month.
(4) The first dispute relates to the purpose of letting. The Additional Controller and the Tribunal on appraisal of the evidence on record have returned the finding that the premises were let for residential purposes. It is admitted that S.N. Sarin, father of the appellant was in Government service and thereforee it seems to me that he never took the premises for commercial purposes as is now being contended by the appellant. The appellant contends that his father used to carry on business as a Government Contractor. It is not possible to believe that during government service he started business side by side with his service. It is in evidence that the premises have always been used by the appellant and his father for residential purposes. There if however an allegation that the room on the basement was being used for storing the building material. The purpose of letting is a finding of fact and there is no reason to upset that finding. Learned counsel for the appellant, however, contends that there is no allegation in the eviction application that the premises were let for residential purposes and thereforee the eviction petition should be dismissed on this ground. In other words, he says that the eviction petition does not disclose any cause of action. The ground of eviction under Section 14(1)(e) of the Act as worded by respondents I and 2 in their eviction petition reads as under.
'the premises are residential and arc required bona fide by the petitioners for themselves and for members dependent upon them for their own use and they have no reasonable and suitable accommodation. The petitioners are owners of the premises in dispute'.
In para 4 of the eviction petition, it is mentioned that the premises are residential. From these pleadings, it appears that it is not specifically pleaded that the premises were let for residential purpose. The only pleading is that the premises are residential. The appellant however in his written statement has taken the plea that the premises were taken on rent for residence and for contract business by his father S.N. Sarin. The appellant also alleges that he was a Government Contractor and that the basement room was being used to store building material as his father was a buiding contractor. Thus it seems to me that the appellant specifically pleaded that the premises were not. let for residence. The appellant was aware of the disputes between the parties as regards the purpose of let ting. The appellant and the respondents have led their evidence. There is no specific objection in the written statement that the eviction petition does not disclose any cause of action. It seems to me that the appellant at this stage cannot be allowed to take the plea that the eviction petition does not disclose any cause of action. If the appellant had taken the objection in the written statement that the petition did not disclose any cause of action, the respondents would have cured the defact. They are taken by surprise in this second appeal. I am of the view that if such an objection has not been taken in the first instance and evidence has been recorded without any protest, the objection cannot lie allowed to be raised in second appeal. The objection that the plaint does not disclose any cause of action must be taken at the earliest. Learned counsel for the appellant 'relies upon Abdul Humid and another v. Nur Mohammad, 1976 R.C. J. 738 in support of his plea that if all ingredients under section 14(1)(e) of the Act are not pleaded, the petition is liable to be rejected. In the said judgment it does not appear that there was any evidence on record with respect to the various ingredients of clause (e) of Section 14(1) of the Act. The facts of that case are entirely different and as such it does not help the appellant. As already observed the parties led evidence under Section 14(1)(e) of the Act'. The appellant has also pleaded that the premises were let both for residential and commercial purposes. In Nedunuri Kameswramma v. Sampati Subba Rao, : 2SCR208 it is observed as under :
'SINCEthe parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of '.those of the other side, it cannot be said that the absence of an.issue was fatal to the case or that there was that mis-trial which vitiates proceedings. We are, thereforee, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer'.
(5) The appellant and respondents I and 2 do not claims that they have any further evidence to prove the purpose of letting. In these circumstances, I am of the view that non pleading of the purpose of letting in the eviction petition is not fatal. Learned counsel for the respondents further argues that objection should not be allowed to be raised in second appeal. This court in Smt. Kaushalya v. Mangtoo and another, 1968 P.LR. 117, which is a regular second appeal observed that if such a plea is not raised in the written statement the same was liable to be rejected in second appeal. In KanwarSingh v.Maman Chand, 1980(1) R.C.R. 678 it was held that in cases of bona fide requirement if ingredients required by the Act are not pleaded but parties led evidence keeping the ingredients in view, the petition for eviction cannot be dismissed for not pleading the 'ingredients as no prejudice was caused to the tenant. In Paramjit Singh and others v. Bawa Gurdas Ram and others, 1978 (2) R.G.J. 41, ingredients of bona fide were not pleaded in the eviction application and the evidence thereon was taken into consideration, and the tenants were not allowed to raise such an objection at the revisional stage. In Dr. Hans Rij Dawar and another v. Shyam Kishore, 1977 (2) R.L.R. 253 this court observed that the inadequency of the pleadings, if any, is not fatal to the case if no prejudice was caused to either of the parties. Learned counsel for the appellant does not say that his client has been prejudiced by the failure of respondents I and 2 to plead specifically that the premises were let for residential purpose.
(6) It is not disputed now that the respondents 1 and 2 are the owners of the suit property and that they are the landlords. The family, consists of respondent No. I, who is an Advocate, his wife, one son now aged 13 years and two daughters now aged 16 years and 7 years respectively. .Respondent No. 2 is the mother of respondent No. 1. It is in evidence that respondent No. I has two married sisters one of them staying at Delhi and the other in England. The accommodation in possession of the respondents consists of room Nos. 1,2,3)4,5 and 6 besides kitchen on the first floor and garage on the ground floor as shown in the plan Ex. A.W. 8/1. Room Nos. 1, 2 and 3 are living rooms while rooms 4, 5 and 6 are servant rooms. It is in evidence that Room No. I is being used as a drawing room. Room No. .2 as a bed room. Room No. 3 by respondent No. 2 i.e. the mother of respondent No. I for herself and Puja where the Holy Guru Granth Sahib is also being kept by the respondent. Room No. 4 is stated to be in occupation of the servant, Room No. 5 is being used as office by respondent No. I while Room No. 6 is being used as a store. It is also in evidence that the garage on the ground floor is being used by respondent No. I for parking his car. It is also stated in evidence that the respondents require a dining room, a room for puja and that there was no accommodation for study and sleeping purposes of the three children. No oblique motive has been alleged by the appellant against the respondents. The living rooms are only three. Considering the family and the status of the respondents, it seems that the Controller and the Tribunal rightly concluded that the accommodation in possession of the respondents was not suitable and that they bona fide required the same. With the help of the learned counsel for the parties, I have also gone through some portions of the evidence on record and I do not find any ground to reverse the finding of fact returned by the Controller and the Tribunal. Learned counsel for the appellant further submits that a mere assertion by the landlord that he requires the premises for personal occupation is not decisive and that it is for the court to determine the truth of the claim, and also to determine whether the claim is bona fide. He relies upon Smt. Kamla Soni v. Rup Lal Mehra, 1969 R.C.R. 1017. There is no dispute about this proposition of Law. Respondent No. I requires one bed room for himself and his wife, one bed room is required by the mother, respondent No. 2, one room would be required by two daughters and one room by the son of respondent No. 1. Thus it seems that there is minimum requirement of four bed rooms for the respondents and their children. Besides these bed rooms, considering his status, respondent No. I being an Advocate would require drawing room, dining room, kitchen, office room, store room, servant room and guest room. It is in evidence that at present there is no dining room and thereforee there is a need of dining room. It is not disputed that respondent No. 1 has been maintaining his office as a lawyer in one of the servant rooms. Respondent No. I has two married sisters and it can reasonbly be presumed that as and when any one of them visits him accommodation would be required for their over-night stay. As already stated, the respondents have only three living rooms and three servant rooms. Thus by any stretch of imagination it cannot be said that the respondents have got reasonably suitable residential accommodation. Thus I am also of the view that the respondents bona fide require the suit premises fur their residence. Moreover there is concurrent finding by the Controller and the Rent Control Tribunal that the respondents are entitled to an order of eviction against the appellant under Section 14(l)(e) of the Act. No substantial question of law has been made out within the meaning of Section 39 of the Act.
(7) It is contended by the learned counsel for the appellant that respondent No. 2, mother of respondent No. I has not appeared as a witness in support of her plea that she requires the premises for her residence. I do not appreciate this objection. Respondent No. 1 who is an Advocate and has appeared as a witness has deposed to all the facts necessary to prove his case under Section 14(1)(e) of the Act. The evidence on record is sufficient to return the finding that the respondents have proved their cases under clause (e) of Section 14(1) of the Act. It is also argued by the learned counsel for the appellant that the requirement of the servant cannot be taken into consideration. It is in evidence that the respondents have been keeping a servant. It is also in evidence that one of the servant rooms marked as Room No.. 4 in the plan Ex. A.W. 8/1 is in the occupation of their servant. If a servant has been living with the landlords it does not appear to me that the landlord is not entitled to seek accommodation for himself. Moreover the accommodation in possession of the servant in the servant quarters cannot be used-by the respondents-landlords for their living purposes. If respondent No. I is keeping his office as a lawyer in one of the servant rooms it does not mean that he can also reside or use any of the servant rooms as his bed room. Learned counsel for the appellant relies upon Mr. Budhawar v. Maharaj Kumar, 1980 RLR 463. The facts of that case are not applicable to the instant case before me. In that case the landlord had claimed additional accommodation to accommodate his servant. From the report it docs not appear whether the landlord was keeping servant at the time when he filed the eviction application.
(8) Next it is contended on behalf of the appellant that the Tribunal and the Controller have ignored material evidence on record and thereforee the finding of fact is not binding in second appeal. He relies upon Damadilal and other v. Parashram and others, : AIR1976SC2229 . He says that as respondent No. 2 has not appeared as a witness, her evidence is thereforee deemed to have been ignored and that her appearance as a witness was material. As already stated respondent No. 2 has not appeared as a witness and it was not necessary. It is not pointed out what other material evidence has been ignored by the Controller and the Tribunal which may be sufficient to reverse the findings of fact. The finding reached by the Rent Control Tribunal i.e. the first appellate court on an appreciation of evidence that the landlord bona fide requires the premises in question for the purpose of residence is a finding of fact and not a finding of mixed law and fact and it cannot be interferred with by this court in second appeal unless it is shown that in reaching it a mistake of law is committed by the Rent Control Tribunal or it is based on no evidence or is such as no reasonable man can reach. See Mattulal v. Radhey Lal : 1SCR127 . It is not pointed out how a mistake of law is committed by the Tribunal in returning the finding of fact. It is also not pointed out that any finding is based on no evidence or it is perverse. It has been vehemently argued by the learned counsel for the appellant that the present eviction application pertains to a part of the premises under the tenancy of the appellant. His submission is that besides the suit premises one room. on the first floor i.e. Room No. 6 as shown in plan Ex. A.W. 8./1 and one room on the basement was also under the tenancy of the appellant's father. The respondents, however, submit that the servant room No. 6 shown in the plan Ex. A.W. 8/1 was never under the tenancy of the appellant or his father and that the room on the basement was surrendered to them because it became un-usable on account of seepage of sub-soil water. In the pleadings it is stated by the respondents that the appellant had taken the servant room No. 6 in the servant quarter block only for a few months as a licensee. The appellant was to take the Higher Secondary Examination and he used to study there for a few months. As regards servant Room No. 6 there is a finding of fact that the said room was never a part of the premises let to the appellant's father. After considering the oral evidence on record the Tribunal, it seems, has come to the right conclusion. Parties have taken me through the evidence on the subject and I do not find any ground to reverse the said finding. I am of the view that there is no evidence at all on record in support of the allegation that the servant Room No. 6 was ever under the tenancy of the appellant or his father.
(9) Regarding room on the basement it was pleaded by the respondents that the sub-soil had seeped into basement and in spite of repairs it could not be used by anybody and thereforee the same was surrendered. It is stated that the appellant's father himself surrendered the possession of the basement portion as it was not usable on account of the acts beyond the control of the parties and thereforee when it ceased to be usable earth (malba) was got filled in and since then the possession of the basement has been with the respondents, and that the same has not been of any use to the respondents also. Under these circumstances it is stated by the respondents that there was implied surrender of the said portion of the basement. The appellant's plea is that the respondents had taken forcible possession of the basement room on the ground floor. No date of dispossession was mentioned by him. There is no evidence of taking of the possession by the respondent by any unlawful means or forcibly. The fact that possession has been with the respondents is not disputed. Manbir Singh who appeared as A.W. 8. and again as A.W. 13 deposes that in 1959-60 there was an earthquake in Delhi and sub-soil water started coming in the basement and the tenant surrendered the same being unusable. He further says that the tenant himself got the same filled to avoid dammness on the wall. This surrender according to him took place in 1962-63 but no writing was executed to that effect. It is also in evidence that the earth (Malba) was filled in the basement room and that in the other portion of the basement room there has been sub soil water about 4 to 5 feet deep. There is concurrent finding of fact that the basement room stood surrendered when there was seeping of sub-soil water and earth (Malba) was got filled in. Thus it appears to me that when sub-soil water seeped into the basement, it became unusable and thereforee the earth (Malba) was got filled in the basement room and since then the same has been in possession of the respondents- landlords. It is not disputed that the possession of the basement room is with the respondents. As a matter of fact in the written statement it is pleaded by the appellant that the possession was taken forcibly but no evidence was led by the appellant to show that the respondents took forcible possession of the basement room. Learned counsel for the appellant refers to Shori Lal v. .Ram Rakha Mal, 1971 R.C.J. 424 in support of his plea that if the applica- cation for eviction relates to a part of the premises covered by the tenancy the same was not maintainable and had to be dismissed. In this judgment it has also been held that the finding as regards the extent of the premises is a finding of fact and that no substantial question of law is raised within the meaning of Section 39 of the Act to justify interference by the High Court in Second appeal. After giving my careful consideration I am of the view that there was surrender of the tenancy of the basement room and the finding of that fact concluded by the Controller and the Tribunal is a finding of fact which Js binding in second appeal upon this court unless a case is made out that it is based on no evidence or is perverse. Parties counsel have referred to the evidence on the subject and I am also of the view that it is based on sufficient evidence on record. Learned counsel for the appellant however submits that the conclusion reached by the Tribunal is wrong on the ground that the Tribunal has failed to appreciate the evidence in its proper prospective. This court in second appeal is debarred from re-appreciating the evidence on record and no case has been made out for upsetting the finding of fact. I am thereforee of the view that the present eviction petition is not with respect to a part of the premises under the tenancy of the appellant. As a matter of fact the Tribunal have returned the finding that the present eviction petition pertains to the entire premises under the tenancy of the appellant. The eviction petition is, thereforee, not liable to be dismissed, on the alleged ground.
(10) Learned counsel for the appellant has referred to the various authorities on the question of implied surrender but it is not necessary refer to them in view of my conclusion that the matter is a question of fact only and that it does not raise any substantial question of law within the meaning of section 39 of the Act.
(11) There is no infirmity in the judgment of the Rent Control Tribunal. The appeal has no merit and the same is thereforee dismissed with no order as to costs.