S. Mohan, J.
1. The landlord is the revision petitioner before me. He sought eviction against the respondent in respect of the first floor of the premises bearing door No. 10, 6th Street, Lake Area, Nungambakkam, which, has been let out to the respondent for residential purpose. The case of the landlord was that he was residing in a rented house and he wanted to occupy the petition premises for his own use and occupation and, therefore, the requirement is bona fide. A notice was issued on 1st December, 1978, Exhibit P-3 terminating the tenancy with effect from 31st December, 1978. In spite of the same, the tenant did not comply with the demand. Hence, the petition.
2. The respondent in his counter raised the following contentions. It is not correct to say that the petitioner wants to stay in his own house independently. The requirement is not bona fide. The petitioner does not require the premises under the occupation of the respondent for his own use and occupation. The respondent denies the allegation that the petitioner is not occupying any building of his own in the City of Madras. The eviction application lacks bona fides because the respondent was not willing to pay higher rent as demanded by the landlord. (Therefore, the petition is liable to be dismissed.
3. The Rent Controller posed a question as to whether the petitioner's claim is bona fide. He came to the conclusion that inasmuch as under Exhibit P-l, the tenant had agreed to vacate the premises and had merely asked for time till May, 1978, it would be clear that the tenant himself had accepted the bona fide requirement of the landlord and, therefore, he ordered eviction.
4. On appeal, the only point that loomed large before the appellate authority was about the availability of the first floor occupied till then, by one Mr. Raghavan, Director of Posts and Telegraphs Department. The appellate authority examined the evidence tendered by the revision petitioner as P.W. 2 and came to the conclusion that the ground floor was occupied by one Mr. Raghavan, Director of Telegraphs. This statement was reiterated when he was recalled and examined. However, the landlord had stated that he wanted the entire house for his own occupation. On this, basis, though he found that there was bona fide in the need of the petitioner, in so far as the ground floor was vacant at the time of the filing of the petition, he should come forward with an application, seeking eviction of the tenant in the first floor under Section 10(3)(c) and not under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and' Rent Control) Act (XVIII of 1960), hereinafter referred to as the Act. In other words, the application should have been one for additional accommodation and not for bona fide requirement for residential purpose, as though the landlord was not in occupation of a residential premises or portion of his own. Accordingly, he set aside the order of eviction. It is under those circumstances, the present revision petition has come to be preferred.
5. The learned Advocate-General would contend that the approach of the appellate authority is wrong, because eviction against the tenant of the ground floor was sought for only on 11th November, 1981, when the petition came to be filed and eviction was ordered on 23rd December, 1981. Therefore, the Court below was wrong in holding, as if the ground floor portion was available and consequently the petition was not maintainable.
6. In opposition to this, Mr. S. Govind Swaminathan, the learned Counsel for the respondent would state that this very application for eviction against the tenant of the ground' floor came to be filed only to bolster the claim of the landlord and this is nothing but a camouflage or a cover to get over the important admissions which the landlord was obliged to make when he was in the witness box. Therefore, that should not be accepted. While tendering testimony, the landlord as P.W. 2 has spoken in more than one place that the ground floor was occupied by one Mr. Raghavan. On that basis, he wanted the entire house for his occupation. If that be so, certainly the application; under Section 10(3)(c) of the Act alone would apply. Occupation, according to Mr. Swaminathan does not mean physical occupation, but it is enough even if it is juridical possession, as laid down by the Division Bench in Jagat Kishore Prasad Narain Singh v. Rajendra Kumar Poddar and Ors. : 1SCR821 . More than above all these, in paragraph 7 of the order of the Appellate Court the Appellate Authority had noted the concession of the learned Counsel for the landlord that the premises in occupation by Mr. Raghavan was vacant which was beyond dispute. Therefore, having regard to this factual position, the finding that the application was not maintainable under Section 10(3)(c) of the Act is un-assailable.
7. In view of the above arguments, the only question that arises for consideration is what was the factual situation on the date of the application for eviction whether the ground floor was vacant or not. The landlord was examined as P.W. 2. He states in his evidence in cross-examination as follows:
The respondent is a tenant for the past 21/2% years. At present I am residing with my son at Saidapet. I am an Income-tax assessee. The Income-tax order will show about my properties and income prior to the requirement for occupation. The petition premises was kept vacant from my purchase and prior to 21/2% years. It was kept vacant for 1 or 2 years. Prior to that I was in occupation. The ground floor is occupied by Mr. Raghuram, Director of Telegraphs. He occupied three years ago, prior to that both the ground floor and first floor were in my occupation. I stayed with wife.
Then again, when he was recalled on 30th January, 1980 he would state that 'his son did not ask him to go from his house. The ground floor was occupied by Mr. Raghavan. He wanted the entire house. He had not filed any petition against the tenant in the ground floor portion and also not issued any notice to him.' It is on this basis, the matter was argued seriously, because two specific grounds: in the grounds of the appeal to the appellate authority in H.R.A. No. 811 of 1980 were taken. They are grounds 9 and 10, which are as follows:
9. The learned Rent Controller failed to note that P.W. 1 had admitted at the time of cross-examination, that the ground floor portion of the petition premises, was vacant at that time.
10. The learned Rent Controller failed to note that the respondent's case was that he bona fide required the petition premises for his own use and occupation and that according to P.W. 2 the ground floor portion of the petition premises was under the occupation of another tenant, by name Raghavan. But the respondent did not take any steps to vacate the tenant at the ground floor portion of the petition premises.
8. After noting this admission in paragraph 6, the learned appellate authority states as follows:
The learned Counsel appearing for the appellant would argue that when the ground floor is vacant, the petitioner would have occupied the same if really his requirement was bona fide and the fact that the petitioner has not occupied the same would show that there was no bona fides in his application and it is more so when P.W. 2 would admit that he is residing with his son at Saidapet in a spacious bungalow and ha was given a big room in that bunglow.
After noting this fact in paragraph 7 it is observed thus:
The learned Counsel appearing for the appellant would further argue that as admitted by the petitioner the ground floor is vacant and therefore he should have come forward with an application seeking eviction of the tenant in the first floor under Section 10(3)(c) and not under Section 10(3)(a)(i). It is not disputed that the premises occupied by Mr. Raghavan is now vacant and is in the custody of the petitioner.
Therefore, if this is the correct factual position, as was available on the date of the petition for eviction, I am unable to see as to how the petition for eviction could be maintained under Section 10(3)(a)(i) of the Act. A faint argument was advanced by the learned Advocate-General that the landlord is yet to physically occupy the ground floor. Even assuming it to be so, such an argument has to be repelled, because the Division Bench of this Court has taken the view in the Accommodation Controller, Madras, v. G. Rukmani Ammal : AIR1971Mad342 , stating that the occupation under the Rent Control Act need not be physical occupation. The Division Bench held as follows:
Occupation may, no doubt, be physical, but it does not follow that the owner should actually reside in a portion of the house all the 24 hours in a day. It will be such occupation if, intending to reside in the house, the owner keeps a portion therein locked, so that when the opportunity on necessity arises, the portion may be free for use by him or her.
9. Therefore, Mr. Swaminathan is fully justified in placing reliance upon this ruling. In view of this, as I have stated above, the application under Section 10(3)(a)(i) of the Act is not maintainable. If the landlord is in juridical possession, that would be enough to non-suit him concerning eviction under Section 10(3)(a)(i) of the Act. The remedy of the petitioner would be only by filing an application under Section 10(3)(c) of the Act.
10. The only argument that requires to be dealt with is about the filing of an application for eviction against the tenant, who was in occupation of the ground floor. H. R. C. No. 5184 of 1981 was filed by the revision petitioner-landlord against Mrs. Chitra Raghavan. Originally as would be seen even by a casual perusal, the petition was filed against Mr. T. R. Raghavan, who was employed in the Posts and Telegraphs, Madras Circle, as stated in the petition itself. Of course, in the evidence, it is admitted that the said Mr. Raghavan was a Director of Posts and Telegraphs. On this, the office raised an objection as to how the petition was maintainable, as the respondent is in Government service. The return is dated 12th November, 1981. This was because of the statutory bar contained under! Section 10(4) that no order for eviction could be passed under Sub-section (3) of Section 10 against,a tenant, who is engaged in any employment or class of employment notified by the Government as an essential service for the purpose of this sub-section. Strange events followed. Thereafter the application for eviction is amended so as to make the tenant Mrs. Chita Raghavan. Originally the description of the respondent was that the respondent is the son of Rangachari, Hindu aged (?) years, employed in Posts and Telegraphs, Madras Circle. Later, after the tenant was 'described as Chitra Reghavan, the word 'an' is struck off and the word 'wife' is introduced. The word 'Rangachari' is struck off and the words 'T.R. Raghavan' are introduced and the words 'employed in the Posts and Telegraphs, Madras Circle' are struck off.
11. The return by the bailiff on 4th December, 1981, which is interesting to read, is as follows:
Vacated. Madras,3rd December, 1981On 3rd December, 1981, and 4th December, 1981, I went to the address given herein, I found the respondent's portion locked. On enquiry, I was told by the other tenant that the respondent had vacated. Hence, this process is returned to Court unserved.
Then follows the order of eviction on 23rd December, 1981. It is somewhat surprising that such dubious methods had been adopted if really the case were a straight one. Therefore, I see every justification to uphold the argument advanced by the learned Counsel for the respondent that this was done only to bolster up the claim of the landlord. Even worse comes. The order of the appellate authority was dated 18th March, 1981. It is only thereafter to get over the adverse finding, the petition for eviction comes to be filed on 11th November, 1981, as though the said Mr. Raghavan still continued to be a tenant of the ground floor. But, for this, the petition as filed under Section 10(3)(a)(i) of the Act, would undoubtedly be liable to be dismissed and there can be hardily any objection to the finding of the appellate Court that the application for eviction ought to have been preferred under Section 10(3)(c) of the Act. Therefore, I am totally unable to place any reliance upon those proceedings in H.R.C. No. 5184 of 1981 to conclude that the said Mr. Raghavan was a tenant, continuing as late as November, 1981.
12. For all the reasons, I hold that there are no merits in the civil revision petition. The civil revision petition, therefore, fails and it is dismissed with costs. I award costs, because of the conduct of the landlord about which I have made elaborate reference.