SURINDER KUMAR KAPUR v. SUJAN SINGH CHADHA — 1970 DIGILAW 216 (DEL)

T. V. R. TATACHARI, J. ( 1 ) THE appellant, Surinder Kumar Kapur, has field this Second Appeal against the order of the Rent Control Tribunal, Delhi, dated April 4, 1970, in Rent Control Appeal No. 1083 of 1968, whereby the Tribunal reserved the order of the Rent Controller, Delhi, dated November 28, 1968,. dismissing. in application filed by the respondent herein tor eviction of fie appellant herein from the premises in question. ( 2 ) THE respondent herein is the landlord in respect of the premises bearing No. 11/25-B, Gurdwara Road, Tilak Nagar, which consists of two rooms with a verandah in front of each room, a kitchen and two Court-yards in the front and at the back of the premises. He filed an application in the Court of the Rent Controller, Delhi, on March 20, 1968, under clause (e) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act No. LIX of 1958, praying for the eviction of the appellant herein, who was his tenant in respect of a portion of the aforesaid premises. He alleged in his application that the said portion of the premiss was let out to the appellant herein on November 1, 1963, for a monthly rent of Rs. 42. 50, but a rent-note was executed only on January 1, 1965, that he required the said portion for his personal need and that of the members of his family dependant on. him, that the accommodation shown as a in the plan attached to his. application was wholly inadequate for the residence of his family, that he had children of marriageable age. and that he had no other reasonably suitable residential accommodation. him, that the accommodation shown as a in the plan attached to his. application was wholly inadequate for the residence of his family, that he had children of marriageable age. and that he had no other reasonably suitable residential accommodation. He also alleged that a notice under section 106 of the Transfer of Property Act terminating the tenancy of the appellant herein was given by him by registered post on January 22, 1968, but the appellant herein avoided to take delivery as per the endorsement of the Postman on the back of the registered envelope in which the notice was sent to the appellant herein, that a copy of the said notice was pasted on the outer door of the appellant herein in the presence of two witnesses, Davinder Singh and Ram Chand of Tilak Nagar, and that a copy of the notice, the original registered envelope and a copy of the notice showing the service of the notice by pasting on the door of the tenant s portion testified by two witnesses were filed along with the application. He further alleged that the tenant. appellant herein, did not pay arrears of rent since December, 1967, and water charges since January 1. 1964, at Rs,3. 00 per month He prayed that an order for recovery of possession of the premises in question may be passed in his favour. ( 3 ) THE appellant herein filed a written statement in which he contended that the rent of Rs. 42. 50 per month included water charge" also, that the respondent herein did not bonafide require the premises in question for his personal need or that of any member.-- of his family dependent upon him. that the accommodation already in his possession was much more than his requirements and the respondent herein and his family were habituated to reside therein, and that the respondent s children were not of marriageable age. He also alleged that the appication for eviction was mala fide and the sole motive of the respondent herein in filing the same was to get the portion in his occupation vacated and then let out the same on higher rent. He further alleged that not notice as alleged in the application or otherwise was ever served upon or tendered to him, and that no notice was pasted as alleged in the application. He further alleged that not notice as alleged in the application or otherwise was ever served upon or tendered to him, and that no notice was pasted as alleged in the application. ( 4 ) THE respondent herein filed a replication in which he reiterated the contentions in his application. He also stated that he was doing business at Tilak Nagar in the year 1954 and was living in his own house in Jangpura. that the same involved a journey of about 15 miles to and fro between the two places which caused a physical strain unbearable tor him. that he therefore, shifted his residence to Tilak Nagar in the year 1955 in order to have the facility of business and residence at one place, and that he took on rent a house in Tilak Nagar till he purchased in public auction from the Ministry of Rehabilitation the premises in question for his personal requirement. He further stated that he issued a notice under section 106 of the Transfer of Property Act terminating the tenancy of the appellant herein which the latter avoided to take as per the endorsement of the Postman on the back of the registered envelope, that as a matter of abundant caution a copy of the notice was pasted on the outer door of the portion occupied by the appellant herein in the presence of witnesses, that the requirements of law in the matter of service of notice were fully complied with, and that an order of eviction may. therefore, be passed in his faovur. ( 5 ) THE respondent deposed that he has three daughters and one son besides a wife, that two of the daughters were married, that the reasonably suitable residential accommodation. He also alleged that a notice under section 106 of the -Transfer of Property Act terminating the tenancy of the appellant herein was given by him by registered post on January 22, 1968, but the appellant herein avoided to take delivery as per the endorsement of the Postman on the back of the registered envelope in which the notice was sent to the appellant herein, that a copy of the said notice was pasted on the outer door of the appellant herein in the presence of two witnesses, Davinder Singh and Ram Chand of Tilak Nagar. and that a copy of the notice, the original registered envelope and a copy of the notice showing the service of the notice by pasting on the door of the tenant s portion testified by two witnesses were filed along with the application. He further alleged that the tenant. appellant herein, did not pay arrears of rent since December, 1967, and water charges since January 1. 1964, at Rs. 3. 00 per month He prayed that an order for recovery of possession of the premises in question may be passed in his favour. ( 6 ) THE appellant herein filed a written statement in which he contended that the rent of Rs. 42. 50 per month included water charges also, that the respondent herein did not bonafide require the premises in question for his personal need or that of any members of his family dependent upon him, that the accommodation already in his possession was much more than his requirements and the respondent herein and his family were habituated to reside therein, and that the respondent s children were not of marriageable age. He also alleged that the appication for eviction was mala fide and the sole motive of the respondent herein in filing the same was to get the portion in his occupation vacated and then let out the same on higher rent. He further alleged that not notice as alleged in the application or otherwise was ever served upon or tendered to him, and that no notice was pasted as alleged in the application. ( 7 ) THE respondent herein filed a replication in which he reiterated the contentions in his application. He also stated that he was doing business at Tilak Nagar in the year 1954 and was living in his own house in Jangpura. that the same involved a journey of about 15 miles to and fro between the two places which caused a physical strain unbearable for him. that he therefore, shifted his residence to Tilak Nagar in the year 1955 in order to have the facility of business and residence at one place, and that he took on rent a house in Tilak Nagar till he purchased in public auction from the Ministry of Rehabilitation the premises in question for his personal requirement. that he therefore, shifted his residence to Tilak Nagar in the year 1955 in order to have the facility of business and residence at one place, and that he took on rent a house in Tilak Nagar till he purchased in public auction from the Ministry of Rehabilitation the premises in question for his personal requirement. He further stated that he issued a notice under section 106 of the Transfer of Property Act terminating the tenancy of the appellant herein which the latter avoided to take as per the endorsement of the Postman on the back of the registered envelope, that as a matter of abundant caution a copy of the notice was pasted on the outer door of the portion occupied by the appellant herein in the presence of witnesses, that the requirements of law in the matter of service of notice were fully complied with, and that an order of eviction may. therefore, be passed in his faovur. ( 8 ) THE respondent deposed that he has three daughters and one son besides a wife, that two of the daughters were married, that the son was 22 years old, that the accommodation at the time of his deposition comprised only one room and a small kitchen, and that the marriage of his son could not be performed for want of sufficient accommodation. On the other hand, the appellant herein deposed that the respondent herein had in his possession one big room and one small room besides Court-yards on either side of the house, that he had asked the appellant herein to raise the rent to Rs. 67. 50 per month or vacate the premises, and that the respondent herein had also cut off electric connection whereupon a report to the police was made. ( 9 ) IT appears that in the year 1962, the premises was in the possession of the Municipal Corporation, and an eviction petition was filed against the Municipal Corporation on the ground that the house was bona-fide required by the respondent herein, and that a judgment was pronounced, in that application on April 24, 1963, and an order of eviction was passed in favour of the respondent herein against the Municipal Corporation. During the course of that case, the respondent herein had made a statement that he had two daughters, one son and a wife besides a married daughter who was also living with them. The respondent herein admitted that when the house was vacated by the Municipal Corporation on October 24. 1963, one room was occupied by him and the other room was let out to the father of the appellant herein, and that the appellant s father remained as a tenant till the year 1964, and the appellant has thereafter been the tenant. ( 10 ) BY his judgment, dated November 28. 1968, the Rent Controller took the view that the past conduct of the respondent herein showed that he never wanted the premises for personal residence as inspite of the fact that the respondent herein had two unmarried daughters and a son besides a married daughter who was said to be living with him, he rented out one room to the father of the appellant herein, and as he had only one daughter and a son living with him at the time of the filing of the present application for eviction, it cannot be said that his needs had increased in any manner. As the respondent herein did not previously occupy the whole house even though there were many members of his family, the Rent Controller considered that he could not place any reliance on the version of the respondent herein that he wanted the room in which the appellant herein has been residing as a tenant for the sake of his son who had since attained marriageable age. In other words, the Rent Controller took the. view that the respondent herein did not establish that he bona fide required the premises in question for occupation by himself and the members of his family dependent on him. As regards the question as to whether any notice terminating the tenancy was served upon the appellant herein, the Rent Controller held that the first notice sent by registered post was addressed to the appellant herein at his School address, viz. D. A. V. Higher Secondary School, Delhi Cantt. . As regards the question as to whether any notice terminating the tenancy was served upon the appellant herein, the Rent Controller held that the first notice sent by registered post was addressed to the appellant herein at his School address, viz. D. A. V. Higher Secondary School, Delhi Cantt. . but the report of the Postman was not clear as to why the notice was received back, undelivered, and that the version of the respondent herein that a copy of the notice was affixed on the outer door of the portion in the occupation of the appellant should be believed in view of the evidence of Davinder Singh and Ram Chand. In the result, in view of his finding that the application of the respondent herein was not bona fide, the Rent Controller dismissed the application for eviction. ( 11 ) AGAINST that order, the respondent herein preferred an appeal to that Rent Controller Tribunal, Delhi. By his order, dated April 4, 1970, the Rent Control Tribunal held that the evidence in the case established that the family of the respondent herein consisted of himself, his wife, a major son and a daughter aged 16 years, besides two married daughters, and they were in possession of only one room and a small kitchen, and that the said accommodation could not be considered sufficient for a family of 4 persons particularly when the. son was marriageable age, and after his marriage it would be impossible for all of them to live in a single room. He further held that the mere fact that after obtaining an order for eviction of the, Municipal Corporation on October 24, 1963, he let out a room to the father of the appellant herein was not sufficient to hold that the application was mala fide as the son of the respondent had since become a major and was of marriageable age, and in the circumstances one room and a kitchen could not be considered sufficient for the family of the respondent herein. The Tribunal disbelived the evidence adduced on behalf of the appellant herein to the effect that a house owned by the respondent herein in Jangpura had fallen vacant, and the respondent herein rented out the same at a higher rent, that the respondent herein had also built a residential quarter on the roof of a shop bearing No. 39, and that under those circumstances, his alleged requirement of the portion of the premises in question was not genuine. The Tribunal held that the allegation that the house in Jangpura had failed vacant was wrong. that the tenant of the said house had sub-let the same in favour of a third person, and that in any case the said house could not be considered suitable because the respondent herein was carrying on business at a distant place in Tilak Nagar. The Tribunal also held that though a room was constructed on the roof of a shop, the said room was for commercial purposes, and that in any case the said room could, not be considered suitable or sufficient for the respondent s family as the respondent herein could not be expected to keep half of his family in the suit house and the other half in that room. Thus, the Tribunal held that the respondent herein had not other reasonably suitable residential accommodation and bona fide required the portion of the premises in question. As regards the service of notice on the appellant herein, the Tribunal held that it has been proved that after the return of the notice sent by registered post, a notice was duly pasted on the portion of the house in the occupation of the appellant herein which amounted to due service. In the result, the Tribunal set aside the order of the Rent Controller, and instead granted an order for eviction of the appellant herein from the premises in dispute on the ground of bona fide personal requirement under clause (e) of the proviso to sub-section (1) of section 14 of the Act. It is against that order that the present Second Appeal has been filed by the tenant, Surinder Kumar Kapur. ( 12 ) SHRI S. K. Puri, learned counsel for the appellant, contended firstly that there was no proper service of notice upon the appellants herein under section 106 of the Transfer of Property Act. It is against that order that the present Second Appeal has been filed by the tenant, Surinder Kumar Kapur. ( 12 ) SHRI S. K. Puri, learned counsel for the appellant, contended firstly that there was no proper service of notice upon the appellants herein under section 106 of the Transfer of Property Act. It is now well settled by the decisions of the Supreme Court and this Court that a notice such as is prescribed by section 106 of the Transfer of Property Act should be served on the tenant before a landlord can seek eviction under the Rent Control Act (vide Batto Mat v. Rameshwar Nath. 1970 R. C. R. 532 ). In the present case, according to the landlord (respondent herein), a notice, dated January 22, 1968, was sent by him through his lawyer to the appellant herein by registered post acknowledgement due, but the appellant herein avoided to take deliveryof the same. The envelope containing the said notice has been filed as Ex. A-3. It bears an endorsement as under :- "avoids to delivery". ( 13 ) THE Postman who made the endorsement was not examined by either party. The Rent Controller observed that the report of the Postman was not clear as to why the notice was received back undelivered, and did not rely upon the said notice for the purpose of the case. His observation, however, was not corect as the endorsement on the envelope is quite legible and reads as stated above. The Tribunal did not make any observation regarding the said endorsement on the envelope. Shri Bali, learned counsel for the respondent herein, contended that the aforesaid endorsement clearly meant that the appellant herein refused to take delivery of the registered notice, and that the notice sent by Registered Post must be held to be sufficient notice under section 106 of the Transfer of Property Act. It is true, as pointed out above, that the endorsement may be taken as meaning that the person to whom it was tendered avoided or refused to take delivery of the same. But, the said endorsement has not been proved to have been made by the Postman, nor has it been proved that it was the appellant who refused to receive the registered letter. But, the said endorsement has not been proved to have been made by the Postman, nor has it been proved that it was the appellant who refused to receive the registered letter. Shri Bali referred to section 27 of the General Clauses Act (No. X of 1947), according to which- "where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying, and posting by registered post a letter containing a document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post",and argued that since the envelope containing the notice was addressed to the appellant herein to his School address where he would normally be during the day time, the service should be deemed to have deemed to have been effected upon him, and that it was for the appellant herein to prove by evidence that the service was not effected. There is not force in this argument. The service can be deemed to have been effected by virtue of the provision in section 27 only in a case where a letter containing a document has been properly addressed, pre-paid and posted by registered post, and nothing else is known as to what happened to that letter. In the present case, however, the envelope was returned to the sender with an endorsement that it was refused, but it has not been proved that it was the appellant who refused to receive the letter. In such a situation, it is obvious that the registered envelope was not, in fact delivered to the addressee and service cannot be deemed to have been effected. It is true that the Postman who made the endorsement was not examined. But, the effect of the non-examination of the Postman can only be that the endorsement remains un-proved and the reason contained in the endorsement cannot, therefore, be relied upon. Thus, apart from the reason for the return of the envelope, the fact remains that. It is true that the Postman who made the endorsement was not examined. But, the effect of the non-examination of the Postman can only be that the endorsement remains un-proved and the reason contained in the endorsement cannot, therefore, be relied upon. Thus, apart from the reason for the return of the envelope, the fact remains that. the registered envelope was actually returned to the sender, and it cannot, therefore, be deemed to have been delivered or served upon the addressee notwithstanding such actual return of the envelope. The Rent Controller, and the Tribunal were, therefore, justified, in my opinion, is not relying upon the alleged registered notice In considering the question as to whether the respondent herein had served a notice such as is required by the provisions in section 106 of the Transfer of Property Act. A similar view was taken regarding the presumption under section 27 of the General Clause Act in Dorainandian Pillai v. M. S. Sivagranam Pillai,1970 R. C. R. 871. ( 14 ) THE next question for consideration is as to whether the respondent herein had effected the service of the notice required under section 106 of the Transfer of Property Act by affixing it as alleged by him in his application for eviction. A copy of the notice which is alleged to have been affixed upon the outer door of the portion of the premises in question has been filed as Ex. A. W1/1. The respondent herein examined himself as A. W. 4/and deposed that when the notice sent by registered post was returned, he got the notice pasted on the outer door of the premises in the presence of Davinder Singh, A. W. 1 and Ram Chander, A. W. 2. The said Davinder Singh and Ram Chander deposed that the notice was affixed in ed in their presence. Both the Rent Controller and the Tribunal believed their evidence and held that the notice was affixed as alleged by the respondent herein. Shri Puri, learned counsel for the appellant, pointed out that the copy of the notice, Ex. A. W. 1/1, was dated February 10, 1968, while the notice said to have been sent by registered post was dated January 22, 1968. It is true that the two notices were dated January 22, 196i8, and February 10, 1968, respectively. But, a perusal of EX. A. W. 1/1, was dated February 10, 1968, while the notice said to have been sent by registered post was dated January 22, 1968. It is true that the two notices were dated January 22, 196i8, and February 10, 1968, respectively. But, a perusal of EX. A. W. 1/1 shows that it is a copy of the notice which was in the registered envelope, and that on Ex. A. W. 1/1 the date was typed as 22-1-1968 in the first instance and the same was struck off and the date 10-2-1968 was written in ink. Apparently, a copy of the notice, dated January 22, 1968, was typed, and was affixed on the outer door of the premises on February 10, 1968, after correcting the date on the copy. The correction of the date cannot be regarded as a suspicious circumstance. Shri Puri also pointed out that the date 10-2-1968 was not mentioned in paragraph 18 (b) of the application for eviction. This also cannot make the version of the respondent doubtful, as the date might have been omitted in paragraph 18 (a) of the application, as the copy. Ex A. W. I/i, was filed along with the application. In any case, as already stated, both the Rent Controller and the Tribunal accepted the evidence of the two witnesses, A. W. I and A. W. 2, and concurrently found that the notice was affixed on the outer door of the portion of the premises in question as alleged by the respondent. There is no ground for not accepting the said concurrent finding of fact. ( 15 ) SHRI Puri next contended that even if the notice was affixed on 10-2-1968, it cannot still be held to be sufficient compliance with the provisions in section 106 of the Transfer of Property Act. He relied upon the second part of section 106, which is as under:- "every notice under the section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants at his residence or (if such tender or delivery is not practicable affixed to a conspicious part of the party". ( 16 ) THE learned counsel argued that the section prescribes three modes in which the notices under the section can be served, viz.- (A) that it may either be sent by post to the party who is intended to be found by it; or (b) may be tendered or delivered personally to such party or to one of his family or servants at his residence; or (c) if such tender or delivery is not practicable, may be affixed to a conspicuous part of the property. ( 17 ) THAT service by fixation was to be effected only if tender or delivery to the party or to one of his family or servants at his residence was not practicable, and that in the present case, no evidence was adduced by the respondent herein that there was any tender or delivery to the appellant herein or that such tender or delivery was not practicable. In support of his argument, he relied upon the decisions in Prahladrai Choorewalla v. Commissioners for the Port of Calcutta, A. I. R. 1939 P. C. 11, 13, Biseswar Roy v. Pilamber Nath, A. I. R. 1919 Calcutta 400 and Sukumar Guha v. Naresh Chandra Ghosh, A. I. R. 1968 Calcutta 49,53. Shri Bali, learned counsel for the respondent, raised an objection that no such contention was raised or urged either before the Controller or before the Tribunal, and was not even raised in the Memorandum of Second Appeal, andthat the appellant should not, therefore, be permitted to raise the said contention that the service of the notice by fixation was not due service within the meaning of section 106 of the Transfer of Property Act. In answer to that objection, Shri Puri submitted that though the contention was not raised in that form before the Controller or the Tribunal, he may be permitted to urge the contention in this Second Appeal as it was a pure question of law. The submission of Shri Puri cannot be accepted as correct. The contention is based on ground that it was not shown by the respondent that there was any tender or delivery of the notice to the appellant or to one of his family members or servants at his residence, or that such tender or delivery was not practicable. The contention thus involves an enquiry into the facts and is a mixed question of fact and law. The contention thus involves an enquiry into the facts and is a mixed question of fact and law. As such, it would be unfair to the opposite party to permit the said contention to be raised for the first time in this Second Appeal. I am fortified in this view by the decision of a Division Bench of this Court (Hardayal Hardy and V. S. Deshpande, JJ.) in Batto Mal v. Rameshwar Nath, 1970 R. C. R. 532 (1 ). In paragraph 18 of the report, the learned Judges observed as follows:- "the question whether the failure of the tenant taking the plea of non-compliance with section 106 of the Transfer of Property Act amounts to a waiver of the said plea and whether the landlord is thereby exempted from the necessity to comply with section 106 of the Transfer of Property Act can be answered only after the nature of the compliance with section 106 of the Transfer of Property Act is understood. We have stated above that such a compliance is not a jurisdictional condition nor does the inherent jurist dictio not a court or the Rent Controller depends on the satisfaction of this condition. The compliance must, however, be pleaded by the landlord. But the failure to make such a pleading would not ordinarily amount to non-disclosure of the cause of action itself. It is for these reasons that we are inclined to the view that the failure of the tenants to raise the objection regarding the non-compliance with section 106 of the Transfer of Property Act at any early stage of the litigation would amount to a waiver of the plea by them. It would depend upon the facts and circumstances of each case when the conduct of the tenant would amount to a such a waiver. The greater the delay on the part of the tenant in raising such a plea the greater the probability of his conduct amount to waiver. This court has consistently taken the view that the failure of the tenant to raise such a plea before the Controller would amount to a waiver of such a plea and, therefore, the plea cannot be raised for the first time in the first appeal much less in the second appeal. This court has consistently taken the view that the failure of the tenant to raise such a plea before the Controller would amount to a waiver of such a plea and, therefore, the plea cannot be raised for the first time in the first appeal much less in the second appeal. " ( 18 ) IN the present case, the landlord (respondent herein) did plead that he served a notice terminating the tenancy first by registered post then by fixation. The tenant (appellant herein) merely contended that there was no service at all either by registered post or by fixation. He did not raise the plea that even if there was, in fact, a fixation of the notice, it was legally invalid in that a tender or delivery of the notice was not shown to be impracticable. The parties adduced evidence only on the issue as to whether there was, in fact, a fixation of the notice as alleged by the landlord. The Rent Controller and the Tribunal considered only that aspect and held that there, was in fact, a fixation of the notice. In the circumstances, the contention cannot be allowed to be put, forward for the first time in this Second Appeal. ( 19 ) EVEN if the contention sought to be raised by Shri Puri regarding the validity of the service of notice by fixation is regarded as a pure question of law, still it cannot be permitted to be raised for the first time in second appeal when it was not raised before the Rent Controller or before the Tribunal, as held by Grover, J. (as his Lordship then was) in Jaswant Singh v. Prem Kumari, 1964 P. L. R. 881, and by Hardayal Hardy, J. in Ratan Lal v. Gajn Nand, 1968 D. L. T. 486 ( 20 ) SHRI Puri drew may attention to the decisions in Banarsi Lal v. Jatadhari, 1969 R. C. R. 771 (Patna), G. S. Mohedeen v. Abdul Rawoof 1970 R. C. R. (Mysore) ,motilal and others v. Keshaw Deo and others, 1970 R. C. R. 332 (Rajasthan) and Parshotam Lal v. Kalayan Singh and am. , 1970 R. C. R. 833 in support of the proposition that a landlord cannot recover possession from a tenant without terminating the tenancy by serving a notice, and that the plea of non-termination of tenancy can be raised in an appellate oourt for the first time. The said decisions are all of other High Courts, and it is not necessary to consider the same in detail in view of the decisions of this Court mentioned above which are binding on me. ( 21 ) SHRI Puri also argued that the application for eviction could be filed only after the termination of the tenancy by the landlord, that it was, therefore, for the landlord to allege and prove that he had terminated the tenancy by issuing a notice in accordance with the provisions in section 106 of the Transfer of Property Act, as otherwise the application would not be maintainable at all, and that it was not necessary for the tenant (appellant herein) to plead either that there was no service of notice such as is mentioned in section 106, or that the notice, if given, was not in due compliance with the provisions in section 106. This contention also stands answered by the aforesaid decision of the Division Bench in Batto Mal s case (supra ). In the passage extracted above from the decision, the learned Judges have clearly laid down that a compliance with the provisions in section 106 of the Transfer of Property Act was not a jurisdictional condition, and that the inherent jurisdiction of the Court or the Rent Controller does not depend upon the satisfaction of the said condition. In other words, the question raised by Shri Puri regarding the sufficiency of the compliance with the provisions in section 106 is not one which affects the jurisdiction of the Rent Controller and it cannot, therefore, be said that the application for eviction would not be maintainable at all if the landlord does not plead and establish that delivery or tender of the notice under section 106 to the tenant or his family or servant was impracticable and, therefore, he served a notice on the tenant by affixing a copy of the notice on the outer door of the portion of the premises in the occupation of the tenant. ( 22 ) IN any case, as already pointed out above, the question is not a pure question of law but involves a consideration of facts, namely, whether the notice was delivered or tendered to the tenant or a member of his family or a servant of the tenant, and whether such delivery or tender was impracticable. The contention of the learned counsel that the affixing of the notice on the outer door of the portion of the premises in the occupation of the tenant was not sufficient compliance with the provisions of section 106 of the transfer of Property Act cannot, therefore, be allowed to be raised for the first time in this Second Appeal. ( 23 ) THE last contention of Shri Puri was that the Rent Control-Tribunal erred in holding that the respondent herein was not in possession of a reasonably suitable residential accommodation, and that he bona-fide required the portion of the premises in the occupation of the appellant herein. It is in evidence that the respondent has one unmarried daughter, two marrieddaughters and one son besides his wife. It appears that in the year 1962, the entire premises in question was in the possession of the Municipal Corporation. The respondent herein filed a petition for eviction against the Municipal Corporation on the ground that the premises was bona-fide required by him for occupation by himself and the members of his family dependent on him, and an order was passed on April 24, 1963, for the eviction of the Municipal Corporation. In the course of the said proceedings, the respondent made a statement that he had a wife, two daughters and a son, besides a married daughter who was also living with them. After the order of eviction was passed, the Municipal Corporation vacated the house on October 24, 1963. The respondent occupied one room and let out the other room in the house to the father of the appellant herein who remained as a tenant till the year 1964 paying rent at Rs. 30. 00 per month. Thereafter, the appellant herein became the tenant and has been occupying the room which was let out previously to his father. The respondent occupied one room and let out the other room in the house to the father of the appellant herein who remained as a tenant till the year 1964 paying rent at Rs. 30. 00 per month. Thereafter, the appellant herein became the tenant and has been occupying the room which was let out previously to his father. The Rent Controller took the view that in spite of the fact that the respondent had two unmarried daughters and a son besides a married daughter who was said to be living with him, he had rented out one room to the father of the appellant herein, and that the said conduct of the respondent shows that he had never wanted the entire premises for his residence. The Rent Controller further observed that since the respondent had only his wife, one daughter and a son living with him, at the time of his filing the present application for eviction, it could not be said that his need had increased in any manner, and that as he did not occupy the whole house on the previous occasion in spite of the fact that his family consisted of six members no reliance could be placed on his present version that he wanted the room in the occupation of the appellant herein for the sake. of his son who had attained marriageable age. It is true that the respondent obtained an order of eviction against the Municipal Corporation on the ground of bona fide personal requirement and let out one of the rooms to the father of the appellant herein. But, the Municipal Corporation did not make a grievance of it and took no steps which were available to it under the Act. The said conduct of the respondent at that time cannot have any bearing upon his present claim of bona tide requirement, it is in evidence that the family of the respondent now consists of himself, his wife, a son and a daughter besides two married daughters. The accommodation in their possession is one room, one small kitchen (which the appellant calls a small room) a bath and two court-yards in front of and at the back of the premises. In other words, they have only one living room, and it cannot be said that the said single room is a reasonably sufficient residential accommodation for the respondent, his wife. In other words, they have only one living room, and it cannot be said that the said single room is a reasonably sufficient residential accommodation for the respondent, his wife. a daughter and a son, even without taking the need of the two married daughters into consideration. Further, the respondent s son has attained marriageable age. In the circumstances, the Rent Control Tribunal held that one living room could not be said to be reasonably suitable accommodation for them, and that they bona fide required the room occupied by the appellant herein. The said view cannot be said to be unreasonable on the facts mentioned above. The Tribunal also accepted the version of the respondent that the previous tenant of the house in Jangpura had sub-let the same in favour of a third person, and held that the allegation of the appellant herein that the said house had fallen vacant was wrong. The Tribunal also pointed out that in any case the said house at Jangpura could not be considered suitable as the respondent was carrying on business at a distance at Tilak Nagar. The Tribunal further held that the allegation of the appellant herein that the wife of the respondent had constructed a room on the roof of the shop in Tilak Nagar did not improve his case as it was a commercial premises and, in any case, the said room could not be considered suitable or sufficient as the respondent could not be expected to keep some members of his family in his house in Tilak Nagar. and the others in the said room. On a consideration of all the circumstances, the Tribunal held that the respondent herein had no other reasonably suitable residential accommodation, and that he bona-fide required the portion of the premises in dispute, viz. the room in the occupation of the appellant herein. It is a finding of fact by the Rent Control Tribunal, and there is no valid ground for interference with the same in this Second Appeal under section 39 of the Rent Control Act. ( 24 ) FOR the above reason, the Second Appeal fails and is dismissed, but in the circumstances, without costs.