S. Waryam Singh Duggal Petitioner v. Smt. Savitri Devi

T.P.S Chawla, J.:— This is a petition under the proviso to section 25B (8) of the Delhi Rent Control Act 1958 (the ‘Act’). It seeks to have revised an order for recovery of possession made by Mr. Dinesh Dayal, the 4th Additional Rent Controller.

2. The petitioner is Waryam Singh Dusgal, the aggrieved tenant. He is a building contractor. The respondent is Savitri Devi, the wife of Shri Dheram Pal. She is the owner of the house at 2/14, West Patel Nagar, New Delhi. This is a two and a half storeyed house. Excepting one room, the tenant has the entire ground floor. The landlady has that one room on the ground floor, the entire first floor, and the barsati. There are two garages. One is with the tenant, and the other with the landlady. There are also two servants' quarters. They are in the possession of other tenants. I will give more details about the accommodation a little later.

3. The order for recovery of possession was made under section 14 (1) (e) of the Act. It was held: (i) that the premises had been let to the tenant for residential purposes and (ii) that they were ‘required bona fide’ by the landlady for occupation as a residence for herself and members of her family dependent on her. No other point was canvassed before the Additional Rent Controller. The same two points have been argued before me. I will take them in the same order.

4. First, as to the letting purpose. The previous owner of the house was Phoolvati Vadera. In 1954, the entire ground floor was let to Waryam Singh Duggal. The rent was Rs. 260/- per month. It appears that shortly afterwards, as a result of some mutual arrangement, one room at the back of the ground floor was surrendered to the landlady. The tenant was probably compensated in some other manner, and the rent remained the same.

5. But amity between the landlady and the tenant did not last very long. Just one year afterwards, in 1955, a suit for eviction was instituted against the tenant. Full information about that suit is not available, because copies of the pleadings and the proceedings have not been brought on record. The reason, I was told by counsel for the tenant, is that the file of that suit has been lost or, at any rate, is not traceable. However, that there was such a suit is not disputed. The only document pertaining to that suit which has been produced in evidence is a certified copy of the statement made by Waryam Singh in that suit. From this certified copy it appears that the number of that suit was 519, of 1955, and it was tried in the court of Mr. Shiv Charan Dass Bajaj, Sub-Judge, 1st Class, Delhi. The plaintiff was Harbans Lal Vadera, the husband of Phoolvati. It seems, from the statement made by Waryam Singh, that the sole ground on which eviction was sought was that Harbans Lal Vadera was unwell and had been advised to live on the ground floor. There is nothing in the statement to indicate that eviction was sought on any other ground. Since Waryam Singh was not evicted, it can be surmised that the suit was dismissed. The reasons for the dismissal, however, remain unknown. A point worth noting is that, in his statement, Waryam Singh affirmed unequivocally that a lease deed had been executed.

6. In 1963, Harbans Lal Vadera again filed a petition for eviction against Waryam Singh. Nothing is known about that case, except that it was withdrawn on 29th November, 1963 with liberty to file a fresh petition.

7. Very soon thereafter, on 3rd December 1963, another petition for eviction was filed. This time both Phoolvati and her husband, Harbans Lal Vadera, were the petitioners. Copies of the pleadings in that case and the judgement are on record. There is no doubt that Waryam Singh clearly admitted in that case, without any reservation, that the premises had been let to him for residential purposes. In order to substantiate this conclusion I will refer to the relevant paragraphs of the pleadings.

8. The petition was on the usual printed form. After providing for the cause-title, the form consists of queries printed on the left half of the sheet, the space for the answers being provided in the right half. The query and the answer together constitute a paragraph of the pleading. The printed query No. 4 reads: ‘Whether the premises are residential or non-residential’. To this the answer given is: ‘Residential’. Replying to this paragraph in this written statement, Waryam Singh said: ‘Para (4) of the petition is not denied.’ This is a clear, direct and express admission that the premises were let to him for residential purposes.

9. Query No. 5 pursues the same matter further. It asks: ‘In the case of residential premises, the number of persons occupying the same and ‘in the case of non-residential premises, the purpose for which they are used and the number of employees, if any working therein’. The answer in the petition is: ‘On the ground floor persons of respondent's family are residing and on the 1st floor persons of petitioner's family are residing’. Waryam Singh, in his written statement, after saying. ‘Para (5) of the petition as stated is not admitted’, merely went on to give details of the accommodation with the petitioners. He made no suggestion that any portion of the premises with him was being used for non-residential purposes. If such had been the fact, this was certainly the place for him to say so. The query and the answer in the petition were bound to direct his mind to the point. In the context, his omission to raise any such plea, amounts to an implied admission that he was using the premises only for residential purposes.

10. Again, in paragraph 18 (a) of the petition it was clearly alleged that ‘The premises, i.e the ground floor was let to the Respondent for residential purposes’. In the written statement, there was no specific denial of this allegation. Bearing in mind Rules 3, 4 and 5 of Order 8 of the Civil Procedure Code, 1908, this lack of a specific denial must also be treated as an admission by Waryam Singh.

11. The judgement was delivered by Mr. P.C Saini, Additional Rent Controller, on 3rd March 1967. He dismissed the petition as he was not satisfied that the premises were ‘required bona fide’ by the petitioners. On sentence in his judgement is important. He said: ‘There is no dispute with regard to the letting purpose of the premises in dispute which is admittedly residential’. This shows that at no stage in that proceeding did Waryam Singh ever contend that premises had been let to him, or used by him, for any purpose other than residential. It also shows how the pleadings were understood by everyone in that case.

12. One other point which emerges from the pleadings in that case needs to be noticed. Query No. 14 in the petition reads: ‘Date on which the premises were let to the tenant and details of agreement, if any, with the landlord (attested copy of the agreement to be attached). To this the answer given is: ‘On 16-5-54 (attested copy of agreement is filed) ‘. Waryam Singh's reply in the written statement is very significant. He says: ‘Para (14) of the petition is not denied. However, the contents of the agreement are not admitted at this stage. The said rent note was executed in favour of Shri H.L Vadera and he is the respondent's landlord’. This, again proves that a written agreement or rent note was executed when Waryam Singh became a tenant. Although it was stated in the petition that an attested copy of the agreement was being filed, it is not traceable on the record of that case. Nor is it known what has become of it, if indeed it was filed. In all probability, the purpose for which the premises were let to Waryam Singh was stated in that document. That is why he did not think it worthwhile to dispute the letting purpose in that case. But, since the document is no longer available, he has teen embol dened to contest it now.

13. By a sale deed dated 6th January 1969, Phoclvati sold the house to Savitri Devi. Vacant possession was transferred of the entire house except the portion in the occupation of Waryam Singh. He attorned to Savitri Devi, and began to pay the rent to her. However, within a year or two the relations between Savitri Devi and Waryam Singh became rather strained. So much so, that a number of legal notices were exchanged between them, though none has been placed on record.

14. On 31st May 1976, Savitri Devi filed the present petition for eviction against Waryam Singh. In answer to query No. 4 she said the premises were ‘residential’. To query No. 5 she answered: ‘The respondent with his family in all consisting of 6 members has been in occupation of the tenancy premises’. And, the very first allegation in paragraph 18 (a) was, ‘That the premises were let to the respondent for residential purposes. . . . . . . .’

15. Waryam Singh, in his written statement, denied each of those paragraphs. But, it is very noticeable that nowhere does he go on to make an affirmative assertion that the premises were let to him for both residential and non-residential purposes. Instead, what he harps on is that he has been using a part of the premises for non-residential purposes since 1954 without any objection from the previous owner. He also says that he had made it clear to Harbans Lal Vadera that he would be using a part of the premises for his office and for conducting his business. But again, he stops short of saying that Harbans Lal Vadera consented. The nearest he gets to a definite allegation about the letting purpose is at one place in paragraph. 18 (a) of the written statement where he says: ‘. . . . . . . the premises were never let out for residential purposes only’. This negative statement amounts to no more than a mere denial. Again, it is not followed by any affirmative averment. Throughout the written statement there is a marked reluctance to take a positive stand about the letting purpose. This is what caused the Additional Rent Controller to say that ‘The respondent has not denied the purpose of letting whole-heartedly’. I concur with the gist of that observation.

16. The reason for this style of pleading is not far to seek. In answer to query No. 14 in the petition, Savitri Devi merely said that Waryam Singh was already a tenant of the vendor when she purchased the property. She did not say on which date the premises were let or mention any written agreement. This gave Waryam Singh the clue that she did not know about the existence of a written agreement or rent note. At the same time, he could not be sure that she would never get to know of it. Therefore, in his written statement, he played safe and answered evasively: ‘In reply to para 14 of the petition and in absence of allegation of written tenancy, it can only be oral tenancy’. He carefully avoided committing himself to any position lest, at some stage, he be confronted with the document. He merely pretended ignorance as to whether the tenancy was oral or in writing. For the same reasons he was reluctant to make a positive assertion about the letting purpose elsewhere in the written statement.

17. Savitri Devi's unawareness continued at least till the replication was filed. In paragraph 14 she still did not mention any written agreement. Apart from denying that the premises, had been let for residential-cum-non-residential purposes, she only pleaded that in the previous litigation between Phoolwati and Waryam Singh it had been held that the premises were let for residential purposes. Probably, by the time that she realised that there was a written agreement, it was no longer available on the record or that previous proceeding. At any rate, the written agreement has not been produced.

18. I can now come to the judgment of the Additional Rent Controller. Although the reasoning is rather diffuse, the findings are not difficult to discern. He held that, in the earlier proceeding for eviction commenced by Phoolwati in 1963, Waryam Singh had admitted that the premises had been let to him for residential purposes. He further held that the question of letting purpose was constructively res judicata the decision in that case, because Waryam Singh had not raised it as a ground of defence then, as he ought to have done. He did not accept the argument that since Phoolwati's petition for eviction had been dismissed, and, therefore, Waryam Singh could not go in appeal, the point could not be treated as res judicata. Whilst summing up, he also suddenly invoked the principle of estoppel. This is what he said:

‘The failure of the respondent to take up the plea in the earlier petition is admission which has created valuable rights in favour of the petitioner and even if it is not strictly res judicata between the parties, it creates an estoppel against the respondent to plead to the contrary now.’

Thus, in reaching his conclusion, the Additional Rent Controller has relied on three things: the admission by Waryam Singh in the earlier proceeding; res judicata; and estoppel. I will deal with them in the reverse order.

19. So far as estoppel is concerned, even counsel for Savitri Devi conceded that the principle was not applicable. It is apparent from section 115 of the Indian Evidence Act, 1872 that to found an estoppel it must be shown that the person to whom the representation was made acted upon the belief that the representation was true. Here, the representation attributed to Waryam Singh is the admission in his written statement in Phoolwati's case that the premises were let to him for residential purposes. Granting for the sake of argument that the ‘admission amounted to a representation, there is no way in which Phoolwati ‘acted’ upon it. There is nothing she did which she would not otherwise have done. Consequently, the Additional Rent Controller was entirely in error in thinking that the conditions of an estoppel were fulfilled.

20. With regard to res judicata, also, he was wrong. Counsel for Savitri Devi did not attempt to support the finding on this ground. It is true that by not disputing the letting purpose in Phoolwati's case, Waryam Singh came within the ambit of the doctrine of res judicata. But the ultimate decision was in his favour, because Phoolwati's petition for eviction was dismissed, and he could not therefore have gone in appeal. It is settled law that an adverse finding against the successful party is not res judicata in a subsequent proceeding between the parties. A host of cases in support of that proposition will be found in Chitley's commentaries on the Code of Civil Procedure (9th Edn.) Volume 1 at page 400. Those cited to me were Midnapur Zamindari Company Ltd. v. Naresh Narayan Roy, 1922 PC. 241 (1), Charan Dass v. Thakur Das Mast Ram, 1973 R.C.J 645 (2), Pravas Chandra Das and others v. Srimati Nirupama Devi and others, 42 (1976) C.L.T 606 (3), and Bhim Jali and others v. Nata Jali and others, 1976 (2) Cuttack W.R 590 (4). The proposition holds equally good when the plea is one of constructive res judicata: see Debi Dayal and others v. Annu Singh and another, A.I.R 1943 Oudh 231 (5). The Additional Rent Controller does not seem to have fully grasped this proposition. His reasoning for not accepting and applying it is incomprehensible to me. In any event, the reasoning is untenable because it is contrary to authority.

21. As to the admission that the letting purpose was ‘residential’, made by Waryam Singh in his written statement in Phoolwati's case, his counsel contended that, on a proper construction of the pleadings, there was in fact no admission. Query No. 4 in the printed form of the petition, he said, only asked whether the ‘premises’ were residential or non-residential, and not what was the letting purpose. When, in answer to that query Phoolwati said ‘residential’, she meant only that the nature of the ‘premises’ was residential and nothing more. Hence, Waryam Singh's reply in his written statement that this paragraph of the petition was ‘not denied’, admitted merely that the nature of the ‘premises’ was residential, and not that the premises had been let to him for residential purposes. He cited Chikkam Koteswara Rao v. Chikkam Subbarao and others, A.I.R 1971 S.C 1542 (6), to emphasise that an admission must be ‘clear and conclusive’, which he said was not the case here.

22. Two cases were cited in support of this argument, in Civil Revision No. 383 of 1981 entitled Bhagat Ram Jain v. Susheela Devi Beri, decided on 10th August 1981 (7), the petition for eviction contained no allegation at all that the premises had been let for residential purposes. Consequently, it was held that the petition did not disclose any cause of action under section 14 (1) (e) of the Delhi Rent Control Act, and, accordingly, it was rejected. That case has no bearing on the present point. It was not concerned with the interpretation of query No. 4 in other printed form of the petition.

23. In the other case, Parvin Sarin… v. (1) Manbir Singh, 1981 Raj. L.R 468 (8), there is a sentence which gives the impression that the answer to query No. 4 describes the premises and not the letting purpose. But, it seems intended only to expound the tenant's argument. The decision rests on the ground that the tenant was fully aware that the letting purpose was in dispute in the proceedings, and he could not be allowed to plead, for the first time in second appeal, that the petition for eviction disclosed no cause of action. In any event, there is no discussion of the point.

24. I would readily agree that query No. 4 is most clumsily worded. Nevertheless, its intendment is quite obvious. Anyone familiar with the provisions of the Delhi Rent Control Act knows that what is relevant, and has to be pleaded, is the letting purpose, and not the nature of the building. Moreover, all possible doubt is immediately removed by the very next query. The content of query No. 5 clearly indicates that what was required to be disclosed in answer to query No. 4 was the letting purpose.

25. The form of the petition is prescribed by the rules made under the Act. It has been in vogue for over two decades. Lawyers and litigants know that in answer to query No. 4, the letting purpose has to be stated. In all the petitions that I have seen, that is how query No. 4 has invariably been answered. I have yet to see a petition in winch the petitioner gives a description of the building in response to that query. Whatever his counsel may now contend, even Waryam Singh understood query No. 4 in this sense. In his written statement in the present case, after denying paragraph 4 of the petition he goes on to say: ‘The premises have been used for residential-cum-commercial purposes’. If Waryam Singt had understood query No. 4 as his counsel now interprets it, this sentence was wholly out of place and redundant. To top it all, I might add, that Waryam Singh's written statement was drafted by the very counsel who bus argued on his behalf before me.

26. However, even if one ignores paragraph 4 of Phoolwati's petition for eviction, there is no getting away from her specific allegation in paragraph 18 (a) that the premises were let ‘for residential purposes’. This allegation, as I have already mentioned, was not specifically denied by Waryam Singh; and, that, is tantamount to an admission. By no rule of law is an admission by non-traverse in any way less effective than an admission made expressly.

27. Thus, I agree with the Additional Rent Controller that both in paragraph 4 and in paragraph 18 (a) of his written statement in Phoolwati's case, Waryam Singh had admitted that the premises were let to him for residential purposes.

28. But, it was then contended that, even so, an admission made in a pleading in an earlier case was not binding in a subsequent one. For this proposition, great reliance was placed on Ramabai Shriniwas Nadgir v. Government of Bombay. A.I.R 1941 Bombay 144 (9). In that case Beaumont, C. J., speaking for the Division Bench said:

‘A party is not bound by an admission in his pleading except for the purposes of the suit in which the pleading is delivered. It frequently happens that a party is prepared in a particular suit to deal with the case on a particular ground and to make an admission, but that admission is not binding in any other suit, and certainly not for all time.”

At first sight these observations do seem to support the contention of counsel for Waryam Singh. But, on closer scrutiny they bear a rather different meaning.

29. Under the Indian Evidence Act 1872, an admission may have a variety of effects depending upon other factors. Primarily, it is a relevant piece of evidence. As such, the admissibility of an admission is controlled by sections 17 to 30. It is intimated by section 31, that as a piece of evidence an admission is not conclusive proof of the matter admitted, unless it operates as an estoppel. Thus, an admission may always be shown to be wrong. However, if the requirements of section 115 are fulfilled, the admission gives rise to an estoppel. In that event, the person who made the admission is not permitted to deny the truth of what he admitted.

30. There is yet another function which an admission may perform. Section 58 provides that if a fact is admitted in a pleading, it need not be proved. This kind of admission dispenses with the proof of fact in a proceeding. Wigmore in his Treatise on Evidence (3rd Edn.) Volume 4, Article 1064, page 45, lucidly explains the role of an admission made in a pleading as follows:

‘The pleadings in a cause are, for the purposes of use in that suit, not mere ordinary admissions, but judicial admissions; i.e they are not a means of evidence, but a waiver of all controversy (so far as the opponent may desire to take advantage of them) and therefore a limitation of the issues. Neither party may dispute beyond these limits. Thus, any reference that may be made to them, ‘Where the one party desires to avail himself of the other's pleading, is not a process of using evidence, but an invocation of the right to confine the issues and to insist on treating as established the facts admitted in the pleadings.’

31. An admission in a pleading is therefore ‘binding’ in the case in which it is made. It certainly is not ‘binding’ in the sense of dispensing with proof in a subsequent case. But, that does not mean that it has lost all evidential value. It still remains a piece of evidence which can be used on any subsequent occasion. Wigmore discusses very elaborately, in Articles 1065 and 1066 in the same volume, page 49 et seq., the question whether an admission in a pleading can be used in a subsequent proceeding. His conclusion, as stated on page 54, is:

‘That the pleadings in prior causes, then, can be treated as the parties’ admissions, usable as evidence in later causes, must be conceded.'

32. One can now perceive the true meaning of what Beaumont, C.J, said. He had section 58 of the Evidence Act in mind. What he was saying was, that an admission in a pleading dispenses with proof only in the case in which it is made, and no other. When he said that such an admission ‘is not binding in any other suit’, that is what he intended to convey. Understood in this light, his statement of the law is unexceptionable. It is to be noted that he did not say that an admission in a pleading in one case is not relevant evidence in another. Indeed, that does not appear to be the question argued in that case. In Dattatraya Shripati Mohite v. Shankar Ishwara Mohite and another, A.I.R 1960 Bombay 153 (10), the observations of Beaumont, C. J., were explained in substantially the same way. It was held that he did not intend to lay down that an admission ‘in the course of a proceeding has in another proceeding no value whatever and cannot be regarded as a good piece of evidence. . . . . . .’ This answers the contention of Waryam Singh's counsel.

It now remains to decide what was the letting purpose. Undoubtedly, the initial burden of proving the letting purpose lies on the landlord. I have myself so held in Dr. Dip Kaur v. Smt. Savitri Devi and anr., 1978 (2) R.C.R 149 (11). Savitri Devi says that she made inquiries from Phoolwati and was told that the premises had been let to Waryam Singh ‘for his residence purposes alone’. This is hearsay evidence and not even admissible, let alone its worth. No other oral evidence pertaining to this question was adduced by Savitri Devi. She really depends entirely on the pleadings in Phoolwati's case.

I have already held that in his written statement in that case, Waryam Singh admitted that the premises had been let to him for residential purposes. I have further held that this admission is admissible as a relevant piece of evidence in the present case. The effect of that admission was to shift the burden of proof on to Waryam Singh. He has made no attempt to explain the admission. He does not even say that the admission was wrong. In the face of that admission, his statement that the premises were let to him for non-residential purposes also, is obviously not reliable. The result is that he never discharged the burden of proof which came to rest on him. Consequently, the finding had to be in favour of Savitri Devi.

33. It was argued that an adverse inference ought to be drawn against Savitri Devi for not calling in evidence the previous owner Phoolwati and her husband. The record shows that an order for examining them on commission was, in fact, obtained. However, the commission was never executed. The reason given by Dharam Pal, the husband of Savitri Devi, is that Phoolwati and her husband were over 70 years of age and in such poor health as not to be able to make a statement even before a commissioner. The cross-examination of Dharam Pal demonstrates that this explanation is not at all credible. However since the burden of proof passed on to Waryam Singh because of the admission which he had made in Phoolwati's case, this point looses all significance. In the circumstances, it was as much his duty, as that of Savitri Devi, to call Phoolwati and her husband in evidence.

34. Moreover, if an adverse inference is to be drawn against Savitri Devi on this account, an equally strong, if not stronger, adverse inference must be drawn against Waryam Singh for not producing the agreement or rent note which he executed at the commencement of the tenancy. In evidence he admits that such a document was executed, but says he does not remember its contents and, also, whether he retained a copy. It is obvious that he is withholding the document. The adverse inference against Waryam Singh would, thus, cancel out the adverse inference against Savitri Devi, if at all the latter could be drawn.

35. It was further argued that the user of the premises for non-residential purposes by Waryam Singh since the inception of the tenancy, was evidence of the letting purpose. As will presently appear, I do not accept that Waryam Singh has been using the premises for non-residential purpose since inception of the tenancy. Therefore, this argument cannot succeed.

36. So, agreeing with the Additional Rent Controller, I hold that the premises were let to Waryam Singh only for residential purposes.

37. That brings me to the alternative argument, on which counsel for Waryam Singh set greater store. He contended that even if the premises had originally been let for residential purposes, the letting purpose was changed because subsequently Waryam Singh began to use a portion of the premises for non-residential purposes with the consent of Savitri Devi. For inferring consent he relied on the fact that Savitri Devi had accepted rent up to date, with, according to him, full knowledge of the fact that a portion of the premises was being used for non-residential purposes. That she has accepted rent up to date is not disputed. What is disputed is that any portion of the premises was used for non-residential purpose, and in any event, that she knew of it. Before I discuss these questions, it is necessary to advert to the law.

38. The argument turns on the Explanation to section 14 (1) (e), which reads as follows:

‘For the purposes of this clause, “premises let for residential purposes” include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes.’

I must, confess that I have never quite understood the reason for inserting this Explanation. Paraphrased, it means, that if premises have been let for residential purposes, the letting purpose is not altered by the fact that the tenant uses the premises incidentally for commercial or other purposes without the consent of the landlord. But, surely this very result would follow, even without the Explanation, from the general law of contract. The letting purpose forms a term of a contract (i.e the lease) arrived at by mutual consent. It cannot be changed unilaterally by either party. How could the tenant change the letting purpose merely by different user ‘without the consent’ of the landlord ? That would mean that a term of a contract could be changed simply by violating it. The law of contract would not countenance such a thing. Therefore, it seems to me, that the Explanation merely reiterates the general law of contract for deciding the letting purpose. Seeing that even without it the result would have been the same, I tend to think that the Explanation is otiose.

39. However, be that as it may, what is more important for the present case is the converse proposition of the Explanation. The converse proposition is, that if premises have been originally let for residential purposes but are afterwards vised by tenant incidentally for commercial or other purposes with the consent of the landlord, the letting purpose changes and section 14 (1) (e) ceases to apply. This proposition again accords with the general law of contract. Since the consent of the landlord is now postulated, the original letting purpose is altered by a subsequent mutual agreement.

40. That this converse proposition of the Explanation is good law is established by Dr. Gopal Dass Verma v. Dr. S.K Bhardwaj and another, A.I.R 1963 S.C 337 (12). In that case the Supreme Court was concerned with an identical Explanation appended to section 13 (1) (e) of the Delhi and Ajmer Rent Control Act 1952. It was held that —

‘. . . . . . . . . . where premises are let for residential purposes and it is shown that they are used by the tenant incidentally for commercial, professional or other purposes with the consent of the landlord the landlord would not be entitled to eject the tenant even if he proves that he needs the premises bona fide for his personal use because the premises have by their user ceased to be premises let for residential purposes alone.’

That is to say ‘the case goes outside the purview of section 13 (1) (e) altogether’. This exposition of the law has been repeatedly followed in this court: see for example Munshi Ram Sakhuja v. Col. Ram Parshad (Retd.), 20 (1981) D.L.T 37 (13), and Dr. Dip Kaur v. Smt. Savitri Devi and anr., 1978 (2) R.C.R 149 (14). Though in Bipin Behari Tawakley v. Kishori Lal Mehra and others, 1981 D.R.J 60 (14), and S.A.O No. 78 of 1971 entitled Jugal Kishore Aggawal v. Mauji Ram, decided on 2nd February, 1972 (15), it was found as a fact that the landlord had not consented to the change of user by the tenant, the legal proposition on which they proceed is the same.

41. The further question is whether the consent of the landlord must be in writing. Logical consistency requires that the meaning of ‘consent’ in the converse proposition must be the same as in the Explanation. It will be noticed that in the Explanation the word ‘consent’ is not qualified in any manner. Therefore, it has to be concluded that it has been used in its widest sense. Counsel for Savitri Devi initially maintained that, having regard to the context, the ‘consent’ had to be ‘express’. But, he ultimately conceded that this would be adding a gloss to the explanation for which there is no warrant. Unless otherwise stipulated, consent may be either ‘express’ or ‘implied’: see Messrs New Garage Limited v. Khushwant Singh and another, 1951 P.L.R 136, 146 (16).

42. His further argument was that since in clause (b), and, especially, in clause (c), of section 14 (1), the consent of the landlord had to be ‘in writing’, it was reasonable to presume that a similar consent was intended by the Explanation. I can see that there is some force in this argument, at least, in relation to clause (c). Like the Explanation, that clause is also concerned with the use of the premises ‘for a purpose other than that for which they were let’. A change of user after 9th June 1952 is made a ground for eviction unless the landlord has given his consent ‘in writing’. For establishing a consistent scheme, it can perhaps be said that the Explanations should also have required that the consent of the landlord must be ‘in writing’. Nevertheless, the fact remains that it has not been so provided. The omission is obviously deliberate because, having employed the words ‘in writing’ just a little earlier in clauses (b) and (c), it is not possible to believe that the draftsman merely forgot them when he came to the Explanation. He may well have thought that different considerations prevailed in regard to clause (e), and the form of consent should not be restricted. Thus, a comparison of the Explanation with clauses (b) and (c), far from supporting the contention, really goes against it.

43. Counsel were unable to find any ease in which this point had actually been discussed. May be, it has always been thought to be too clear. In Shiv Narain v. Smt. Khushal Devi, 1973 R.C.J 8 (short notes) (17) it has merely been ‘noted’ that in contrast to clause (c), the consent of the landlord under the Explanation is ‘not required to be in writing’. Though that observation is direct on the point, its value as authority is doubtful as the question was neither agitated nor discussed since the case was concerned with clause (c). However, I think, that Dr. Gopal Das Verma's case, and the others which follow it, furnish implied authority for the conclusion I have reached. In all of them, the consent of the landlord was inferred or sought to be inferred from his conduct, and no one suggested that it had to be in writing.

44. From the foregoing, there is one further inference I would venture to draw. The usual way to determine the purpose for which a lease is granted, if there are more purposes than one, is to ascertain the ‘dominant purpose’: see Allenbury Engineers Pvt. Ltd. v. Ram Krishna Dalmia and others, A.I.R 1973 S.C 425 (18). It seems to me, that there is no room for the application of this principle in relation to clause (e) of section 14 (1). I derive this conclusion from the use of the word ‘incidentally’ in the Explanation. For a proper statement of the converse proposition of the Explanation, this word must naturally be included therein. Hence, according to the converse proposition, even if the premises are ‘incidentally’ used for commercial or other purposes with the consent of the landlord, the letting purpose gets altered, and the premises are no longer treated as having been let for residential purposes. This runs entirely counter to the ‘dominant purpose’ principle. If that test were applied, the ‘dominant purpose’ would still be residential.

45. Now, since the Explanation and its converse proposition negate the ‘dominant purpose’ principle, it can be deduced that the main part of clause (e) must have done likewise. For, if residential in the main part of clause (e) denoted the ‘dominant purpose’, where the premises were let for more than one purpose, neither the Explanation nor its converse proposition would have any scope to operate. The ‘incidental’ use of the premises, with which they are concerned, could never change the ‘dominant purpose’. Yet, by the converse proposition, as I have been shown, the letting purpose is changed.

46. The upshot is that, in my view, when the main part of clause (e) speaks of ‘premises let for residential purposes’ it means premises let solely and exclusively for residential purposes, and no other. If that were not so, there would be incongruity between the main part of clause (e) and the converse proposition of the Explanation, which, as I have shown on the authority of the Supreme Court, is good law. It would mean that clause (e) would be applicable if the original letting purpose allowed the premises to be ‘used incidentally for commercial or other purposes’ so long as the ‘dominant purpose’ remained residential, but would not be applicable if the landlord subsequently consented to such ‘incidental’ user. From the point of view of letting purpose, those two situations are on par. They were so regarded by the Supreme Court in Dr. Gopal Das Verma's case, whilst dealing with an alternative plea of the landlord, as witness the following sentence.

‘Therefore, in our opinion, it would be unreasonable to hold that tenancy which has been created or used both for residence and profession can be successfully terminated merely by showing that the tenant has acquired a suitable residence.’

The Supreme Court made no distinction between a letting purpose originally ‘created’ and that resulting from the way in which the premises were ‘used’. It is hard to believe that the legislature intended to make such a differentiation, and produce the eccentric result I have indicated. Especially, when there appear no reasons for doing so.

47. To all this, I would add one further thought. The interpretation which I have suggested seems to accord best with the underlying object of clause (e). The intention is to enable the landlord to get back for use as a residence that which he let for use as a residence. But, if he allows the premises to be used for commercial or other purposes, albeit ‘incidentally’, by his own act he has diverted the premises to a different purpose. Apart from other considerations, his intention of using the promises for residential purposes also becomes suspect. Therefore, in such a case, the Act does not permit him to recover possession on the ground that he needs the premises for residential purposes.

48. Saving one none of the cases cited by counsel for Savitri Devi for calling-in-aid the ‘dominant purpose’ rule was concerned with clause (e). In Girdhari Lal v. The Life Insurance Corporation of India and anr., 1974 R.C.R 467 (19), the ground for eviction was that in clause (h). Both Nand Lal v. Dr. Gurbakhsh Rai, (1962) 64 P.L.R 601 (20), and Sant Ram v. Rajinder Lal and others, 1979 (1) R.C.J 13 (21), were cases under the East Punjab Urban Rent Restriction Act, 1949, and the ground for eviction was that equivalent to clause (c). Panjumal Daulatram v. Sakhi Gopal, 1977 (2) R.C.J 94 (22), was a case under the Madhya Pradesh Accommodation Control Act, 1961, the scheme of which is very different. It had two separate clauses enabling the landlord to recover possession of the premises on account of his ‘bona fide requirement’. One clause dealt with residential accommodation, and the other with non-residential. There is no equivalent of the latter in the Delhi Rent Control Act. The only case which involved clause (e) was P.N Khanna v. T.P Balakani, 1972 R.C.R 22 (23). But, I think, the real ratio of that case is that what was done by the tenant did not amount to commercial activity, and, hence, the letting purpose had not been changed.

49. I can now revert to the judgment of the Additional Rent Controller. He held, that neither Savitri Devi, nor her predecessor-in-title Phoolwati, had ever consented to the use of the premises for commercial purposes by Waryam Singh. He was shown Messrs New Garage Limited v. Khushwant Singh and another, 1951 P.L.R 136, but he seems to have held that it was not applicable in view of the Explanation to clause (e). The head-note of that case reads as follows:

‘If the lessor is aware of a continuing breach by the lessee and acquiesces in it for a long period where, for instance, with full knowledge, he receives rent, it will be presumed that he has either released the covenant or granted a licence for the user.

By acceptance of rent the landlord waives the breach of the terms of the covenant and is not entitled to eject the tenant, and such acceptance of rent is not only condonation of breaches in the past, but is a licence for breaches in the future.’

The Additional Rent Controller commented: ‘The sort of consent (envisaged by that case) is not acceptable in the circumstances of the Delhi Rent Control Act’. He does not explain what are the ‘circumstances’ which he has in mind. The judgment straggles and the discussion is extremely confused on this point. What he ultimately seems to hold is that on the facts of this case there was no consent because the owners, past and present, always objected to the misuse of the premises by Waryam Singh, as is evidenced by the legal steps or proceedings which they took. And, further, that the mere acceptance of rent by them could not lead to the ‘presumption’ that they had ‘consented to the change of user’. Towards the end, he also refers to the principle of ‘dominant purpose’, which, I have ventured to suggest, is excluded.

50. The Additional Rent Controller does not take the position that the consent of the landlord must be in writing. Hence, there was no justification for his casting aside the New Garage Limited case. As I have tried to show, the form of consent is not restricted by the Explanation or its converse proposition. Not only can it be oral or in writing, it can, also, be express or implied. Therefore, it can be inferred from acquiescence or waiver by the landlord. Since Savitri Devi had accepted rent up to date, the New Garage Limited case was very much in point. It obliged the Additional Rent Controller to inquire into the questions whether Waryam Singh had used the premises for commercial purposes, and whether Savitri Devi or Phoolwati were aware of it. Having mis-directed himself by refusing to apply that case, the Additional Rent Controller decided neither of those questions. He rested content with holding simply that there was no consent.

51. In these circumstances, I should normally have remanded the case for a decision on the said questions of fact left undetermined. But, counsel for Waryam Singh requested me not to do so. He said that both parties had adduced all their evidence on those questions, and it was proper that I should decide them myself, as I could do on the analogy of section 103 of the Civil Procedure Code 1908. As an instance in which that course had been adopted, he cited Vardesh Chander Channa v. Prem Nath & Ors. 1981 D.R.J 132 (24). Counsel for Savitri Devi did not oppose this submission. Having considered all the pros and cons, I, am too, satisfied that no purpose will be served by a remit, and that it will only cause unnecessary delay. Consequently, I proceed to decide first the question whether Waryam Singh has used the premises for commercial purposes, and, if so, since when.

52. The case of Waryam Singh is that he has been using one front room for ‘office’ purposes since the inception of the tenancy in 1954. He says that all his files and records were kept in that room, and his clerk, accountant, and works supervisor used to sit there. Further, he and his son had formed a number of companies whose registered offices were at this address. In addition to his own, the name-plates of some of these companies were affixed on the outer gate. These name-plates indicated that they were carrying on business as building contractors and, also, manufactured and supplied furniture. Apart from giving evidence himself, Waryam Singh called as witnesses a friend, two ex-employees and his Chartered Accountant. He, also, produced a large number of business letters from Government departments and others to show that they had been corresponding with him at this address.

53. Against this evidence must be weighed the fact that in none of the earlier proceedings did Waryam Singh ever allege that he was using any portion of the premises for commercial purposes. The statement which he made in the suit filed by Harbans Lal Vadera in 1955, contains no hint of such an allegation. Nor does his written statement in the proceeding for eviction commenced by Phoolwati in 1963. That no such plea was raised even in the course of that proceeding is established by the judgment delivered in that case in 1967. As I have already mentioned, the Additional Rent Controller records that there is no dispute with regard to the letting purpose ‘which is admittedly residential’. Thus, during the 13 years between 1954 and 1967, despite two litigations, Waryam Singh did not choose to raise the plea which he now puts forth. In both those litigations, the letting purpose was most material. There is no explanation for his having omitted to raise the plea. The conclusion is irresistible that, at least, during that period, Waryam Singh was not using any portion of the premises for commercial purposes. That is why the plea did not occur to him.

In order to bolster his plea, Waryam Singh now asserts that one of the grounds for eviction taken in the suit filed by Harbans Lal Vadera in 1955 was ‘conversion of the use of the premises from residential to business’. Thereby he seeks to get indirect proof of his allegation that he began to use a portion of the premises for commercial purposes since the inception of the tenancy. Even if what Waryam Singh asserts be true, it is of no use unless one knows the answer that he gave in his written statement. Copies of the pleadings in that suit have not been produced.

It was said at the Bar, by counsel for Waryam Singh, that the record of that suit had been lost or destroyed. But, there is no evidence to that effect. It does not appear that any attempt was made to summon the file of that suit. Nor is there any explanation as to what has become of counsel's brief, which would naturally contain copies of the pleadings. The dates endorsed by the Copying Agency, on the certified copy of Waryam Singh's statement in that suit, show that it was obtained on 15th October 1976. Therefore, the record must have been available at that time. The whole matter is left shrouded in mystery, when it could easily have been cleared by calling an officer from the record room. It was the duty of Waryam Singh to do so, since he relies on the contents of the plaint in that suit. His failure to take the necessary steps raises an adverse presumption against him.

54. Such other material as there is on record, also goes against Waryam Singh. As have already observed, his statement in that suit contains no indication that eviction was sought on any ground other than the bona fide requirement of Harbans Lal Vadera. In his written statement filed in answer to Phoolwati's petition, Waryam Singh pleaded res judicata as his first preliminary objection. He based this plea on the fact that the earlier suit for eviction brought by Harbans Lal Vadera ‘on the ground of bona fide personal necessity’ had been ‘dismissed by Shri Shiv Charan Dass Bajaj’. In describing that suit, no other ground for eviction was mentioned. It is only in the present case that Waryam Singh has begun to allege that change of user was also pleaded as a ground for eviction in that suit. This is an obvious improvement designed to achieve the object I have indicated.

55. In cross-examination, Savitri Devi admitted that she had instructed her counsel to send a notice dated 30th March 1971 to Waryam Singh. She said that when the notice was sent, furniture was being made downstairs. In answer to a leading question she admitted that it was stated in the notice that Waryam Singh had been repeatedly using the premises, without her permission, for the companies named. From these answers it was sought to be inferred that the premises were being used for commercial purposes in 1971, and Savitri Devi was aware of it.

56. There are a number of objections to this argument. The original notice, which must be with Waryam Singh, has not been produced. No reason has been given for its non-production. Nor was Savitri Devi called upon to produce a copy of the notice. So, again, an adverse inference must be drawn that if the original notice or its copy had been produced, it would have gone against Waryam Singh. In any case, without reading the notice it is not possible to know what exactly was said on behalf of Savitri Devi, and in what context. As often as not, the context makes all the difference. Moreover, even if the answers of Savitri Devi be taken at their face value, she did assert in the notice that the objected user was without her permission. No doubt, she continued to accept rent even after that notice was given. But there is no reliable evidence to show that the making of furniture or the user for the companies was persisted in thereafter. Even Waryam Singh makes no such specific statement. Therefore, the subsequent acceptance of rent cannot constitute waiver of the breach of the letting purpose or acquiescence therein.

57. Putting the rest of Waryam Singh's case at its highest, and accepting all that he says in toto, in my opinion, it still does not amount to using the premises for commercial purposes. Keeping business records and files in one's home does not convert it into an office. Nor the writing of letters and accounts pertaining to one's business. Most working people carry home their unfinished tasks to be done in the evening, but no one would ever dream of suggesting that this converts their homes into office or business premises. Otherwise, there would hardly be any premises which could be said to be used for purely residential purposes. And, what one can do oneself, one can do through another. Hence, the employment of a clerk or accountant to sit in one's home can make no difference. Nor can the giving of instructions to a Works Supervisor.

58. Indicating one's vocation on the name-plate outside one's residence, or using the residential address for receiving business letters, does not change the letting purpose. This was the view taken in P.N Khanna v. T.P Balakani, 1972 R.C.R 22, and I agree with it. It is true that at least one of the companies formed by Waryam Singh had its registered office at this address. But, again, in my opinion, that cannot alter the user of the premises. It was merely an address given for complying with the Companies Act. The main purpose of such an address is to raise a presumption as to the delivery of letters and notices to the company.

59. I recognise that it is not easy to define the stage at which an activity becomes a commercial activity. But an almost invariable characteristic of commercial activity is some kind of dealing with the public. It may be the buying and selling of goods, the meeting of clients by a lawyer, the treatment of patients by a doctor, and so forth. In the case of a building contractor, that would mean, at least, meetings, negotiations and conferences with his clients, if nothing more. There is no evidence to indicate that any such activity was carried on in these premises. Not even Waryam Singh says that he met his clients here. The farthest he goes is to say that ‘labour and various other persons keep on coming’.

60. Taking every thing into account, I am not persuaded that what was allegedly done by Waryam Singh in a portion of these premises, could be described as commercial activity. Consequently, I would hold, that the premises were not used for commercial purposes by Waryam Singh.

61. In view of this finding, the other question, whether Savitri Devi or Phoolwati were aware that Waryam Singh was using a portion of the premises for commercial purposes, does not arise. Nevertheless, I will consider it briefly, on the assumption that my finding may be wrong. Waryam Singh says that Phoolwati and her husband, Harbans Lal Vadera, knew that he was using the premises both for residential and commercial purposes because they were living on the upper floor and came and sat in his office dozens of times. They raised no objection to the use of a portion of the premises as an office by him. Two of the witnesses called by Waryam Singh also say that they remember seeing Harbans Lal Vadera sitting in that office. This is all the evidence there is to impute knowledge to Phoolwati and her husband.

62. Having regard to all the other circumstances of the case, which I have mentioned, this mere oral evidence does not inspire any confidence. Particularly, when Phoolwati and Harbans Lal Vadera have not been called as witnesses though they were available. One must infer that had they been called they would not have supported the case of Waryam Singh on this point.

63. With regard to Savitri Devi, the story is a little more specific. Waryam Singh says that before Savitri Devi purchased the house, she visited the premises twice: once alone, and another time with her husband. They inspected the entire ground floor, and sat and conversed with Waryam Singh in his office. In answer to their queries, he told them the rent he was paying and, also, that he was using the premises both for his residence and his office since the inception of the tenancy in 1954. One of Waryam Singh's witnesses says that he happened to be present on one such occasion and heard the conversation. Two other witnesses say that they have seen Savitri Devi sitting in Waryam Singh's office.

64. But curiously enough, it was not suggested either to Savitri Devi or her husband, in their cross-examination, that they had visited the premises and conversed with Waryam Singh before purchasing the house, or had sat in his office. This omission to put his case to Savitri Devi and her husband, renders worthless the oral evidence given by Waryam Singh and his witnesses. Besides, the evidence on record shows that soon after Savitri Devi purchased the house, the relations between her and Waryam Singh became so strained that he used to send the rent by registered post although both of them were living in the same building. In this state of affairs, it is not possible to believe that Savitri Devi used to come and sit in his office.

65. So I would further hold that, even supposing Waryam Singh was using a portion of the premises for commercial purposes, neither Phoolwati nor Savitri Devi were aware of it. Therefore, the acceptance of rent by them could not read to waiver or acquiescence.

66. Summing up on this part of the case, I agree with the Additional Rent Controller that the premises were let to Waryam Singh for residential purposes. I hold that they were not used for commercial purposes by Waryam Singh. But, if they were, I concur with the Additional Rent Controller, though for different reasons, that neither Phoolwati nor Savitri Devi had consented to the change of user. Hence, there was no alteration of the letting purpose.

67. I turn now to the second question: whether the premises are ‘required bona fide’ by Savitri Devi for occupation as a residence for herself and members of her family dependent on her. Here, again, it is first necessary to be clear about the law.

68. To come within section 14 (1) (e), the landlord must require the premises ‘for occupation as a residence for himself or for any member of his family dependent on him’. In C.L Davar v. Amar Nath Kapur (1962) 64 P.L.R 521 (25), Falshaw, C. J., said:

‘. . . . . . . . . . . . my interpretation of section 14 (1) (e) is that a landlord who owns the leased premises can obtain possession of them on the ground that he requires them for his own accommodation and he can also obtain possession of them for the occupation of any dependent member of his family although he does not wish to occupy them, himself, and also that he can obtain possession because he requires them as a residence for both himself and the dependent members of his family. I consider that the conclusion that the word “himself” may include members of the family other than dependent members is wholly unjustified.’

But, this interpretation, especially of the word ‘himself’, has long been discarded: see J.L Mehta… v. Hira Devi…., 1970 D.L.T 484 (26), and J.B Jain v. Smt. Sar Swati Devi Mahna, 1980 (2) R.C.R 40 (27).

69. The view which now prevails is that the words of clause (e) present two alternative cases separated by the disjunctive ‘or’. The first alternative applies when the landlord requires the premises for ‘himself’; and that includes his ‘family’ whether the members be dependent on him or not. In contrast, the second alternative applies when he does not require the premises for ‘himself’ but ‘for any member of his family dependent on him’.

70. This construction appears to have been first expounded by G.D Khosla, C. J., in C.R No. 411-D of 1961 entitled Bhagwan Das v. Smt. Shakuntala Devi (28). He said:

‘A correct reading of clause (e), however, means that where the landlord (or the landlady as in this case) requires the premises for his own use, then “his own use” means the use of himself and the members of his family. The second part of the clause only comes into operation when the landlord does not intend to reside in the house himself but places it at the disposal of a member of his family. In that case it is essential that that member must be dependent upon him, otherwise the decree for ejectment will not be made. But as in the present case the landlady will herself reside in the house alongwith her husband and the members of her family, it is not necessary that those members, who reside with her, should be economically dependent upon her. The family is a unit consisting of a husband, a wife and their children, and in this case, therefore, the occupation of the plaintiff will be treated as her sole occupation, because her family and she will be treated as one unit.’

That passage is quoted with approval and followed in T.C Rekhi, Proprietor, Central Court, Hotel New Delhi v. Smt. Usha Gujral, 1970 R.C.R 292 (29), and Lala Shambu Nath v. Pandit Ram Sarup Sharma, 1970 R.C.R 1110 (30), and in many subsequent cases. So far as I am aware, no one has ever differed from it. Yet, unfortunately, the distinction which it draws between the two alternatives stated in clause (e) has not always been carefully maintained, and has been allowed to become blurred.

71. Let me take the first alternative. It is settled, by the cases I have just cited, that ‘himself’ includes the landlord's family. But, who does the ‘family’ include for this purpose ? There is no absolute test. The answer in each case depends upon the facts: see P.D Sharma v. Ram Lubhaya, 1970 R.C.J 160 (31). The approach is conditioned by the member of our society: see Gobind Das and others v. Kuldip Singh, 1970 R.C.J 742 (32). It is not necessary that the member of the family should be ‘dependent’ on the landlord, for the word ‘dependent’ occurs only in the second alternative. This, again, is borne out by the cases already cited. One discernible principle is that a member of the landlord's family who is actually residing with him forms part of his family ‘unit’: see J.L Mehta… v. Hira Devi…., 1970 D.L.T 484; Lala Ram… v. Kalawati…., 1974 R. C.J 405 (33); Sain Dass Berry v. Madan Lal Puri, 1971 R.C.R 887 (34); and J.B Jain v. Smt. Sar Swati Devi Mahna, 1980 (2) R.C.R 40. For assessing the landlord's need, that ‘unit’ is not to be disrupted. By opposite implication, a member of the family who is already living separately is excluded. These are common sense solutions based on the reality of the situation. But, other realities may dictate a different conclusion: as when an aged landlord living with his wife becomes a widower, and then needs the constant attention of a son or daughter hitherto living separately with his or her own family. The need to have the son or daughter residing with him, is then part of the need of the landlord ‘himself: see Vas Dev Dhawan v. Triloki Nath, (1967) 69 P.L.R 260, 269 (Delhi Section) (35). Beyond these various considerations which I have mentioned, there is no further guidance that I am able to derive from the cases.

72. The distinguishing feature of the second alternative is that the landlord does not intend to reside in the premises himself: see Sain Dass Berry v. Madan Lal Puri, 1971 R.C.R 887. He needs them only to accommodate a member of his family ‘dependent’ on him. It is in this case that dependence on the landlord is a requirement. The confusion in the cases is largely due to importing that requirement into the first alternative.

73. ‘Dependent’ does not mean ‘wholly’ dependent, and includes a member of the landlord's family who is ‘not wholly independent or self-supporting and in a position to set up a separate residence’: see C.L Davar v. Amar Nath Kapur, (1962) 64 P.L.R 521, and Sultan Singh v. Jai Chand Jain and another, 1966 D.L.T 62 (36). Or, in other words, it includes a member of the landlord's family who is even partly dependent on him. Upto this extent, the ambit of ‘dependent’ is now well established.

74. However, in C.L Davar's case, Falshaw, C.J, went on to say ‘that dependence may not in all the circumstances be entirety a matter of finance. . . . . . .’, and this view has been echoed in many cases. The example which he gave was of ‘an unmarried daughter who may be employed, but in whose case for various reasons it would not be desirable for her to attempt to live away from her parents and on her own’. This certainly makes good sense; but, only if the rest of the interpretation of section 14 (1) (e) by Falshaw, C. J., is accepted. That, as I have stated, has not been the case. Remembering that, according to the present view, the second alternative applies only if the landlord does not intend to reside in the premises himself, the unmarried daughter who is employed would have to live in the premises ‘away from her parents and on her own’. That makes no sense at all, and defeats the very purpose of the example. Therefore, I doubt whether the observation of Falshaw, C. J., that dependence need not be ‘entirely a matter of finance’ is now valid having regard to the current interpretation of section 14 (1) (e).

75. In Lala Ram… v. Kalawati…., 1974 R.C.J 405, it has been stated, that the second alternative applies when the landlord requires the premises for himself ‘as well as’ for a dependent member of his family ‘who had not been living with him earlier’. This runs directly counter to what G.D Khosla, C.J, said, and all the cases which followed him. It converts the disjunctive ‘or’ in clause (e) into the cumulative ‘and’. Although that is permissible when the context so compels, there is no such need here. On the contrary, since ‘himself’ includes the landlord's family, the words ‘and any member of his family dependent on him’ would be redundant. That shows that the ‘or’ was meant to be disjunctive.

76. I think, when a landlord requires the premises for himself ‘as well as’ for a dependent member of his family ‘who had not been living with him earlier’, the case can be brought under the first alternative. A ‘dependent’ member of the landlord's family would presumably be living separately only because of dearth of accommodation with the landlord. For, ex hypothesi, the landlord wants him to be living with him, as their combined need is the ground for seeking eviction. He can, therefore, be legitimately treated as if he were living with the landlord, which would have been the case had the accommodation with the landlord been sufficient. The notion of ‘family’ is flexible enough to cope with such a situation. On this line of reasoning, the premises with the tenant can be recovered under the first alternative of clause (e) both for the landlord ‘himself’, including the members of his family residing with him, and the ‘dependent’ member living separately but ‘deemed’ to be residing with him.

77. With this background of the law, I return to the present case. Savitri Devi has a husband, five sons and a daughter. When the petition for eviction was filed in 1976, her husband, Dharam Pal, was working the Sales Manager with Raza Textile Mills at Rampur. His salary was Rs. 3,500/- per month. But, during the proceedings, he retired in May 1978. He now resides permanently in Delhi with Savitri Devi.

78. The daughter is married to an engineer, and they, with their children, have been residing in the United States of America since long. So, too, have the first and fourth sons, both of whom are engineers, and married, and have children. Apart from occasional visits to India, the daughter and these two sons are resident in the United States of America. Though it is alleged that they intend to return and settle here, nothing definite is shown. None of them has appeared as a witness. They have lived abroad for very many years, and there is no evidence of their plans and intentions. As things stand, they cannot enter into the reckoning, and counsel for Savitri Devi did not urge otherwise.

79. When the petition for eviction was filed, the other three sons were residing with Savitri Devi. The second son, Ashok Kumar, is married and has two children aged 10 and 7. He is an engineer and employed in the National Physical Laboratory, Delhi. His salary is about Rs. 2,000/- per month. The third son, Anil Kumar, is also married and has one child aged 3. He, too, is an engineer, and is employed in Bharat Heavy Electricals Limited. His salary is about Rs. 1,800/- per month. The fifth son, Alok Kumar, is a bachelor. He is carrying on some textile business, and his income is about Rs. 2,500/- per month.

80. However, whilst proceedings were pending before the Additional Rent Controller, there was an important change in the position. It was brought to light by an application moved by Waryam Singh after the case was set down for hearing arguments. He alleged, in that application, that Anil Kumar, the third son of Savitri Devi, had moved out as he had been provided with accommodation on the first floor of U-29, Green Park, New Delhi, by his employers; and prayed that if his allegation was disputed he may be allowed to lead additional evidence. In her reply, Savitri Devi admitted that Anil Kumar had moved out, but pleaded that he had shifted ‘temporarily’ due to paucity of accommodation with her, and intended to come back and reside with his parents as soon as that was possible. An affidavit to this effect was sworn by Anil Kumar.

81. Inexplicably, although the allegation made by Waryam Singh stood admitted, an order was nevertheless made giving him leave to adduce additional evidence. It was added that Savitri Devi would be ‘given a chance for rebuttal’. In the event, no evidence was tendered by Waryam Singh, nor by Savitri Devi.

82. Now, plainly, the result which thus emerged was that Waryam Singh's allegation that Anil Kumar had shifted was admitted and, hence, proved, but Savitri Devi's allegation that he had done so ‘temporarily’ and intended to return was not. Yet, the Additional Rent Controller said:

‘It may also be pointed out that according to the petitioner's case, Anil Kumar who is serving with Bharat Heavy Electricals Ltd. and who has shifted to Green Park, has gone there only due to paucity of accommodation. This allegation of the petitioner in reply to the application of the respondent for additional evidence is unrebutted on record. The respondent did not care to come into the witness box to rebut this allegation and to lead evidence in support of the fact that Anil Kumar's need cannot be considered at this time. However, his need is also to be considered then the petitioner would require at least one more room for him.’

Probably, the word ‘if’ has been wrongly omitted in the last sentence. In any case, the drift is clear.

83. It is astounding that the Additional Rent Controller has placed the burden of disproving Savitri Devi's mere allegation on Waryam Singh without her first having to lead evidence in the affirmative. This violates the elementary principle regarding the allocation of burden of proof stated in section 103 of the Evidence Act. After his own allegation was admitted by Savitri Devi, there was no need for Waryam Singh to adduce any evidence, and that is obviously why he chose not to do so. It was then for Savitri Devi to prove her allegation, which she never did. No doubt the matter got somewhat confused by the unnecessary order allowing Waryam Singh to lead additional evidence. But, that cannot absolve Savitri Devi from the consequences of failing to take any step to prove her allegation. I think, the reasoning of the Additional Rent Controller is both contrary to law and utterly untenable.

84. Moreover, it is quite patent that Anil Kumar has been provided accommodation by his employers in the usual course, and has chosen to take it. He is one of their senior engineers, and must be entitled to residential accommodation as a condition of service. The story that he has shifted ‘temporarily’ is a mere pretence. Even the date on which he shifted is not disclosed. Since he was not called as a witness, the truth of his averment in his affidavit remains untested by cross-examination. Savitri Devi did not herself care to reveal the fact that he had shifted, when she was being examined as witness or at any time afterwards. As Waryam Singh was not aware of it, naturally there was no cross-examination on the point. So, the fact was successfully suppressed. However, as things turned out, Waryam Singh did ultimately get to know of it, and then she had no option but to concede the truth. The allegation about the shifting being ‘temporary’ is, on the face of it, merely a puerile attempt to explain away what could not be denied. It deserves no credence whatsoever, and ought to have been rejected.

85. Since Savitri Devi intends to use the premises ‘herself’, her case cannot come under the second alternative of section 14 (1) (e). Even supposing the second alternative could be invoked, that would not help her because all her sons are financially very well off, and none of them is ‘dependent’ on her. Her case, therefore, rests on the first alternative.

86. Presently, the persons residing with her are her husband, the second son with his wife and two children, and the fifth son who is a bachelor. Hence, this is her family ‘unit’ whose need has to be administered. The third son Anil Kumar is living separately of his own volition and is by no means ‘dependent’ on her. He must, therefore, be excluded. That accords with the reality of the situation also. The Additional Rent Controller was gravely in error in giving any consideration to Anil Kumar's need.

87. Next, one must took at the accommodation in the possession of Savitri Devi. When she purchased the house in 1969, she was given vacant possession of one room on the ground floor, the entire first floor, the barsati, one garage and two servants' quarters. The room on the ground floor is 11'9” × 8'. Between the ground floor and the first floor there is mezzanine. This was not disclosed by Savitri Devi, nor indicated on the plan which she filed. But after Waryam Singh referred to it in his evidence, the fact has been conceded. The first floor comprises a large drawing-cum-dining room, two good-sized bedrooms with attached bathrooms, and another room said to be used as a study of which the dimensions are 13' 7-1/2' × 11' 9”. It also has a kitchen, a box room and two verandahs, one of which is glazed. The barsati on the second floor is a fully enclosed pukka structure measuring 12' 9” × 16' 10-1/2”. Adjacent to it there is a lavatory 6' 2-1/4” × 12' 9”, and, on the far side of that, there is a tinshed of which the dimensions are not indicated on the plan. In front of all this, extends a large open terrace.

88. One of the servants' quarters is on the ground floor adjoining the garage. It consists of a room 11' 8” × 11' and has a fairly large store room attached. A lavatory is available a short distance away, across an open passage. The other servants' quarter overlies the garage and the servants' quarter below. It consists of a room 10' 7-1/2” × 12' 6” and an adjoining kitchen. In front there is a small open terrace.

89. Sometime after acquiring the house, Savitri Devi let out the second floor comprising the barsati and its adjuncts to a Mr. Bindal. He stayed there till 1975 and then surrendered the tenancy. Since then Savitri Devi has retained possession of the second floor, and has not let it out.

90. The servants' quarter adjoining the garage on the ground floor was let to Mr. Mohammed Izhar Alam. The one above was let to Mr. Inam-ur-Rehman. In her evidence, Savitri Devi tried to project these two persons as friends of her sons who had come to reside as ‘guests’ in what she described as the ‘annexes’. But she was compelled to admit that they had been residing there for 6 or 7 years and were paying rent. It is no longer disputed that they are tenants.

91. In judging the need of Savitri Devi, the Additional Rent Controller reasoned as follows:

‘Even if it is admitted that at present the need of the petitioner is to be examined only keeping in view the persons who are living with her, it would be seen that the petitioner requires one bed room for herself and her husband, one bed room for her unmarried son, one bed room for her married son, one study room for her two song, one drawing-cum-dining room, store room, one room for guests. It is also in evidence that the petitioner's family has two cars and have only one garage and, therefore, the petitioner would also need a garage for the second car. This clearly shows that the accommodation at present available with the petitioner is not sufficient for her needs especially keeping in view the financial status of the family of the petitioner and the furniture and other articles in possession of the petitioner which have to be stored by her and also especially keeping in view the fact that the sons of the petitioner are highly educated and have about 5000 books which they constantly need for their studies.’

Not only does this passage contain serious errors and misconceptions, it manifests a basically wrong approach to the question. I will proceed from the particular to the general.

92. The Additional Rent Controller allows ‘one room for guests’. No such requirement was pleaded by Savitri Devi in her petition or even in her evidence. She does not mention ‘guests’ anywhere. The only thing she does say is that her two sons, who are residing in the United States of America, ‘keep on coming to India’ and stay with her whilst they are here. She said the eldest son had been back five times, but did not indicate over what period. However, be that as it may, I have held in C.R No. 523 of 1980 entitled Sat Pal v. Nand Kishore and another, decided on 3rd September, 1982 (37), that ‘it is only in the most exceptional cases’ that visits by relations and friends ‘would have any tangible effect on the result of a proceeding for eviction’. I will not repeat the reasons which I gave, except to say that I still adhere to the view that it would ‘be a total distortion of the law’ to evict a tenant from his established home for ever merely to make relations and friends of the landlord ‘more comfortable during their fleeting visits’. There is no circumstance in the present case which could possibly justify reserving a room continuously for the occasional visits of Savitri Devi's sons. The Additional Rent Controller has, in fact, given her more than even she dared to ask.

93. Likewise, he has been extraordinary generous in providing to her a second garage. Again, she pleaded no such requirement in her petition. Admittedly, she already has one garage. In her evidence she said they now had two cars, and one had to be parked in the open. Without reflecting over the matter any further, the Additional Rent Controller has accepted that statement as constituting a ‘need’. No doubt in Sudarshan Lal Aggarwal v. Girdhari Lal Jain. 1971 R.C.R 1020 (38) the tenant residing in an ‘outhouse’, attached to a residential building, was evicted to provide a garage for the owner. But, he had no other garage. Here, Savitri Devi already has one and the question is whether she should have two.

94. If it were accepted that a landlord is entitled to as many garages as he has cars, an affluent landlord could always enhance his need and evict a tenant simply by acquiring more cars. That would be making a mockery of the Delhi Rent Control Act. No one prevents a landlord from owing as many cars as he pleases but they would not each count as a ‘need’ for a garage under section 14 (1) (e). That must be judged according to what is reasonable on existing standards. At present, in this country, amongst the class who can afford a car, one family does not normally own more than one car and, therefore, does not ‘need’ more than one garage. To allow more, would be catering to the rich landlord's luxury disregardful of the hardship to the tenant.

95. Counsel for Waryam Singh drew my attention to Satish Swarup Gupta v. M/s. Vraj Lal Mani Lal & Co., 19 (1981) D.L.T 162 (39), but only for laying it aside. I agree it has no bearing on the point. There, it was held, that a garage separately let for parking a car was let for ‘residential purposes’. I am not sure that I would subscribe to that view, but will not question with which I am concerned is whether Savitri Devi can be said to ‘require’ a second garage. For the reasons, I have stated, it seems to me, the answer to that has to be in the negative.

96. The Additional Rent Controller then refers to the ‘Furniture and other articles’ in the ‘possession’ of Savitri Devi and the ‘5000 books’ belonging to her sons, which have to be ‘stored by her’. He is apparently, also, rather impressed with ‘the financial status of the family’.

97. In her petition, Savitrai Devi says that she, and members of her family, are ‘in possession of all types of luxury goods as detailed in Annexure A and have a high standard of living. The list in the annexure is truly, formidable; but, it passes comprehension why she needs 3 sofa sets, 4 dining tables, 24 dining chairs, 19 steel trunks, 15 foodgrain containers, and 10 water buckets, to take just some of the items mentioned. The number of ‘books on various subjects’ is stated to be 1500. And, as the last item, the list includes ‘Building and Maintenance materials lying in one room’ on the ground floor.

98. It is too obvious that all the ‘furniture and other articles’ which are enumerated in the annexure cannot possibly be required for daily use. Probably, in large part they comprise what has been left behind by Savitri Devi's sons, and, perhaps, her daughter, who are residing abroad. The Additional Rent Controller rightly sensed that the furniture and other articles are with her only for being ‘stored’, For, in relation to many items, of which I have given some examples, it is inconceivable that one family would need them in the numbers set out in the annexure.

99. In her evidence, Savitri Devi increased the number of the books to 5000, and the Additional Rent Controller seems' to have accepted that figure without demur. Had he cross checked with the annexure he would have realised that Savitri Devi was capable of gross exaggeration. At a stroke, she has raised the number more than threefold.

100. However, even going by her own case, Savitra Devi has, or, at any rate, had, at her disposal ample space to ‘store’ the things mentioned in the annexure. To begin with, the mezzanine would be the ideal place for storage. Then, if more space were needed, there is the room on the ground floor. Savitri Devi says she is using that room for storing ‘Building and Maintenance materials’. Why she needs to store such materials, and in quantities which fill a whole room, is not explained. Without offering a cogent reason, I do not see how a landlord is entitled to set aside a room for such a purpose, when seeking the eviction of a tenant on the ground of shortage of accommodation. The room on the ground floor is a fair-sized room, and capable of being put to much better use. Assuming, for a moment, that it is not satisfactory for use as a bedroom, because there is no bathroom and toilet available with it on the ground floor, it can certainly be used for storing the furniture and other articles and books.

101. Taking the remote possibility that even those two places combined were inadequate, Savitri Devi could have retained one or both the servants' quarters for the like purpose. Yet she chose not to do so, and leased them out to tenants. That applies equally to the barsati, which was let out till 1975. Admittedly, when she purchased the property, the servants' quarters and the barsati were vacant. They could conveniently have been used for storage purposes, if nothing else. The fact that they were not so used, and, instead, were let out, shows conclusively that there was no pressing need for storage space.

102. Of course, a landlord may let out a portion of his house which is not suitable for his purposes, and no inference against him can be drawn therefrom: see Ram Narain… v. Lakshmi Dass Kundra…, A.I.R 1971 Delhi 268 (40). And, his requirements may change from time to time in a manner he may not have been able to foresee: see Sain Dass Berry v. Madan Lal Puri, 1971 R.C.R 887 (41). But, here, there is no suggestion that the servants' quarters and the barsati were not suitable for storage purposes, or that the need for storage space arose only after they had been let. Hence, there is no circumstance which might avert the conclusion I have stated.

103. That leaves for consideration the first sentence in the passage which I have quoted from the judgment of the Additional Rent Controller. He says, that Savitri Devi requires ‘one bed room for herself and her husband, one bedroom for her unmarried son, one bedroom for her married son, one study room for her two sons, one drawing-cum-dining room, store room, one room for guests’. As to a ‘room for guests’, I have already said my say. Since the first floor has a drawing-cum-dining room and a box room, which should serve the purpose of a store room, these requirements of Savitri Devi are already met. For the rest, the Additional Rent Controller assesses her overall requirement as three bedrooms and a study. According to her own version the first floor has two, bedrooms and a study. So, at the most, there is a lack of just one bedroom.

104. But, this is on the footing that the third room on the first floor is not a bedroom but a study, and the sons do actually need a separate room as a study, neither of these suppositions is beyond question. From the dimensions of the room described as a ‘study’, which I have given earlier, it is apparent that it would be perfectly satisfactory as a bedroom. It is only a little smaller than the other two bedrooms. The unmarried son, if not the married son, could certainly be accommodated in this room.

105. With regard to a study, it must be remembered, that the sons are employed persons, and the only time they would study at home is late in the evening or at night or, possibly, on holidays. It is not as if they were students who need to read full time. At the hours at which they would normally study, the drawing room should be suitable. But, if they must have an exclusive area, the glazed verandah could be used. Often, that is the very purpose for which a verandah is glazed. Thus, in this way, the first floor itself is sufficient to meet all the requirements of Savitri Devi.

106. Nevertheless, assuming that she needs one bedroom in addition to the first floor, the barsati on the second floor completely satisfies that need. As I have mentioned, it is a fully enclosed pukka structure with an adjacent lavatory and a tinshed. True, that Savitri Devi says they use the barsati very rarely because it is ‘not convenient to use the same either in extreme winter or summer season’. Yet, the fact remains that for about five years, till 1975, there was a tenant who paid rent for residing there in all seasons. So, it cannot be as bad as Savitri Devi would have one believe. Barsati, these days, are built for being lived in. I see no reason to disbelieve Waryam Singh, when he says that Savitri Devi's second son Ashok Kumar is residing on the second floor and has his own ‘kitchen arrangement’ there. Some indirect corroboration for that can be found in Savitri Devi's statement that her sons cook their non-vegetarian food separately, presumably, so as not to offend her orthodox sensibilities. The only place one can visualise for such activity is the tinshed. Moreover, it is difficult to believe that she would have refrained from letting out the second floor after 1975, if it was of no use to her. Hence, in any case, the first and second floors provide as much accommodation to Savitri Devi as the Additional Rent Controller thought she needed.

107. I have so far ignored the room on the ground floor and the two servants' quarters. They would not all be required for storage. Any one of them could be used as bedroom; at least, for the unmarried son if not the married one. I know that with regard to the servants' quarters, Savitri Devi says, they ‘are not fit for use by us’. But, if her sons' friends can be residing in them as tenants, they cannot be so unacceptable. She herself refera to them as ‘annexes’. Now-a-days, servants' quarters are well-constructed to serve as one room flats. It is unlikely that the difference in the standard of living between her sons and their friends would be so very great. Indeed, the very fact that both the servants' quarters have been let, furnishes an indication that the standard of living of Savitri Devi and her family is not so superior as she implies. It is reasonable to infer that they keep no servant. Or, if they do, he must be a rustic boy of the kind who is willing to sleep under the stairs or in some other nook or corner of the house. They prefer the rent which a servants quarter can bring to the convenience of a good servant in the household. I do not doubt that Savitri Devi and her family have a high ‘financial status’. It does not follow that the standard of living they maintain is commensurate with their wealth. Therefore, the letting out of the servants' quarters to her sons' friends further proves that Savitri Devi does not need any additional accommodation. To which, I might add, that neither of the sons, living with her, has cared to step into the witness-box to testify as to his need or support her case.

108. In extremist, counsel for Savitri Devi said that she had to have the ground floor because her husband was a ‘heart patient’. There is absolutely no medical evidence in support of that allegation. The point was not even urged before the Additional Rent Controller. Or, if it was, he rejected it out of hand. So would I.

109. On a broad view, what emerges is that Savitri Devi's ‘family unit’ consists of five adults and two small children. They already have at least three bedrooms, and a study, if not more, on the first and second floors. That is the position even disregarding the room on the ground floor and the two servants' quarters, and, also, the glazed varandah. Therefore, even on the Additional Rent Controller's own assessment of Savitri Devi's need, there was no justification for evicting Waryam Singh.

110. The general flaw in the approach of the Additional Rent Controller is that he proceeds as if Savitri Devi was the final judge of her requirement and the manner in which it should be met. He concedes to her the room on the ground floor for storing ‘building materials’ without a query. He disposes of the barsati, the tinshed, the glazed verandah, the servants' quarters and the mezzanine in one sentence with the remark that they ‘cannot be considered to be living rooms to assess the requirements of the landlord’. The case he relies on is Uttam Chand v. Smt. Ram Murti Gupta, 1980 (2) R.C.R 405 (42), which contains such an observation only with regard to a kitchen and a mezzanine. It has nothing to say about a barsati, a tinshed, a glazed verandah or a servants' quarter.

111. At one place in his judgment, the Additional Rent Controller appears to tacitly accept that the servants' quarters can be lived in, but says, since they ‘are detached from the main building’ and Savitri Devi ‘wants that her sons should live with her in the main unit of the building’ she cannot be ‘ordered to keep her sons separately away from the main building only to accommodate the respondent’. That is a glaring example of how he gives way to every ‘whim’ and ‘fancy’ of Savitri Devi. As to the barsati, he does not apply his mind further to the question whether it is fit for use as a bedroom or not, though he holds that it is ‘occupied’ by Savitri Devi and her family after 1975. And, he does not at all, ponder which portions of the building could be used for storing the furniture and other articles and books.

112. The judgment flits from point to point, forwards and backwards, without probing into anything in depth. It contains no real attempt to ascertain whether Savitri Devi's requirement can be met by the accommodation already in her possession. The argument which seems to override everything is that since there is no reason to suspect the bona fides of Savitri Devi, her professed need must be genuine.

113. It is true that apart from the statement of Waryam Singh, there is no proof that Savitri Devi has been demanding higher rent. But, it must be borne in mind, that only the most naive landlord would make such a demand in writing, and no evidence other than oral is likely to be available. A more reliable indication of the truth can often be found in the conduct of the parties. Here, even the servants' quarters have been let, and, previously, the barsati was also. That shows that Savitri Devi's desire to extract rent from every portion of the property completely outweighs all considerations of her family's comfort and convenience. Would a person with that grasping outlook not seek to obtain higher rent from an existing tenant ?

114. However, even if no ulterior motive was proved, it was certainly not the end of the matter. The Additional Rent Controller had still to examine carefully whether the premises were ‘required bona fide’, by Savitri Devi, within the meaning of section 14 (1) (e). It is trite law that ‘required’ denotes a ‘need’ and not a mere ‘wish’ or ‘desire’: see Phiroze Bamanji Desai v. Chandrakant M. Patel and others, A.I.R 1974 S.C 1059 (43), and M/s. Sant Ram Das Raj Kalka v. Karam Chand Mangal Ram, A.I.R 1963 Punjab 1 (F.B) (44). By adding the words ‘bona fide’ it is intended to emphasise that the need must be ‘honest’ and ‘genuine’ and not ‘frivolous’ or ‘whimsical’: see Vas Dev Dhawan v. Triloki Nath, (1967) 69 P.L.R 260 (D). The most important principle is that the landlord is not the final arbiter of his needs, and the matter falls for decision by the Rent Controller, who must apply an objective standard, the criterion being the needs of a reasonable man: see Mattulal v. Radhe Lal, A.I.R 1974 S.C 1596, 1603 (45); Freddy Fernandes v. P.L Mehra, 1973 R.C.R 53 (46); Manohar Lal v. Mool Chand, 1975 Raj. L.R 510 (47); Lalit Kumar… v. Saroj Kumari…, 1969 R.C.R 555 (48); and Ajit Singh v. Inder Saran and ors., 1979 (1) R.C.R 602 (49). Hence, the mere assertion by a landlord that he requires the premises occupied by the tenant is not decisive: see Smt. Kamla Soni v. Rup Lal Mehra, 1969 R.C.R 1017 (S.C) (50). The earlier cases cited by counsel for Savitri Devi, which adopt an approach more favourable to the landlord, must now be treated as outdated.

115. In the present case, the Additional Rent Controller has paid verbal homage to some of these principles. But, when it came to application, he seems to have forgotten them. Nowhere does he cogitate over the question whether the requirement put forward by Savitri Devi was objectively reasonable. Had he done so, it would have been immediately apparent that she could not succeed.

116. As a last resort, counsel for Savitri Devi contended that the question whether the premises were ‘required bona fide’ by Savitri Devi was a pure question of fact, and no matter how erroneous the decision of the Additional Rent Controller might be, I had no power to interfere with it under the proviso to section 25B (8). I recognise that it is a question of fact; but even a funding on such a question can be assailed under that provision on the ground that it is not ‘according to law’. The power is much larger than that conferred by section 115 of the Civil Procedure Code: see Hari Shankar and others v. Rao Girdhari Lal Chowdhury, A.I.R 1963 S.C 698 (51). It is neither possible nor advisable to define it with precision: see Pooran Chand v. Motilal and others, A.I.R 1964 S.C 461 (61). The phrase ‘according to law’ has been held to justify interference when ‘there is miscarriage of justice due to a mistake of law’: see Phiroze Bamanji Besai v. Chandrakant M. Patel and others' A.I.R 1974 S.C 1059, 1063 (62).

117. A decision on a question of fact can be revised if it can be shown ‘that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse’: see Mattulal v. Radhe Lal, A.I.R 1974 S.C 1596. That includes an error resulting from ‘perversity of appreciation of evidence’: see M/s Deccan Wine & General Stores v. A. Eashwaraiah and four others, 1980 (2) Rent L.R 563, 575 (52), and Ram Parkash Saroj v. Mohinder Singh, 1981 D.R.J 113 (53). Some of the errors, to which I have referred, come also within this category. In any case the finding of the Additional Rent Controller that premises are ‘required bona fide’ by Savitri Devi is the result of errors and misapplication of the law, and is unreasonable, arbitrary and perverse. Therefore, I entertain no doubt that, in the circumstances of this case, I can interfere with that finding notwithstanding that I am dealing with the matter in revision. I further think it is necessary to do so to prevent a miscarriage of justice.

118. Thus, whilst I agree with the Additional Rent Controller that the premises were let to Waryam Singh for residential purposes, I reverse his finding that they are ‘required bona fide’ by Savitri Devi. Accordingly, this petition is allowed, and the petition for eviction filed by Savitri Devi is dismissed. Having regard to all the circumstances of the case, I make no order as to costs.

Revision Petition allowed.