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[Cites 17, Cited by 10]

Delhi High Court

M.L. Gupta vs Kripal Singh And Anr. on 20 May, 2002

Equivalent citations: 98(2002)DLT683, AIR 2003 (NOC) 128 (DEL), 2002 A I H C 3616, (2003) 66 DRJ 773, (2002) 2 RENCR 263, (2003) 1 RENTLR 136, (2002) 98 DLT 683

Author: Mahmood Ali Khan

Bench: Mahmood Ali Khan

JUDGMENT
 

 Mahmood Ali Khan, J.

1. This petition filed under proviso to Sub-section(8) of Section 25B of Delhi Rent Control Act (in short the Act) is directed against an order of the Additional Rent Controller dated 15.1.2001 by which he has allowed the petition filed by the respondents for eviction of their tenant, the petitioner herein, from premises bearing no.E-24, First Floor, Greater Kailash-I, New Delhi under Section 14(1)(e) read with Section 25B of the Act.

2. The facts which have given rise to this petition are that the respondents have sought the eviction of the petitioner from the premises bearing no.E-24,First Floor, Greater Kailash-I, New Delhi under clause (e) of Section 14(1) of the Act on the averment that the : # : CR 535/2001 premises were let out to the petitioner vide lease deed dated01.4.1992 fora period of three years which expired on 31.3.1995. The premises were let out for residential purpose and it was required bonafide by petitioner no.2 (hereinafter respondent no.2)/owner for occupation as residence for himself and for members of his family dependant upon him since he does not have any other reasonably suitable residential accommodation. Petitioner no.1 (hereinafter respondent no.1) is the father and holds power of attorney from respondent no.2 in his favor. Respondent no.2 was working as General Manager in Bharat Petroleum Corporation Limited (in short BPCL) and has retired from service on 30.11.1993. BPCL had provided residential accommodation to respondent no.2 taken on company lease which expired on 31.3.1994. Respondent no.2and the members of his family are presently residing at house no. 29, Vasant Marg, Vasant Vihar, New Delhi which is owned by his father, respondent no.1. Respondent no.2 is not entitled to live there. He is living on the entire first floor which comprised of four bedrooms, four bathrooms, one drawing-cum-dining room, kitchen, terrace, verandah and servant quarter. The current rate of rent of this accommodation would be over Rs.70,000/- p.m. Respondent no.1 is deprived of the rent of this accommodation. Respondent no.2 is also living there at the mercy of his father since the petitioner has failed to vacate the suit premises. Respondent no.2 has a right to live in his own property. He has prayed for eviction of the petitioner.

3. Petitioner contested the eviction petition. By way of preliminary objection it was pleaded that the eviction petition was not maintainable since the petition is filed with ulterior motive. The rent of the accommodations in Delhi has gone up and the petition is filed with the object of disposing it of after it is vacated by the petitioner and Mr. Jag Mohan Khanna, who is living on the ground floor of this property and against whom a similar eviction petition on the ground of personal bonafide need has been filed. It was also stated that respondents were not the owner of the premises. On merit it was pleaded that respondent no.1 was a landlord and that there was no relationship of landlord and tenant between the petitioner and respondent no.2. The premises were let out for residential-cum-commercial purpose and they were being used for this purpose from the inception of the tenancy. Petitioner had floated a company M/s Tresure Impex (P)Ltd. of which he is the Managing Director and the registered office of the said company is situated in the suit premises. The respondents have suppressed material facts. The premises were let out to the petitioner in 1980 on a monthly rent of Rs.1600/- p.m. which was later on increased to Rs.2000/-. The premises were not let out to the petitioner on 01.4.1992. There is no registered lease deed executed between the parties. The respondents and their wives form joint family and they are living together as owner in property no.29, Vasant Marg, Vasant Vihar, New Delhi. The said house comprised of 10 bedrooms with attached bathrooms, three kitchens, two dining-cum-drawing rooms, two servant quarters, two garages, large front and rear lawns and a big drive-way. The present petition is not filed for bonafide requirement. It was refuted that the respondent no.2 was earlier provided residential accommodation by his employer BPCL. The respondents have failed to give particulars of the said accommodation. Respondent no.1 was a retired officer and was 85 years old. Respondent no.2 was the only son who was living with him. There was nobody else to look after respondent no.1 and his wife. There is no reason for respondent no.2 to leave his old father and live in a separate accommodation which is 12 kms away from Vasant Vihar. Respondent no.2 had throughout been living on the first floor of Vasant Vihar house even when he was serving BPCL and as a camouflage a lease was created between the respondents and the BPCL. The respondents were rich and high placed persons and did not require the suit premises in order to let out the house in Vasant Vihar on rent. Though as per allegation respondent no.2 was to retire from service on 30.11.1993 yet the lease of the suit premises was extended from 01.4.1992 to 31.3.1995 for which no explanation has been given. Respondent no.2 is not the owner of the premises and he had never been introduced as owner by respondent no.1 right from the creation of the tenancy in favor of the petitioner in 1980. Only respondent no.1 had negotiated for leasing out the premises to the petitioner and he had signed all the necessary documents and also the rent receipts without disclosing in any of them that respondent no.2 was the owner. Presumably respondent no.1 having a residential accommodation in Vasant Vihar has filed this petition for the need of respondent no.2 with malafide intention. None of the respondents is owner of the premises in suit. They intend to dispose of the property after getting the premises vacated and they are already in the midst of negotiation with the prospective buyers. The accommodation available to the respondents in Vasant Vihar house is more than sufficient for their need. Respondent no.2 is living with his family there on the first floor comfortably. Respondent no.1 is living with his wife on the ground floor which is more than sufficient for his need as well. The respondents have filed the eviction petition against the ground floor tenant Mr. Jagmohan Khanna on similar ground of bonafide personal need. In none of the two petitions it has been disclosed that the eviction was being sought of both the ground floor and the first floor premises though both the petitions were filed by the respondents for bonafide personal need. The intention of the respondents is to sell the property or enter into a collaboration agreement with some builders for developing the property and constructing multi-storey flats for commercial purposes since the property is situated on the main road.

4. In the replication the petitioner controverter the allegations made in the written statement. It was pleaded that respondent no.2 was the owner of the premises and respondent no.1 was his general power of attorney for the purposes of leasing out the suit premises. The petitioner had always been aware of this fact. All the electricity and water bills of the suit premises were in the name of respondent no.2 and they were received by the petitioner who was making the payment of the bills directly to the concerned authorities and this fact could not have escaped the attention of the petitioner for so many years. It was denied that the premises were let out for residential-cum-commercial purpose and that the petitioner was having the office of the company floated by him therein. It was not specifically denied that the premises were initially let out to the petitioner in the year 1980 on monthly rent of Rs.1600/- which was increased tors.2000/- p.m. However, it was alleged that the lease agreement was executed on 01.4.1992 for letting out the premises at the monthly rent of Rs.2000/-. It was reiterated that the premises in suit were required bonafide by respondent no.2 for himself and the members of his family dependant upon him. He was working as General Manager in BPCL and retired from the service on 30.11.1993. He was living in a accommodation provided by the company, lease of which expired on 31.3.1994. Since then respondent no.2 bonafide needed the suit premises for his own residence. The family of respondent no.2 comprised of himself, his mother Smt. Manjit Kaur, his married daughter Mrs. Ritu Bhatia, who is separated from her husband and is dependent upon respondent no.2, a grand son Master Ilan Bhatia. They are living on the first floor of House No.29, Vasant Marg, Vasant Vihar, New Delhi on the sweet will and sufferance of respondent no.1, who is the sole owner of that property. The other two daughters of respondent no.2 Ms. Alka Seigal and her family and Mrs. Shirine Chhabra and her family also frequently visit respondent no.2 and stay for along duration. A number of other friends and relatives of respondent no.2 also come and stay with respondent no.2 on the second floor barsati. Respondent no.1 and his wife Mrs. Jagjit Kripal Singh and their grand daughter Ms. Sonya Singh are living separately on the ground floor of the house. Two respondents are not joint in living and do not forma joint family. Respondent no.2 after his marriage in 1960 has never shared living accommodation with his father respondent no.1 and his mother Smt. Jagjit Kripal Singh. He has always been living separately with his own family. Respondent no.2 had been posted out of Delhi and he came back in August, 1984. The first floor flat of Vasant Marg property was completed in March, 1970 and was occupied by one Mr. Arjun Aggarwal and his family who vacated it in early 1984. BPCL took the said flat on lease and allotted it to respondent no.2. The lease ended on 31.3.1994. Respondent no.1 had always been living at the ground floor of the said house. He has good health and leads an active life and does not want anyone to look after him. His grand daughter Ms. Sonya Singh is living with him on the ground floor since1989. Respondent no.2 wishes to live in his own house in Greater Kailash so that respondent no.1 is able to earn rental income from the first floor accommodation on Vasant Marg house of which he has been deprived of. The said accommodation would fetch rent of Rs.1.00 lacs per month now a days. Respondent no.2 has no right to live there. Respondent no.1 was receiving rental income from BPCL till 31.3.1994. The allegation that there was some fraudulent transaction between respondent no.1 and BPCL or that the lease was created as a camouflage are false. Respondent no.1 has retired as Chairman of Railway Board. He was awarded Padam Vibhushan for meritorious service. He solely depended upon the rental income or the income earned from FDRs. Respondent no.2 joined service initially in Burma Shell in 1956. His wife was suffering from cancer and respondent no.2 was over busy with her treatment. Respondent no.1 had not readily agreed to extend the lease of the said premises up to 31.3.1995 but it was done on the solemn assurance of the petitioner that he would peacefully vacate the premises on the expiry of the lease. Counsel for respondents has vehemently refuted that the eviction petition is filed for some ulterior motive or that the respondents intended to dispose of the property or re-develop it so as to fetch more rent. Respondent no.1 has been imp leaded in the eviction petition in order to avoid technical objection since he holds a general power of attorney executed by respondent no.2.

5. Respondents No.1 and 2 examined themselves as PW1 and PW2 and a neighbor Mr. Shamsher Singh Brij as PW3 and the petitioner examined himself as RW1 and a neighbor Mr. M.L. Aggarwal as RW2 in support of their respective cases.

6. The learned Rent Controller after hearing the parties held that respondent no.2 was the owner/landlord and the premises were let out for residential purpose; respondent no.2 waslivingon the first floor and barsati floor of Vasant Marg House which was owned by respondent no.1 and the said accommodation cannot be held to be available to respondent no.2 as an alternative accommodation; respondent did not have any other reasonably suitable accommodation for his and his family; he requires the suit premises bonafide for occupation by himself and the members of the family who are dependent upon him. He accordingly held that the ground of eviction under clause (e) of Section 14(1) of the Act has been proved and passed the eviction order directing that the eviction order will not be executed for six months in terms of Section 14(7) of the Act.

7. The petitioner is aggrieved and has assailed this order in this petition.

8. The petitioner has invoked the provision of sub-Section(8) of Section 25B of the Act for assailing the order of the learned Rent Controller. The question is as to what is the scope and ambit of this provision and the extent of the power of this court while considering a petition under this provision which bars first appeal and second appeal against an order for recovery of the possession of the premises made by the Controller in accordance with the procedure prescribed in Section 25B of the Act. Sub-Section(8) provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this Section is in accordance with law (or not), call for the records of the case and pass such order in respect thereto as it thinks fit. The Supreme Court in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta upon examination of sub-Section (8) of Section 25B of the Act summed up the scope of this section as follows:-

"Under the proviso to sub-section(8) of Section 25-B, the expression governing the exercise of revisional jurisdiction by the High Court is for the purpose of, satisfying if an order made by the Controller is according to law. The revisional jurisdiction exercisable by the High Court under Section 25-B(8) is not so limited as is under Section 115, CPC nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re-appreciation of evidence because it is inclined to take a different view of the facts a if it were a Court of facts.

However, the High Court is obliged to test the order of the Rent Controller on the touchstone of 'whether it is according tolaw'. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion from the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller 'not according to law' calling for an inference under proviso to sub-section (8) of Section 25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law."

9. This provision had also come up for consideration before the Supreme Court in Sarla Ahuja Vs. United IndiaInsurance Co. Ltd. 76(1998) DLT 1(SC) and in para-6 it was held:-

"The above proviso indicates that power of the High Court is supervisory in nature and it is intended to ensure that the Rent Controller conforms to law when he passes the order. The satisfaction of the High Court when perusing the records of the case must be confined to the limited sphere that the order of the Rent Controller is "according to the law". In other words, the High Court shall scrutinize the records to ascertain whether any illegality has been committed by the Rent Controller in passing the order under Section 25B. It is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts is so unreasonable that no Rent Controller should have reached such a finding on the materials available."

10. The Supreme Court in the aforesaid judgment also approvingly quoted the law enunciated by three Judges Bench of the Apex Court in Hari Shankar Vs. Rao Girdhari Lal Chowdhury, 1962 Supp.(1) SCR 933, which is as under:-

"The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited. But it must not be overlooked that the section --in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit -- is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law". Itstandsto reason that if it was considered necessary that there should be a re-hearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal".

11. In para-9 of the same judgment, the Apex Court referred to another decision of three Judges Bench of the Supreme Court in Malini Ayyappa Naicker Vs. Seth Menghraj Udhavadas, , which was considering similarly worded proviso in Section 75(1) of the Provincial Insolvency Act, 1920.The instances in which the High Court could interfere under the said proviso were given in this decision as follows:-

"They are cases in which the Court which made the order had no jurisdiction or in which the Court has basedits decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere".

12. A Full Bench of this Court in Mohan Lal Vs. Ram Chopra and another1982(2) RCJ 161 exhaustively considered the provision of Section 25B. On the scope of the proviso to sub-section(8) of this Section after examining the judgment of the Supreme Court in Hari Shankar (supra) and Bell and Co. Ltd. Vs. Waman Hemraj AIR 1938 Bombay 223 it was laid down as follows:-

13. In our opinion the jurisdiction of the High Court under proviso to section 25B(8) has to be interpreted, keeping in view the legislative intent. The revision under section 25B(8) cannot be regarded as a first appeal and nor can it be as restricted as there visional jurisdiction under Section 115 CPC. The High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. A finding of fact arrived at by the Controller would not be interfered with by the High Court unless it can be shown that that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice being caused. If none of the aforesaid circumstances exist the High Court would not be entitled to interfere with the order of the Controller in exercise of its jurisdiction under proviso to Section 25B(8) of the Act.

14. Upon examination of all these judgments it may safely be held that this court in exercise of the powers vested by proviso to sub-section(8) of Section 25B of the Act may reappraise the evidence only for a limited purpose of ascertaining whether the conclusion arrived at by the Rent Controller were wholly unreasonable that no reasonable person acting with objectivity could have reached on the material available to test the order of the Rent Controller on the touchstone of whether it is in accordance with law.

15. The eviction of the petitioner/tenant is sought under clause(e) of sub-section(1) of Section 14 of the Act (in short the bonafide personal need of the landlord). Section 14 of the Act imposes restrictions on the recovery of possession of leased premises by the landlord from a tenant not withstanding in law or contract to the contrary. Thevarious clauses enumerated in sub-section(1), however, provided exceptions. The eviction of the tenant can be claimed by the landlord on one or more of the grounds specified in these clauses. Clause(e) provides one such ground of eviction to the landlord. Under this clause a tenant may be evicted from the premises on the landlord's proving (1)that he is the owner of the leased premises; (2) the premises were let out for residential purpose; (3) the premises are required bonafide by him for occupation as residence for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held or such other person; and lastly (4) that he is not in possession of any other reasonably/suitable accommodation in his occupation. All these conditions are required to be proved by the landlord conjointly for claiming the ejectment of the tenant from the premises which is governed by the provisions of the Act.

16. The first questionis whether there is relationship of landlord and tenant between the respondent no.2 and the petitioner and the respondent no.2 is also owner of the premises. The word 'landlord' has been defined in clause(2) of Section 2 of the Act to mean a person who "for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian, a receiver or any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let toa tenant". The definition of landlord covers a person who is entitled to receive rent. This definition of the landlord is of widest amplitude and would embrace within it a landlord who is also the owner of the property. The definition of the landlord is comprehensive to include an owner, being a superior title holder even where the premises were actually let out by a third person. As owner and landlord of the premises he would be entitled to institute an eviction petition for the eviction of the tenant under clause(e) aforesaid.

17. The eviction petition is not a suit for title litigated between the two rival claimants to the property. The eviction petition may be filed under clause(e) by the landlord if he was also the owner. The word 'owner' has not been defined in the Act or Transfer of Property Act. Ordinary concept of 'ownership' means absolute ownership of the land and the structure standing thereon. But this word is used under clause(e) of Section 14(1) of the Act in the background and in the context of this enactment to include all those persons who though not absolute owner exercise rights on the property more than that of a tenant. He may be lessee of a land/property from the government, a mortgage with possession or even a prospective purchase of the property put into possession in part performance of an agreement of sale for valuable consideration with a will and an irrevocable power of attorney etc., which is a popular mode of transfer of properties in Delhi. Where a person has purchased or built up his property and got it on free hold, perpetual lease or otherwise and lets it out to the tenant and subsequently needs it for his own use, he would be entitled to order of eviction on satisfying the Rent Controller that his need is bonafide and that he is owner. (See Shanti Sharma Vs. Ved Prabha 1987 RLR 526 (SC)).

18. It has been noticed above that the definition of the word 'landlord' given in clause (2) of Section 2 of the Act is sufficiently vide to include a person who is the owner of the property. As owner he becomes landlord qua the premises. The petitioner is a tenant on the first floor of property No. E-24, First Floor, Greater Kailash-I, New Delhi. These premises were let out to him initially in the year 1980 under a lease deed by respondent no.1. Respondent no.1 is the father of respondent no.2. The written lease of the premises was renewed from time to time. The last lease deed of the premises Ex.AX was executed between respondent no.1 and the petitioner on 1st April, 1992 for a period of three years. The lease period expired in 31st March, 1995. Neither in the earlier lease deeds nor in the lease deed which was executed in 1992 respondent no.1 had disclosed that respondent no.2 was the real owner and he was letting out the premises on behalf of the owner under the power of attorney executed by respondent no.2 in his favor, or otherwise. This fact was also not mentioned in the rent receipts Ex.R/1 to 27 which the respondent no.1 was issuing right from the inception of tenancy in 1980. In this case when the petitioner denied that respondent no.2 was owner respondent no.1 set up a power of attorney Ex.AW2/9 executed by respondent no.2 in favor of his father on 19.11.1966 and claimed that he had a right under it to give the premises on rent to the petitioner on behalf of respondent no.2, the real owner. The power of attorney Ex.AW2/9 on its perusal, does not support his claim. On the contrary it showed that the power of attorney was executed by respondent no.2 in favor of his father respondent no.1 in order to get the property constructed and it exhausted itself after the construction work was completed in the year 1966/1967. Though one of the clauses of this POA empowered the respondent no.1 to let out the property, but last para provided that POA will remain in force 'until all acts and functions mentioned herein regarding the plot and the construction thereon have been performed and completed and thereafter it will be automatically become inoperative and stand'. Respondents have proved sale deed dated 23.7.1964 Ex.PW2/1, which manifestly prove that the land underneath the land of suit property was initially purchased in the name of respondent no.1 who later on transferred it by release deed Ex.AW2/2 in favor of respondent no.2. The power of attorney Ex.AW2/9 executed by respondent no.2 further showed that the construction of this property was made by respondent no.2 through respondent no.1. Completion certificate Ext.AW2/3 of the property is in the name of respondent no.2.Respondent no.2 had the electricity and the water meter installed in the premises in his name and the petitioner tenant all through the period of his occupation since 1980 was receiving their bills, which were received in the name of respondent no.2, and was paying them to the concerned authorities. Respondent no.1 even otherwise is not a stranger. He is father of respondent no.2. Perusal of the statements of two respondents AW1 Mr. Kripal Singh and AW2 Mr. Kusalpal Singh shows that respondent no.2 had joined Burma Shell oil company in 1956 and since then he had been posted outside Delhi. He came back to Delhi after his posting in the year 1984. Respondent no.1, on the other hand, had been in Delhi. He retired as Chairman of the Railway Board in 1967. According to the petitioner, the premises were let out to him first in 1980. Admittedly respondent no.2 was not in Delhi and was posted outside at that time. In the absence of respondent no.2, respondent no.1 father seems to have authority from respondent no.2/owner to let out the premises and manage the property as one of the terms of GPA Ex.PW2/9 indicated. The respondent no.1 may not have express authority but he certainly had implied authority from the respondent no.1 to deal with his property and lease it out in his absence. This authority has not been revoked and it continued even after the return of respondent no.2 to Delhi in 1984. That may be the reason why the premises continued to be leased out to the petitioner by respondent no.1 even after respondent no.2 had come back to Delhi. Respondent no.2 is, as such, the owner of the suit property and as owner he is also the landlord. He has right to maintain the eviction petition under clause(e) of sub-section(1) of Section 14 of the Act. The contention of the petitioner to the contrary has no force and has to be rejected.

19. The purpose of letting has to be residential for eviction of a tenant under clause(e). The premises should have been let out purely for residential purpose. Letting for residential-cum-commercial purpose will not give right to the landlord for filing the eviction case under clause(e). In the absence of any documentary evidence like lease deed the letting purpose has to be inferred from physical nature, area of the premises, actual user and surrounding circumstances. If there is change of user, onus shifts from the landlord to the tenant to prove the consent of the landlord to the change of user. An incidental use of the premises by the tenant for his business, professional, non-residential or commercial purpose would not change the nature of letting from residential to commercial.

20. The petitioner is residing in the premises with his family. The lease deed Ex.AW2/2 executed between the petitioner and respondent no.1 showed that the premises were let out purely for residential purpose. It is not denied that the recital in lease deeds including the first lease deed was that the premises were let out to the petitioner for use for residential purpose. The petitioner, however, in the written statement contended that the premises were let out to him for residential-cum-commercial purpose since the office of his company M/s Tresure Impex (P)Ltd. was at the address of this premises. In order to prove this allegation the petitioner has filed a copy of the printed memorandum of association/article of association Ex.RW1/1 which also has a copy of certificate of incorporation of this company printed over it. These documents showed that the petitioner is one of the two first subscribers/directors of the company which was incorporated in 1994.It did not prove that the company had its registered or functional office in the suit premises. The petitioner in his testimony as RW1 has stated that he opened the office of this company in the suit premises with knowledge and consent of respondent no.1 which fact has been refuted by the two respondents in their deposition as PW1 and PW2 respectively. Beside Ex.RW1/1 the petitioner did not produce any other documentary evidence to prove that the premises, which were rented by him for his residence were with consent of landlord/owners used for the office of the company in 1994 and were actually being used as such. The petitioner conversely admitted that he was in service as surveyor in an Insurance Surveyor Company. He has examined Mr. M.L. Aggarwal, RW2 who in hiszeal to corroborate the case of the petitioner about change of user stated facts which even petitioner did not allege. As RW1 petitioner stated that after taking consent of respondent no.1 he promoted a company which had its registered office at the suit premises and which still functions there. He also categorically stated that before 1994 no 'commercial establishment' was operating in the suit premises. It was also stated that for the last 5 or 6 years he was running garment business and before that he was in the service of an insurance surveyor company Mehta and Padamsey Surveyors Pvt. Ltd. His statement was recorded on 15.2.2000. On the other hand his witness Mr. M.L. Aggarwal RW2 deposed that the petitioner was surveyor and he was working from the suit premises for the last 20 years. He had engaged staff in his office run in the suit premises. He started the work of building construction 15 years back in the suit premises. He has established an export house of handicrafts and garments etc in the name of Tresure Exports in the suit premises. As against this the petitioner alleges only that his company has its registered office in the tenancy premises. Excepting the Memorandum of Association of M/s Tresure Impex (P) Ltd. promoted by him and his bare words that its registered address was at the premises, no other documentary evidence was adduced by the petitioner to show that the company had its functional office in the premises. The address of the company at the time of its incorporation would not necessary lead to conclusion that the company had also its functional office in the suit premises. The respondent no.1 has vehemently denied that he had given consent to the petitioner to promote company or run business office in the tenancy premises. The burden was heavy upon the petitioner to prove the subsequent change in letting purpose which he failed to discharge. The discrepancy in the statements of petitioner, RW1 and his witness Mr. M.L. Aggarwal RW2, make their evidence incredible particularly on account of the failure of the petitioner to produce documentary evidence, which would have been available in plenty had the business office of a company was functioning in the premises. The premises are residential by nature and situate on the first floor in a residential colony. They were being used purely for residential purpose since1980. The letting purpose being residential was written in the lease deed Ex.AX. It was all the more necessary for the petitioner to have obtain the consent from the respondents in writing before the use of the premises was changed if at all there was change of user.

21. For all these reasons there is absolutely no force in the contention of the petitioner that the premises were let out for residential-cum-commercial purpose, therefore, the ground under clause(e) was not available for his eviction from the premises.

22. The requirement of the premises under clause (e) by the landlord must be bonafide. The Supreme Court in Shiv Sarup Gupta(supra) observed "The term bonafide genuinely relates to a state of mind. The requirement is not mere desire. The degree of intensity contemplated by the word 'requires' is much more higher than in mere desire. The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra-distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. The term 'require' means that the premises were needed by the landlord i.e. the landlord in fact was in need of the premises and that his desire was not merely fanciful or unjustified or for some other reasons.

23. The last of the four conditions essential for the landlord to make out a successful case for eviction of his tenant is that the landlord does not have any reasonably/suitable residential accommodation for his occupation and use. The expression 'does not have any reasonably/suitable residential accommodation' implies three essential things. (1) The landlord must have a legal right to reside in the said accommodation; (2) the residential accommodation must be, in fact, available for occupation; and (3) the same must be reasonably suitable for the landlord.

24. Counsel for the petitioner has strenuously argued that the premises are not required by the landlord for himself and his family for residential purpose bonafidely. He has contended that the premises in suit are situated on the main road in East of Kailash. The value of the property and the rent of the premises in the vicinity have soared high since the premises were let out in 1980 and the object of the respondent by filing the instant petition is to get rid of the petitioner who is an old tenant and thereafter let out the premises on much higher rent or to re-develop it so that it could fetch increased rental income to him. He argued that in order to achieve this purpose, the respondents have concealed material particulars and facts which a landlord is required to plead and disclose in a petition filed under clause(e) of Section 14(1) of the Act. He argued that the petition was filed under the summary procedure prescribed by Section 25B of the Act where a tenant cannot contest the suit straightway but has to take leave from the Rent Controller for defending the suit. Drawing attention to clause 18 of the petition, it was stated that the complete particulars of the size of the family, the accommodation which was in possession of respondent no.2 and his family, the accommodation which was in possession of respondent no.1, filing of another eviction petition against Mr. Jag Mohan Khanna, who is tenant on the ground floor of the suit property, also on the ground of personal bonafide need and allegation that both the premises were required by respondent no.1 for occupation of respondent no.2 and his family, were suppressed. He further submitted that respondent no.2 did not disclose as to which accommodation allotted by his employer BPCL was occupied by him till his retirement. All these facts which were necessary to be disclosed in the petition were not revealed by the respondents until the petitioner countered the sketchy allegations made in para 18 of the petition in his written statement. The respondents pleaded totally new facts in the replication in order to bring in their case within clause(e). Counsel has argued that the petitioner had no opportunity to controvert the allegations of the respondents made in the replication. The replication is not part of the pleading and the facts which were pleaded for the first time in the replication would not ensure for passing an eviction order under clause(e). He argued that the suppression of facts in the petition was done by the respondents evidently for taking a chance of eviction of the petitioner/tenant under the summary procedure incase he failed to disclose a triable defense in his leave application. It was submitted that per chance the petitioner had knowledge of the relevant facts which were sufficient for the grant of leave to defend and the respondents, therefore, agreed to the grant of leave. It is, therefore, submitted that the respondents having not come to the court with clean hands, their petition should have been rejected by the Additional Rent Controller at the threshold.

25. Controverting this argument, counsel for respondents argued that the respondents have made all the necessary allegations which were required to be pleaded in a petition for eviction under clause(e). The respondents disclosed the remaining facts in reply to the allegations of the petitioner in their replication. It was urged that the replication was part of the pleading. It was filed under the order of the court and was admitted by the court. It was also argued that after the pleadings, the parties knew each other's case before the case went into trial so no prejudice was caused to the petitioner since he was aware of all the issues on which the parties were to adduce evidence. He has cited Salig Ram and another Vs. Shiv Shankar and others AIR 1971 Punjab and Haryana 437 where it was held that "replication was part of the pleadings and anything which is specifically stated therein for the first time, has to be controverter and if it was not controverter and allowed to pass, it must be assumed that the plea raised in replication was accepted". He also relied upon Kochukesavan Nair Vs. Gouri Amma 1967 KLT 257 which has also laid down that the replication is part of the pleadings.

26. A perusal of the eviction petition will show that the respondents have pleaded in para 18 the bare minimum facts which were necessary to be pleaded in a petition for eviction filed on the ground of personal bonafide need. The details of those facts were elaborated mostly undeniably for the first time in the replication in reply to the pleadings of the petitioner in his written statement. It is indeed true that mere reproduction of the words used in the statute is not enough. The petitioner must disclose a cause of action based on the bundle of material facts for, in the event of leave being refused, the statements made by the landlord in the application for eviction are to be deemed to be admitted by the tenant. The statement of facts may be as elaborate as the landlord desired to make, but it will be enough for the landlord to state, in an application for eviction, that he is the landlord and owner of the premises and that the same were let out for residential purpose. It is not necessary for him to state how he became the owner. The law require him to state all material facts which constitute cause of action and make out ground of eviction and not the evidence by which they have to be proved. He must plead all such facts and circumstances which prove the bonafide requirement of the landlord or absence of other reasonably suitable accommodation. The landlord should disclose the size of his family, the size of the accommodation in his possession and the reason why the premises let out were needed by himself and other members of his family dependent upon him. He cannot leave all these details to be pleaded in the replication since he cannot presume that he would get a chance of filing a replication in the case. With the introduction of the Summary Procedure for trial of eviction cases on the ground under clause(e), the tenant could not defend the eviction petition as a matter of right. He had to disclose in the application such facts as would dis-entitle the landlord from obtaining/recovering of possession. In order to obtain leave to defend the eviction petition, the tenant was bound to give in detail facts which would show that the landlord was not entitled to get an order of eviction straight away without trial. In case the landlord had concealed the material facts which he was required to disclose and plead in the eviction petition at the firsthand, he would do so at his own peril. This has happened in this case also. The landlord had to agree to the grant of leave to defend this eviction petition to the petitioner/tenant when he came out with detailed facts about the number of members of the family of the respondent, the accommodation which was in his occupation, concealment of facts as to which accommodation was provided by his employer, concealment of the fact that a similar eviction petition was filed by the respondent/landlord for eviction of another tenant from the ground floor etc. The petitioner, therefore, was not at all prejudiced by the disclosure of the additional facts in the replication.

27. The question here will arise whether the replication is part of the pleadings. Rule 9 of Order 8 of the CPC allows a petitioner to file a replication to the written statement with permission of the court. Order 8 Rule 9 of the CPC provided as follows:-

"Subsequent pleadings.__ No pleading subsequent to the written statement of a defendant other than by way of defense to a set-offor counter claim shall be presented except by the leave o the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same."

28. It is clear from this rule that replication cannot be filed by the plaintiff, except by way of defense to a set off, as a matter of right. But with leave of the court it can be presented. Once the court required a party to file replication or allowed the plaintiff to present it then replication will became part of the pleading. Head note `subsequent pleadings' and the opening words 'No pleading' used in this provision clearly bring the replication filed after a written statement within the purview of word 'pleading'. In other words this rule itself regarded a replication to a written statement part of the pleading. There cannot be any other interpretation of this rule. If it is a pleading of the party filing it, it will be lawful for a party to add to his pleas made in plaint and the only condition is that it will be filed with leave of the court, except in a case of set-off where replication could be filed as a matter of right in answer to the counter claim/set-off pleaded in the written statement. The only requirement in the event replication is by way of set-off is that the defendant with leave of the court either may get his written statement amended or file additional written statement in order to counter the case of the plaintiff. The replication filed with leave of the court is nothing but part of the pleadings of the plaintiff and supplement to the plaint (see Kochukesavan Nair Vs.Gauri Amma (supra)).The petitioner cannot be pinned down to the allegations made only in the plaint and not in the replication. The replication is also a pleading as held above. When admitted by the court, it became part of the whole pleading of the suit and will be read as part of the pleading of the petitioner. If in case certain all together new facts have been pleaded in the replication, the respondent had every right to pray for and be granted by the court an amendment of the written statement to rebut those pleadings or file additional written statement to meet the new case pleaded in the replication. In this case the petitioner neversoughtleave of the court to amend the written statement or file the additional written statement in rebuttal to the new pleadings in the replication. He shall be deemed to have been waived his right.

29. Anyway, all the facts which were pleaded by the parties in the petition, the written statement and the replication were the foundation of the case of the parties when they went into trial. The parties very well knew the case of each other which they were required to meet. No prejudice was caused to any of the parties. The facts pleaded in the replication cannot be ignored after the parties adduced evidence on them.

30. For all these reasons, the argument of counsel for petitioner that the replication is not part of the pleadings in this case has no merit and it has to be repelled. Even otherwise it has not caused any prejudice to the respondent in his defense as the parties had full opportunity to produce evidence and substantiate their case as pleaded by them during trial of the case. It is too late for the petitioner to ask for rejection of the replication or the pleas raised therein.

31. It will also not necessarily lead to the inference that the requirement of the respondents was not bonafide and for any such reason full facts were not pleaded by them in the petition.

32. Now, I pass on to decide the main dispute between the parties. The question for consideration is whether the premises in occupation of the petitioner/tenant are required by respondent no.2/landlord bonafide and whether respondent no.2 is not in occupation of any alternative reasonably suitable residential accommodation. A few facts here are required to be recapitulated. The petitioner is tenant on the first floor of E-24, Greater Kailash-I, New Delhi. The ground floor is in occupation of another tenant Mr. Jag Mohan Khanna. Respondents have filed a similar petition for eviction of Mr. Jag Mohan Khanna from the ground floor of bonafide personal need of the said accommodation by respondent no.2. That petition is pending. Respondent no.1 owns a spacious house bearing No.29, Vasant Marg, Vasant Vihar, New Delhi. Respondent no.1 is living on the ground floor of the said house. The family of respondent no.1, as per averment made in the pleadings of the two respondents, comprised of himself, his wife Smt. Jagjit Kripal Singh and their grand daughter Ms. Sonya Singh, aged about 31 years. They occupied the ground floor which has 4 bed rooms, drawing room etc. in their occupation and use. Respondent no.2 is living on the first floor and the barsati floor of the said property. His family comprised of himself, his wife Smt. Parmilla K. Singh, his mother Smt. Manjit Kaur and his married daughter Mrs. Ritu Bhatia (who is separated from her husband) and a grand son Master Ilan Bhatia. He has two more daughters who are married and pay visit to him. The first floor in their occupation consisted of four bedrooms, four bathrooms, one drawing-cum-dining room, kitchen, terrace, verandah and servant quarter etc.

33. As per the allegations of the two respondents they do not form a joint family and both the respondent no.1 and respondent no.2 are separate in living. According to respondent no.2 he is not living with respondent no.1 ever since his marriage in the year 1960.Respondent no.1 is over 91 years old. He retired as Chairman of the Railway Board. He had two wives. One of them, who was mother of respondent no.2, and was living with him on the first floor and the barsati floor, had breathed her last during the pendency of the eviction case. Respondent no.2 does not have any right, title or interest in the house in Vasant Vihar. This property is undisputably owned by the respondent no.1 as proved by perpetual lease deed Ex.AW1/1. Respondent no.2 had joined Burma Shell in the year 1956 which was taken over by BPCL and since then he had been posted outside Delhi. In August, 1984 he was posted back at Delhi and joined as General Manager of the BPCL. The BPCL took on lease the first floor and the barsati floor at house No.29, Vasant Marg, Vasant Vihar, New Delhi on rent from respondent no.1 and allotted it for the residence of respondent no.2. Respondent no.2 retired from the service of BPCL on 30.11.1993. According to the respondents BPCL was paying rent of the said accommodation to respondent no.1.

34. Further case of the two respondents is that respondent no.1 is suffering from heart disease but does not require any one to look after him. He does not draw any pension. Being separate from respondent no.2, he is dependant upon his little income from the rent and the interest and dividend earned on his investments. In this old age he intend to let out the first floor and the barsati floor of his house in Vasant Vihar which in the prevailing situation would fetch between Rs.50,000/- to Rs.1.00 lacs per month and, therefore, the continued occupation of the first floor and the barsati floor by respondent no.2 and his family is depriving respondent no.1 of this income. Respondent no.2, who was living in the present accommodation occupied by him by virtue of his employment with BPCL, which had taken on rent the accommodation and continued to occupy it even after his retirement on 31.3.1993 in the hope that the suit premises would be vacated by the petitioner on expiry of the lease deed on 31.3.1995. Respondents also stated that the lease of the premises in suit was renewed for another period of 3 years w.e.f. 01.4.1992 on the assurance and promises of the petitioner that he would vacate it on the expiry of the three years terms of the lease. To sum up, the case of respondent no.2 is that respondent no.2 wanted to live separately in his own house in Greater Kailash-I which comprised of the suit premises at the first floor and the premises on the ground floor which are in occupation of Mr. Jag Mohan Khanna, against whom also similar eviction petition has been filed.

35. The petitioner, on the other hand, has alleged that it is a camouflage transaction between BPCL and the respondents have tried to give the transaction a colour of letting of the premisses in occupation of respondent no.2 to BPCL whereas respondent no.2 ever since 1980 was in continuous possession of the first floor and the barsati floor and even after the retirement from service of BPCL he continued to occupy the said portion. The rent, a very small amount, which was being received from the BPCL, was also credited to the joint account of the two respondents.

36. The contention of the petitioner is that his eviction from the premises is being sought on a fictitious ground since he is an old tenant paying low rent. According to him real purpose behind this eviction petition is that the rents in this locality have gone up sky high otherwise who will believe that the respondent no.2, who is the only son living with respondent no.1, will think of leaving his father unattended in this old age particularly when father is afflicted with a dreaded disease. He also contended that the so called friction and tension in the family on account of both wives of respondent no.1 living under one roof also did not survive any more since one of them, the mother of respondent no.2, has expired. Vasant Vihar house is a palatial building and it is more than sufficient for the comfortable living of the joint or even separate families of the two respondents according to their financial and social status. Make belief ground of bonafide requirement has been a ruse to either are-let the premises or re-develop the property for earning more rent or sell it as the rental and value of the property have gone up considerably because of its vantage location.

37. The controversy between the petitioner and the respondents has narrowed down considerably after the parties have adduced their evidence. Firstly, the house bearing No.29, Vasant Marg, Vasant Vihar is a big and spacious house and is solely owned by respondent no.1. Respondent no.2 is living on the first floor of the barsati floor of the said house. After his transfer to Delhi in the middle of August, 1984, respondent no.2 started living in this accommodation and is still living there. Though the complete evidence about the terms and conditions on which the said accommodation was taken on rent by the BPCL, the employer of respondent no.2 has not come and only the letters of the BPCL which are Ex.AW5 to AW7 have been placed, which suggest that the BPCL had taken on accommodation on rent from respondent no.1 in Vasant Vihar house on Rs.400/- p.m. for the residence of respondent no.2, yet there being no evidence in rebuttal to these documents, there is no reason to disbelieve the oral statement made by respondent no.1 in his statement as AW1 and respondent no.2 in his statement as AW2 that the accommodation was taken on rent by the BPCL for his residence in Vasant Vihar house and he was occupying it till his retirement on 30.11.1993 as an allottee and after his retirement as son of respondent no.1 and in the hope of vacation of his own house on the expiry of the lease agreement on 31.3.1995. The deposit of the rental income of the accommodation from the BPCL into a joint account and withdrawal of money from the said account sometimes by respondent no.2, will not be of a material significance. The important fact is that respondent no.2 had no right, title or interest in Vasant Vihar house which was exclusively owned by respondent no.1, father. The second important fact would be that respondent no.2 came to Delhi on transfer in 1984 and started living there. BPCL also seems to have taken the said accommodation for the residence of respondent no.2 and was paying some rent to respondent no.1. Respondent no.2 retired from service of the BPCL in November, 1993.

38. The last of the lease deeds was executed between the petitioner and respondent no.1 on 01.4.1992 for a period of three years. The contention of the petitioner is that the premises were let out to him for a period of three years even though the respondents knew of the impending retirement of respondent no.2 from service on 30.11.1993 and if the premises were required by respondent no.2 the premises could not have been let out up to March, 1995. The explanation which is given by the respondents seems quite plausible. Their case is that the lease was being renewed every three years and when it expired in March, 1992, it was renewed for a further period of three years since the petitioner had promised to vacate the premises in March, 1995. Anyhow, respondent no.1, is an old man and is suffering from heart disease and cancer. It is stated that this respondent no.1 needs money for proper treatment of his disease which is quite expensive. He does not have much income from the interest and the dividend on the deposits and that accommodation in which respondent no.2 is living at present if let out at the market rate of rent, would fetch about a lac of rupees per month. Therefore, he is asking his son, respondent No.2, to vacate and respondent no.2 considering the wish and financial condition of his father respondent no.1, wanted to vacate Vasant Vihar house and reside in his own house which is the chershed desire of every person to pass his last days in life in his own property built for residence.

39. Now the facts of the present case may be tested on the case law enunciated in the judgments of the Supreme Court.

40. The Supreme Court in Shiv Sarup Gupta (supra) on the bonafide requirement of the landlord and the availability of alternative accommodation with the landlord in paras 13 and 14 of the judgment held as follows:-

13. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the needis bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence of pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against.
14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need.

Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of clause(e) of sub-section(1) of Section14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied.

Wherever another residential accommodation is shown toexistas available than the Court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the Court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the land has succeeded in demonstrating objectively to exist.

Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction.

Convenience and safety of the landlord and his family members would be relevant facts. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come".

41. In another judgment Meenal Eknath Kshirsagar (Mrs.) Vs. Traders & Agencies and another , the Supreme Court in para 13 examined Prativa Devi Vs. T.V. Krishnan ,and observed as under:-

"13.The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own...... There is no law which deprives the landlord of the beneficial enjoyment of his property".
"14.It is further held therein that what is to be considered is not merely the availability of alternative accommodation but also whether the landlord hasa legal right to such accommodation".

42. A landlord, who did not want his tenant to continue to occupy the premises may terminate the tenancy or upon efflux of time stipulated in the lease ask the tenant to quit in accordance with the provision of Transfer of Property Act. The Rent Acts have puta clog on this right. The landlord cannot now evict the tenant on his whims and fancy. He has to satisfy the Rent Controller about existence of one or more of the ground of eviction specified in Section 14(1) of the Act. Right of landlord is not absolute but curtailed by various provisions of Rent Acts. Crux of the ground of eviction under clause (e) on which eviction of the petitioner is sought is that the requirement of the landlord for occupation of the tenant premises must be bonafide. When a landlord asserts that he requires his building for his own residence the Rent Controller shall not proceed on the presumption that the requirement is not bonafide. Once the bonafide of the requirement of the premises for occupation is established by the landlord the tenant cannot ask the landlord how else he can adjust without disturbing his own possession in the suit premises. Therefore, it will be unnecessary to try to ascertain as to how else the landlord could have adjusted himself at another place. The facts that the respondent no.2 is comfortably living in his father's house and is not short of accommodation or that he is the only son who happens to live with his old and sick father or that cause of tension between two families has ceased after the death of mother of respondent no.2 are not germane to the question involved. Question is that the requirement of the landlord is not actuated by sinister motive of profit making, extortion of money, extraneous consideration, wishful, whimsical and fanciful. If it is not then no law prohibits a landlord to live in his own house howsoever small it may be. Landlord is the best judge of his need. If the landlord has a genuine desire to live in it there cannot bea better place than his own house, whether it is palace or a hut, more suitable for landlord and his family.

43. In the instant case it has been seen that respondent no.2 is the owner and landlord of the premises in occupation of the petitioner. He and his family is residing in a portion of Vasant Vihar house which is owned by his father, respondent no.1. Respondent no.2 is living there with the leave of his father, respondent no.1. He is living there on leave and license basis and cannot be compelled to continue to live there if his father wanted him to quit. There is neither allegation nor is there any proof that the accommodation on the first floor and the barsati floor which is presently in occupation of respondent no.2 is still on rent with the BPCL. On the contrary, the allegation of the petitioner is that the transaction of lease between respondent no.1 and the BPCL was a camouflage. The respondents have given a cogent and plausible explanation for respondent no.2 deciding to shift to his own house in Greater Kailash house. It has come in their statement as PW1 and PW2 respectively that they are not joint in living and that the family of respondent no.1 and the family of respondent no.2 are separate in living since 1960 when the respondent no.2 was married. It has further come in evidence that respondent no.1 had two wives, one of whom was living with him on the ground floor and the other, who was the mother of respondent no.2, was living with respondent no.2 on the first floor. Mother of respondent no.2 has died during the pendency of this petition. May be one of the reasons for which respondent no.1 wanted respondent no.2 to shift to Greater Kailash house i.e. on account of frictions and strains between the mother of respondent no.2, the other wife of respondent no.1, or the two families because of this is not there. With the death of the mother of respondent no.2 the cause of that irritation may not survive any more. But it was not the only ground on which respondent no.2 wanted his own house to be vacated by the petitioner.

44. Respondent no.1 is an old man of 91 years. Respondent no.2 is also 63 years old and is a retired officer of the BPCL. The accommodation in Vasant Vihar house is no doubt spacious and can accommodate the families of respondent no.1 and respondent no.2 but the requirement of the suit premises by respondent no.2 is not on account of shortage or paucity of accommodation there. The reason is that respondent no.1 does not have a regular income by way of pension and, therefore, he wanted to increase his income by letting out the accommodation in Vasant Vihar house which at the current rate of interest in the locality would fetch between Rs.50,000/- to Rs.1.00 lacs p.m., according to the respondents. It would fetch substantial sum as rent which fact cannot be denied by the petitioner. Respondent no.1 being a heart and cancer patient must be providing expensive treatment to himself for this disease. respondent No.2 also may desire to pass his remaining days of life in his own house. It has been emphatically asserted by both the respondents that respondent no.1 does not require assistance of respondent no.2 for looking after him.

45. It is indeed true that the respondents have not disclosed that a similar petition was filed by them for eviction of the tenant from the ground floor house or that they have also not disclosed certain facts which they pleaded in the replication to the written statement but that by itself would not lead to an inference that the respondent were seeking eviction of the tenant for some ulterior purpose or their intention was not bonafide.

46. Examining the facts and evidence in the light of the law enunciated by the Apex Court cited in the foregoing paragraphs there is no escape from holding that the respondent No.2 required the suit premises bonafidely and he is not in possession of a reasonably suitable residential accommodation. All the necessary ingredients of clause (e) have been established by the respondents.

47. The learned Additional Rent Controller had considered oral and documentary evidence produced by the parties and his view cannot be said to be not supported by evidence or it is not reasonable in the facts and circumstances of the case. It cannot be said to be not in accordance with law. The jurisdiction of this court under sub-section (8) of Section 25B of the Act is not very wide as has been observed in the foregoing paragraphs. The court can reappreciate the evidence only for limited purpose of finding whether the order of Rent Controller is in accordance with law. The court cannot reverse the view of the Rent Controller upon reappreciation of evidence for the reasons that another view is possible on this evidence. It cannot be stated that the view of the learned Additional Rent Controller is perverse or without any evidence and not in accordance with law.

48. For the reasons stated above, the petition has no merit. It is dismissed. However, the petitioner is an old tenant and he is given six months time to vacate the premises, subject to his furnishing an undertaking on affidavit that he would vacate and handover the peaceful possession to respondent no.2 on or before the expiry of that period.