Harbans Singh, C.J. - (1.) THE facts admitted and proved are that the shop in dispute was taken on rent on 22nd February, 1964 from the landlord, Balwant Singh, by Gurdial Singh. As stated by bis son Tirath Singh Respondent, Gurdial Singh carried on the business of a goldsmith in this shop. Later he added the business of automobile repairs. His two sons, including Tirath Singh Respondent, worked with Gurdial Singh at this shop. About a year before the application for ejectment filed by the landlord, Gurdial Singh went to England. The business and at the shop, however, continued to be carried on as before by his sons including Tirath Singh. Gurdial Singh and his sons were joint in residence and mess. The income from the business carried on at the shop is being spent on the maintenance of the family including the wife of Gurdial Singh. Gurdial Singh sends about Rs. 200 per month from England which are also utilised for the benefit of the family. When Gurdial Singh was in India, the business that was being carried on by him along with his sons was also for the benefit of the family.
(2.) THE application for ejectment was brought on 25th of April, 1969 by the landlord for the ejectment of Gurdial Singh, impleading his son Tirath Singh as Respondent No. 2, on the following grounds: (a) that Gurdial Singh had not paid the arrears of rent: (This is no longer in point as the arrears were paid on the first date of hearing); (b) that Gurdial Singh had not been in occupation of the shop in dispute for a continuous period of nearly a year without any reasonable cause and had gone to a foreign country; and (c) that the lessee rights have been sublet by Respondent 1 to Respondent 2 without the permission of the landlord. The Rent Controller granted the decree for ejectment holding that Gurdial Singh had ceased to occupy the premises for a period exceeding four months and consequently he was liable to ejectment under (v) of Sub -section (2) of Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act). On appeal, the learned Appellate Authority held that this Clause (v) was not applicable to the circumstances of the case and consequently accepted the appeal and dismissed the ejectment application. The landlord has now filed this revision. The learned Counsel for the landlord vehemently urged that inasmuch as Gurdial Singh no longer carried on business here, he cannot be said to be in occupation. In the first place he urged that the shop was taken on rent by Gurdial Singh in his own name and that even if it be held that he had taken this shop for carrying on the business for the benefit of his entire family or that his sons worked with him, that would not make the sons as the tenants. This is not even challenged by the learned Counsel for the tenant. It was never suggested that the sons had become the tenants. All that was urged and accepted by the Appellate Authority was that it was not correct that the shop had not been occupied for a period of more than four months, because the shop has continued to remain occupied and the business is being carried on there, as before, for and on behalf of Gurdial Singh. Clause (v) of Sub -section (2) of Section 13 of the Act runs as follows: 12(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied: * * * * * * * (v) that where the building is situated in a place other than a hill -station, the tenant has ceased to occupy the building for a continuous period of four months with out reasonable cause, the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application.
(3.) Obviously, this is a clause which is to cover a case where the premises are locked and have not been actually used for a period of over four months, and does not cover a case where the premises are continuously in use though the tenant himself does not stay there. At worst such a case might be treated as one, if the landlord is able to establish the relevant facts where the tenant has transferred his lessee rights in favour of somebody else or that he has transferred the possession and user of the premises in favour of somebody else. That would be covered by Clause (ii)(a) of Sub -section (2) of Section 13 of the Act, rather than by this Clause (v). The fact that the basic idea under Clause (v) is the "actual user" of the premises is clear from the two cases cited by the learned Counsel for the landlord under this clause. Smt. Shakuntla Bawa v. Ram Parshad and Ors., 1963 P.L.R. 103, was a case, decided by Chief Justice Falshaw, where the widow of the original tenant had become a tenant after the death of her husband, but she went to live at Delhi with her children and visited the demised premises situated at Hissar only occasionally. It was urged that the premises were still in the occupation of the tenant within the meaning of Clause (v) because her furniture and other belongings were kept in the house though it remained locked for most of the period Chief Justice Falshaw repelled this contention and in paragraph 8 of the report observed as follows: In my opinion it is proved, as was held by the learned Appellate Authority, that for all practical purposes the tenant in this case had ceased to reside in the house in dispute and had gone to reside at Delhi, only visiting Hissar very occasionally for short periods and even then not using the house in the sense of sleeping there. I am of the opinion that the mere presence of furniture and willingness to pay rent does not constitute occupation within the meaning of Section 13(2)(v). This view was also expressed by Harnam Singh, J., in Baij Nath v. Badhawa Singh, (1956) 58 P.L.R. 236. The learned Judge held that although occupation includes possession as its primary element it also includes something more and the owner of a vacant house who as long as leaves it vacant is not in occupation. The fact that 'occupation' means occupation in the sense of actual user appears to be clear from the words of Section 13(2)(v), since it specifically exempts houses situated in a hill station which normally remain unoccupied by owners or tenants from October to April although their furniture remains there.;