R.L. Gupta, J.
(1) This revision petition has been filed by tenant against the order of eviction dated 293.1985 in favor of the respondent-landlord by the Addl. Rent Controller, Delhi (ARC). The landlord had filed an eviction petition against the petitioner in respect of a room and a Kotha on the first floor in House No.1331, Vaid Wara Maliwara, Delhi on the ground of bona fide personal necessity. Regarding necessity the landlord stated in para 18(a) of the petition that he had let out the premises for residential purposes. He had a small share in House No.2208, Kucha Alam Chand, Delhi where he had only two small rooms. His third son Ashok Kumar resided in those two rooms with his wife and three children. The landlord himself had two rooms, one Kotha and one kitchen in premises No.1331, Vaidwara, Maliwara, Delhi on the first floor and had no other residential accommodation in Delhi. The aforesaid portion was quite insufficient for his residence and the family members dependent upon him. The family members living with them were Dhanpal Jain, his wife and two children, the second son Chander Pal Jain, his wife and his two children and the third son Rajiv Kumar aged about 23 years. Thus in all there were 11 family members. Dhanpal Jain was earlier posted at Jaipur but had been transferred to Delhi permanently and was posted in the Bank of India. His children were school going and he was an Income Tax payee. The second son Chander Pal was stated to be an eminent Eye Surgeon paying income tax and had clinics in various parts of the city. Third son Rajiv Jain was a student of marriageable age. Besides the aforesaid relations, relatives of the landlord also visited him. The need had considerably increased because of the transfer of Dhan Pal Jain and it had become extremely difficult for him to meet his requirement in the available accommodation.
(2) In the written statement, the tenant stated that the landlord was trying to increase his family members un-necessarily to create demand for the premises. He further stated that if the family members were as mentioned by the landlord, his need could not be satisfied with the disputed one room and a Kotha in possession of the tenant. He further stated that the landlord had also a house in Kucha Alam Chand where he had sufficient accommodation. The earning members of landlord's family were not dependent upon him even for purposes of residence. The premises in dispute was not worth the residence of Dharam Pal Jain (wrongly stated in place of Dhan Pal Jain) and he could very well afford a house for himself and his family in a posh Delhi colony and, thereforee, his need could not be taken into consideration. The second son also being an eminent Eye Surgeon, according to the tenant, should live somewhere in South Delhi in the interest of his profession, and in any case near his clinic. The landlord was also stated to be actually living in Kucha Alam Chand and had wrongly shown himself to be a resident of the Vaid Wara house. The grand children of the landlord were not dependent upon him for residence because they lived with their parents and not with him. The petitioner has also mentioned the name of one Champat Rai. But the landlord has not mentioned any such name in his petition and it is not understood where from the name of Champat Rai has come. The petitioner further stated that the landlord had filed eviction proceedings against other tenants also and if he got possession of those premises, his need will be satisfied.
(3) The parties went to trial. The landlord examined himself only as witness in support of his case while the petitioner made his own statement as RW-1 and examined Hari Shanker as RW-2. By the impugned order, the Arc passed an eviction order against the petitioner. He has, thereforee, filed the present revision and I have heard oral arguments as well as considered the written submissions of learned counsel for the petitioner.
(4) Before adverting to the other arguments of the learned counsel for the parties, it will be better to first refer to the case of Hira Lal Kapur Vs . Parbhu Chaudhry, : [1988]2SCR1058 . This authority lays down the scope and the powers in revision available to the High Court under Delhi Rent Control Act. It held, in para 8,' Though under Section 25- B(8) of the Delhi Rent Control Act, the powers of the High Court are somewhat wider than the similar powers of revision under Section 115 of the Code of Civil Procedure, it is well established by a series of decisions of this Court that the power of revision under the Rent Control Act does not entire the High Court to enter into the merits of the factual controversy between the parties and to reverse findings of facts in this regard.' Learned counsel for the petitioner contended that the landlord's case is that he had two rooms in Kucha Alam Chand house and another two in Vaidwara house. But actually the site plan indicated that he had three rooms in the Vaidwara house. For that purpose, he drew my attention to the site plan Ex.A-4, copy of which is at page 39 of the paper book. It describes three rooms in possession of the landlord. The sizes of three rooms are 9'3' X 16'8', 10'X 6'3'and 13'x 6'2'. When the landlord, however, came to the witnessbox, he deposed that he had two rooms and a Kotha in his possession in House No.1331, Vaid Wara.
(5) thereforee, according to the learned counsel turn the petitioner, the landlord made a wrong statement because as against four rooms deposed by him he actually has five rooms as is apparent from the site plans of both the houses belonging to the landlord. Since according to the learned trial court, the need of the landlord is met with Five rooms, the landlord already having five rooms, the petition for eviction of the petitioner should have been dismissed by the ARC. I think this argument has no merit. As already stayed above the dimensions of the rooms show that two of those rooms have an area of less than 100 sq.feet. 10'x6'.3' is equal to 62.5 sq.ft. and the area of the second room is 13'x 6'.2' which is equal to 80 sq.ft. In the other house i.e. House No.1331,Vaidwara in the site plan actually the description of the property is one room and two kothas. The size of one room is 19'.9'xll'.3'. The sizes of the Kothas are 7'.3'x 8' and 6'x8'. Obviously, the sizes of both the Kothas exclude their inclusion in the definition of rooms. I say this because this Court already has taken this view in Uttam Chand Suri Vs.Smt.Ram Murti Gupta 1980 (2) R.C.J 410 that a room or a Kotha, area of which is less than 100 sq.ft. will not fall within the definition of a living room. To quote exactly from that authority at page 414, 'The store measuring 7'-7'x5'-5' over which there is loft cannot be said to be a living room but the tenant/appellant in his anxiety to show that the landlady has sufficient accommodation described the store as aroom. By any stretch of imagination the store cannot be treated as a living room. As regards the room which is being used as a kitchen its area is less than 100 sq.ft. The local commissioner's report is that this room under the main was being used as a kitchen and is so held by the Tribunal after considering the evidence on record. The question for decision is whether this room is a living room. The answer is in negative. The Delhi Municipal Corporation (Building) Bye-laws 1959 as amended from time to time prescribe the requirements regarding minimum size of a habitable room.-Bye-law 20 prescribes that no habitable room shall have a floor area of less than 100 square feet.' thereforee, strictly speaking as per mandate of the aforesaid authority the landlord is in possession of only two rooms, one situated in H.No.1331, Vaidwara and other in H.No-2208, Kinari Bazar, Delhi. thereforee, the finding of the learned Arc that the landlord was in occupation of two rooms in H.No.2208 is not borne out from record. The admission of the landlord to that extent in his statement seems to be mistaken. Measurements of the various rooms as given in the site plan filed by the landlord were not at all challenged by the petitioner. Admission of a fact by a party is not always conclusive and it can always be shown to be wrong or mistaken. In this case the statement made by the landlord to that extent is, thereforee, definitely found to have been made under a mistaken belief.
(6) H.NO.2208 is occupied by one of his son Ashok Kumar who resides in that house with his wife and three children. Now it is really a pity that the landlord is pulling on in practically one room with a family comprising of Ii persons. Even if it be taken that one of his sons Chander Pal who is a doctor by profession has built a separate house and has started living separately with his family, we will exclude Chander Pal, his wife Sunita, daughter Manisha and son Master Ansul. This leaves the remaining family members at 7. It is the settled law that even those children who have capacity to earn themselves could always be dependent upon their father for purposes of their residence. This circumstance of earning does not prevent them to be included in the list of dependents of their father for purposes of residence. Applying that principle which stands settled in a number ofauthoritiesandwhich,infact,isnotchallenged, it can be said that rest of the family members are dependent upon the landlord for their residence.
(7) Much of the controversy has been raised by the learned counsel for the petitioner on the fact that Ashok Kumar, a son of the landlord was actually residing at Surat and he had no residence in Delhi because he was having his business at Surat. In this respect the landlord stated that house i.e. H.No-2208 is occupied by his son along with his family. Obviously reference to the son is only to Ashok Kumar. He was cross-examined. He replied that Ashok Kumar was doing business in Delhi under the name and style of Rattan Lal Siri Pal Jain. He further clarified that they had a cloth office in Surat also where he, his wife Kiran mala and son Ashok are partners and that they go to look after that business for about 15-20 days every month. The cross-examination ended there and it was not either suggested to the landlord or any cogent evidence examined in this respect that Ashok Kumar was actually living in Surat permanently. Even if for the sake of argument, it is admitted that Ashok Kumar was carrying on business at Surat, nothing prevent a son to come to his parents' house at Delhi. He can always visit his parents. From that view also, it is necessary to permit the landlord to have an extra room where he could make comfortable his visiting son along with his family. This principle also stands settled by this Court in K.B.Mathur and another v. Sardar Bhagwant Singh (deceased) through his Lr Ishar Kaur 1988(2) Rcr 61.
(8) Another argument advanced on behalf of the learned counsel for the petitioner is that if the analogy of 100 sq.feet applied to a living room then one of the rooms in H.No1331,Vaidwarawas over 200sq.feet.in area and same should be treated as two rooms. I am afraid that this argument also cannot be accepted. There is no doubt that the area of one such room is 19'.9'x11'.3'- which comes to about 204 sq.ft. The concept is of one separate room to every grown up child. We cannot visualise an imaginary line of partition in a room which actually does not exist so as to convert it into two rooms. One single room means that a grown up child should be free to live in that room in a manner he likes. He should also be free to devote his time to studies without disturbance. It will amount to snatching away such a right from a child if we draw an imaginary line of partition in a room having an area of more than 200 sq.feet. Seeing the size of the family of the landlord, it must be said that although his need will not be satisfied even if he gets the tenanted premises from the petitioner, yet it will help him to mitigate his suffering to some extent.
(9) The matter was Fixed for arguments on 25.8.92. On that date a request was made on behalf of learned counsel for the petitioner for adjournment so that the matter was adjourned to 26.8.92. But strangely enough the petitioner made an application after seeking an adjournment from the Court under Order 41 Rule 27 Civil Procedure Code (CM No-2236/92) and served a copy of this application on learned counsel for the respondent at 3.15 Pm that very day. This fact is borne out from the endorsement made by learned counsel for the respondent on the index page of the application. In this application, it was stated that the landlord had obtained a decree for possession in respect of six rooms in H.No-1331, Vaidwara against the heirs of Sh.Badri Dass and had also built an additional room apart from getting the above six rooms vacated in the property in dispute just about a month back. thereforee, the need of the landlord was now fully satisfied and he could not be said to require the disputed premises for his bona fide personal necessity or that of his family members. Along with this application, he affixed two photographs also of the supposed additional room. 'Respondent controverter the allegations made in the application by filing a reply. He denied if he had built any such room as stated by the petitioner. Regarding the decree against the heirs of Badri Dass, it was stated that Hon'ble Supreme Court had played their dis-possession in a writ petition filed by them and the hearing of the case before the Hon'ble Supreme Court was not in sight in the near future. thereforee, it must he said that the petitioner made a wrong statement in this application that the landlord had got vacated six rooms from the heirs of Badri Dass. thereforee, the denial by the landlord that he had not built any additional room must be accepted as true and this application should be rejected out right because this is sort of another attempt by the petitioner to delay the proceedings. It is simply unimaginable that the petitioner would go to the extent of wrongly alleging that the landlord had obtained possession of six rooms in execution. thereforee, denial of an additional room by the landlord has to be preferred to the allegation of the petitioner. I have gone through the case of Pasupuleti Venkateswarlu Vs . The Motor & General Traders : [1975]3SCR958 . It has no application in the facts and circumstances of the present case. Inside the court room, adjournments are sought on behalf of the petitioner by his learned counsel whereas after seeking adjournment in the Court such an application is moved and served upon the opposite counsel. I must say in all fairness that such an application should not have been moved. It may further be noted that a rejoinder to the reply of the landlord was not filed in Court before me or at the Filing counter. It seems to have been handed over to the Court Master along with written arguments when I directed on 25.9.92 that the remaining submissions may be given in writing by learned counsel for the petitioner.Obviously no notice can be taken of this rejoinder which is, however, placed on record. This Court has also held in H.Abnash Chander Sehgal etc. v. Dr.V.K.Kharbanda 1987 (2) RCR 695, that mere obtaining of a decree for possession in respect of another accommodation cannot be taken note of against a landlord unless possession is already taken.
(10) Although as per the authority of Hira Lal Kapur's case (supra), this Court should not enter into the merits of the factual controversy between the parties, yet for the sake of satisfying myself about the correctness of the findings of the learned Arc, and on arguments advanced by learned counsel for the parties, I have scanned the entire evidence. I am of the view that there is no factual error committed by the Arc which could entitle the petitioner to seek reversal of the eviction order except to the extent of the number of rooms in possession of the landlord. It appears that this mistake crept in the judgment of the Arc because Uttam Chand Suri's case (supra) was not cited before him.
(11) The result, thereforee, is that this revision has no merit and the same is hereby dismissed.