A.B. Saharya, J.
(1) By this petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 (hereinafter called the Act), the petitioner-landlord has challenged an order dated 16th of February 1991 passed by the Additional Rent Controller, dismissing the application filed by him against respondent No.1 for recovery of possession of Bungalow No.H-4, Green Park Extension, New Delhi under Section 14(1)(c) of the Act.. he CR.338/91
(2) The petitioner filed the eviction application in March, 1986 on the plea that the premises let out to respondent No.1 by and under a lease deed dated 2nd of September 1970 for residential purposes are required bona fide by him for occupation as a residence for himself and for members of his family dependent of him, that he along with his brother Harjeet Singh Ahiuwalia respondent No.2, is co owner of the premises, and that be has no other reasonably suitable residential accommodation. He is an Indian national a- Barrister practicing law and living in Nairobi (Kenya). His work permit was due to expire. He wants to come back and settle down in Delhi. His family comprises himself, his wife and two sons who also will .come and live with him here. He does not own any other property in India.
(3) Respondent No.1 contested the application. He denied averments made by the petitioner. He pleaded that the petitioner had many times asked him to enhance the rent and that be bad come to know that the petitioner was negotiating with property dealers to sell out the property. He alleged that the application for eviction was mala fide.
(4) The Additional Rent Controller, after examining evidence produced by the parties, has found that the premises were let for residential purpose only, that the petitioner is co-owner and entitled to make; the application for eviction, and that he has no other reasonably suitable residential accommodation. The Controller has, however, observed that the petitioner has not produced the work permit which is alleged to have expired, and there is nothing oh record to prove that the petitioner was being forced to close his lucrative .practise and leave Kenya. He has also commented that if the petitioner's requirement was bona fide, he would have shifted to Delhi and would have started residing in the house of his otber..brother at Hauz Khas which was earlier occupied by his father, or even in some rented accommodation rather than continuing to stay in Kenya. For these reasons, the Controller has concluded that the petitioner did not require the premises bona fide for occupation as a residence for himself or for any other member of his family and dismissed the application. This is the order under challnage.
(5) Learned counsel for the petitioner has challenged these findings as erroneous and perverse. He has referred to the following statement of the petitioner recorded as Public Witness I:-
'.....MYwork permit to live and practice in Nairobi expired on 16.4.87. I require the suit premise's for occupation as a residence for myself and for my family members consisting of my wife, two sons aged 30 and 27 respectively and as I do not want to live any longer in Nairobi. I possess Indian Passport. I have also brought the original work permit which expired on 16.4.87. I am living in Nairobi under force circumstances till such time, I get a vacant possession of the suit premises from the respdt....'
(6) From this statement, it is clear that the petitioner had brought with him the original work permit which bad expired. In the absence of any cross- examination, no inference can be drawn against him on this score. Further, it appears that the Controller did not properly appreciate the change in migration laws of Kenya in 1985 that had prompted the petitioner to come back and settle down in India. The provision made .in Sections 18 and 19 of the Kenyan Migration Act read with 'Legal Notice No.12' issued by the Minister of State of Kenyan Government in the year 1985 show that the earlier freedom given to migrants to live and practice law in Kenya was considerably restricted and was regulated by work permits which require renewal from time to time. The petitioner, asserts his counsel, finds it inconvenient and humiliating to seek renewal of his work permit from time to time, and his self respect as an Indian has urged him to take a decision to come back to his own country. It is true that the petitioner is still living in Kenya. On this ground alone, his claim should not be turned down. He is an Indian national. He continues to hold an Indian passport. He has been frequently coming to Delhi and is actively pursuing the proceedings. He owns no other property in India. This is enough to show that be is really interested in coming back and settling down permanently here. There appears to be no justification for the Controller to conjecture that if the petitioner genuinely required a place to live in Delhi, be would have shifted and started living with his father, who has since died, in his other brother's house at Hauz Khas, or even in some rented accommodation in Delhi. This is stretching too far the test of bona fide requirement by assuming that the owner-landlord should count on the law to help him in recovering from the tenant possession of his own property only after he comes and starts living at the mercy of others in Delhi.
(7) Counsel for respondent No. 1 has laid stress upon the fact that brothers of the petitioner and both of his sons are living abroad. I find no force in this pica. Intention of the petitioner cannot be- fairly judged by what his other brothers may like to do. So far as his two sons are concerned, merely because the petitioner has sent one to Germany and the other to America for further education, it cannot be said that he or even his sons really do not want to. come back to India.
(8) In Pritam Shah Singh V. M/s. Climate Engg. & Maintenance Company, 1988(1) Rcr 305, the plea that the landlord's children were living in U.S.A. and that he also did not live in India was negated by Mahinder Narain, J. on the statement of the landlord that he continued to hold an Indian passport and wanted to live in India. It was held that there was no reason to disbelieve that the landlord needed the premises in Delhi for his residence. In M/s. Hi-Bred (India) (P) Ltd. V. Ravi K. Kumar and am., 1989(2) Rcr 668, Bahri, J. had occasion to deal with a case where the landlord himself was holding Green Card from the United States of America, and the sons of the landlord were studying in Delhi at the time of filing of the eviction application, but later they also had gone to United States of America for higher education. It was specifically urged that green..cards are given by the United States of America to special category of persons who had intention to live permanently in that country. Even in these circumstances, it was held: '.....The mere fact that the landlords have obtained the Green Cards in United States of America which enabled them to live in America without the necessity of their seeking frequent permission after expiry of some time, would not lead to any inference that they have no bona fide need to come over to India and live in India....' It was also observed that the fact that the landlord had at one point of time, for convenience sake, obtained the green card from the Government of United States of America would not throw any doubt on the resolve made by them subsequently that they would like to live in their own country. It was held- that neither the Court nor the tenant can dictate to the landlords not to come back to their own country and to live in their own houses. The observations made in these two cases apply with full force to the facts and circumstances of the present case.
(9) On the other hand, the respondent-tenant has produced no cogent evidence to substantiate the plea of mala fides based on the allegations that the petitioner bad many times asked him to enhance the rent and that the petitioner was negotiating with property dealers to sell the property. When the petitioner came into the witness box as Public Witness -1, no question at all was put to him with regard to these two factors in his cross-examination. The tenant himself stated in his examination-in-chief as RW-1 that the petitioner met him. in February, 1986 and told him that unless he got a fair return in the shape of rent on the then prevailing market value of the property, he would not be interested in keeping him as a tenant. This is the only instance given by the tenant although the plea taken in the written statement was that the landlord had 'many times' asked him to enhance the rent. It may be noted that the application for eviction is signed, verified and dated 15th of February 1986 though it appears to have been instituted in March, 1986. The landlord had also issued a notice dated 21st of August 1985, Ex.PW-1/5 to the tenant demanding vacant possession of the premises on the ground of his bona fide requirement. After the petitioner had already made up his mind to seek recovery of possession of the premises, it is unlikely that he would have approached the tenant with the demand to increase rent. With regard to the other factor, namely, alleged intention of the petitioner to sell the property, Prem Chand Jain R.W.I stated, in response to a question in his examination-in-chief, that his brother-in- law Suresh Chand Jain, had informed him that the petitioner had approached some property dealer for selling the house. This part of the question was quite rightly objected to on the ground that 'it was hearsay and was not admissible in evidence. Then, RW- 7 Suresh Chand Jain was produced as a witness. He stated that one and a half or two years ago, be met one Kailash Chand Jain who told him that the petitioner was looking for someone who could purchase the property. This statement is equally worthless. What Kailash Chand Jain told him cannot be taken into consideration as evidence. Kailash Chand Jain was not even produced as a witness. The tenant has completely failed to substantiate the allegations of mala tides.
(10) Nonetheless, with a view to supporting the impugned order and securing eventual dismissal of the eviction application, Mr. Ishwar Sahai, learned counsel for the contesting respondent contended that the finding on the question of letting purpose ought to have been in his favor. No doubt, if it is held that the premises were let for residence-cum-office purposes, the petitioner's application for eviction on the ground of personal requirement under Clause (e) of Section 14(1) of the Act must fail. The Controller's conclusion that the premises were let for residential purposes only is based upon proper construction and interpretation of Clause 9 and Clause 18 of the lease-deed Ex.PW-1/3. Even otherwise, on appreciation of the evidence on record, he has found that income-tax assessment order, electricity and water bills and entries in the telephone directory indicating address of the premises as office of the respondent do not establish that letting or user of the premises was for residence-cum-office purposes; and further that use of only two rooms on the ground floor cannot be said to be the 'dominant purpose' for which the premises were let.
(11) Initially, Mr. Keshav Dayal, learned counsel for the petitioner, objected to the respondent raising a challenge to the finding regarding letting purpose because the respondent had not filed any cross-objections envisaged under Order Xli Rule 21 Civil Procedure Code within the prescribed period of limitation. In view of the decisions in Shankar Ramchandra Abhyankar V. Krishnaji Dattatraya Bapat, : [1970]1SCR322 , Ram Doss V. Ishwar Chander and others, 1988 Sc 1422 and Smt. Rajbir Kaur and another V. M/s. S. Chohosiri and Co., : AIR1988SC1845 , no doubt can entertained that revisional jurisdiction is innate part of the appellate jurisdiction of the High Court and that the provisions made in Order Xli Rule 22 Civil Procedure Code are also applicable to the present proceedings. Further, in view of the principles explained in M/s. Tide Water Oil Companyp73 (India) Ltd. V. K.D. Banerjee, 1982(2) Rcr 638, M/s. Shiv Shankar Prasad V. Union of India, Air 1984 Pat 348 and Balkishna Das Agarwal V. Smt. Radha Devi and others, : AIR1989All133 , it is clear that a person is entitled to support a decree or order, without filing cross appeal or cross-objections, even on those points that have been decided against him in the course of discussion in the judgment under appeal for the reason that such a person not being aggrieved, of the ultimate decree or order has no right to appeal against it. Since there is no need for filing cross-objections, the question of limitation also does not arise.
(12) For ascertaining the true intention of parties regarding letting purpose, the lease-deed Ex.PW-1/3 has to be read as a whole. The principles for interpretation of a document are too well settled. The relevant ones may, however, be stated. When words are clear, nothing else is to be seen. All the provisions of the document have to be construed harmoniously so as to give effect to all the terms and conditions together. In case of conflict between any two clauses, the earlier disposition will prevail over the latter. Now, the relevant portions of the lease-deed describing the premises and setting out the terms may be read:-
'THAT the Lesser hereby leases to the Lessee the following described premises viz: 1. H4 Green Park Extension full Bungalow 4 Residential Flats with Garage and. Servant quarters front and rear lawns etc. Now This Deed Witnesseth As FOLLOWS: x x x x x 9. That the Lessee shall use the premises for residence only. xxxxxx 17. That the Lesser shall pay ail the taxes of any kind whatsoever, including house tax and ground rent, as are or may hereinafter be assessed on the demised premises by the municipality or any other Authority whatsoever, provided the premises are used for residence only. 18. That in case the Lessee wants to utilize the premises whole or partly for office purposes, the Lessee shall have to get permission from the Government and be liable to pay for any penalty, extra ground rent etc. levied by the local or Govt. Authorities.'
(13) The description 'Bungalow' and four 'residential flats' point to residential nature of the premises. Then, use of the premises is regulated by Clause 9. It is clearly restricted - 'for residence only'. The meaning of the word 'only' as given in the Webster's Third New International Dictionary is 'just the one simple thing and nothing more or different' or 'exclusively', 'solely'. It excludes every other kind of use. Clause 17 also uses the restrictive expression 'residence only'. A stipulation identically worded as this Clause was the subject matter of discussion before the Supreme Court in V.S. Talwar V. Prem Chandra Sharma Air 1984 Sc 664. That case also had arisen out of an eviction petition under Section 14(1)(e) of the Act. It is explained in para 10 of the judgment that this clause necessarily means that what had been stipulated was only residential user and that p73 this, apart from the others, is an added provision to clinch the point in dispute against the tenant. Next, in the arrangement of[ the relevant terms set out in the lease deed is Clause 18. The question for consideration is: what is the effect of this clause.
(14) Learned counsel for the respondent has contended that there is no conflict between Clause 9 and Clause 18 of the lease-deed, that the former is qualified by the latter, and that the two are to be read together. He has placed reliance upon decision of the Privy Council in Probes V. Git and others, Air 1921 P.C.209. Indeed, in this case, the principle of law is succinctly stated in these words:-
'IF in a deed an earlier clause is followed by a later clause which destroys altogether the obligations created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails.........But if the later clause does not destroy, but only qualifies the earlier then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole.'
(15) Now, let us examine whether Clause 9 and Clause 18 can be harmoniously construed and worked together. Clause 9 undoubtedly is a stipulation controlling the letting purpose. It binds the lessee to the obligation in express and mandatory terms to 'use the premises for residence only'. Should Clause 18 be viewed as' a provision for escape from this obligation, it will destroy altogether the obligation created by the earlier clause. If Clause 18 also is taken as a provision for regulating the letting purpose, it will be in clear and direct conflict with the earlier clause on the same subject. As a result, the later clause is to be rejected as repugnant, and the earlier clause must prevail. On the other hand, this clause may well operate harmoniously in the scheme of the lease-deed if it were to be construed as a provision specifying the consequence of the Lessee deviating from Clause 9 i.e., that he shall be liable to pay for any penalty etc. levied by the local or Government Authorities for such deviation. This interpretation is consistent with Clause 9 as well as Clause 17 which envisages liability of the Lesser to pay all taxes and charges etc. provided the premises are used for residence only. For this additional reason, the later interpretation must be preferred for giving full effect to ail the terms, rather than rendering redundant any part of the lease-deed.
(16) In Y. Rajeshwari V. Bombay Tyres International Ltd., : 37(1989)DLT22 , Bahri, J. was confronted with a similar question arising out of a stipulation contained in the lease-deed which read as follows:-
'THE tenant may use the premises for residential purposes, and (in) case the tenant uses the premises for any purpose or purposes other than residential, then all the penalties, taxes, claims, demand of any kind, nature and description made and/or imposed by any authority whether local Governmental or otherwise shall be payable by the tenant.'
Thus, the letting purpose as well as the consequence of breach thereof were prescribed in one and the same clause of the lease-deed. It is pertinent to note that although the restrictive word 'only' was not there, yet Bahri,J. observed: '......the mere fact that in clause 111(2) the mandatory words have not been used that .the tenant shall use the premises only for residential purpose, does not mean that there was any ambiguity with regard to the letting purpose agreed upon by the parties.......Clause 111(2) makes the tenant liable for paying penalties etc. if the tenant uses the premises for any other purpose other than residential but that does not mean that the landlord had given any permission to the tenant to use the premises for a purpose other than residential'. These observations apply with greater force to the present case. .
(17) Mr. Ishwar Sahai, learned counsel for the respondent has also cited S. Kartar Singh V. Chaman Lal and others, : [1970]1SCR9 . This, according to him, is the nearest case to show that in similar circumstances the Supreme Court held that the premises were let out for a composite purpose. It was stipulated in the rent deed 'that the tenant agrees to use the property for his residence'. On the same date, a letter was written by the tenant to the landlord saying 'As per our oral talk regarding your tenancy for my house No.6/64, I have no objection to your having your professional office 'Along with residence' there provided it is not inconsistent with the provisions of Delhi Improvement Trust Act'. It is pertinent to note that in this case there were two separate documents, though written on the same day, dealing with the purpose for which the premises were let out. The question of proper interpretation and effect of two clauses in the same document did not arise. Even otherwise, the Supreme Court .did not base its decision upon interpretation of the rent note and the said letter. Para 8 of the judgment clearly shows that the concurrent finding of the Courts below that the premises had been taken for residential-cum-business or professional purposes was 'accepted as final'. The rest of the discussion in the judgment is based upon this assumption. To my mind, this decision is of no avail.
(18) Next, learned counsel for the respondent relied upon judgment of the Supreme Court in Smt. A.N. Kapoor V. Smt. Pushpa Talwar, : [1992]1SCR472 to contend that actual user of part of the premises in question for office purposes takes the premises out of the ambit of 'premises let for residential purposes' so as to exclude the ground contained in Clause (e) of Section 14(1) of the Act. In this case, no doubt, the premises were initially let out for residential purposes. On the basis of documentary and oral evidence on record, it was found that the tenant had .been using the premises, apart from her own residence, for putting up foreign students as. her paying guests. She earned her livelihood from the income she received as lodging fee from students who lodged with her and it was out of that income that ail her persona] expenses including the rent payable by her for the premises had been met. The landlord had knowledge of all this from the very beginining. In these peculiar circumstances, the Supreme Court held that the landlord bad impliedly consented to user of the premises for commercial purposes and such user takes the premises out of the ambit of Clause (e). In the present case, however, there is nothing on record to show that the petitioner had given his consent expressly or impliedly to use of the premises for office purposes. Indeed, the petitioner has been living abroad and as such cannot be said to be aware of any such activity. This judgment also is of no help.
(19) The lease-deed Ex.PW-1/3 contains a clear covenant restricting use of the premises 'for residence only'. No other evidence can be looked into for ascertaining the letting purpose. Even otherwise, the Controller is right in holding that the circumstances like the income-tax assessment order, electricity and water bills and entries in the telephone directory etc. showing the premises as office of the tenant's firm P.C. Jain & Sons do not establish that the premises were let for residence- cum-office purposes. It is well established by a number of decisions including Waryam Singh Duggal V. Smt. Savitri Devi, 1984(1) R.L.R.428 and Suresh Ch. Jain V. Vinesh Ch. Sheth, 1986 R.L.R.17 that putting up signboards in the name of the tenant firm, getting telephones in the Firm's name or opening bank accounts giving residential address or receiving business letters at the residential address does not establish the letting purpose or the actual user of the premises for purposes other than residential. No doubt, in the case of Waryam Singh Duggal (Supra), T.P.S. Chawla, J. has held that the concept of 'dominant purpose' is not applicable in cases under Section 14(1)(e) of the Act. This finding of the Controller is really of no consequence is view of the correct conclusion reached by him on the question of letting purpose, especially on the interpretation and effect of the stipulation made in the lease deed Ex.PW-1/3. Consequently, I find no substance in the challenge to the finding recorded in the impugned order that the premises were let for residential purposes only.
(20) Let me now advert to another aspect of the matter. After learned counsel for the petitioner had concluded his arguments in the affirmative, the respondent made another on affidavit to surrender a part of the premises as if to test genuineness of the petitioner's requirement of the premises for settling down in Delhi. Initially, he proposed to surrender 'one independent flat comprised of three bed rooms, drawing- dining with other amenities connected with said flat' which, according to him 'will suffice the requirement of the petitioner'. This, of course, was based on the assumption that neither of the two sons of the petitioner 'has any intention to come back to India or stay with the petitioner'. He was willing to vacate and hand over possession of the flat to the petitioner 'within three months to enable the petitioner to occupy the same within two months from the date of handing over', and to continue to pay rent for use and occupation of the remaining portion of the premises at the agreed rate of Rs.2,500.00 per month. He suggested that in case the petitioner does not shift to India permanently, provision should be made for redelivery of possession of the surrendered flat to him. In the end, be affirmed 'The deponent is also agreeable to any other reasonable term and condition in this regard'. .At first sight, this proposal appeared to be quite fair.
(21) The petitioner filed a counter-affidavit. He alleged that the offer was motivated to prejudice the mind of the Court at a late stage and even otherwise it was 'not unconditional'. He proposed that if the offer of the tenant was at all to be considered, he must surrender at least the complete ground floor along with garage block and the Barsati floor in which he would carry out necessary repairs/ alterations and would occupy the same within one month. He explained that be would require accommodation 'for a study room and a separate chamber for consultation and conference with clients as the petitioner is a Barrister and would practice law in this country on his return'. He claimed that be is used to living in spacious accommodation and even at Nairobi, be has a house 'comprising of 5 large bed-rooms (with 4 attached bath rooms), with other amenities including a large kitchen, two stores, dhobi room, a double garage, a separate three bed roomed servants quarter with all amenities and a large garden'. He expressed his willingness, however, to let the tenant retain the rest of the premises on his undertaking to deliver possession of the remaining portion of the premises as well within a period of three years. He asserted: 'Although the accommodation would not be sufficient for deponent but he would manage with the same for the period of 3 years under the circumstances'. He explained further that his two sons have not joined him back in Kenya as yet as they 'cannot take any employment or enter into any business or profession or to do any act for remuneration', that they are staying in Germany and U.S.A. 'under forced circumstances', that the moment be himself shifts to India, bids sons would also come to Delhi and stay with him, and that in any case 'the deponent requires to keep the accommodation with him for the visits of his two sons and their families'. The rate of rent for the remaining portion of the premises, he declared, 'can mutually be settled'.
(22) Parleys were held in order to get the two sides closer to achieve settlement. But, the negotiations ultimately failed as respondent was not willing to go any further than to surrender possession of half portion on the ground floor and the other half on the first floor so as to meet the petitioner's professional and personal requirement. This arrangement, however, was not considered by the petitioner to be convenient as it will not be feasible for making alterations and additions necessary for a compact and purposeful utilisation of the place. On a detailed examination of the possibilities of alterations and additions in the existing structure, it appears that the petitioner is right. The premises, no doubt, are described in the, lease-deed a& four residential flats. But, the plan Ex.PW-1/4, shows that the accommodation on each floor can he conveniently used as a single compact unit. If the premises on the ground floor and the first floor arc to be vertically divided into two parts, then each flat will be left with three small rooms, hardly fit for use as double bed rooms, each measuring about II' x 13', only one lavatory measuring 11'O' x 5'6', all laid out in a row, and parallel running rectangular shape drawing and dining room measuring 24'3' xl3'2-l/4' and 8'7-l/2' x 7'0' kitchen. This would really be converting each flat, in the words of learned counsel for the petitioner, into a 'railway bogie'. Such an arrangement for living in half portion on the ground floor and the other half on the first floor will be as inconvenient for the landlord as it would be for the tenant himself. The only reason given by the tenant for making this kind of a suggestion is that be has in his family elderly persons who are unable to climb up the stairs and will be able to live only on the ground floor. It may be so. The question is not of any comparison of the requirement, convenience or comfort of one party against that of the other. the basic question is of the bona fide requirement of the landlord to live and practice his profession in the house which belongs to him. It is not for the tenant and not even for the Court to tell the owner-landlord how he should live or how he should adjust himself by squeezing and stuffing up his residence, chamber, library etc. into such accommodation as the tenant may spare.
(23) In these circumstances, it appears that the offer to surrender a part of the premises was made by the respondent only to detract attention from proper determination of merits of the case. Eventually, the stand taken by the landlord turned out to be' far more reasonable than that adopted by the respondent. Here also, the petitioner has passed the test of bona fide requirement of the premises for his residence.
(24) Consequently, it is found that the premises were let out for residential purposes and that the same are required bona fide by the petitioner for occupation as a residence for himself and for members of his family dependent on him. The impugned order is set aside. The petition is allowed with costs.