V. Ratnam, J.
1. The tenant, against whom the Appellate Authority has passed an order for eviction, on the application, of the landlady, the respondent herein, under Sections 10(2)(i) and 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as 'the Act'), is the petitioner herein.
2. The respondent is the owner of the premises bearing No. 14, Old Slaughter House Street, Choolai, Madras-600 007, and the petitioner herein is a tenant therein on a monthly rent of Rs. 30, the tenancy being reckoned according to the English calendar month. According to the case of the respondent, she is living in a rented premises and bona fide requires the house in the occupation of the petitioner for her own use and occupation. It was the further case of the respondent that three other tenants, who were in occupation of different portions of the premises, had already vacated realising the bona fides of the requirement of the respondent and though the petitioner was approached by the respondent with a request that the petitioner should deliver vacant possession, the petitioner merely promised to do so as soon as he was able to secure suitable accommodation, but did not vacate as promised, for more than a year, with the result that the other portions which had fallen vacant had also been kept vacant, as till such time the petitioner vacates from the building in his occupation, the entire building cannot be occupied by the respondent for her use. Stating that she was not occupying any residential building of her own in Madras City and that she required the premises in the occupation of the petitioner for her own use and occupation and further charging the petitioner with having committed wilful default in payment of rents for the months of June and July, 1982, the respondent filed R.C.O.P.No. 4025 of 1982, praying for an order of eviction against the petitioner.
3. In his counter, while admitting the tenancy in his favour as well as its terms, the petitioner denied that the respondent was residing in a rented premises. The petitioner put forth the plea that though three other tenants had already vacated, the respondent had not occupied those portions, but had left the same idle without use and that established that the respondent was only anxious about evicting the petitioner with a view to let out the premises to others and, therefore, her requirement is not bona fide, Referring to the wilful default in the payment of rents attributed to the petitioner, he stated that the rent for the month of July, 1982 was paid on 8th August, 1982, and received by the husband of the respondent, who then warned the petitioner that he should vacate by the end of September, 1982 and that a similar warning was also given a week hence and this necessitated the writing of a letter by the petitioner on 11th August, 1982, to the effect that if the husband of the respondent did not turn up on or before 15th September, 1982, for collecting the rent for August, 1982, he would be obliged to send the rent for that month by money-order. Despite this, according to the petitioner, the husband of the respondent did not turn up to collect the rent and in accordance with the letter, the rent for August, 1982 was sent by money-order on 16th September, 1982, which, however, was refused by the respondent. Thus, according to the petitioner the rents upto July, 1982 had been paid by him and he also expressed his readiness and willingness to tender the rents for August and September, 1982 and stated there was no default, much less wilful default in the payment of rents for the period mentioned in the application for eviction.
4. Before the Rent Controller (VIII Judge, Court of Small Causes), Madras, Exs.P-1 to P-7 were marked on behalf of the respondent and her husband was examined as P.W.1 while, the petitioner examined himself as R.W.1 besides exhibiting Exs.R-1 and R-2. The learned Rent Controller, on a consideration of the oral as well as the documentary evidence, found that there was no reason for accepting the evidence of P.W.1 and rejecting the testimony of R.W.1 and concluded that because P.W.1 did not go to receive the rent for August, 1982 in accordance with the notice issued by the petitioner, the rent had been sent by money order on 16th September, 1982 and, therefore, the petitioner has not committed wilful default in the payment of rents. Dealing with the requirement of the respondent for her own use and occupation, the learned Rent Controller held that the respondent was not owning any other building in the city of Madras, that having regard to the size of her family, the portions, which had already fallen vacant, would be sufficient to accommodate her and the members of her family and that the respondent was anxious to secure an order for eviction against the petitioner with a view to get higher rent for the portion in his occupation and, therefore, the requirement of the respondent is not bona fide. On those conclusions, the application for eviction filed by the respondent herein was dismissed. Aggrieved by that, the respondent herein preferred an appeal in R.C.A.No. 1439 of 1983 to the Appellate Authority (IV Judge, Court of Small Causes), Madras. On a reconsideration of the evidence, the Appellate Authority found that the petitioner had not established payment of rents for the months of June and July, 1982 and that the non-payment of rent was wilful as well. Dealing with the requirement of the respondent for her own use and occupation, the Appellate Authority found that the respondent did not occupy a residential building of her own in the city of Madras and that though three portions had fallen vacant, they had been kept vacant under lock and key, as those portions were not sufficient and the respondent required the entire house for her own use and occupation after certain repairs and alterations and, therefore, that would not in any manner detract from the bona fides of the requirements of the respondent. It was further pointed out by the Appellate Authority that the sufficiency or otherwise of the accommodation and the size of the family of the respondent were all matters not relevant for consideration of the bona fides of the requirement and finally, the Appellate Authority pronounced in favour of the bona fide requirement of the respondent for her own use and occupation. On those conclusions, the dismissal of the application for eviction by the Rent Controller was set aside and an order for eviction was passed against the petitioner. It is the correctness of this order that is challenged in this Civil Revision Petition.
5. The learned Counsel for the petitioner first contended that even according to the Appellate Authority, three other portions in the same premises had fallen vacant and had been kept under lock and key by the respondent and that would amount to occupation by the respondent of a residential building of her own disentitling her from praying for an order of eviction against the petitioner under Section 10(3)(a)(i) of the Act. Reliance in this connection was placed on the decisions in Accommodation Controller v. G. Rukmani Ammal : AIR1971Mad342 , R.M. Kuppu Sati v. Rajaram Sah (1979) 92 L.W.165, C.S. Pillai v. Captain M.A. Murugaraj : (1983)2MLJ310 and Bimla Devi v. 1st Additional District Judge : 3SCR315 . On the other hand, the learned Counsel for the respondent Mr. M. Raghvan submitted, drawing attention to some of the provisions of the Act, that there is an inbuilt but well marked distinction between 'occupation' of the premises and mere holding of or control over the premises and that occupation would be a matter of intention manifested or disclosed by actual user or an overt act of user in one or more methods with reference to the premises in question. Indeed, the learned Counsel for the respondent even argued that physical occupation of the residential premises and the user there of alone amounts to occupation as contemplated under Section 10(3)(a)(i) of the Act, Support for this contention was sought to be drawn from the decisions in Langford Property Company Limited v. Athanassoglu (1948)2 All E.R.722, Dr. Mohammed Ibrahim v. Ahmed Khan : AIR1950Mad556 , Firm Ram Kishnu Shah v. Jamuna Prasad : AIR1951Pat469 , Cantonment Board v. Dipak Prakash : 1SCR196 , R.P. Mehta v. I.A. Sheth : 8SCR1 , Accommodation Controller v. Rukmani Ammal : AIR1971Mad342 , Bega Begum v. Abdul Ahad Khan : 2SCR1 , Babu Singh v. Rajkumari Jain : 3SCR114 , Mrs. Gori Devi v. Shama Rao : (1983)2MLJ223 and Bimla Devi v. 1st Additional District Judge : 3SCR315 .
6. There is no dispute that three portions which had been under the occupation of tenants had since fallen vacant. There is also no dispute that the respondent is living in a rented premises and that she does not own any other building except door No. 57, Mannappa Mudali Street, Korukkpupet, Madras-21, a portion of which is in the occupation of the petitioner. Even as per paragraph 8 of the counter of the petitioner, the respondent had not occupied the portions which so fell vacant. The husband of the respondent, examined as P.W.1, in the course of his evidence, has stated that the portions which had fallen vacant already are insufficient and that the portion in the occupation of the petitioner is also necessary and that was the reason why the portions which had fallen vacant already were not occupied. Even the petitioner, in the course of his chief examination as R.W.1, has stated that the respondent did not occupy the vacant portions and that she is not in occupation of those premises. It is thus made out from the evidence of P.W.1 as well as R.W.1 that there is no physical occupation of the premises which had fallen vacant, by the respondent. Nevertheless, it is stated on behalf of the petitioner that inasmuch as the respondent had been able to secure vacant possession of three portions, she should be considered to be in occupation, within the meaning of Section 10(3)(a)(i) of the Act and would, therefore, be disentitled to seek an order for eviction against the petitioner. In other words, the petitioner desires the court to Interpret the word 'occupying' occurring in Section 10(3)(a)(i) of the Act as equivalent to mere holding or connoting mere 'possession'.
7. It is necessary at this stage to briefly examine the provisions of the Act with a view to ascertain whether a distinction has been maintained between 'occupying' and 'possession' in the Act. Section 3 of the Act makes provision for giving notice of vacancy by the landlord as well as the tenant. A vacancy in respect of a building may arise either by the landlord or the tenant ceasing to remain or reside in the premises. Section 3 contemplates the arising of a vacancy by ceaser of occupation. In other words when there is no occupation, there is a vacancy. Explanation 1 to Section 3 of the Act, on the other hand, provides for a case where a landlord obtains possession of a residential building or a non-residential building under Section 10(3) of the Act and lets out the whole or part of it to a tenant or allows the whole or part of it to be occupied by any person, and he is also deemed to have failed to give notice. Explanation II provides for the case of a purchaser not obtaining vacant possession, but allowing the seller to occupy the whole or part of the building and even in such a case, the buyer is deemed to have failed to give notice. Section 3(2) of the Act provides that in the city of Madras or Madurai or other Municipality to which that sub-section would apply, if a tenant of a building puts another in occupation and does not re-occupy within a period of three months, then, on the expiry of that period, the tenancy shall be deemed to have been terminated and in that situation, it is the duty of the tenant as well as the landlord if he is aware of such termination, to give notice of such termination. Under Section 3(5) of the Act, after receipt of notice of vacancy, if the Government requires the building for the purposes of the State or Central Government or of any local authority or public institution under the control of any 'such Government or for the occupation of any officer of such Government, the landlord shall deliver possession to the authorised officer. The first proviso to Section 3(5) of the Act states that if the landlord fails to deliver possession of the building to the authorized officer within forty-eight hours of the receipt of the intimation that the building is required for any of the aforesaid purposes or for occupation by any of the officers specified in Section 3(3), the Government shall be deemed to be the tenant from the date on which delivery of possession is given. The fifth proviso to Section 3(5) of the Act is to the effect that on the delivery of possession of the building, the allottee shall pay rent to the landlord proportionately for any part of the calendar month of his occupation. Section 3(9)(a)(i) of the Act empowers the Government to summarily dispossess any landlord or tenant or other person occupying any building in contravention of the provisions of Section 3 or any landlord who fails to deliver possession to the Government of any building in accordance with the provisions of Sub-section (5) of Section 3 and enables the Government to take possession of the building. Section 3-A of the Act provides for the release of a building in respect of which notice has been given on the ground that the building is required for the occupation of the landlord or for carrying on a business, depending upon whether it is a residential or non-residential building. Under Section 3-A(5) of the Act, if after the release of a building, the landlord or any member of his family does not put the building to such use for which it was so released, but had let out or kept it vacant or put the building to a use other than that for which it was released, then the building shall be deemed to have become vacant from the date of expiry of the period of thirty days specified under Sub-section (4) of Section 3-A, within which the landlord should occupy the premises released. Section 10 of the Act, providing for several grounds upon which an order of eviction can be obtained, has included therein ceasing to occupy the building when it is not situated in hill-station for a continuous period of four months without reasonable cause. Under Section 10(3)(a)(i) of the Act, the landlord is enabled to secure an order for eviction in respect of a residential building if the landlord requires it for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own Section 10(3)(a)(ii) of the Act makes a special provision with reference to a non-residential building used for the purpose of keeping a vehicle or adopted for such use. The landlord, in such a case, in enabled to secure an order for eviction if he requires it for his own use and if he is not occupying any such building in the city, town or village concerned. In relation to non-residential buildings, under Section 10(3)(a)(iii) of the Act, provision is made enabling the landlord to secure an order of eviction if he or any members of his family is not occupying for purposes of a business, which he or any member of his family is carrying on, a non-residential building in the city, town or village; concerned. Section 10(5)(a) of the Act provides for restoration of the tenant to the premises from which he was evicted under certain circumstances. If, after having obtained possession pursuant to an order of eviction under Section 10(3) or 10(3-A) of the Act, the landlord does not occupy the building ' himself within one month after obtaining vacant possession, or if having occupied vacates It without reasonable cause within six months, then the tenant can approach the Rent Controller for an order directing the restoration of possession of the building. Section 12 of the Act is made applicable to buildings in respect of which the Government shall be deemed to be a tenant and provides for recovery of possession by the landlord for repairs or for the demolition and reconstruction. In case of repair, the authorized officer is empowered to order delivery of possession of the building to the landlord subject to an undertaking that the building, on the completions of the repairs, he offered to the authorized officer before the expiry of three months from the date of recovery of possession by the landlord or such further period as may be allowed for re-allotment to any person. Similar provision is also made with reference to demolition and reconstruction of the buildings. Section 14 of the Act contains provisions for recovery of possession for repairs and demolition and reconstruction, similar to Section 12 of the Act, but relating to tenants other than the Government. Under Sections 15 and 16 of the Act, provision is made to enable the tenant to re-occupy the building after repairs and if the building is not demolished. A careful consideration of the aforesaid provisions of the Act clearly points out that there is a recognition even thereunder of a well marked distinction between 'occupation' and 'possession', 'Occupation' means the act of occupying and connotes either actual presence in the building with an intention to do so and would comprehend a case where with such an intention the building is made ready or kept in readiness for such use with ail the essential requirements either for residence or for carrying on business, as the case may be, or manifested at least by some overt act in that behalf. In other words, occupation of a premises undoubtedly would include possession of it, though mere possession of it alone may not be sufficient to constitute occupation.
8. Indeed, that there is such a distinction between 'occupation' and 'possession' or mere holding has been clearly pointed out, though it may not be always easy to give an accurate, as well as an exhaustive enumneration of the two concepts. Lush, J. in The Queen v. St. Pancras Assessment Committee, (1877) 2 Q.B.D.581, referring to this, has observed as under:
It is not easy to give an accurate and exhaustive definition of the word 'occupier'. Occupation includes possession as its primary element, but it also includes something more; legal possession does not of itself constitute an occupation. The owner of a vacant house is in possession, and may maintain trespass against any one who invades it, but as long as he leaves it vacant he is not treatable for it is an occupier. If, however, he furnishes it, and keeps it read for habitation whenever he pleases to go to it, he is an occupier, though he may not reside in it one day in a year.
In re Garland, Eve v. Garland (1934) Ch.620 : 103 L.J.Ch.287 a testator bequeathed to his wife any house of which be might at the time of his death be the owner and occupier, and when he died, his wife was in occupation of a house which he had bought where his furniture had been kept, but In which he never resided, as he had become of unsound mind after the purchase and had to be 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 under the terms of his will, his widow was, therefore, entitled to the proceeds of the sale of the house.
In The King v. Ditcheat, (1892) 9 B and C. 176 : (1892) 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, party must be personally resident by himself or his family.
Moore, C.J. in an Irish case Martin Estates Company Limited' v. Watt and Hunter (1925) N.lr.79 has made the following observations, which are very relevant:
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 sub-tenants 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 Langford Property Company Limited v. Athanasseglou, (1840)2 All E.R.722, the Court had to consider the entitlement to possession on the ground that the tenant was not in personal occupation of the premises so as to enable him to claim the benefits of the Rent Restrictions Act, but had sub-let it to another. Factually it was found that though the tenant was not in personal occupation of the premises, which contained his furniture, he slept there whenever he was required to do so for business purposes, which was on an average twice a week and that was held to amount to personal occupation by the tenant. In Dr. Mohammed Ibrahim v. Ahmad Khan : AIR1950Mad556 , which arose under the provisions of Section 7(3)(a)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act 15 of 1946, comparable to Section 10(3)(a)(i) of the Act, the question arose whether a landlord can be said to be not occupying a residential building of his own when he owned two houses, one of which was vacant and in another his second wife was living while staying in a rented house with his first wife and sometimes used to stay in the house where the second wife was living. In dealing with this, the Division Bench pointed out after referring to the above mentioned decisions that 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 and that the test is, whether if he desires, he cannot at any time go to reside in it. Taking note of the fact that the house in which the second wife was living was certainly a house to which the landlord could go and reside at any time he chose, it was held by the Division Bench that the landlord must be held to be occupying a residential house of his own. In doing so, the test formulated in he decisions referred to above was applied. This decision, though rendered with reference to the provisions of Section 7(3)(a)(i) of the Act 15 of 1946, in my opinion, would squarely apply to this case In Firm Ram Kishun Shah v. Jamuna Prasad : AIR1951Pat469 the word 'occupation' occurring in Section 11(3) of the Bihar Buildings (Lease, Rent and Eviction Control) Act, III of 1947 came up for consideration and the Court approved of the considerations pointed out in Rex v. St. Pancras, (1877) 2 Q.B.D.581, to ascertain whether there was occupation. The Supreme Court, in Cantonment Board v. Dipak Prakash : 1SCR196 , pointed out, while considering the argument that the word 'occupation' should ordinarily be interpreted as actual occupation, but that it is difficult to agree that when a person, entitled to actual occupation by reason of his lease permits another to occupy it, then it ceases to be in the actual occupation of the person so permitting. It was also further pointed out that even if the military officer in occupation was away for months together and the members of his family or his servants were residing, it would not make the building one which ceased to be in the occupation of the officer and, therefore, where a person entitled to occupy, permits another to occupy the same, he is in actual possession through such other person. This decision draws attention to the need for either actual occupation by the person entitled to occupy the same or by another person put in occupation by the person entitled to occupy the same. In either event, this decision appears to lay down that there should be actual occupation or constructive occupation, neither of which is present in this case with reference to the respondent herein in relation to the three portions which had fallen vacant. In R.P. Mehta v. I.A. Sheth : 8SCR1 the expression 'occupation' occurring in Section 13(1)(g) of the Bombay Rents, Motel and Lodging House Rates Control Act 57 of 1947, came up for consideration before the Supreme Court. Referring to the earlier decision of the Supreme Court in Civil Appeal No. 804 of 1962, dated 18th January, 1963 (Krishnalal Ishwarlal Desai v. Bai Vijker : 8SCR1 where the Supreme Court stated that when possession is obtained in execution, it must be followed by an act of occupation, which must inevitably consist of some overt act in that behalf, it was pointed out that occupation does not necessarily refer to occupation as residence, but such occupation can be by making use of it in any manner. On the evidence in this case, it is clearly established that the respondent is neither in physical occupation nor has she made use of those premises in any manner. Again, in Bega Begum v. Abdul Ahad Khan : 2SCR1 the word 'occupation' occurring in Section 11(1)(h) of the Jammu and Kashmir Houses and Shops Rent Control Act (34 of 1966), came to be interpreted by the Supreme Court in the context of the argument that the words 'own occupation' postulated that the landlord must require for his personal residence. The Supreme Court pointed out that the section contemplates actual possession of the landlord, whether for his own residence or for his business and even if the landlord was running a hotel in the house, he would be undoubtedly in possession or occupation of the house in the legal sense of the term. This decision also reiterates that the expression 'occupation' is wide enough to include actual possession of the landlord, whether for his own residence and also for persons living with him as members of the same family or for his business. Emphasis has been laid in this decision on the personal occupation by the landlord of the premises either for himself or for the occupation of any person for whose benefit the house or shop is held as provided under Section 11(1)(h) of that Act. In considering the import of the word 'possession' occurring in Section 17(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972), the Supreme Court in Babu Singh v. Rajkumari Jain : 3SCR114 , observed that though the lady did not actually reside in the premises which were locked, but it contained her household effects, it cannot be said that she was not in possession of the premises so as to make Section 17(2) of that Act inapplicable and that possession by a landlord of his property may assume various forms inclusive of by leaving it in charge of a servant or by putting his house-hold effects or things locked up in the premises and that such an occupation also would be full and complete possession in the eye of law, this decision also lays emphasis on the requirement that In order to constitute occupation which includes possession in law, it is unnecessary that the person occupying should actually reside in the locked up premises, but it would suffice if the premises had been left either in charge of the servant or within the premises, some house-hold effects or things of the landlord had been left behind. In this case, there is absolutely no evidence to snow that the portions which had fallen vacant already had been left by the respondent in charge of some servants or that she had left inside those premises some articles and house-hold effects belonging to her. In Mrs. Gori Devi v. Shama Rao (1983) 11 M.L.J. 223 : (1983) 2 R.C. J. 557 : 96 L.W. 516, the maintainability of an application for eviction under Section 10(3)(a)(i) of the Act came up for consideration and it was urged that as the second-floor had been kept under lock and key by the landlady that was under her occupation and that the proper remedy of the landlady would only be to file an application for eviction of the tenant under Section 10(3)(c) of the Act and not under Section 10(3)(a)(i) of the Act. Swamikkannu, J. pointed out that in the case of a residential building, 'occupation' can only mean 'living in it', and the fact some rooms in a house are kept locked by the landlady will not lead to the conclusion that she is in occupation of a part of the building, within the meaning of Section 10(3)(c) of the Act, especially when it is beyond dispute that the landlady is living in a separate rented building with the other members of her family. However, in C.S. Pillai v. Capt., M.A. Murugaraj : (1983)2MLJ310 while considering the identical question regarding the maintainability of the application for eviction under Section 10(3)(a)(i) of the Act, it was held that if the landlord is in juridical or legal possession of the ground floor, that would be enough to non-suit him concerning the eviction of the tenant from the first-floor under Section 10(3)(a)(i) of the Act and that the remedy of the landlord would be only to file an application under Section 10(3)(c) of the Act and not under Section 10(3)(a)(i) of the Act. To arrive at such a conclusion, reliance has been placed upon Accommodation Controller v. G. Rukmani Ammal : AIR1971Mad342 . It is difficult to read this decision in the manner done, for alt that has been laid down in that case is that to constitute occupation, it need not be physical in the sense that there should be actual residence in a portion of the house, but that it would suffice if, with the intention to reside, a portion of the premises is kept locked so that when the necessity arises that may be used. The emphasis is on the manifestation of an intention to reside coupled with the retention of a portion in readiness for that purpose. Merely from the circumstance that a landlord is in juridical possession without more of the ground-floor, it would not ipso facto follow that he is in occupation thereof. If mere juridical possession would suffice to make it occupation for purposes of Section 10 of the Act, some strange results may also follow. Juridical possession referred to may be either actual or constructive. If it is a case of actual possession, then it follows that the landlord should be physically in occupation. In such a case, occupation and possession go together. Or it should be shown that he had retained control and possession over the premises either by manifesting an intention to reside there by retaining a portion thereof and by leaving some of his articles there or even by employment of a servant to look after the premises. Shorn of this requirement, it is difficult to conceive of, in the light of the principles laid down by the decisions referred to above, other kinds of possession, for purposes of the provisions of the Act, which can be equated to 'occupation' in law. Considering the position from the point of view of constructive possession, it is at once obvious that in every case where a building had been let out by a landlord, he is in possession of the same through his tenant and there could therefore, be no case of a landlord not occupying either a residential premises or non-residential premises of his own, with the result that no application for eviction can at all be filed. In addition, it is seen that the attention of the learned Judges does not appear to have been drawn to the decision of the Division Bench reported in Dr. Mohammed Ibrahim v. Ahmed Khan : AIR1950Mad556 and the other decisions referred to earlier in this judgment. It, therefore, follows that the decision in C.P. Pillai v. Capt., M.A. Murugaraj : (1983)2MLJ310 relied on by the learned Counsel for the petitioner rendered without reference to the Bench decision and others cannot be applied to this case.
9. In Bimla Devi v. 1st Additional District Judge. : 3SCR315 , the Supreme Court had to consider whether the keeping of household effects in a part of the premises of the landlord, while he was residing elsewhere, would be sufficient to hold that he was in occupation of the premises. Referring to Babu Singh Chauhan v. Rajkumari Jain : 3SCR114 , it was pointed out that in that decision the word 'possession' had been treated as synonym of the word 'occupation' occurring in Explanation (iv) to Section 21(1)(b) of the Uttar Pradesh Buildings (Regulation of Letting, Rent and Eviction) Act 13 of 1972 and that if control over the entire or a portion of the property is retained either by making casual visits or by even locking up the premises keeping the household effects therein, that would be occupation of the premises. As pointed out earlier, on the facts and the evidence in this case, no sort of control in any manner had been exercised by the respondent over the portions which had already fallen vacant and applying the ratio of this decision of the Supreme Court, the respondent cannot be stated to be in occupation of the vacant portions. Accommodation Controller v. G. Rukmani Ammal : AIR1971Mad342 , has already been referred to. As pointed out earlier, that decision merely laid down that for the purpose of Section 3(10)(c) of the Act, it would suffice if the owner resides in a portion of the house off and on but keeping it locked most of the time, and it is a question of intention disclosed by acts of user. Even applying this test to the facts of this case, as seen already, the respondent is not admittedly residing in a portion which had fallen vacant nor is there any manifestation of an intention by her for occupying it by acts of user. Therefore, that decision clearly does (sic) not advance the case of the petitioner. P.M. Kuppu Sah v. Rajaram Sah (1979) 92 L.W. 165 does not also assist the petitioner in any manner, for, it was found on facts, that the landlord had kept his things in a portion of the premises and had also kept it locked and under his control and under those circumstance it was held that it was the intention of the landlord to keep the premises in his physical possession, which is totally absent in this case. Bimla Devi v. 1st Additional District Judge : 3SCR315 , far from supporting the petitioner, assists, the stand taken by the respondent. The Supreme Court has, after referring to the earlier decision in Babu Singh Chauhan v. Rajkumari Jain : 3SCR114 and the dictionary meaning of the word 'occupation' drew attention to the circumstances of retention of control over the entire or a portion of the property and the locking up of the premises with the household effects inside as establishing occupation. The evidence in this case does not make out either the retention of control over the entire or a portion of the property with a view to live, therein either by locking up the household effects or even by putting a servant or an agent in charge of the vacant premises. Thus, on a careful consideration of the facts and the evidence in the light of principles laid down in the decisions referred to above, the conclusion is irresistible that the respondent is not in occupation of the portions which had already fallen vacant and can, therefore, maintain the application under Section 10(3)(a)(i) of the Act.
10. P.W.1, in the course of his evidence, has stated that the portions that had already fallen vacant are not sufficient for the occupation by the respondent and himself and a foster daughter. In the course of his cross-examination, he had denied the suggestion that the vacant portions would be sufficient and had further stated that only because the accommodation was not sufficient, he did not occupy the same. R.W.1 has also in a manner admitted the insufficiency of the already available accommodation, for, he stated that it is not correct to say that the respondent does not require the premises in his occupation. Therefore, apart from the fact that the respondent is not occupying the portions which have fallen vacant already, there is also an acceptable explanation for non-occupation of the vacant portions. The evidence discloses that the family of the respondent consists of P.W.1, the respondent and a foster-daughter. There is nothing in the evidence to indicate as to how much accommodation was made available for occupation by the respondent and the other members of her family by the vacant portions and, therefore, it cannot be assumed that the vacant portions would be sufficient. On the contrary, the evidence of P.W.1 is to the effect that the available accommodation is insufficient and that has not in any manner been established to be unacceptable. There is one other circumstance which would also clinchingly establish that the available accommodation must be insufficient to meet the needs of the respondent and the other members of her family. The evidence discloses that three portions fell vacant some time in June, 1982 and the undisputed fact is that the respondent has not occupied those portions until this day and that would indicate that unless the portion in the occupation of the petitioner is also made available, the respondent cannot move in and live comfortably in the entire building fulfilling the needs and requirements of the respondent and the members of her family. There is also an indication that repairs have to be carried out to all the portions before occupation by the respondent, as seen from Ex.P-4. Further, the evidence clearly shows that the respondent does not own any other building. Ex.P-1 series, which are the receipts for the payment of rents by P.W.1, show that the respondent and her husband were living as tenants in a portion of the first floor of door No. 57. Mannappa Mudali Street, Madras-21, on a monthly rental of Rs. 110 till about January, 1983. Subsequently, the respondent and her husband have shifted to another premises in Mahakavi Bharathi Nagar, Madras-39. This is established by Ex.P-2, which is a receipt for two months' advance issued by the landlord of that premises. Inasmuch as the respondent is living in a tenanted premises and does not own her own building, she would be entitled to seek an order for eviction against the petitioner on the ground that she bona fide requires the same for her own use and occupation. The evidence does not in any manner disclose lack of bona fides on the part of the respondent. On the contrary, the very circumstance that since June, 1982 the respondent had not occupied the portions which had fallen vacant would strongly make out the bona fides of her claim for personal occupation as ordinarily no person is likely to keep the available accommodation vacant for long losing the substantial rental income therefrom. There is also no suggestion that the application for eviction was in any manner motivated. Besides, the petitioner as R.W.1 has admitted that he told P.W.1 that he will vacate when he secures another place and this could be only on the footing that even the petitioner was convinced about the bona fides of the requirement of the respondent. Taking into account the aforesaid aspects, it has to be held that the Appellate Authority was right in its conclusion that the respondent has established her bona fide requirement of the premises in the occupation of the petitioner for her own personal use and occupation.
11. The learned Counsel for the petitioner next contended that the Appellate Authority was in error in concluding that the petitioner had committed wilful default in the payment of rents for the months of June and July, 1982. On the other hand the learned Counsel for the respondent would submit that on the evidence of P.W.1, clearly a case of wilful default has been established against the petitioner justifying the passing of an order for eviction against him. There is no dispute about the monthly rent. According to the case of the petitioner, the practice was for P.W.1 to come and collect the rents. The application for eviction was on the basis of wilful default in the payment of rents for the months of June and July, 1982. With reference to the payment of rent for June, 1982 the petitioner has not specifically pleaded that it was paid, though in evidence he attempted to say that it was paid some time in the first week of July, 1982. While the petitioner as R.W.1 stated that no receipts were given by P.W.1 for the payment of rents to him. P.W.1 stated that the petitioner used to write out receipts and obtain his signature. No receipts at all had been produced for the payment of rents. No acknowledgement signed by the petitioner has also been produced by the respondent for having passed receipts in the manner spoken to by him. It, therefore, appears that there was no practice of issuing receipts at all for the payment of rents made. Regarding the wilful default in the payment of rents for the months of June and July, 1982, the evidence is the oral testimony of P.W.1. As against that, the evidence of R.W.1 would show that he had paid the rents for the months in question. R.W.1 has stated that for the month of June, 1982, the rent was paid to P.W.1 on the 7th or 8th July, 1982. Similarly, he has stated that the rent for the month of July, 1982 was paid on 8th August, 1982. R.W.1 would also admit that he is not in the habit of maintaining accounts. On a careful consideration of the testimony of P.W.1 and R.W.1, it is seen that the version of the husband of the respondent as P.W.1 appears to be more probable rather than that of R.W.1, Ex.P-4 is the copy of the notice, dated 4th August, 1982, and that Shows that the respondent had issued a notice to the petitioner setting out her bona fide requirement of the portion in the occupation of the petitioner for her own use and occupation and also mentioning the commission of wilful default by the petitioner in the payment of rents for the months of June and July, 1982. The notice sent is Ex.P-3, and it has been addressed to the petitioner to his correct address. The petitioner would also admit that among the tenants in occupation, he was the only one of the name of Sundaram. It is seen that the notice Ex.P-3 has been returned by the petitioner on the ground that the rent for the month of July, 1982 had been paid by him on 8th August, 1982 and requesting the respondent and her husband to come and collect the rent for August, 1982 on or before 15th September, 1982, failing which, it was stated that the rent would be sent by money-order. It is at once obvious that getting scent of the despatch of the notice under Ex.P-3, the petitioner had manoeuvred to refuse the same, though he was the only person of the name mentioned in the envelope, which is admitted to be correct, and had further followed it up by issuing Ex.P-5, dated 11th September, 1982 making it appear as if the rent for July, 1982 had been paid and stating further that the rent for August, 1982 should be collected on or before 15th September, 1982. To this the respondent has sent a notice under Ex.P-6, dated 16th September, 1982. Therein, the refusal of the notice sent under Ex.P-3 by the petitioner has been referred to and the non-payment of the rent by the petitioner from June, 1982 has also been reiterated. The respondent has also expressed the readiness and willingness to receive the rents from June, 1982 onwards. To this, the petitioner sent a reply under Ex.P-7, dated 27th September, 1982 reiterating the payment of rent for the month of July, 1982 on 8th August, 1982. While the notices issued by the respondent under Ex.P-3 (Ex.P-4 copy) and Ex.P-6 clearly refer to the non-payment of rents for June and July, 1982, the petitioner, either in Ex.P-5 or in Ex.P-7, has not said anything with reference to the non-payment of the rent for June, 1982. There is no whisper either in Ex.P-5, or in Ex.P-7, that the rent of June, 1982 had been paid. Under those circumstances, the evidence of R.W.1 to the effect that the rent for June, 1982 was paid on the 7th or 8th of July, 1982 is rather difficult to accept. Besides, the petitioner has not satisfactorily established that the rent for the month of July, 1982 had also been paid in the manner stated by him. The Appellate Authority, on a consideration of the testimony of P.W.1 and R.W.1, was inclined to accept the version of P.W.1 to that of R.W.1. The non-payment of the rents by the petitioner for the months of June and July, 1982 had been referred to by the respondent at the earliest point of time when the notice was issued under Ex.P-3 (Ex.P-4 copy). That was also reiterated in Ex.P-6. Apart from the assertion in Ex.P-5 that the rent for July, 1982 had been paid on 8th August, 1982 the petitioner has not in any manner substantiated the same. It is significant that in Ex.P-7, which was the reply to Ex.P-6 issued by the respondent, the petitioner has not stated that the rent for June, 1982 had been paid. The payment of rent for July, 1982 in person to P.W.1 alone has been referred to. From the available materials, it is clearly established that the petitioner had without doubt, committed default in the payment of rent at least for June, 1982. Regarding the non-payment of. rent by the petitioner for the month of July, 1982 no clinching material has been placed by the respondent that the petitioner did commit default in the payment of rent for that month Therefore, the conclusion of the Appellate Authority that the petitioner had committed wilful default in the payment of rent has to be maintained, though such default is only for the month of June, 1982.
12. Thus, on a careful consideration of the facts, evidence and the other circumstances, it is clearly established that the respondent has made put her bona fide requirement of the premises in the occupation of the petitioner for her own use and occupation and that the petitioner had also committed wilful default in the payment of rent. Under those circumstances, no exception could be taken to the order of eviction passed by the Appellate Authority. Consequently, the Civil Revision Petition fails and it is dismissed with costs.