Prakash Narain, J. (Oral):— This second appeal under section 39 of the Delhi Rent Control Act, 1958 is directed against an order of the Rent Control Tribunal, Delhi, which affirmed the order of the Rent Controller, Delhi, dismissing a petition for ejectment brought by the appellant against the respondent on the ground that the appellant bona fide required the premises under the tenancy of the respondent, of which he was the owner, as residence for himself and the members of his family.

The premises in dispute were let out in the year 1959 on a rent of Rs. 38/- per month. These premises comprised of a room of the size of 10'-9” × 9'-9” and a store on the first floor in house bearing municipal number 5574 situated in New Chandrawal, Subji Mandi. Delhi. It was not in dispute that the appellant-landlord was himself also living on the first floor of the same house and the accommodation with him was one room, a store and kitchen on the first floor, a barsati on the second floor and a small room in the meanine floor which he had acquired later on. The appellant's family about which there was no dispute comprises of himself, three grown up sons, two younger daughters; a wife and his mother. On the ground that the accommodation available with him was not sufficient for himself and his family the appellant-landlord sought eviction of the respondent-tenant. The defence of the tenant was that the entire house including the ground floor were residential premises and the landlord had been letting out accommodation on the ground floor from time to time on enhanced rent to various tenants which went to show that his claim for eviction was not bona fide and that the eviction petition had been brought only to harass the tenant to pay higher rent.

Both the Controller and the Tribunal came to the conclusion that the ground floor of this building was residential and the fact of the landlord letting out the ground floor even for commercial purposes showed that his claim for eviction was not bona fide. To arrive at this conclusion the Controller and the Tribunal relied on the sanctioned plan of this building in which it was shown that the ground floor was to be a residential area and the admission of the appellant that he had been letting out different portions of the ground floor in favour of tenants for commercial purposes, even up to as late as February, 1967. Both the Controller and the Tribunal held that they did not find anything in the resolution of the Municipal Corporation of Delhi, relied upon by the appellant, passed on 17-9-1957 which went to show that the ground floor of this building had been converted into commercial premises and had ceased to be residential in nature. The appellant-landlord has come up in appeal and has urged that the admitted letting out of the ground floor premises to various parties from time to time could have no relevance to judge the need of the appellant for adjoining permises on the same floor on which he was living and both the Controller and the Tribunal have erred in law in coming to the contrary conclusions.

Mr. R.L Tandon, the learned counsel for the appellant, has urged that a substantial question of law arises for determination in this case inasmuch as the Controller and the Tribunal have not only misconstrued the documents placed on record but have even omitted to read those documents in their entirety and have dismissed the eviction petition contrary to settled law. In this connection he has invited my attention to the resolution of the Municipal Corporation of Delhi which, according to him, has not been read in full by both the Controllers and the Tribunal. There can be no manner of doubt that in the report proceeding this resolution the words “rooms have been converted into shops” have not been noticed by both the Controller and the Tribunal. Their conclusion, therefore, signifying that the payment of the penalty of Rs. 25/- to compound the prosecution for converting the user of the ground floor from residential to commercial purpose does not change the nature of the ground floor from residential to commercial is untenable because both the Controller and the Tribunal appear to have lost sight of the fact that this conversion took place as far back as in 1957. If that aspect had been kept in view then the contention of the appellant-landlord that the various persons to whom he let out the shops in the ground floor used it for commercial purposes and may have also used the same, incidentally, for residential purposes would assume some importance.

Normally in second appeals a re-appreciation of evidence is not permissible but where the conclusion of the lower court is based on completely ignoring evidence or the appreciation by the lower court is culminating in a conclusion which could not be arrived at the High Court can interfere in second appeal. In this view of the matter the letting out from time to time of the premises on the ground floor cannot operate to the appellant's prejudice in judging his bona fides.

The decision of this Court in Om Parkash Singhal v. Shri Roshan Lal Khanna, 1969 Rent Control Reporter 391 (1), was brought to the notice of the Tribunal. The rule laid down in that case, was, however, distinguished by the Tribunal on the ground that the circumstances in the reported decision were different from those in the present case. In Om Parkash's case I.D Dua, C.J (as he then was) had noticed that in that case the Tribunal took into consideration the extent of the accommodation in the possession of the landlord and also took note of the fact that some portion on the first floor in occupation of some tenants had fallen vacant and had been let out about half a dozen time during two or three years, the last letting out as being about a year prior to the filing of the ejectment petition in that case. In those circumstances the learned Chief Justice had observed that the chain of judicial pronouncements clearly went to show that the word “bona fide” as used in proviso (e) to sub-section (1) of Section 14 of the Act means genuinely or in good faith and it conveys an idea of absence of intent to deceive. To quote: “As a broad workable rule the landlord must be left to assess his requirements in the background of his position, circumstances, status in life and social and other responsibilities and other relevant factors. The order of the learned Tribunal below seems to suggest that unless the landlord can satisfy the Controller or the Tribunal the absolute necessity for additional accommodation, the requirement cannot be considered to be bona fide. This line of approach, is, in my view, erroneous and the error involves a substantial question of law. While considering the question of ejectment on the ground of bona fide requirement of the landlord owner, it is eminently desirable to strike a proper and just balance between the rights of the owner on the one hand and those of the tenant as protected by the law on the other. The owner is entitled to make himself comfortable and is, normally speaking, the best judge of his own requirements. Unless he can be considered to be abusing or misusing this right to acquire possession of his property in eviction proceedings, which means that he is seeking to get possession under the veil of bona fide requirement, but for some other purpose, his claim, demands acceptance.” The learned Chief Justice had also observed in this case that merely because some portion of the house was let out by the landlord which, presumably, was not convenient or comfortable enough for his requirements, could not by itself be construed to suggest either mala fides or want of bona fide on the part of the landlord in seeking the portion of his own property for his residence. In the light of this settled law I fail to appreciate how the Controller or the Tribunal could spell out mala fides or lack of bona fides on the part of the appellant-landlord from the fact that he had from time to time let out portions of the ground floor of the property to persons for commercial use.

Mr. S.L Bhatia, the learned counsel for the respondent-tenant urged that the entire building was a residential one and it was contrary to law or at least the bye-laws of the Municipal Corporation of Delhi for the landlord to use or let out the ground floor for commercial purposes and so it must be assumed that in law the ground floor continued to be residential property. I do not see how the violation of law, if there is one, can be pleaded by the tenant as against realities in existence. Apart from this, as has already been noticed by me above, even the Municipal Corporation of Delhi had concurred in or at least compounded at the change of the user of the ground floor as far as far back as in 1957. Further, as observed in Om Parkash's case, which I have noticed above, the landlord must be regarded as the sole judge of his requirements and cannot be denied the right to choose any portion of his property the possession of which he wants to recover and which will be convenient for his residence.

Mr. Bhatia also contended that the need of the landlord was not a new need which had come about in 1968, when the eviction petition was filed, but must be of some considerable standing inasmuch as his children were growing up all this time.

In my view a landlord cannot be precluded from claiming back possession of a portion of his property merely because he has lived uncomfortably in the part and has decided to now live more comfortably leading to the institution of a petition for eviction by him on the ground of personal requirements.

The patent illegality being obvious in this case, I interfere with the decisions of the Controller and the Tribunal and accepting this appeal set the same aside. The appellant will be entitled to possession of the premises in the occupation of the respondent but the order for recovery of possession shall not be executable against the respondent for a period of six months from the date of this order. In the circumstances of the case, I will also award costs of this court in favour of the appellant.

Appeal accepted.