Vijender Jain,j. ( 1 ) CHEQUERED history of this litigation started when petition was filed for eviction under Section 14 (l) (e) of the Delhi Rent Control Act in 1979. Respondent filed application for leave to defend which was dismissed by the Rent Controller on 23. 1. 1980. Aggrieved by the said dismissal, respondent preferred a Civil Revision in the High Court. The same was dismissed on 8. 12. 1980. Respondent-tenant aggrieved by the dismissal of the Civil Revision by the High Court preferred an appeal before the Supreme Court. Special leave was granted to the respondent/tenant. Supreme Court remanded the case back to the Rent Controller in a famous judgment reported as Precision Steel and Engineering Works and Another v. Prem Deva Niranjan Deva Tayal, (1982) 3 SCC 270 . The said judgment was pronounced on 7. 10. 1982. From 1982 till 1994 the parties went on litigating before the Rent Controller. Rent Controller ultimately dismissed the eviction petition on the ground that the purpose of letting was composite. However, it was held by the Rent Controller that the bona fide requirement of the petitioner was genuine. It was also held in favour of the petitioner that there was no dispute with regard to ownership of the petition. It was further held by the Rent Controller that petitioner did not possess any other suitable accommodation. ( 2 ) THE demised premises are situated at B-44, Greater Kailash, Part-1, New Delhi, a posh colony in South Delhi. The area of the plot is 1,000 sq. yds. Respondent/tenant is in occupation of the front portion on the ground floor from 13. 9. 1971. Premises comprises of four bed rooms, three bath rooms, one kitchen, one living and dining room, lawn in the front, one Barsati on the first floor, one garage, two servant quarters, alongwith one servant bath room. Rent has been paid at the rate of Rs. 2,000. 00 per month. The parties have vehemently contested the litigation. In this Court also marathon arguments have been advanced by learned Counsel for both the parties. ( 3 ) MR. L. R Gupta, learned Senior Counsel for the petitioner has contended that in terms of the order passed by the Supreme Court, the onus to prove that the premises were let out for residential purposes and not for composite purpose was on the landlord. ( 3 ) MR. L. R Gupta, learned Senior Counsel for the petitioner has contended that in terms of the order passed by the Supreme Court, the onus to prove that the premises were let out for residential purposes and not for composite purpose was on the landlord. He has contended that pursuant to the directions of the Supreme Court, evidence was led and material was placed before the Rent Controller to show that the premises could not have been let out for composite purpose and use of the premises for purposes other than residential was not permissible. Learned Counsel for the petitioner has contended that Master Plan and Zonal Plan brought before the Rent Controller so as to demonstrate that area where the demises property is located was meant for residential use only. ( 4 ) MR. Gupta has contended on the basis of Master Plan and Zonal Plan which are Ex. Public Witness 6/1 that the Rent Controller fell in error in not taking note of Ex. Public Witness 6/1 which is a creation of Parliament. He has also contended that the building plan of the property in question which was constructed in terms of the Municipal Bye-laws was for residential purposes and same was Ex. AW 10/7 which was also not taken into consideration by the Rent Controller to determine the purpose of letting. Mr. Gupta has also contended that the receipts (Exs. AW 10/34 to AW 10/57) which were issued by the petitioner in confirmation of the rent paid by the respondent clearly demonstrated that the rent received was for the use of property for residential purposes. Counsel for the petitioner has contended that even RW 1 i. e. the respondent in its deposition stated that only one room of the property was being used for office purpose and the finding of the Rent Controller that the property was let out for composite purpose was against the testimony and the stand of the respondent itself. He laid great emphasis on. Ex. AW 10/34 which is reproduced below : "subject to encashment of cheque No. 501056,dated 1. 9. 1972on the Bank of lndia, Janpath Branch, New Delhi, received Rs. 6,000. 00 (rupees six thousand only) towards the Licence Fee of Rs. 22,000. He laid great emphasis on. Ex. AW 10/34 which is reproduced below : "subject to encashment of cheque No. 501056,dated 1. 9. 1972on the Bank of lndia, Janpath Branch, New Delhi, received Rs. 6,000. 00 (rupees six thousand only) towards the Licence Fee of Rs. 22,000. 00 due from M/s. Precision Steel and Engineering Works, 14/4, Mathura Road, Faridabad under the Leave and Licence Deed executed on the 5th July, 1972 in respect of the residence for their Constituted Attorney at B-44, Greater Kailash-l, New Delhi-48 (Front Unit) for the period from the 1st September, 1972 to the 31st July, 1973 leaving an outstanding balance of Rs. 16,000. 00. sd/- (N. D. Tayal) 13. 9. 1972" (Emphasis supplied) ( 5 ) COUNSEL for the petitioner further contended that even as per Delhi Development Act property could not have been let out for any other purpose except residence. Attention of this Court was drawn to an order passed by Smt. Vimla Makan, Metropolitan Magistrate for using the property for non-residential use. Attention of this Court was also drawn to the statement of the respondent who has stated that only one room of the property in question was used for office-cum-consultation purposes. It was further contended that there was a statutory prohibition for the use of the land or the building for purposes other than in conformity with what has been provided in the Master Plan or Zonal Plan. In support of his contention, it was contended that Section 14 of the Delhi Development Act which is to the following effect, prohibits the use of the property for a composite purpose : "14. User of land and buildings in contravention of plans - After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan : Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force. " ( 6 ) IN support of his contention, learned Counsel for the petitioner referred to R. P. Kapur etc. v. DDA, 1976 0 RLR 189 . " ( 6 ) IN support of his contention, learned Counsel for the petitioner referred to R. P. Kapur etc. v. DDA, 1976 0 RLR 189 . Reliance was laid by the petitioner on Keshav Kumar Swarup v. Flowmore Private Ltd. , (1994) 2 SCC 10 . The learned Counsel for the petitioner contended that in Keshav Kumar Swarup s case (supra) the clauses in the lease deed were somewhat para materia with the clauses in the present lease-deed. In this case the best course to determine whether the premises were let out for residential purposes only or for composite purpose. Supreme Court has held : "on plain reading of the word "that-the lessee shall use the premises for the residence and personal use of Directors and/or their relatives and for the purposes of the Company" it is patently clear that the landlord authorised the tenant to use the premises in dispute only for residential purposes and for no other purpose. The words for the purpose of the Company ought to be read in conjunction with residence and when so read there is no escape from the conclusion that what the parties intended was that the premises were to be used for residence of the Directors, their relatives and also others who may have to be accommodated for the purposes of the Company . If the landlord was to permit the tenant to use the premises for any other purpose, the whole exercise of prescribing the purpose and circumscribing the category of persons who can use it for that purpose would be futile. " ( 7 ) IN paragraph 6 of the said judgment. Supreme Court further held : "from Clause 11 quoted above, we find that under the agreement only installa- tion of air conditioners and cooking ranges were permitted and there is no mention of any kind of office equipment. Further, Clause 13, when read in the context of Master and Zonal Plans referred to earlier, clearly indicates that the residential user of the premises was only contemplated. " ( 8 ) ON the basis of the aforesaid authority, learned Counsel for the petitioner has contended that Master Plan and the Zonal Development Plans created by an Act of Parliament, no other purposes could be read while interpreting lease-deed as the same would not be permissible under the statute. ( 9 ) REPELLING the contention of Mr. " ( 8 ) ON the basis of the aforesaid authority, learned Counsel for the petitioner has contended that Master Plan and the Zonal Development Plans created by an Act of Parliament, no other purposes could be read while interpreting lease-deed as the same would not be permissible under the statute. ( 9 ) REPELLING the contention of Mr. Taneja, learned Counsel for the respondent that the statement of respondent before the Metropolitan Magistrate for using the premises for purposes other than residential when the respondent was prosecuted and it took the plea that only one room in the demised premises was used for office and consultation purposes although Mr. Taneja has contended that that was a statement to defend the allegation of the DDA that four rooms of the property in question were used for office proposes, Mr. Gupta has contended that this was an evidence which was created during the subsistence of the proceedings and when this kind of evidence was brought before the Court when the lis was pending, the same is not permissible and in his support has cited State of Bihar and Ors. v. Sri Radha Krishna Singh and Ors. , AIR 1983 SC 684 : "thus, summarising the ratio of the authorities mentioned above, the position that emerges and the principles that are deducible from the aforesaid decisions are as follows: (1) A judgment in rem e. g. , judgments or orders passed in admiralty, probate proceedings, etc. , would always be admissible irrespective of whether they are inter parties or not. (2) Judgments in personam not inter parties are not at all admissible in evidence except for the three purposes mentioned above. (3) On a parity of aforesaid reasoning, the recitals in a judgment like findings 643 given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly inadmissible in a case where neither the plaintiff nor the defendant were parties. (4) The probative value of documents which, however, ancient they may be, do not disdose sources of their information or have not achieved sufficient notoriety is precious little. (5) Statements, declarations or depositions, etc. , would not be admissible if they are post litem motam. (4) The probative value of documents which, however, ancient they may be, do not disdose sources of their information or have not achieved sufficient notoriety is precious little. (5) Statements, declarations or depositions, etc. , would not be admissible if they are post litem motam. " ( 10 ) THE next contention of the learned Counsel for the petitioner was that property was let out for residential purposes and even if the same was used by the respondent for consultation or for office that would be an incidental user of the premises. In support of his contention he has cited Smt. Pushpa Wati v. Shri Mahender Kumar and Anr. , 1996 II AD (Delhi) 20. Mr. Gupta has contended that Rent Controller on the basis of evidence and material on record ought to have held that the dominant user of the property was residential. In support of his submission he has referred relevant paragraph of this Court s decision in Jagmohan Singh Wadhera v. KM. Bhatnagar, 59 (1995) DLT 707 : "there is yet another important aspect which needs to be examined in this behalf. Admittedly the tenancy premises consists of two rooms only. The size of the family of the respondent as per his own statement as RW-4, is himself, his wife, three daughters and two sons who all are living in the tenancy premises. Further the respondent stated as RW-4 that one room was being used by him and his wife as their bedroom and the other room was being used by the children. If the only two rooms which are available in the tenancy premises are being used as bed rooms by the family, I fail to understand where the alleged commercial activity is being carried on in the premises. The nature of the premises, therefore, becomes important. The only material placed on record to show business activity is some correspondence regarding supply of material etc. A landlord will never be in a position to know that there is some business activity in such a case. He is not supposed to intercept the correspondence of the tenant. Therefore, it is dear that the dominant use of the premises is in any case for residential purposes and assuming that the tenant had some sort of inddental business, the premises cannot be said to have been let out for residential-cum-commercial purposes. He is not supposed to intercept the correspondence of the tenant. Therefore, it is dear that the dominant use of the premises is in any case for residential purposes and assuming that the tenant had some sort of inddental business, the premises cannot be said to have been let out for residential-cum-commercial purposes. The finding of the Additional Rent Controller in this connection is erroneous and is contrary to the material on record. " ( 11 ) IN support of "his contention, learned Counsel for the respondents has cited Babu Lal and Ors. v. Satya Narain, 1988 (2) Rent Law Reporter 426, Sita Nagpal and Anr. v. Vinod Kumar Nijhawan, 1988 (2) Rent Law Reporter 454 and K. B. Mathur v. Sheet Kumar Saxena, 1989 (2) Rent Law Reporter 517. ( 12 ) MR. Taneja, learned Counsel for the respondent on the finding of Rent Controller with regard to bona fide requirement, has contended that it was not necessary for the respondent to file cross appeal and while defending the judgment of the Rent Controller he could assail the ending before this Court without filing any cross objections. In support of his submission, learned Counsel for the respondent relied upon Shy am Nath and Ors. v. Durga Prasad etc. , AIR 1982 All. 474 and a Single Bench decision of this Court in Inder Singh v. Prem Chand and Ors. , 1993 0 RLR 197 . Para 10 of the said judgment is relied upon, which is to the following effect : "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 v. Krishnaji, AIR 1970 SC I, Ram Doss v. lshwar Chander, AIR 1988 SC and Smt. Rajbir Kaur v. M/s. S. Chokosiri and Co. , AIR 1988 SC 1845 , no doubt can be entertained that revisional jurisdiction is innate 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 v. K. D. Banerjee. 1982 (2) RCR 638, M/s. Shiv Shankarv. Further, in view of-the principles explained in M/s- Tide Water Oil v. K. D. Banerjee. 1982 (2) RCR 638, M/s. Shiv Shankarv. UOI, AIR 1984 Pat 348 and Balkrishna DOS v. Smt. Radha Devi, AIR 1989 All. 133 , 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 ordei has no right to appeal against it. Since there is no need for filing cross-objections, the question of limitation also does not arise. " ( 13 ) REPELLING the contention of the learned Counsel for the respondent, Mr. Gupta has contended that in view of the law laid down by Supreme Court in Superintending Engineer and Ors. v. B. Subba Reddy, JT 1999 (3) SC 311=iv (1999) SLT 280, the reliance placed by the Counsel for the respondent in Shyam Nath and Ors. (supra) and Inder Singh (supra) is not good law any more. ( 14 ) MR. Gupta, however, has contended that on merit the finding of bona fide requirement was genuine and has contended that the petitioner had no legal right in the property No. 32, Anand Lok, New Delhi. He has contended that said property wasthe property of Smt. Pratibha Tayal, mother and K. D. Tayal, brother of the petitioner. The property stands mutated in the. name of Smt. Pratibha Tayal and K. D. Tayal. Counsel for the petitioner has contended that the perpetual lease-deed of 32, Anand Lok, New Delhi was in the name of Pratibha Tayal and K. D. Tayal right from 1970 itself. He has further contended that there was a partition decree in a suit filed by K. D. Tayal aginst Smt. Pratibha Tayal and the decree was also placed before the Rent Controller as Ex. Public Witness 8/1. He further contended that the partition decree was passed on 10. 5. 1974. Mr. Gupta has contended that as a matter of fact the petitioner is living at sufferance. He is neither the owner of 32, Anand Lok, New Delhi nor has he got any legal right to stay in the said property. Public Witness 8/1. He further contended that the partition decree was passed on 10. 5. 1974. Mr. Gupta has contended that as a matter of fact the petitioner is living at sufferance. He is neither the owner of 32, Anand Lok, New Delhi nor has he got any legal right to stay in the said property. In support of his submission he has cited Prativa Devi v. T. V. Krishnan, (1996) 5 SCC 353 and has contended that landlord is the best Judge for his residential requirement and petitioner cannot be compelled to live with his brother or mother even though the relations between them are cordial, he has further cited Meenal Eknath Kshirsagar v. Traders and Agencies and Am. , (1996) 5 SCC 344 . Learned Counsel laid great emphasis that it was for the respondent to prove that the requirement of the landlord was not bona fide which respondent failed to prove and that is why the Rent Controller returned the finding qua the bona fide requirement in favour of the petitioner. In his support Counsel for the petitioner has cited Rena Drego v. Lalchand Soni and Ors. , (1998) 3 SCC 341 =iii (1998) SLT 678. Mr. Gupta further contended that while determining the bonafrde requirement of the petitioner the test is not of dire necessity and has cited in his support Dattatraya Laxman Kamble v. Abdul Rasul Maulali Kotkan and Am. , All India R. C. J. 1999 (2) 1. ( 15 ) LEARNED Counsel for the petitioner on the basis of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 (6) Supreme Today 330 has contended that High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. Therefore, for the purposes of finding on bona fide requirement, Mr. Gupta has contended that Rent Controller after taking into consideration all the relevant material and evidence on record has returned the finding that the requirement of the petitioner was bonafide and this Court while exercising the revisional jurisdiction as contemplated by Section 25-B, Sub-section (8) will not set aside the finding until and unless the findings are otherwise preverse. ( 16 ) MR. ( 16 ) MR. Gupta has vehemently contended that pursuant to the remand by the Supreme Court, the onus was on the landlord to show that composite user of the premises was impermissible. Mr. Gupta relied upon Precision Steel and Engineering Works and Another v. Prem Deva Niranjan Deva Tayal, (supra) when the matter went before Supreme Court between the parties in paragraph 24, the Supreme Court held : ". . . . . . . . . . . . . Whether the rules permit such a use; whether there was such rule prescribing such use, is a matter left to be inferred by a statement that no rule or bye-law was brought to the notice of the Court that such a use was permissible. If the landlord entered into a contract of lease permitting non-residential use and yet if it is pleaded that such use can be made if the rules of the local authorities permitted it, ordinarily one would expect the landlord to show that such use was impermissible. There is no finding to that effect. " ( 17 ) MR. Gupta has contended that having brought all relevant material before the Rent Controller that it was impermissible to use the property for the purpose other than residence, the finding of the Rent Controller deciding the matter without taking into consideration the material brought on record, simply on the interpretation of the clauses in the lease agreement was totally in utter disregard to the direction of the Supreme Court. Learned Counsel for the petitioner has contended that if the letter-head of the respondent (Exs. Public Witness I /a2 and Public Witness 1 /a3) itself is taken into consideration, which was filed by him wherein the office address was mentioned as 14/4, Mathura Road, Faridabad and the Delhi Office was S-63, Greater Kailash, New Delhi, finding of the Rent Controller on the purpose of letting is totally perverse. In support of his submission he has cited Salekh Chand Jain v. Vinesh Chand Seth, 1986 RLR 17 , and in view of Salekh Chand Jain s case (supra), Mr. Gupta has contended that the registration at the residential address for the purposes of Central and Local Sales Tax purposes is of no consequence and that does not change the user of the premises in question. He further cited Jasbir Kaur v. Girdhari Lal Mehra (Dead) by LRs. Gupta has contended that the registration at the residential address for the purposes of Central and Local Sales Tax purposes is of no consequence and that does not change the user of the premises in question. He further cited Jasbir Kaur v. Girdhari Lal Mehra (Dead) by LRs. , 1993 Suppl. (1) SCC 454 and Kuldeep Raj v. Yash Pal, 1996 RLR 97 in support of his contention. ( 18 ) ON the other hand, Mr. S. K. Taneja, learned Counsel for the respondent has contended that the premises were let out to a partnership concern. He has contended that the property in question is a free-hold property and the premises are being used right from the inception of the tenancy to the knowledge of the lessor for a composite purpose. Mr. Taneja laid great stress that from the bare perusal of Clauses 6 and 7 of the lease-deed, the intention of the landlord can be inferred. The same is that the landlord has not restricted the user for residential purpose only. Whether the property was used for residential or non-residential purposes, the intention which was manifested between the parties on the basis of aforesaid clauses of lease agreement was that property was let out for composite purposes. Mr. Taneja has further contended that the words "the licensee will, however, be free to use the said premises in part or infull also for office purposes provided the rules of the local authorities so permit" showed the intention of the lessor that the property was let out for composite purpose. Mr. Taneja stressed that whether the property was used for office purposes or residential purposes will not make it different if the purpose of letting was composite. He contended that documents were filed before the Rent Controller pertaining to sale-tax registration (Exs. RW 1/1 to RW I /4) for the assessment years 1971-72 and 1972-73 ). There was also a letter dated 27. 11. 1972 (Ex. RW 1/5) from the sale-tax department which was filed on record received at the property in dispute. The property was used for composite purposes right from 1972. Learned Counsel for the respondent has cited Kamla Marwah v. Mis. Kapur Fabrics, 48 (1992) DLT 636 and Inder Singh v. Prem Chand and Ors. 11. 1972 (Ex. RW 1/5) from the sale-tax department which was filed on record received at the property in dispute. The property was used for composite purposes right from 1972. Learned Counsel for the respondent has cited Kamla Marwah v. Mis. Kapur Fabrics, 48 (1992) DLT 636 and Inder Singh v. Prem Chand and Ors. (supra) and has contended that the premises were used for office purposes by the respondent and in this regard has relied upon a letter addressed by the respondent to the petitioner in 1972, which is at page 793 of the Trial Court record (mark x ) and has contended that receipt of this letter was acknowledged by the petitioner who appeared in the witness box as AW 10. However, the original of the said letter was filed by the petitioner in evidence to cross-examine the respondent. The bottom part of that letter did not bear the office address though the same was on the carbon copy (Mark x ). Mr. Taneja has contended that this shows the mala fide of the petitioner and on this score, the Rent Controller has rightly held that the purpose of letting was composite. ( 19 ) I will advert to the respective contentions of the parties whether in the absence of cross-objections not filed, a party would still have a right to challenge a finding in terms of Order 41, Rule 22, CFC. As I have permitted the respondent to argue on merit, I would like to summarise the submission of Mr. Taneja vis-a-vis his challenge to the finding qua bona fide requirement although no cross objection has been filed by the respondent against the finding of the Rent Controller vis-a-vis the bona fide requirement. ( 20 ) AT the outset Mr. Taneja has contended that the petitioner has been living with his mother and brother at 32, Anand Lok, New Delhi. The learned Counsel for the respondent invited the attention of this Court to the deposition and cross-examination of AW 10 and AW II. Mr. Taneja, on the basis of the these depositions, has contended that the demised property was only meant for letting. At no stage, the petitioner has lived in the property in question. Mr. Taneja has further contended that the partition suit filed by K. D. Tayal against her mother Smt. Pratibha Devi was also in collusion. Mr. Taneja, on the basis of the these depositions, has contended that the demised property was only meant for letting. At no stage, the petitioner has lived in the property in question. Mr. Taneja has further contended that the partition suit filed by K. D. Tayal against her mother Smt. Pratibha Devi was also in collusion. He has further contended that the brother is also a member of the family and relied upon a decision of this Court rendered in Hari Sharma v. Amarjit Singh Ramana, 80 (1999) DLT 611 and contended that the Court has to determine whether the petitioner was residing as a unit of a family living together sharing a common mess. Mr. Taneja has further contended that K. D. Tayal is in Government Service. He further contended that mother of the petitioner and the said K. D. Tayal, brother of the petitioner, in fact, have been living together, they have a common mess and there is no quarrel between them. In support of his contention, learned Counsel for the respondent has cited Govind Das and Ors. v. Kuldip Singh, AIR 1971 Delhi 151 and has contended that when for the purpose of getting an order of eviction under Section 14 (1 ) (e) of the Act, the requirement of a joint Hindu family, the requirement of a brother and mother would be the requirement then from the same analogy the factum of petitioner living together with his brother has to be taken into consideration. The fact that the petitioner is living in the accommodation though in the name of the mother and the brother but they are a joint family and owning the property in differentnames. He relied on Shri B. Dev v. Dr. Amar Chand Narula and Ors. , 1971 RCR 363. Relevant para is reproduced below : "the concept of family according to the Indian way of life has been considered in several decisions particularly dealing with proviso (e) to Section 14 (1) of the Delhi Rent Control Act, 1956. Whether a person is a member of the family or not is determined by the application of various criteria such as joint residence as a member with the family, near relationship with the head of the family, dependence on the head of the family, etc. Whether a person is a member of the family or not is determined by the application of various criteria such as joint residence as a member with the family, near relationship with the head of the family, dependence on the head of the family, etc. But no person could be considered to be a member of the family unless he was residing with the family except when a person is a joint tenant in his own right and may not have been able to reside always with the family. In the present case, the mother of the tenant is certainly nearly related to him. But she would not be entitled to be regarded as a member of his family merely on the strength of such relationship unless she also resided with him as a member of the family. This means that she must reside with him generally as a member of his family. It is only such a member of the family who generally resides with the tenant who is indicated by the words "any member of his family" used in proviso (d) to Section 14 (1 ). A near relation of the tenant who does not reside with him as a member of his family but who is called to reside in the premises during the absence of the tenant will not become a member of the tenant s family within the meaning of proviso (d) if he or she is brought to reside in the premises only during the absence of the tenant. For-it is only a person who is already a member of the tenant s family who can prevent the eviction of the tenant under proviso (d) by his or her residence during the absence of the tenant in the premises. The reason is that such a person is already a member of the family, but a person who is not already a member of the tenant s family cannot become one merely by coming to reside in the premises during the absence of the tenant particularly when neither the tenant nor his wife nor his children were in the. premises as in the present case. (Shukla v. Parbhu Ram Sukhram Doss Ojha, 1963 Punjab Law Reporter 256 later upheld by the Supreme Court ). premises as in the present case. (Shukla v. Parbhu Ram Sukhram Doss Ojha, 1963 Punjab Law Reporter 256 later upheld by the Supreme Court ). The tenant, therefore, must prove that his mother was already a member of his family before he went to England for medical treatment. He could do so by showing that she already resided with him as a member of his family even before he went to England. " ( 21 ) LET me first deal with challenge of the respondent to the finding of the Rent Controller on bonafide requirement. It was contended by Counsel for the respondent that even without filing cross-objection still he could challenge the finding on bonafide requirement. Mr. Taneja has contended that Order 41, Rule 22, Civil Procedure Code allows a respondent who has not filed a cross appeal or cross objection as in this case, to challenge the findings and in his support has cited Inder Singh v. Prem Chand and Ors. (supra) and Shyam Nath and Ors. v. Dhrga Prasai etc. (supra ). Ininder Singh s case. (super) the explanation to Order 41, Rule 22, it seems was not brought to the notice of the Court. Order 41, Rule 22 is as follows : "22 (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. Explanation: A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that any reason of the dedsion of the Court on any other finding which is sufficient for the decision of the suit, the decree, is wholly or in part, in favour of that respondent. Form of objection and provisions applicable thereto- (2) Such cross-objection shall be in the form of a memorandum, and the provisions of Rule I, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule. " ( 22 ) THE case of Shyam Nath and Ors. (supra) does not pertain to Delhi Rent Control Act. I find force in the argument of the Counsel for the petitioner that Rule 23 of the Delhi Rent Control Rules, 1959 states only to the rules of procedure which have not been provided under the Act and therefore, the applicability of the Code of Civil Procedure so far as it relates to the procedure is concerned is to be guided by the provisions of the Code of Civil Procedure. Therefore, from the plain reading of Rule 23 of the rules, it will be manifestly clear that it talks of rule of procedure and applicability of Civil Procedure Code thereto. In order to have the right to challenge a finding respondent was required to file a cross appeal as same would be to challenge a substantive right accrued to other party. Reliance was placed on Superintending Engineer and Ors. v. B. Subba Reddy (supra) which was a case emanating from the Arbitration Act, the Supreme Court in paragraph 23 has held as follows: "from the examination of these judgments and the provisions of Section 41 of the Act and Order 41, Rule 22 of the Code, inour view, following principles emerge; (1) Appeal is a substantive right. v. B. Subba Reddy (supra) which was a case emanating from the Arbitration Act, the Supreme Court in paragraph 23 has held as follows: "from the examination of these judgments and the provisions of Section 41 of the Act and Order 41, Rule 22 of the Code, inour view, following principles emerge; (1) Appeal is a substantive right. It is creation of the statute. Right to appeal does not exist unless it is specifically conferred. (2) Cross objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule I of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well. (3) Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by indigent person also apply to cross-objection. (4) Even where the appeal is withdrawn or is dismissed for default, cross- objection may nevertheless be heard and determined. (5) Respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal. (6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order. " ( 23 ) IN view of aforesaid authority of the Supreme Court, I do not see any force in the arguments of Counsel for the respondent that even without filing cross objection he can challenge the finding on bona flde requirement. " ( 23 ) IN view of aforesaid authority of the Supreme Court, I do not see any force in the arguments of Counsel for the respondent that even without filing cross objection he can challenge the finding on bona flde requirement. ( 24 ) IN any event of the matter as this Court has heard the arguments of the parties on merit, my finding on bona fide requirement on merit is as follows. ( 25 ) THE main thrust of the argument of the respondent before the Rent Controller was that two houses bearing Nos. 52, Anand Lok, New Delhi and 32, Anand Lok, New Delhi were available for the residence of the petitioner. At the outset, Mr. Taneja learned Counsel for the respondent conceded that House No. 52, Anand Lok was not available to the petitioner. That leaves the controversy limited to House No. 32, Anand Lok, New Delhi. The evidence on record regarding House No. 32, Anand Lok, New Delhi the perpetual lease deed was in the name of Smt. Pratibha Devi Tayal and K. D. Tayal, mother and brother of the petitioner respectively. The assessment order of the Income- tax Department in relation to the said property was that property belonged to both Pratibha Tayal and K. D. Tayal in one half share each. Ex. AW 10/29 was also filed before the Rent Controller. There is no force in the argument of the respondent that the partition decree which was obtained between Smt. Pratibha Tayal and K. D. Tayal was collusive. The decree of partition is dated 10. 5. 1974 much prior to the filing of the petition for eviction. The same was also brought on record before the Rent Controller, which was Ex. Public Witness 8/1 and Ex. Public Witness 8/2. ( 26 ) COMING to the argument of the respondent that the petitioner has been living all alone with his brother and mother and sharing a common mess at property No. 32, Anand Lok, New Delhi. Sharing of accommodation or living together with the mother or the brother will not invest a person with the legal right or have any domain over the property in question. Sharing of accommodation or living together with the mother or the brother will not invest a person with the legal right or have any domain over the property in question. May be there is no dispute between the brothers or the mother but can it be said that in the absence of any dispute, the property of a brother or the property of inother can be considered the property of the petitioner? The test is whether the petitioner has got any legal right to occupy the said property. The answer is that the petitioner has no legal right to occupy the said property, i. e. 32, Anand Lok, New Delhi and taking this factor into consideration, the Rent Controller held that the petitioner did not have other alternative accommodation for his residence. The reliance placed by Mr. Taneja on Hari Ram Sharma s case (supra) is misconceived. In that case the wife of the tenant was owning a house. Petition for eviction was filed under Section 14 (l) (h) of the Delhi Rent Control Act against the tenant. There was no dispute between the husband and wife. They were sharing common mess. Therefore, this Court held that tenant cannot take the plea that he has no legal right to the property belonging to his wife. In the facts and circumstances of the case, the authorities of Govind Dass and Ors. v. Kuldip Singh (supra) and Shri B. Dev v. Dr. Amar Chand Narula and Ors. (supra) cited by the learned Counsel for the respondent about the concept of a joint Hindu family are also not applicable to the facts of the present case. ( 27 ) PETITIONER is 56 years old. He is married and has got one son and one daughter. Both are married. Married son is also living with him. His desire to live in his own house cannot be said to be not bona fide. The brother of the petitioner-K. D. Tayal is a Government servant. He is Commissioner, Customs and Excise, at present posted at Jaipur. He is married. He has also got one son and one daughter. Son is 26 years old and daughter is 25 years old. Daughter is married and son is yet to be married. The brother of the petitioner-K. D. Tayal is a Government servant. He is Commissioner, Customs and Excise, at present posted at Jaipur. He is married. He has also got one son and one daughter. Son is 26 years old and daughter is 25 years old. Daughter is married and son is yet to be married. It cannot be said that accommodation in the property 32, Anand Lok, belonging to brother of petitioner, i. e. two bed rooms and two box rooms on the first floor is not required by him. ( 28 ) IN Meenal Eknath Kshirsagar v. Traders and Agencies and Another (supra), the Supreme Court held: "as regards the olympus flat the evidence discloses, and it is not in dispute, that Eknath left that flat in October, 1972 and since then only Sridhar and his family members have been staying in that flat. It is a two-bedroom flat having an area of 1,100 sq. ft. Sridhar has a wife and two children and the family of the appellant also consists of four persons. In the suit for eviction filed by the landlady of that flat a partial decree has been passed and Eknath has been ordered to hand over half the portion of that flat. Both Eknath and the landlady have challenged the said partial decree and their respective appeals are pending before the Appellate Court. In this context the Courts had to consider whether it can be said that the appellant and Eknath are having suitable alternative accommodation and, therefore, the appellant s claim that she requires the suit premises for her occupation is not reasonable and bona fide. The Appellate Bench and the High Court considered the possibility of Eknath going back to that flat and occupying it alongwith Sridhar and also the possibility that in case the landlady s appeal is dismissed and Eknath s appeal is allowed the flat, in its entirety, will become available to Eknath and on that basis held that the appellant s claim that she requires the suit premises reasonably and bona fide is not true. As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best Judge of his residential requirement. As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best Judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the Courts to dictate to him to continue to occupy such premises. Though Eknath continues to be the tenant of the "olympus flat as a matter of fact, it is being occupied exdusively by Sridhar and his family since October, 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq. ft. only, it is difficult to appreciate how the Appellate Bench and the High Court could record a finding that the olympus flat is readily available to the appellant s husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family. " ( 29 ) SIMILARLY in Rena Drego v. Lalchand Soni and Others (supra), the Supreme Court observed as under: "in the light of the above-admitted factual position when the landlady says that she needs more accommodation for her family, there is no scope for doubting the reasonableness of the requirement. Further the above circumstances would raise a presumption that the requirement is bona fide also. The tenant has failed to show that the demand for eviction was made with any oblique motive and in the absence of any such evidence the presumption of bona fides stands unrebutted. " ( 30 ) IN Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta (supra), it was observed : ". . . . . . . . . . . The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law. . . . . The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law. For that limited purpose it may enter into re-appraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion from the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller not according to law calling for an interference under proviso to Sub-section (8) of Section 25-B of the Act. "( 31 ) THEREFORE, in my considered opinion respondent has failed to show that the order passed by the Rent Controller with regard to its finding on bomfide requirement is perverse or could not have been possible on the basis of the material before the Rent Controller. ( 32 ) THAT brings me to the main question for which this matter has been lingering on for the last twenty years i. e. whether the tenancy was for a composite purpose or was for residential purpose? Mr. Taneja has contended that on the basis of Clauses 6 and 7 of the lease-deed, it is manifestly clear that the purpose of letting was composite. He has contended that Rent Controller has rightly held the purpose to be so as no other meaning could be given to Clauses 6 and 7 of the lease-deed. Clauses 6 and 7 of the lease deed are reproduced below: "6. The licensees shall use the said premises for the residence of their Directors, partners and officers. The licensees will, however be free to use the said premises in part or in full also for office purpose provided the rule of the local authorities so permit and in such an event the licensees shall pay to the owners any increase in local taxes, etc. occasioned by such change of user of the said premises from residence to office. 7. occasioned by such change of user of the said premises from residence to office. 7. The licensees shall not permit the said premises or any part thereof being used by any other person for any purpose whatsoever without the previous consent in writing of the owners and in default thereof the licence shall be liable for concellation. The licensees shall not transfer possession of the premises or part thereof or otherwise carry on the business in the premises with any other person or assign, transfer, change or otherwise alienate their interest in the premises. " ( 33 ) I am afraid it is not that simple. When the eviction petition was filed in 1979, leave to defend filed by the respondent was dismissed by the Rent Controller on 23. 1. 1980. Even the revision petition filed in the High Court was dismissed on 8. 12. 1980. While dismissing the revision petition, the High Court observed as under : ". . . . . . . . . . Therefore, one has to come to the conclusion that the rules of local authorities did not permit this building in question to be used for office purpose. Therefore, letting purpose was only for residential purposes and the conditional permission granted to use the premises for office cannot be taken advantage of by the petitioner to plead that the original letting was for residential-cum- commercial purposes. Learned Counsel for the petitioner submits that this very aspect raises triable issue and, therefore, the Controller, at that stage should not have gone into evidence and should have granted leave to the petitioner to defend eviction petition. The argument cannot be accepted. Section 25-B of the Act was enacted by Parliament to give some respite to the landlords bona fide needing premises for themselves and not compel them to undergo the trials and tribulations of a full-fledged trial to seek eviction. . . -. . . . . . 1, therefore, hold that there was absolutely no infirmity in the conclusion arrived at by the Controller on the question of what was the letting purpose. " ( 34 ) AGGRIEVED by the said order, respondent filed a Special Leave Petition in the Supreme Court, which was decided on 7. 10. 1982. The case is reported as Precision Steel and Engineering Works and Anr. v. Prem Deva Niranjan Dew Toyal (supra ). " ( 34 ) AGGRIEVED by the said order, respondent filed a Special Leave Petition in the Supreme Court, which was decided on 7. 10. 1982. The case is reported as Precision Steel and Engineering Works and Anr. v. Prem Deva Niranjan Dew Toyal (supra ). While disposing the said SLP, the Supreme Court held as under : ". . . . . . . . . . But the more objectionable part overlooked by him is that the landlord who seeks possession for himself and is admittedly in Delhi has not stated a single word on oath about his requirements as to in what right he is occupying the premises in which he is at present staying, why after nearly seven years he is required to vacate the same and what necessitates his seeking possession of the front portion when identical unit at the back fell vacant thrice during the period he was permanently in Delhi. If these facts without further elaboration disclosed in affidavit of the tenant are not sufficient to grant leave, we would find it difficult to see a single case in which leave could ever be granted which would mean that the landlord fortunately having premises in Delhi where rents are fantastically high can hold tenants at ransom on the threat of eviction on the ground of personal requirement and on refusal of leave obtain possession. We say no more. " ( 35 ) THAT was one aspect why the Supreme Court remanded the case back to the Rent Controller for adjudication on bona fide requirement. As Rent Controller held that the. premises in question were required bona fidely by the petitioner and I have also held so, I do not want to go further in this aspect of the controversy. ( 36 ) WITH regard to the point in question, the Supreme Court in Precision Steel s case (supra) further held as : "we then turn to the judgment of the High Court rejecting the revision petition filed by the tenant. The learned Chief Justice fist examined the contention whether the demised premises were let for residence or for residence-cum-business. While examining the contention. The learned Chief Justice fist examined the contention whether the demised premises were let for residence or for residence-cum-business. While examining the contention. Clause 6 of the licence deed was referred to which inter alia provides that the licensee will however be free to use the said premises in part or in full also for office purposes provided the rules of the local authorities so permits and in such an event the licensees shall pay to the owners any increase in local taxes, etc. etc. occasioned by such change of use of the said premises from residence to office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . lt is nowhere examined by the High Court as to when the licence was terminated as alleged by the landlord in the petition and a contract of lease was entered into and what where the terms of the lease. The learned Chief Justice observed : "a plain reading of the clause, spells out the sole purpose of letting being residence" and this observation is made in the shape of the positive finding. Since the entry in the premises the tenant has been using part of the premises for office with the specific and undisputed permission of landlord and this fact is glossed over. Whether the rules permit such a use; whether there was such rule prohibiting such use, is a matter let to be inferred by a statement that no rule or bye-law was brought to the notice of the Court that such a use was permissible. If the landlord entered into a contract of tease permitting non-residential use and yet if it is pleaded that such use can be made if the rules of the local authority permitted it, ordinarily one would expect the landlord to show that such use was impermissible. There is no finding to that effect. " ( 37 ) FROM the bare perusal of the order of the Supreme Court what was required to be done by the petitioner was whether the rules permit the property to be used for other than a residence. Therefore, the onus was shifted from tenant to the landlord to show that that was impermissible under the relevant rules. Petitioner filed. Master Plan as well as Zonal Plan (Ex. Therefore, the onus was shifted from tenant to the landlord to show that that was impermissible under the relevant rules. Petitioner filed. Master Plan as well as Zonal Plan (Ex. Public Witness 6/1), inter alia, showing that as per the Master Plan and Zonal Plan, the use of the premises was for residential purposes. Master Plan is an enactment of Parliament. That controls the development of Delhi for the purpose of using the areas for residential purposes, commercial purposes, industrial purposes, whether land has to be used for green areas, schools, play grounds etc. and in what manner land has to be used. ( 38 ) IT was further brought to the notice of the Rent Controller that initial building plans which were prepared, got sanctioned by the petitioner were for residential purposes (Ex. AW 10/7 ). It was also brought on record before the Rent Controller confirmation letters issued by the petitioner to the respondent after monthly rent was received by cheque that property was let out for residential purposes. Not only one but as many as 23 such confirmation letters were filed before the Rent Controller. They are Ex. AW 10/34 to Ex. AW 10/57. Was it not enough evidence before the Rent Controller to answer the query raised by the Supreme Court, i. e. as to whether use for composite propose was impermissible ? But the approach of the Rent Controller was lop-sided. While returning the finding that the property was let out for composite purposes it was simply held to be so on the basis of the interpretation of Clauses 6 and 7 of the lease-deed. This is how the Rent Controller has dealt : ". . . . . . . . . . . . The clause of deeds Ex. AX/r-1 and R-2 showing clearly to the purpose of letting being residential-cum-office, other evidence remains of little consequence and has no bearing in deciding the issue. . . . . . . . . " ( 39 ) AFORESAID finding is in complete disregard with the direction of Supreme Court which shifted the burden on landlord/petitioner to prove that it was impermissible to use the property other than for the purpose of a residence. . . . . . . . . " ( 39 ) AFORESAID finding is in complete disregard with the direction of Supreme Court which shifted the burden on landlord/petitioner to prove that it was impermissible to use the property other than for the purpose of a residence. That was in view of the fact that taking into consideration Clauses 6 and 7 of the lease deed Rent Controller and High Court inter alia held that the purpose of letting was residential alone. The Supreme Court, therefore, held that if landlord was pleading that in spite of written lease deed the use of the premises for non-residential purpose was impermissible it was to be proved by the landlord to be so. Rent Controller committed error in holding that other evidence was of no consequence. ( 40 ) RENT Controller further erred in holding that the respondent was using the premises for office purposes since inception. Now the law with regard to user is well settled. A property if it is used from its inception for a purpose other than for what it has been let out, the mere user of that property will not change the purpose of letting until and unless it is shown that the changed user is with the knowledge or consent of the landlord. Can it be said so in this case in view of Exs. AW 10/34 to AW 10/57? The answer is in the negative. Then the other aspect also has to be borne in mind which Rent Controller completely lost sight of as to what was the dominant purpose of letting. Merely if a room was used for office purpose at best that was the stand of the respondent, before the Metropolitan Magistrate in the prosecution launched by the Delhi Develop- ment Authority, then in a premises comprising of four bed rooms that user would only be incidental to the main use of residence. ( 41 ) IN jagmohan Singh Wadhera s case (supra), a Single Judge Bench of this Court held: ". . . . . . . . . . Therefore, it is clear that the dominant use of the premises is in any case for residential purposes and assuming that the tenant had some sort of incidental business, the premises cannot be said to have been let out for residential-cum- commercial purposes. . . . . . . . . . Therefore, it is clear that the dominant use of the premises is in any case for residential purposes and assuming that the tenant had some sort of incidental business, the premises cannot be said to have been let out for residential-cum- commercial purposes. The finding of the Additional Rent Controller in this connection is erroneous and is contrary to the material on record. " ( 42 ) THEREFORE, I do not see any force in the argument of the learned Counsel for the respondent that some change was made by the petitioner in Mark x , a letter which was sent by the respondent to the petitioner and the bottom part of the letter as produced by the petitioner was different which had the office address of the property in question. If a tenant gets the office address on its letter head printed that will not change the purpose of letting as in this case from the bare reading of Ex. AW 10/34 to Ex. AW 10/57, the petitioner is reiterating that the premises have been let out for the purpose of residence. The finding of the Rent Controller is totally contrary to the evidence brought on record. In view of the discussion above, I set aside the finding of the Rent Controller regarding purpose of letting and hold that from the evidence adduced before the Rent Controller, landlord had succeeded in establishing that the user of the premises for any other purpose other than residence was not permissible. The petitioner also proved on record that he has not consented to the use of premises for office and consultation purpose. ( 43 ) RENT Controller has found that the petitioner required the premises bona fide for his need. On this score the finding of the Rent Controller is upheld. I do not see any force in the arguments advanced by Counsel for the respondent in this regard. ( 44 ) I set aside the order of the Rent Controller and I pass a decree of eviction under Section 14 (l) (e) of the Delhi Rent Control Act. However, the decree shall not be executed for a period of six months. ( 45 ) PETITION is allowed with costs throughout.