Norman Macleod, C J - (1.)THE plaintiff sued to eject the defendant from certain premises which had been rented by him. THE defendant pleaded that the premises were used as a dwelling house and claimed protection under the Bombay Kent (War Restrictions) Act, 1918. That Act is to remain in force up to December 31, 1925, in respect of any premises used as a dwelling house, and up to August 31, 1924, in respect of any other premises by virtue of the provisions of Section 2 of Bombay Act III of 1923. If, then, the defendant could show that the premises occupied by him were used as a dwelling house, he would be entitled to protection. THE evidence before the Judge with regard to the character of the occupation is somewhat meagre. It was admitted by the defendant that he worked as a tailor on the premises, but he said in cross-examination that he used the premises as his residence, and had been residing therein for five or six years. If, then, as a matter of fact the defendant and his family had been residing on the premises, meaning thereby that they slept there and took their meals there, the mere fact that during the day time defendant worked as a tailor on the same premises, would not prevent it being said that the premises were being used as a dwelling house. We do not know what view of the law the Judge took. He might have thought that because the defendant admittedly worked as a tailor on the premises, he could not also allege that the premises were used as a dwelling house. On that question of law, if premises are used for the purposes of residence, then the protection continues with regard to such premises, and does not case merely because the protection in respect of other premises under the Rent Act ceased on August 31, even though a portion of such premises may be used for business purposes. THE fact that a man carries on business or works in the same premises, which he uses for dwelling in, cannot thereby prevent those premises coming within the category of premises used as a dwelling house.
(2.)WE think then that the rule must be made absolute and the case must be returned to the Judge for trial on the issue whether as a matter of fact the defendant resided on the suit premises. There does not seem to have been sufficient evidence produced by the defendant to show that he had slept on the premises or taken his meals there, and that he used the premises as a residence for himself and his family. Costs costs in the cause Liberty to the parties to adduce further evidence. Execution of the decree to be stayed.