V. M. DESHPANDE, J.

( 1 ) THE petitioner sued the appellant for eviction on the ground of bonafide

requirement. The Controller was not satisfied and he dismissed the petition. In

appeal the Tribunal reversed the Order and tenant appealed to the High Court

where his appeal was accepted.) Paras 7 to 15 of the High Court Judgement are :-

( 2 ) IN this second appeal by the tenant before me, two main contentions are

raised viz. (i) the evidence adduced by the landlady regarding her bonafide

Necessity to occupy the particular flat presently in the tenants possession was

contrary to her pleading and even otherwise the landlady had failed to prove such

bonafide necessity, and (ii) that the landlady was already in occupation of

reasonably suitable residential accommodation. The first contention requires a

careful understanding of proviso (e) to 14 (1) of the Act. The proviso (e) to section

14 (1) are divisible into two parts viz. (i) those relating to the conduct of the tenant

and (ii) those relating to the need of the landlord irrespective of the conduct of the

tenant. Proviso (e) falls into the second class. As the conduct of the tenant is quite

blameless, it is necessary for the landlord to prove fully the requirements of proviso

(e) before he can succeed in evicting a tenant whose conduct has given no cause of

action to the landlord. It is crucial that the requirement of the landlord for the

premises should be bonafide or in good faith. According to Section 3 (22) of the

General Clauses Act, 1897, a thing is deemed to be done in good faith, where it is in

fact done honestly. Is the landlady acting honestly in demanding possession of the

premises The lease of this flat to this tenant and of the adjoining flat to one Shri

Mathur was given by the land lady in 1963. The pleading in para 1. 8 (a) of the

eviction petition was that the premises were let to the respondent temporarily for a

limited period of one year and the respondent had agreed to vacate the premises

after one year but he failed to vacate the same. Had this pleading been true the

landlady would have asked the tenant to vacate after the expiry of one year of the

tenancy. There is no credible evidence to show that this was done. Even the other

tenant Shri Mathur continued in occupation till 1966. The landlady had built the

building and annexes consisting of flats only for the purpose of letting them out. She

was thus aware of the ordinary law relating to tenancy. She could not be so-naive as

to believe that she could let out both the flats for one year and could expect to get

them back from the tenants without difficulty. Neither the Controller nor the

Tribunal has even referred to the letting been for one year only. Obviously, both the

courts considered the plea not worth consideration being totally unbelievable.

( 3 ) THE landlady and her husband in evidence stated that the reason for letting

out the pre nises was that the financial condition of the landlady had deteriorated.

About this, we have only the evidence of the landlady and her husband and of no

one else. The Controller could not believe such evidence particularly because it was

not shown to him that the landlady was an income tax payer. The Tribunal has,

however, believed the evidence and also that the landlady was an income tax payer.

Ordinarily, the finding of the Tribunal would be binding on me. But in the present

case it is vitiated by the following reasons : - (i) the specific reason given by the

Controller that the case made out by the land lady in her evidence was not stated by

her either in the petition or in the replication was not at all considered by the

Tribunal. After the land lady bad stated in the petition that the tenancy was for one

year, the tenant denied that the tenancy was for one year. The land lady had an

opportunity then to say in replication that alternatively the tenancy was given

because the land lady needed money due to worsening of her financial condition

This was not done. The argument, on which the Controllers judgment was based

was not answered by the Tribunal. In ground No. 4 of the appeal before me, this

ground of variance between the pleading and evidence has again been raised by the

tenant. Order 6 Rule 2 Civil Procedure Code requires that a pleading shall state the

material facts on which the party pleading relies for his claim. . . . . but not the

evidence by which they are to be proved. " The language of proviso (e) contain only

a statement of law. A mere reproduction of the language is ot, therefore, a sufficient

pleading. The facts constituting the need of the landlord would diner from case to

case and must be stated. The land lady in this case chose to state the facts on

which she relied for her claim falsely. Can she then be allowed to give evidence that

the reasons for letting was a different one viz. her need to raise additional money

The answer to this question would ordinarily be in the negative. The reason is that

the opposite party is taken by surprise if the petitioner is allowed to give evidence

contrary to the pleading. The trial is thus vitiated. This is irrespective of the question

whether the evidence given contrary to the pleading is true or false. It is rejected

primarily because the opposite party was denied the opportunity of meeting the new

case made in evidence. It is only if, despite the variance between the pleading and

the proof, an issue was clearly raised and both the parties adduced evidence on the

said issue that it can be said that no prejudice was caused by the variance between

pleading and proof. In the present case, the issue was whether the need of the land

lady was bonafide. The tenant was put on notice only by the pleading of the land

lady. He succeeded in demolishing the case pleaded by the land lady viz. that the

tenancy was given only for one year. He was taken by surprise by the evidence

given by that landlady that her financial condition had worsened and, therefore, the

lease was given and that by 1968 the financial condition had become belter again

and hence she wanted the premises back. The income of the landlady was a fact

within her special knowledge. The burden of proof was thus on her to show that her

income in 1963 had gone down as compared to her income previous to that year

and that her income in 1968 had again come up. This could be shown by production

of income tax documents if she was an income tax payer or by some other credible

evidence such as account books etc. if she was not an income tax payer. The best

evidence in the possession of the landlady was with-held by her. An adverse

inference, therefore, arises against her. It is true that the tenant did not ask her to

produce the income tax documents or account books but this is because the tenant

was taken by surprise. The tenant was not in a position to meet the new case made

out by the land lady. There is, therefore, no reason why the trial should not be held

to have been vitiated because of the variance between the pleading and the

evidence adduced by the land lady. It is established law that no amount of evidence

can be looked at if it is contrary to the pleading. This reason alone is sufficient for

the rejection of this evidence. But there are other weighty reasons too. (ii) In 1966

the Land Ladys husband had involved tenant and his son in a criminal case but they

were both acquitted. (iii) The land lady had also filed a civil suit against the tenant in

the court of Additional Judge Small Causes Court but the suit was dismissed, (iv) In

1967, the land lady cut off first the water and then electricity of the tenant and he

had to take action against her under Section 45 of the Act. The conduct of the land

lady showed that she wanted to harrass the tenant and turn him out by illegal

methods because she had no valid grounds to ask for his eviction. Had the tenancy

been only for one year, she would have asked him to vacate in 1964. (v) In 1967,

she advertised the whole building for sale. This conduct was conclusive to show that

she had no bonafide need to reside in the flat occupied by the tenant. For, after

selling the house, she would not have been able to get possession of the flat form

the tenant, (vi) In 1967-68, the land lady sought the license from the Deputy

Commissioner to turn the building into a hotel. This again meant that the land lady

did not need it for her own residence. This conduct was very close in point of time

to the filing of the petition for eviction in 1968. The Controller thought that this

conduct was inconsistent with the intention of the land lady to reside in this

building. The Tribunal thought that in 1971 when it decided the first appeal, the

house had not still been sold though 4 years had passed from the date of the

advertisement for sale. He concluded, therefore, that there was nothing on record to

show that she had any mind to sell the property now. If by the word "now" the

Tribunal meant the year 197j, then his reasoning perhaps is that the land lady had

changed her intention to sell the house in 1971. This would still mean that in 1967

she had the intention to sell the house. In 1967 therefore, she did not intend to

reside in the house, it was incumbent on her, therefore, to show that there was any

reason for her to change her mind in 1968 and that she really intended to reside in

this house in 1968 when she filed the petition for eviction. The Tribunal has not

been able to explain why this circumstance was not taken by it into account against

the bonafides of the land lady. The reasoning of the learned Tribunal regarding the

intention of the land lady to run a hotel in this building in 1967-68 is equally

unsatisfactory. In paragraph 20, the Tribunal stated :- "no license was granted.

Therefore, now it cannot be said that the land lady did not bonafide intend to

occupy the flat in dispute for her own residence. "

( 4 ) THIS again meant that in 1968, the land lady did not want the house for

residence but merely because she did not succeed in getting the license she wanted

to live in the house in 1971, when the Tribunal was deciding the appeal. This almost

amounts to saying that though the Controller was justified in dismissing the petition

as filed as the land lady had no intention of occupying the house, the Tribunal could

come to a different conclusion in 1971 merely because it found that the land lady

had become unsuccessful either in selling the house or making a hotel out of it and,

therefore, in 1971 the land lady must have decided to reside in the house as a last

resort. Surely, this is no reason to reverse the decision of the trial court.

( 5 ) THE land lady had always at her disposal 8 flats in the main building and 4 flats

in the two annexes. Various flats were vacated from time to time and were re-let to

other tenants. She had thus ample opportunity to secure a residence for herself in

those flats if she wanted to do so. It is true that she was residing in the two flats on

one side of the stair-case upto 1963. The reason why she shifted to the annexe is

not known. In her evidence she says this was due to bad financial position. It is in

evidence or at any rate this was said in arguments that the flats in the main building

were let out at Rs. 150. 00 per month and those in the annexes at Rs. 120. 00 per

month. The difference was of only Rs. 30. 00 per month. By shifting from the main

building to the annexes, there- fore, the land lady was saving only Rs. 60 per

month. It is not known whether she was in such a bad financial condition that even

this much saving had become necessary. She has called the annexes as servant

quarters in her replication. But the difference between the flats in the main buildings

and of flats in annexes has not been shown to be so great as to suggest that the

quality of the flats in the annexes was so much worse than the quality of the flats in

the main building Admittedly the land lady lived in the annexe for 5 years before

filing the petition for eviction. Without any pleadings and proof that her financial

condition in 1968 had become much better than the one in 1963, it cannot be

believed that this was the reason why she wanted to shift back to the main,

building.

( 6 ) THE learned Tribunal attached importance to the wealth of the land lady who

was the owner of the main building as well as two annexes. If that was her wealth

then the income from re at was on the increase and not on the decrease. It is in

evidence that flats which had become vacant were la er let out to others such as

Maheshwari at a higher rent of Rs. 200. 00. Firstly, therefore, this evidence goes

contrary to the case of the land lady that her financial condition had worsened and

secondly the increase in rent by her lends credence to the case of the tenant that

she wanted to evict him mainly to get a higher rent for her flat.

( 7 ) I am of the view, therefore, that the inference from the admitted facts of the

case drawn by the Controller that the land lady did not need the premises bonafide

for her residence was correct and the reversal of the decision as the Tribunal had no

reason at all to draw a contrary inference from the same facts. As I had occasion to

point in Saiddndin. V. Mahabir Singh AIR 1971 Delhi 240, the inference from primary

facts may be called a finding of secondary fact. Such an inference is one of fact if it

can be drawn by a lay man but would be a conclusion of law if it involves

construction of a statute- In the present case, the inference is whether the land lady

had a bonafide need for the premises within the meaning of Proviso (e) to Section

14 (1 ). This was, therefore, a question of law. In view of the divergent inference

drawn by the Controller and the Tribunal it becomes a substantial question of law

within the meaning of section 39 of the Act giving me jurisdiction to entertain the

appeal and decide this question.

( 8 ) THE second contention of the tenant appellant is also well taken. During the

pendency of the appeal before the tribunal Shri O. P. Sharma vacated a ground floor

flat on the other side of the stair-ease. The flat in the occupation of the land lady is

separated from O. P. Sharmas flat only by the stair-case. The land lady had thus

two more options before she could demand the vacation of the flat in dispute.

Firstly, she could continue to live in the annexes as she did for 5 years. No credible

reason is given why she wanted to shift from the annexes to the main building.

Secondly, she can combine the flat in her occupation with the flat vacated by O. P.

Sharma, though it is separated by a stair-ease. Surely, it would be more convenient

for her if she were to get two flats on the same side of the stair-case. The question

however, is whether the possession of two flats separated by a stair-case would not

amount to "reasonably suitable residential accommodation" within the meaning of

Proviso (e) to Section 14 (1 ). The only difference between what the land lady wants

and what she has is this. She wants two adjoining flats on one side of the stair-case.

She has two flats separated by stair case. It is clear that the latter is not as good as

the former. It appears to me, however, that it is not necessary that a "reasonably

suitable residential accommodation" within the meaning of provisio (e) must be as

the premises from which the tenant is sought to be evicted. The words "reasonably

suitable" are important. They show that the accommodation in the possession of the

land lord has to be judged independently of the accommodation from which the

tenant is to be evicted. If accommodation with the land lady is reasonably suitable,

it does not cease to be so because the accommodation with the tenant is a little

better. A comparison between the two is not relevant for the construction of the

words "reasonably suitable" in proviso (e ).

( 9 ) IT is urged by the learned counsel for the respondent relying on Smt. Chandra

Wati V. Narain Doss 1970 Rent Control Reporter 85 that it is for the land lord to

judge his or her needs and the Controller should not become the judge thereof. It

appears to me that there is nothing in Proviso (e) to suggest that the need of the

landlord is to be judged in his subjective discretion. On the other hand the

requirement that the need should be bonafide empowers the Controller to decide

whether the need is an honest one or in other words whether it is reasonable. There

is not much difference between that the land lord honestly wants and what he

should in all honesty want. The latter imports the concept of reasonableness.

Therefore, both the need of the landlord and the accommodation other-wise

available to him have to be judged objectively by the Controller by the standard of

reasonableness. In the felicitous words of Holmes used in his "common law" the

conduct of a reasonable man implies that "when man lives in society, a certain

average of conduct, a sacrifice of individual peculiarities going beyond a certain

point is necessary for the general welfare. " In Suit. Kamla Soni Vs. Roop Lal 1969

Rent Control Reporter 1017 the quotation from the judgment of the High Court at

page 1019 expressly stated that the standard of a reasonable man" was applied by

the High Court in judging whether the need of the land lord was bonafide in

reversing the decision of the Controller and the Tribunal. The decision of the High

Court was upheld by the Supreme Court.

( 10 ) I see no reason why the accommodation in the annexes in which the land

lady resides for 5 years should not be regarded as "reasonably suitable residential

accommodation" for her within the meaning of proviso (e ). For, the land lady has

failed to plead and prove that she was forced to live in unsuitable accommodation

for some special reason. Further, it could not be said that merely because the

possession of two flats on one side of the stair-case would be more convenient, the

possession of two flats on either side of the stair-case is definitely not to be

regarded as a "reasonably suitable residential accommodation" for the land lady.

This is a special case in which the land lady has had many opportunities of selecting

accommodation for herself in any of her numerous flats. In view of this special

circumstances, it cannot be said that the land lady can insist on the possession of

the particular flat occupied by the tenant. The alternative accommodation is

reasonably suitable for her even though the particular flat of the tenant would be

even more suitable for her. But that involves the eviction of the tenant which cannot

be done unless the requirements of Proviso (e) are fulfilled. In the peculiar

circumstances of this case and the reprehensible conduct of the land lady and her

husband the possession of the annexes and or the two ground floor flats in the main

building must be held to be reasonable accommodation in the possession of the

landlady. She cannot, therefore seek to evict the tenant. Appeal Allowed.