1. These two applications for the issue of writs of certiorari are directed against two orders of the Court of Small Causes passed as the appellate authority, in two appeals against an order of the House Rent Controller made on a petition by one Sayed Ahmed Khan the contesting respondent before us for possession of a building in Ellis Road, Mount Road, Madras. He sought the eviction of the two petitioners before us who were occupying the ground floor and the first floor of the building respectively. The ground on which the petition was based was that the respondent required the building for his own occupation. He alleged that he was not occupying a residential building of his own in the city. The Rent Controller dismissed the petition against the petitioner in C. M. P. No. 7472 of 1949 but ordered the eviction of the petitioner in C M. P. No. 7678. There were two appeals, one by the landlord and another by the petitioner in C. M. P. No. 7678 of 1949. Both the appeals were heard together by the Chief Judge of the Court of Small Causes who directed both the tenants to deliver possession of the respective portions in their possession. The two tenants have filed the present applications separately.
2. Certain common points arise in the two applications which may be conveniently disposed of first. It was contended on behalf of the tenants that the petition for eviction out of which these proceedings arise is not maintainable because of a prior petition for eviction filed on substantially the same grounds which had been dismissed both by the Rent Controller and by the appellate authority on appeal. The relevant provision of the Act is Section 10 which provides that the Controller shall summarily reject any application under Sub-section (2) or under Sub-section (13) of Section 7 which raises substantially the same issues as have been finally decided in a former proceeding under the Act or under the corresponding provisions of the prior Rent Control Orders between the same parties or their representatives. The Controller dismissed the prior application on the merits. He held that the claim of the landlord was not bona fide. There was an appeal by him to the Court of Small Causes. Before it came up for hearing, the tenants who were respondents intimated that they would raise the objection that the petition for eviction was not maintainable because of the absence of a notice to quit. This objection was evidently taken because of the decision of a Judge of this Court who held that such a notice was necessary. The advocate for the landlord thereupon made the following endorsement on the appeal memorandum. 'This appeal is withdrawn with liberty to file a fresh petition after giving notice.' In consequence of this endowment, the Court dismissed appeal as withdrawn. Learned counsel for the petitioners contended that under Section 12 (4) of the Act the order of the Controller is final subject only to the decision of the appellate authority and as the appellate authority did not upset the order of the Controller, the latter became final and the issues decided by the Controller must be deemed to have been finally decided within the meaning of the provisions of Section 10. Mr. Somasundaram for the landlord-respondent on the other hand contended that once the appeal was filed, the decision of the Controller was no longer final and as the appellate authority did not decide any issue on the merits, it cannot be said that any issue was finally decided in the former proceeding. He relied on a recent decision of this Court Rangathaman v. Sankarlal Devay : AIR1950Mad139 . That decision, however, is not directly in point, because it was on a different set of facts. In that case there was no order of the Rent Controller on the merits. The petition itself was withdrawn because of the objection that notice to quit had not been given. It could not be urged in that case that any issue had been finally decided even by the Controller. But in the case before us there was undoubtedly a decision on the merits. The question is whether it could be held that the issues were finally decided notwithstanding the withdrawal of the appeal consequent on the preliminary objection to the sustainability of the petition on the ground of want of notice. The question is not free from difficulty, but it is not necessary to deal with it in view of our conclusion on another point which is sufficient to dispose of the applications.
3. The contention on behalf of the tenants that on the admitted facts of the case the landlord cannot be said to be 'not occupying a residential building of his own in the city' must be accepted. The material facts as admitted by the landlord himself are as follows. The landlord owns two other houses. One of these houses is vacant. In another house the second wife of the landlord is residing with her father and mother and others. The landlord himself is residing in a rented house with his first wife. He goes to stay sometimes in the house in which his second wife is living. Sometimes both the wives would live together. Sometimes they quarreled. At the time of the application they had quarrelled and did not agree to live in the game house.
4. On the above facts can it be held that the landlord is not occupying a residential building of his own The learned Chief Judge considered that
'the fiction of the unity of spouses in the eye of the law does not necessarily drive one to hold that a much-married husband should be deemed to be residing at every place where any of his wives is residing,'
and that a wife's residence was not necessarily the residence of the husband. It may be remarked with equal force that there is nothing which compels a Court to hold that a much-married man can keep each of his wives in a separate building of his and seek another building for his own residence. Our decision must rest on the construction of the word 'occupying' in Section 7 (3) (a) of the Act. It is not easy to give an accurate en exhaustive definition of the word 'occupying.' As pointed out by Lush J. in Reg. v. St. Pancras Assessment Committee, (1877) 2 Q.B.D. 581: 46 L.J.M.C. 243: 'Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation.'
The learned Judge expressed the opinion that for the purpose of rateability if the owner of a house furnished it and kept it ready for habitation whenever he pleased to go to it, he was an occupier though he might not reside in it one day in a year. In re Garland; Eve v. Garland, 1934 Ch. 620: 103 L. J. Ch. 287 it was held that residence and occupation are not the same thing and a person can be the occupier of a house although he does not live in it. In that case a testator bequeathed to his wife any house of which he might at the time of his death be the owner and occupier. At the date of his death his wife was in occupation of a house which he had bought and in which his furniture had been placed but in which he never resided because shortly after the purchase of the house he became of unsound mind and was removed to a mental house. It was held that the testator was the occupier of the house at the time of his death and that his widow was therefore entitled to the proceeds of the sale of the house. In The King V. Ditcheat, (1829) 9 B. & C. 176 : 109 E. R. 66, Littledale J. said :
'There is a material difference between a holding and an occupation. A person may hold though he does not occupy. A tenant of a freehold is a person who holds of another ; he does not necessarily occupy. In order to occupy, a party must be personally resident by himself or his family.'
The following observations of Moore L. J. in an Irish case (Martin Estates Co., Ltd. v. Watt and Hunter, 1925 N. Ir. 79 are instructive :
'Occupation means that the owner is in actual physical enjoyment of the house, property or estate by himself, his agents or servants. Strictly speaking, occupation by the owner cannot include the case of subtenants for the actual occupation is in them. A limited form of occupation is 'residence' which involves the dwelling for some period of the year on the premises personally of the owner or his family or alternatively, at least, of his domestic servants.'
In our opinion a person must be deemed to be occupying a residential building at the time of an application for eviction if any of the members of his family including dependants reside in the building with his permission and on his account, though physically he himself might not be residing therein. The test is whether if he desires he cannot at any time go to reside in it. Now, in the present case, the house in which his second wife is residing is certainly a house which he can go to reside in at any time he chooses. His wife and his wife's parents are residing there, because he has permitted them to reside. If this construction were not to be accepted, and actual physical residence at the time of the application is the test, then, the consequences are startling. A man may have five houses and four children. He can arrange for each of his children to reside in each of the four houses without his residing in any of them and apply for eviction of the tenant occupying the fifth house. Such a contingency could not have been contemplated by the Act. This is not a case in which there has been a separation between the landlord and any of his wives so that it can be said that the wife is residing in a house on her own account and as of right, say, under a decree of Court.
5. We, therefore, hold that the landlord in this case must be held to be occupying a residential house of his own in the City and, therefore his application for eviction must fail. There will be an order accordingly dismissing his (landlord's) application. We make no order as to costs.