ORDER
1. This revision petition under [SECTION] of the [ACT] (hereinafter referred to as the "Act") has been filed by the tenant-petitioner against the order dated 16-7-1991 passed by Smt. [ENTITY], Additional Rent Controller, Delhi whereby she has allowed the eviction petition of the respondent-landlord under [SECTION] of the Act for bona fide requirement and consequently an order of eviction in respect of Kothi No. 5, [ENTITY] Road, Delhi has been passed.
2. The relevant fads as stated in the petition are that the respondent-landlord was the owner of the premises in his capacity as the karta of the Joint Hindu Family known as Rajan Chand Khanna & Sons comprising of the respondent-landlord himself, his wife and two sons. The premises Kholi No. 5, [ENTITY] Road, Civil Lines, Delhi were let out to the tenant on a monthly rent of Rs. 198/- p.m. besides Rs. 26.78 as house tax and Rs.2/-p.m. as sweeper charges for residential purposes and has been used as such since the inception of the tenancy. The premises were let out in July, 1951 and no rent note was executed.
3. The respondent-landlord had been working with CPA Consultancy Services Private Limited, 11/ 1-A, [ENTITY], Calcutta, under a contract for a period of five years at that time, which was to expire on 30th June, 1981. At the time of institution of the eviction petition, the petitioner had been residing in Calcutta, but the climate of Calcutta being humid did not suit the eldest son, [ENTITY], of the respondent-landlord as he had been suffering from Asthma and the doctors advised him to shift his residence from Calcutta to Delhi where the climate is dry. The respondent-landlord wanted to make certain additions and alterations in the premises to suit his requirements, if the premises were vacated by the tenant. The mother and the brothers of the respondent-landlord, along with their family members, are settled in Delhi and the respondent-landlord intended to settle in Delhi on his contract coming to an end on 30th June, 1981. However, the respondent-landlord's wife and sons would immediately shift to Delhi even before the term of the respondent-landlord's contract came to an end on account of ill health of the eldest son of the respondent-landlord. The respondent-landlord had no other suitable accommodation for residence for himself and other members of his family.
4. During the pendency of the eviction petition, the respondent-landlord moved an application dated 2-2-1987 under [SECTION] and [SECTION] of the [ACT] for amendment of the petition which was allowed by the trial Court on 21-4-1987. By amendment certain subsequent facts were incorporated in the petition. It was stated that [ENTITY], the eldest son of the respondent-landlord, had completed his study and had shifted to Delhi from Calcutta due to his being Asthma patient as humid climate of Calcutta was not suitable for him. [ENTITY] had taken up a job with M/s Markets India Ltd., Delhi w.e.f. 5-1-1987 and was permanently stationed in Delhi. Since he had no place of his own to live in Delhi, he had been staying as a guest/licensee with his paternal aunt at 8, [ENTITY] Road, Civil Lines, Delhi. He would have to shift to his other relations house in near future in order to avoid embarrassment on account of long stay as a guest with his paternal aunt. Further, [ENTITY] would attain the age of 24 years on 17-5-1987. He is of marriageable age. Since he was settled in Delhi and he intended to be married shortly and his marriage was being postponed and delayed on account of not having his own house in Delhi, respondent-landlord's wife also wanted to shift to Delhi in order to stay with her son [ENTITY] but because of non-availability of the respondent-landlord's own house she was not able to shift to Delhi and stay with her son. Landlord's retirement was also shortly due and he would also, after retirement, shift, to Delhi. Therefore, the respondent-landlord required the premises bona fide.
5. The respondent-landlord terminated the tenancy of the tenant by the mid-night of 31st January, 1979 by giving a notice dated 14-12-1978. The notice was given by way of abundant caution as no statutory notice was required.
6. The tenant filed an application dated 2-7-1979 under [SECTION] of the Act for leave to appear and defend the eviction petition.
7. Vide order dated 22nd August, 1979, the petitioner-tenant was allowed leave to contest. Consequently he filed a written statement dated 21st July, 1987.
8. The stand taken by the tenant in the written statement is that he being the owner and proprietor of the liquor business took the premises both for residential and non-residential/ office purposes and in the year 1962 the registered office of M/s Hotel Rajdoot Pvt. Ltd. was established with the knowledge and consent of the then owner late [ENTITY], the father of the present respondent-landlord. The respondent-landlord had been receiving rent of the premises by account payee cheques from M/s [ENTITY] Wine Merchants Pvt. Ltd. The office of M/s Hotel Rajdoot Pvt. Ltd. is also situated in these premises and was working and functioning there since 1962 with the knowledge and consent of the previous respondent-landlord. The administrative office of M/s [ENTITY] Wine Merchants Pvt. Ltd. and prior thereto the office of [ENTITY] & Co. was functioning there. However, it is not disputed that the members of the petitioner-tenant are also residing in the premises.
9. The averment of the respondent-landlord that he was the landlord of the premises was not disputed. However, it was not admitted that the respondent-landlord was the owner of the property in question. As a matter of'fact [ENTITY] was the owner of the property when the premises were taken on rent. It was not admitted that he was the Karta of the alleged joint Hindu family allegedly known as Rajan Chand Khanna & Sons. It was denied that the premises were let out for residential purposes only and/or had been used for residential purposes only since inception of tenancy. It was denied that the premises were required by the respondent-landlord for his residence or for the residence of the members of his family. It was not admitted that the respondent-landlord had been working in CPA Consultancy or that the period of contract of the petitioner with the said firm was for a period of five years of that the alleged contract was to expire on 30th June, 1981. It was denied that the respondent-landlord did not have any other reasonably suitable residential accommodation. The respondent-landlord and his family owned a number of houses in Civil Lines, Delhi and particularly at Alipur Road and [ENTITY] Road. Furthermore, the respondent-landlord and his family had permanent business and permanent residence at Calcutta and had absolutely no intention to shift to Delhi. Even if it be assumed that the respondent-landlord intended to shift to Delhi. According to the tenant, he had enough and reasonably suitable accommodation at Delhi and did not require the premises in question. According to him, the respondent-landlord had been getting properties at Delhi vacated on similar grounds. He got vacated properties Nos. 6 & 8 at [ENTITY] Road, Delhi on similar grounds and after getting the possession of the said properties, the same were demolished by him and in their place he raised commercial and residential flats and let them out with huge rents and high 'pugri'. According to him, the respondent-landlord was adopting the same tactics against the tenant for monetary gains. It was denied that the respondent-landlord's son had shifted to Delhi or that he was an Asthma patient or that he had taken up employment with M/s Markets India Limited, Delhi or that he was posted at Delhi permanently.
10. In the replication dated September, 1987, the respondent-landlord has denied the averments made by the petitioner-tenant in the written statement insofar as these have been denied by the tenant and the averments made in the eviction petition have been reaffirmed and re-agitated. It has been reaffirmed that the respondent-landlord has never given any consent to the tenant to use the premises for commercial purposes and rent receipts have been issued in the name of [ENTITY] in his individual capacity. It has been denied that [ENTITY] was the owner of the premises when the same was taken on rent by the tenant. As a matter of fact [ENTITY], one of the brothers of the respondent, was previously the owner of the property and during the minority of [ENTITY], [ENTITY] used to manage the property as guardian. Out of natural love and affection the suit property was gifted by [ENTITY] (elder brother of the respondent) to the respondent vide a registered Gift Deed dated 31-3-1955 and since then the petitioner-tenant became tenant of the respondent on the same terms and conditions. The respondent-landlord has put the property in hotch potch to the joint Hindu family comprising of himself, his wife and sons known as Rajan Chand Khanna and Sons vide a declaration and the respodent has been treating the property as joint Hindu family property of Rajan Chand Khanna and Sons. It has been reaffirmed that the premises were let out for residential purposes and had been used as such since the inception of the tenancy. It has further been clarified by the respondent that after the death of his father [ENTITY] on 27-3-1976 he has inherited 1/5th share in undivided property No. 51, Rajpur Road. He along with his three brothers and mother entered into an agreement to sell dated 6-5-1978 with one [ENTITY] and others and possession was delivered at that time. The said property No. 51, Rajpur Road, Delhi had been sold and sale deed had been executed. Since the other co-owners did not want to keep the property as joint and the same was impartible the respondent had no option but to agree to sell off his 1/5th share in the said property. The respondent had 1/4th share in 1, [ENTITY] Road, Delhi comprising of one flat only and about one half undivided share in Kothi No. 16, [ENTITY] Kishore Road, Civil Lines, Delhi along with [ENTITY], brother of the respondent, and the other half undivided share belonged to [ENTITY], uncle of the petitioner. There was an oral family settlement on 15-4-1976 amongst all the heirs of [ENTITY] and according to the said oral settlement the share in the aforesaid properties fell to the share of the petitioner. None of the properties was lying vacant and they were occupied by the tenants.
11. In the present revision, notice to show cause was ordered to be issued on 9th August, 1991. Arguments in part were heard on 12th December, 1991 and 16th December, 1991. The matter was adjourned to 8th January, 1992 for further arguments. In the meantime, the petitioner-tenant filed an application under [SECTION], [SECTION] of the [ACT] seeking permission of the Court to amend the Written Statement filed by the petitioner-tenant before the trial Court. This application was registered as [CASE NUMBER] and notice was ordered to issue on 20th December, 1991.
12. In substance, the main amendment sought for in the written statement is that the trustees are the owners of the property in dispute, according to the terms of the Trust Deed executed on 25-11-1927, and not [ENTITY], father of the present respondent, as has been pleaded in the written statement. According to him, he was not aware at the time of filing of the written statement that there was a Trust Deed on which reliance had been placed by the landlord for deriving title of ownership in respect of the premises in dispute as the Trust Deed did not find mention even in the replication and certified copy of which was placed on record during the course of evidence. Even in the replication, the respondent-landlord sought to derive title on Gift Deed which was allegedly executed by the respondent's elder brother [ENTITY] in favor of the respondent. In these circumstances it was erroneously stated by him in the written statement that it is [ENTITY], the father of the respondent who is the owner and the landlord of the property in question and not the present respondent. It was alleged accord-
ing to the Trust Deed aforementioned a trust was created by [ENTITY] for the benefit of the wife of late [ENTITY], Smt. [ENTITY], their adopted daughter Smt. [ENTITY] and her son [ENTITY]. reference to Trust Deed shows that Smt. [ENTITY] and Smt. [ENTITY] were to have life interests in the trust properties and [ENTITY] was only to acquire absolute ownership rights in the property if both Smt. [ENTITY] and Smt. [ENTITY] had died before [ENTITY] attained the age of 25 years. Since Smt. [ENTITY] was alive at the time of the filing of the eviction petition and even at the time of the alleged gift made in 1955, the donor, i.e., [ENTITY] had no power or authority to gift the said property to the respondent and as such the respondent did not acquire any ownership rights in the property in question. The other amendment sought for is that the property in question does not find mention in the Trust Deed as one of the properties put in the Trust and as such no ownership rights can be said to be possessed by [ENTITY] in the said property. The other amendments sought, in substance, are the repetition of the averments made in the written statement already filed.
13. The stand taken by the respondent-landlord in reply to this application is that the amendment sought for is mala fide and has been filed after a lapse of 12 years to delay the proceedings and create confusion and such an amendment is highly belated and is intended to take away the admission made by the petitioner-tenant in the written statement already filed. If such an amendment is allowed, it would mainly amount to withdrawal of the admission which the petitioner-tenant has made that it is [ENTITY] and not the present respondent who is the owner. As a matter of fact the Trust Deed was created for the benefit of Smt. [ENTITY], wife of [ENTITY], Smt. [ENTITY], daughter of [ENTITY] and [ENTITY], grandson of [ENTITY]. As per the Trust Deed, Smt. [ENTITY] and Smt. [ENTITY] were to acquire only lifetime interest in the properties of the Deed. Further, Smt. [ENTITY] died prior to 1934 and [ENTITY] died in the year 1934. It was as stipulated in the Trust Deed that in the event of the said two ladies dying prior to [ENTITY] attaining the age of 25 years, [ENTITY] would be the sole and bona fide beneficiary of the trust property. Since [ENTITY] was born in the year 1925 and attained the age of 25 years in the year 1950 when both the said ladies had died, he was the sole and bona fide beneficiary of the suit property/trust property. The gift by [ENTITY] to [ENTITY] was, thus, a valid gift in law. In any case, the petitioner-tenant has no locus standi to challenge the creation of the trust or transfer of the title of the property, especially, in the absence of any challenge from the members of the family. It has further been stated that under the Trust Deed no doubt the property in dispute refers to 4, [ENTITY] Lane, Civil Lines, Delhi but that has been renumbered by the Municipal Corporation of Delhi as 5, [ENTITY] Road, Civil Lines, Delhi. In fact on both the questions the evidence has been led by the parties and the petitioner-tenant has full knowledge of these facts and he has not cared to amend the pleadings. Furthermore, the petitioner-tenant was always alive to these questions and both the parties have led evidence on such questions and such an evidence can always be referred to by both the parties and therefore such an amendment is not necessary to determine the point in controversy.
14. Counsel for the applicant-tenant vehemently submitted that there was no mention of the Trust Deed (Ext. AW 1/1) even in the replication and it had been brought on record at much later stage during the course of evidence and therefore such proposed amendments could not be applied for earlier. He further submitted that the amendment can be allowed at any stage of the proceedings in case these are necessary for determining the question in controversy between the parties and in the administration of justice.
15. I have carefully considered the arguments of the learned counsel for the petitioner-tenant and am of the view that these amendments are not necessary for determining the point of issue between the parties. In fact both the parties on having full knowledge of this issue whether or not [ENTITY], respondent, is the owner of the premises have gone on trial and placed evidence on this question and both are free to refer to the evidence already placed on record on this question including the Trust Deed. Since such amendments have been sought for in terms of the Trust Deed and which is already on record and requires no further evidence, and which can be referred to by both the parties in arguments, these are not necessary to effectively adjudicate upon the dispute between the parties. The arguments can also be addressed on the question whether the premises can be traced to the Trust Deed. Therefore, no amendment is necessary to determine the point at issue between the parties and no useful purpose would be served by allowing such an amendment, as already stated the evidence is already on the record and the parties are free to refer to such evidence.
16. The objections raised by the respondent-landlord, on the other hand, are well founded. It has been clearly admitted in the written statement that [ENTITY] was the owner of the property when the property was given on rent to the petitioner-tenant. [ENTITY] has admittedly died and [ENTITY], the respondent, as a heir, being the son, is entitled to succeed to the property as one of the co-owners of the property and under the settled law being co-owner he has every right to file the petition, as also would be discussed later. In case such an amendment is allowed that the trustees are the owners of the property and not [ENTITY], this would amount to withdrawing of the admission made by the petitioner-tenant and setting up of entirely different and a new case. It is settled principle of law that the amendment seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement should not be allowed. In this connection reference may be made to M/s Modi Spinning & Weaving Mills Co. Ltd. v. M/ s Ladha [ENTITY] & Co., .
17. However, counsel for the petitioner-tenant relied upon [PRECEDENT], , wherein it has been held that an admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. However, it has been observed in that judgment that the admission can be withdrawn provided it is necessary to effectively adjudicate upon the dispute between the parties.
18. In the present case, as already stated above, the amendment sought for are not necessary to effectively adjudicate upon the dispute between the parties and, therefore, the authority cited by the learned counsel for the petitioner-tenant will not advance his case.
19. Even otherwise, the application is highly belated as the same has been filed after a period of more than 12 years. The eviction petition was filed in 1979. It was not necessary under the law to implead the Trust Deed (evidence to be produced) in the pleadings. Even the Trust Deed was produced in the evidence and exhibited in 1982. In case, the petitioner-tenant really wanted to amend the written statement, he could have done so immediately thereafter or within reasonable period. The filing of this application at such a belated stage, more particularly after the arguments in civil revision have started, clearly demonstrates that the application is motivated mala fide and is an attempt to prolong and re-open the case.
20. No other amendments during the course of arguments were pressed.
21. In these facts and circumstances this application for amendment cannot be allowed and is dismissed.
22. The 'aw is well settled that in order to evict a tenant under the provisions of [SECTION] of the Act, the following ingredients have to be satisfied as have been laid down by the Division Bench of this Court in paragraph 9 in [PRECEDENT], :
"9. The provisions of [SECTION] had been subjected to various judicial pronouncements. It has now been held that in order to evict a tenant the following ingredients have to be satisfied :
(a) The applicant has to be a landlord :
(b) He has also to be an owner;
(c) The premises in question should have been let only for residential purposes;
(d) The said premises are required bona fide by the landlord for occupation as a residence for himself or for any member or his family dependent upon him; and
(e) That the landlord or such person dependent upon him has no other reasonably suitable residential accommodation".
23. Mr. [ENTITY], learned counsel for the petitioner-tenant did not dispute that the respondent was a landlord. But he very seriously disputed his ownership of the premises. He has further submitted that the finding of the Additional Rent Controller that the respondent is an owner of the premises in dispute is not only illegal but perverse and it can very well be interfered with in the revision petition.
24. In order to decide the revision petition, it is necessary to decide scope and ambit of [SECTION] of the Act, i.e., the scope of revisional jurisdiction of this Court under the provisions of the Act.
25. The ambit and scope of revisional jurisdiction has been analysed by the Supreme Court in [PRECEDENT], . The Supreme Court, while considering the provisions of [SECTION] of [ACT] has held that :
" the High Court must ensure that the principles of taw have been correctly borne in mind. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. It must (sic not) be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. We must, however, guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the Courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant. Judged by that standard, we are of the opinion that the High Court in this case had exceeded its jurisdiction."
The provision of revision has been provided under [SECTION] of the [ACT] which reads as under :
"29(2) No further appeal shall lie against any decision in appeal under sub-section (1) but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit."
26. It may be mentioned here that [SECTION] of the [ACT] is in pari materia with [SECTION] of the [ACT]. [SECTION] of the [ACT] reads as under :
"25B. (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section;
Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."
27. In [PRECEDENT], , the Supreme Court, again, while considering the provisions of [SECTION] of the [ACT], has held :
"The High Court can interfere with the decision of the lower Court under [SECTION], [SECTION] only if there is miscarriage of justice due to a mistake of law. The High Court cannot reassess the value of the evidence and interfere with a finding of fact merely because it thinks that the appreciation of the evidence by the lower Court is wrong and the lower Court should have reached a different conclusion of fact from what it did."
28. According to Mr. [ENTITY], it is the trustees under the trust deed executed on 25-11-1927 who are the owners of the property in dispute and that [ENTITY] who did not possess absolute rights of ownership of the property and could not gift such property to the respondent. The trust was created for the benefit of the wife of late [ENTITY], Smt. [ENTITY], their daughter Smt. [ENTITY] and her son Shri [ENTITY]. Reference to Trust Deed shows that Smt. [ENTITY] and Smt. [ENTITY] were to have life interests in the trust properties and since Smt. [ENTITY] was alive at the time of the filing of the eviction petition and even at the time of the alleged gift made in 1955, the donor i.e. Shri [ENTITY] had no power or authority to gift the said property to the respondent and as such the respondent did not acquire any ownership rights in the property in question. Reference was made to the evidence of [ENTITY], AW 1/1. According to him, it is apparent that the mother was still alive and, therefore, [ENTITY], the elder brother of the respondent had no title in the trust properties. As a matter of fact, in order to argue such a case the tenant filed an application under [SECTION], [SECTION] for the amendment of the written statement which I have already dismissed. However, on the basis of the material available already on record, the Trust Deed and the Gift Deed made by [ENTITY] in favor of the respondent, I permitted the counsel for the petitioner-tenant to make submissions on this question whether or not the respondent was the owner of the property in dispute. My attention was drawn by the learned counsel to various terms and conditions of the Trust Deed in order to substantiate his argument. I have seen the evidence of PW 1 and the Trust Deed, Ext., AW-3/1. Nowhere does he refer that [ENTITY], was still alive. Reference is only made to the mother. In fact, in reply to the amendment application, the position has been explained by the respondent that the Trust Deed dated 25-11-1927 was created for the benefit of Smt, [ENTITY] wife of [ENTITY], Smt. [ENTITY], daughter of [ENTITY] and Shri [ENTITY], grandson of [ENTITY]. As per the Trust Deed, Smt. [ENTITY] and Smt. [ENTITY] were to acquire only lifetime interest in the properties of the Deed. It is further submitted that Smt. [ENTITY] died prior to 1934 and [ENTITY] died in 1934. It was a stipulation in the Trust Deed that in the event of the two ladies dying prior to [ENTITY] attaining the age of 25 years, [ENTITY] would be the sole and bona fide beneficiary of the trust property. Since [ENTITY] was born in 1925 and attained the age of 25 years in 1950 when both the said ladies had died, he was the sole and bona fide beneficiary of the suit property/trust property. The gift made by [ENTITY] to [ENTITY] was, thus, a valid gift in law.
29. It appears that the reference to the word "mother" in the statement of P.W. 1 is to "step mother" and not [ENTITY], the real mother who died in 1934. In fact such an information could have been elucidated out from the witnesses had such a case been set up in the written statement. The case set up in the written statement is contradictory inasmuch as it has been pleaded that [ENTITY], the father, was the owner, and not [ENTITY] nor the respondent. In fact and as has also been pointed out by the trial Court that the testimony of the tenant goes to show that he has nowhere challenged the ownership of the premises of the petitioner and the testimony is completely silent in this regard. Further, the admissibility of the Trust Deed was also challenged by the tenant whereas during the course of arguments he has relied upon this document. In these circumstances, the question whether the trustees are the owners of the property in dispute in terms of the Trust Deed and that whether [ENTITY] has become the absolute owner of the property and could make valid gift in favor of the respondent, cannot be agitated and investigated at this stage. However, on the basis of the affidavit filed in support of reply to the application for amendment of the written statement by the petitioner-tenant, it is clear that both the ladies, Smt. [ENTITY] and Smt. [ENTITY], the mothers of the respondent and [ENTITY] have already died and that [ENTITY] has acquired the ownership rights. In the affidavit it has also been explained that the property mentioned in the Trust Deed is 4, Shri [ENTITY] Lane which was subsequently renumbered by the Municipal Corporation of Delhi as 5, [ENTITY] Road, i.e., the suit property. The word "[ENTITY] Lane" and "[ENTITY] Road" are used interchangeably and there are no two separate roads by the said names. This also finds support from the recital in the Gift Deed, Ext. AW-1/1 that premises have been referred to as Bungalow No. 4(old) now Bungalow No. 5, situated at [ENTITY] Road, Civil Lines, Delhi. At any rate, this question was neither set up earlier nor raised nor argued before the trial Court at any stage.
30. It has been substantiated that the respondent became the owner by virtue of Ext.AW1/1, Gift Deed executed by [ENTITY], who was the owner under the registered Trust Deed executed in 1927. In my opinion, in these proceedings it is not open to the tenant to raise the question of the validity of the Gift Deed on the ground that such a gift could not have been made legally by [ENTITY], the elder brother of the respondent. There is no dispute that the Gift Deed AW1/1 has actually been executed and registered by virtue of provisions contained in [SECTION] of the [ACT]. It would be perfectly good title and would be transfer of title in the property to the respondent and such a gift being not void, it is not open to the third party, who is a tenant, to challenge the validity of the gift as he has no locus standi to challenge that gift. In this connection I am fortified with a decision in Sardarni Kirpal Kaur v. Bhagwant Rai, 1962) 64 PLR 717 paragraph 3).
31. Apart from this there is sufficient evidence on the file to demonstrate that the ownership of the respondent has never been doubted. Reference should also be made to a letter dated 11th July, 1973 (Ext.PX-1) whereby the petitioner/tenant has sought permission of the respondent for change of terms cf tenancy. It appears no permission was granted. In addition to that the respondent has always been treated by the petitioner as owner. Furthermore, it has come in the evidence that the respondent-landlord put the suit property in the H.U.F. known as Rajan Chand Khanna and Sons in 1964 and the same is being assessed as H.U.F. since then by the Income-tax authorities. Mutation was also effected in the municipal records in the name of the respondent and the House tax bills are Ext.AW1/5 to Ext.AW-1/16. According to the survey (Ext. AW-4/3) conducted by the M.C.D., the suit property is owned by the respondent. All these facts clearly indicate that the respondent is the owner of the premises in dispute.
32. It may also be noticed that [ENTITY], who was examined as A.W. 2 was not at all cross-examined on the question of ownership nor R. W. 1, the tenant, has said in his testimony that [ENTITY] was not the owner of the property. In these circumstances, the ownership of [ENTITY] cannot be questioned in these proceedings.
33. Mr. [ENTITY], learned counsel for the respondent submitted vehemently that the ownership of the respondent could not be disputed by the petitioner as he has got the ownership, being the donee by a registered Gift Deed from [ENTITY]. Secondly, even otherwise, in so far as the respondent is concerned, he is undoubtedly the owner of the premises in dispute as under the law laid down by the Supreme Court, owner should be something more than a tenant. It has already been noticed and referred to earlier that after the registered Gift Deed AW I/1, the respondent has been the owner since 1955 to whom the tenant has attorney and the property has been put in hotch potch of H.U.F. known as [ENTITY] & Sons and the property is being assessed as H.U.F. property since then by the Income-tax Authorities. Mutation has also been effected in favor of the respondent by the M.C.D. and the house tax has been paid by the respondent regularly. Having regard to all such circumstances, it cannot be disputed that the respondent is the owner qua the petitioner/tenant.
34. In [PRECEDENT], 'owner' has been interpreted to mean something more than the tenant. In that context para 13 is reproduced below :
"13. The word 'owner' has not been defined in this Act and the word 'owner' has not been defined in the [ACT]. The contention of the learned counsel for the appellant appears to be is that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State and in this view of the matter it could not be thought of that the Legislature when it used the term 'owner' in the provision of [SECTION] it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for protection of the tenants. But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use he should be entitled to an order or decree for eviction, the only thing necessary for him to prove is bona fide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term 'owner' is vis-a-vis the tenant i.e, the owner should be something more than the tenant."
The contention of Mr. [ENTITY] has a good deal of force.
35. Next submission of Mr. [ENTITY] is that assuming the stand taken in the written statement of the tenant that [ENTITY] is I the owner of the property in dispute and not the respondent is correct, even then it will not improve the case of the tenant. There is no dispute that [ENTITY] is dead and the respondent is one of the sons of [ENTITY] and, therefore, he will naturally being a heir will be one of the co-owners of the property and as such will be entitled to file the eviction petition under [SECTION] of the Act.
36. In [ENTITY] Pasricha v. Jagannath, in paragraph 30 it has been held that a co-owner is as much an owner of the entire property as any sole owner of a property is. Therefore, the present revision petition is maintainable.
37. The contention of the learned counsel for the respondent is well founded. Therefore, having regard to overall facts and circumstances of the case, in my opinion it has been correctly held by the Rent Controller that the respondent is the owner of the property in dispute and such finding must be upheld.
38. It was contended by Mr. [ENTITY] that the premises were let out for residential-cum-commercial purposes, and since the inception of the tenancy, i.e., from 1951, the petitioner has been running the office in the suit premises. The petitioner is a wine merchant and he is carrying on the registered office first as [ENTITY] & Co., and later on as [ENTITY] Wine Merchants. Hotel Rajdoot Pvt. Ltd. was floated in 1962 and the office of that Hotel was also registered at the suit premises. On the other hand, the respondent-landlord has denied that the tenant had any office at any stage in the premises and that the property was let out to the tenant by his father for residential-cum-commercial purposes. Both the parties have led evidence on this question. The Rent Controller after having scrutinized the evidence led by the parties in this regard and also the law on the subject has come to the finding that the respondent-landlord has proved that the premises were let out to the petitioner-tenant for residential purposes only. The Rent Controller for the reasons recorded by her has clearly and rightly held that the testimony of [ENTITY], R.W. 1 does not inspire confidence. It cannot be said that the finding arrived at by the Rent Controller is perverse, and no reasonable man can come to such a finding and, therefore, in revisional jurisdiction, it cannot be interfered with.
39. It is an admitted case between the parties that when the premises were let out to the petitioner-tenant in 1951, no rent agreement was executed. In the absence of execution of the rent agreement, in order to determine whether or not the premises were let out for residential or commercial purposes or both, the Court has to examine the oral and documentary evidence produced by the parties and have to further find out whether such premises are located in a residential locality and is being used predominantly for residential purposes and other relevant factors. From the evidence adduced by, both the parties, there appears to be no dispute that the premises, consisting of three bed rooms, are located in a purely residential area which is known a Civil Lines Delhi and that according to the petitioner-tenant, R.W.1, himself, he has six children who are living with him in the suit premises since inception of the tenancy. Therefore, in these circumstances, it seems improbable that the suit premises could have been used for commercial purposes. It is evident from the testimony of the petitioner-tenant [ENTITY], R.W. 1, that he is a well established businessman of Delhi. He had admitted in evidence that he had office premises in Chandni Chowk under the name and style of M/s. [ENTITY] Wine Merchants, [ENTITY] & Co. and also a huge multi-storeyed Hotel known as Hotel Rajdoot at Jangpura, Mathura Road, New Delhi and its office also at Chandni Chowk.
40. It may also be noted that the petitioner-tenant has himself written various letters showing the premises as Bungalow or house. In Ext.AW-1/19 he certified about the monthly gross rent of House in respect of premises No. 5, [ENTITY] Road, Delhi, i.e., the premises in dispute. In Ext.AW-1/22, he mentioned premises No. 5, [ENTITY] Road a Bungalow under his tenancy. In Ext. AW-1/21 he mentioned the aforesaid premises as House. These documents clearly establish that the suit premises are for residential purpose and not for commercial purposes as these premises have been described as Bungalow or House, AW 5, Sri [ENTITY], Record Keeper, M.C.D. has stated that the water connection in respect of the premises in dispute is domestic from the very beginning and is in the name of the petitioner-tenant. RW3, Shri [ENTITY], U.D.C., Sales Tax Department, produced by the petitioner-tenant, has proved two Survey Reports of registered Dealers Ext. DW-3/P-1 with respect of M/s. Hotel Rajdoot (Pvt.) Ltd., 5 [ENTITY] Road and Ext. DW-3/ P. 2 with respect of M/s. Hotel Rajdoot (Pvt.) Ltd., Mathura Road, Delhi. The report of the Inspector in Ext. DW-3/P-1 as under:
I visited the office of the above named Hotel premises on 5-9-88 and contacted Shri [ENTITY] in charge of the office who stated that the above said premises are being used as a Regd. office of the company and no business activity is being carried at this address. No Books of Acctts. are maintained on the above said premises and the same are available at Hotel premises at Mathura Road, Delhi "
The report of the Inspector in Ext. DW-3/P-2 reads as under :
"RC's are not produced at the time of visists. The regular books are maintained at the Accounts office situated Chandni Chowk, Delhi. . ."
41. According to these Survey Reports of registered dealers, no commercial activities are being carried at the premises in dispute. It has been denied by the landlord, AW 1 that any permission to use the premises for commercial purpose was ever given to the tenant by him which is corroborated by his other witnesses. Furthermore, the covering letters, Ext. AW-1/22 to AW-1/28, enclosing therewith the cheques for payment of rent of the suit premises, have been issued by the tenant [ENTITY] in individual capacity. All this evidence leaves no manner of doubt that these premises were let out for residential purposes only.
42. Mr. [ENTITY], however, tried to assail the finding of the trial Court. In this context, he submitted that the testimony of the respondent landlord and his witnesses does not inspire confidence and should not be relied upon whereas the evidence of the petitioner-tenant is reliable, dependable and should have been acted upon by the Tribunal. RW 1 has clearly stated that the suit premises were taken on rent for residence and office purposes. He had been running the office in the suit premises since the inception of the premises and one of the offices is a registered office of Hotel Rajdoot Private Ltd. which was floated in 1962. Even prior thereto the office of [ENTITY] Wine Merchants, [ENTITY] and Company had also running office in the suit premises since the inception of tenancy. [ENTITY] was the landlord of the premises who gave the premises on rent to him and never objected to the running of the office in the suit premises and had consented for running the office. In the cross-examination, however, he has admitted that when he was working as a wine merchant, he was running Esplanade Bar and Restaurant in Chandni Chowk and the said restaurant was licensed and the same was subject to income lax. RW 3 produced by the petitioner-tenant has stated that Hotel Rajdoot is assessed to Sales Tax since 1962 and registered office of which is 5, [ENTITY] Road, Delhi. All correspondence is addressed to the company on that address. However, it has not been stated anywhere or shown that any business activity is being carried on at 5, [ENTITY] Road, Delhi.
43. It is also clear from the two Survey Reports of registered Dealers, Ext. DW-3/ P-1 and Ext. DW-3/ P-2 proved by RW 3 the witness of the petitioner-tenant that neither the business activity was being run at 5, [ENTITY] Road, Delhi nor the regular books were maintained there. Instead the regular books were maintained at the Accounts Office situated in Chandni Chowk or at Mathura Road. It has not shown by any of the witnesses that any transaction or business was being carried on at the premises in dispute. In view of the above, the trial Court has rightly rejected the evidence of the petitioner-tenant and held that the premises were not let out for commercial purposes.
44. Even otherwise, if the evidence of the petitioner-tenant is taken into consideration that the registered offices of the Wine Merchant Company and Hotel Rajdoot were there at 5, [ENTITY] Road, Delhi and the rooms were ear-marked for such offices, it will not necessarily improve the case of the petitioner-tenant. The reason being that merely if certain offices have been ear-marked for some company and the same is registered, that will not convert the user of the premises from residential to commercial.
45. As already discussed above, the tenanted premises were taken on rent by the petitioner-tenant as a house/bungalow and for residential purposes. It is settled principle of law that if a tenanted premises is a house then it means that letting was for residing and house means a dwelling place. If tenant gives address of his house for commercial communication or correspondence, then it would not mean commercial user. This has been held in [PRECEDENT]. In [PRECEDENT] Justice [ENTITY] has held that mere use of a premises as an address for trade purposes is no commercial activity. In [PRECEDENT], Justice [ENTITY] has held that in order to show that the premises are let for commercial purposes, some business activity has to be shown which connotes sale, purchase cr manufacturing of goods or any other such activity. There must be some real, substantial and systematic organized course of activity or conduct with a set purpose. In the present case, nothing has been shown. In [PRECEDENT]; [ENTITY], J. has held that it does sometimes happen that a premises let exclusively for residential purposes is also incidentally put by the tenant to some other uses connected with his vocation in life but that does not change the nature of the building or its letting purposes.
46. Viewed from another angle, it has been demonstrated by the respondent-land-
lord that the premises in dispute are located in residential locality and were let out for residential purpose and that no business activity is being carried out from that premises and there is only registered offices of wine merchant and Hotel Rajdoot but no supplies are being made from that house and that the dominant user of the demised premises therefore is residential one. In these circumstances, it can only be held that the premises were let out for residential purpose only and not for both the purposes, com-mercial-cum-residential. [ENTITY], J. in [PRECEDENT], has held that the letting purpose could be ascertained either from the oral evidence examined in the case with regard to the terms of the tenancy settled between the parties and in absence thereof, from the nature of the premises, the locality where the premises are situated and the user to which the premises have been put from the very inception of the tenancy. Whether the premises are residential or not, certain tests have been enumerated in [PRECEDENT] :
" and at first I make it clear that it is well established now that in absence of any documents of letting purpose or any other evidence showing the settlement of the term of letting purpose the parties can prove the letting purpose by leading evidence to show the nature of the premises, nature of locality where the premises are located and the dominant user to which the premises have been put. In [PRECEDENT], [ENTITY], J. (as his Lordship then was) had observed that if there is no document of lease then other facts have to be seen. The non-commercial or residential premises are those which have been let as a place of dwelling, an expression which normally includes all activities of life of an individual which he performs in his residence like sleeping, eating, meeting friends, entertaining etc. and if the premises are so used there can be no doubt that the same are residential premises and have been so let. The premises which are used for business, trade or profession exclusively cannot be termed as residential buildings. It some times does happen that a person may carry on even his trade or business or profession in his residential house. In that case what has to be seen is as to what is the predominant purpose for which the building is used. Similarly in [PRECEDENT], while dealing with the ground of eviction covered by clause (h) which also requires the landlord to establish a jurisdictional prerequisite that the demised premises stand let out for residential purpose, it was opined that one of the conditions is that the premises had been let out for residential purpose and the onus to prove the purpose of initial letting was on the landlord, which has, by no means, been discharged because the landlord has not produced any document touching the question as to the purpose of initial letting and no material has been placed on the record by the tenant either except a vague statement that he intended to do some business at some stage. It was held that in the absence of any material therefore, it would be relevant to consider the nature of the premises, the locality in which it is situated and the purpose to which it has so far been put and on application of these tests, the question whether the premises were let out for residential purpose must be answered. Same principles were enunciated in [PRECEDENT].
47. In view of the settled principle of law laid down by the Court and the facts of the present case, this leaves no manner of doubt that the pre-dominant purpose of the present premises was residential and not residential-cum-commercial. The finding of the Tribunal in this context, therefore, must be upheld.
48. It was next contended that various alternative accommodations are available to the landlord and, therefore, the eviction petition deserved to be dismissed. According to AW 1, he inherited 1/5th share in undivided property No. 51, Rajpur Road, Delhi. The respondent along with his three brothers and mother entered into an agreement to sell dated 6-5-1978 with one [ENTITY] and others and possession was delivered at that time. This property was joint and other co-
owners did not want to keep the property as joint and the same was impartible and the petitioner had no option but to agree to sell his 1/5th share in the said property. In these circumstances to say that the said property was sold by the petitioner in order to evict the petitioner is not correct and such a version cannot be accepted. Further, according to AW 1, on the death of his father [ENTITY] in 1976, apart from the aforementioned property No. 51, Rajpur Road in which he had 1/5th share which was sold, he has inherited two other properties:
1. A flat on the ground floor in property No. 1, [ENTITY] Road, Delhi. This flat has been let out to tenants since 1953 and the same tenants continue to reside there even today;
2. The respondent landlord has 1/4th undivided interest in property No. 16, [ENTITY] Kishore Road, Delhi which is also let out since the early 1950s and the same tenants continue even today.
49. This position could not be rebutted in the evidence by the petitioner-tenant and it has not been shown that any vacant property which could be occupied and taken possession immediately by the landlord is lying vacant.
50. Again, it was contended that this ejectment petition has been filed with a view to construct multi-storeyed flats on this land on which the premises in dispute stand, after demolition. This contention has no basis and nothing has been proved in this direction and such a contention being frivolous has to be rejected.
51. It has further been alleged by the tenant that the landlord had various other properties which are lying vacant but no document has been produced to show that the landlord has any other properties which are lying vacant. The trial Court has discussed the various aspects in the matter with which I am in broad agreement and has come to the correct finding that the petitioner has not been able to prove that any other alternative or suitable accommodation is available to the respondent-landlord and, therefore, it has to be affirmed.
52. Next question that arises for consideration is whether the petitioner-tenant requires the premises bona fide. It has come in the evidence of AW 1 and others that the family of the landlord consists of himself, his wife and two major sons (now aged 28 years and 26 years) and they have to be got married and, therefore, they require accommodation and no other alternative or suitable accommodation is available to him at present as he is staying as guest with his brother.
53. Counsel for the petitioner, however, again tried to assail the findings of the trial Court on the ground that [ENTITY], the elder son of the respondent-landlord, who wanted to come to Delhi because of his ill health in fact was not suffering from Asthma and did not intend to shift to Delhi and this was only a device and no satisfactory medical or otherwise evidence had been produced by the respondent-landlord to the effect that he was suffering from Asthma and the climate of Calcutta did not suit him and, therefore, his version had to be discarded that [ENTITY] really intended to shift to Delhi from Calcutta because the climate of Calcutta did not suit him. In this context, it is suffice to say that the petition for eviction was amended to the effect that [ENTITY] has completed his studies and shifted to Delhi from Calcutta. He has taken up a job with M/s. Markets India Ltd. Delhi with effect from 5-1-1987 and was permanently stationed in Delhi. This has been proved on the record by [ENTITY] himself as AW4 and has not been seriously disputed by counsel for the petitioner-tenant. Whether or not [ENTITY] was suffering from Asthma and the climate did not suit him and that the evidence of the doctor or any other witness on behalf of the landlord was not satisfactory has become wholly irrelevant after [ENTITY] after completing his studies has shifted to Delhi and accepted job in Delhi and been permanently stationed in Delhi. This argument, therefore, is of no significance now.
54. It was next contended that it is wrong to say and incorrect to say that the respondent-landlord was working with CPA Consultancy Services Pvt. Ltd. under a contract for a period of five years and the climate of Calcutta also did not suit him and after the expiry of the contract or even earlier there was likelihood of his coming back to Delhi permanently, and his other relatives were also residing and, therefore, he wanted the accommodation bona fide.
55. During the course of time, the petitioner's contract with CPA Consultancy Services Pvt. Ltd. came to an end and it seems that he has shifted to Delhi. When the respondent was examined in 1982 he was no doubt in Calculta, as his term of contract seems to have been extended but since he has now retired on 12-11-1988, as noticed by the trial Court, he must have shifted to Delhi and this fact has not been seriously disputed by the petitioner-tenant during the course of arguments. In the counter-affidavit dated 10-10-1991 filed on behalf of the respondent in the revision petition clearly states that the respondent after retirement has shifted to Delhi. The evidence to the effect whether or not the respondent-landlord has shifted to Delhi, obviously could not be given by the landlord in 1982 when he was examined as AW 1 as at that time he was in Calcutta. However, even otherwise, the intention to shift to this place is enough and in order to seek eviction of the tenant it is not necessary that one must actually shift. This question came up for consideration by this Court in [PRECEDENT], wherein Justice [ENTITY] has held that actual shifting is not necessary to seek eviction. In the present case, the respondent-landlord belongs to Delhi, his son has joined service here and his family is residing here. His contract of service also expired. Therefore, his desire to shift to Delhi is bona fide.
56. Therefore, in these circumstances, the respondent-landlord requires the premises bona fide for himself and other members of the family.
57. It was again contended that the respondent-landlord is living with his brother and there is no necessity for him to seek ejectment of the tenant from the premises in dispute. In this context, the observations of the Supreme Court in [PRECEDENT], may be referred to wherein it has been laid down that for the purpose of determining whether the requirement of the landlord for the premises in question is reasonable and bona fide, what is necessary to be considered is not whether the landlord is juridically in possession of other premises, but whether they were available to him for occupation so that he cannot be said to need the premises in question. If a person is in occupation of the other premises on leave and license, they are obviously not available to the landlord for occupation and cannot be taken into account for negativing the need of the landlord for the premises in question. Since no premises are available to him for actual occupation, it has, therefore, to be held that the requirement of the respondent-landlord is reasonable and bona fide and the finding of the trial court is confirmed.
58. The petitioner-tenant was a wine merchant and is an owner of Rajdoot Hotel admittedly and can very well afford to have any premises on rent and on the other hand the respondent-landlord who no doubt is owner of certain properties is at the moment in fact without any accommodation and as such in dire necessity of accommodation and it would be highly inequitable and unjust to deny him this accommodation.
59. No other point was pressed.
60. In the light of what is discussed above, the revision petition is dismissed with costs.
61. Petition dismissed.