JUDGMENT - P.B. SAWANT, J.:---This is a petition under Article 227 of the Constitution challenging the order dated 16-6-1971 passed in appeal by the District Judge, Poona in the eviction proceedings started by the landlord against the petitioner-defendant under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). 2. The petitioner is a tenant in respect of the suit premises which is one room consisting of four Khans standing on the second floor of House No. 726, Shukrawar Peth, Poona. Respondent No. 1 is the landlord of the suit premises. By a notice dated 22-2-1967 the landlord terminated the tenancy of the petitioner is respect of the suit premises and thereafter filed a suit being Civil Suit No. 1341 of 1967 on 25-4-1967 in the Court of Small Causes, Poona, for eviction of the petitioner on the ground of bona fide personal requirement, nuisance and non-user of the suit premises for the purpose of residence for a continuous period six months immediately preceding the date of the suit. The trial Court held that the grounds of bona fide requirements and nuisance were not proved but came to the conclusion that the landlord had made out a case of non-user of the premises as laid down in Clause (k) of sub-section (1) of section 13 of the said Act and decreed the suit for possession on the said ground by its order dated 22-4-1970. In appeal filed by the petitioner before the District Court being Appeal No. 475 of 1970 the finding of trial Court that the premises were not used for a continuous period six months for the purpose for which they were let out was confirmed and hence the decree for possession granted by the trial Court was upheld and the petitioners appeal was dismissed on 16-9-1971. The petitioner thereafter preferred this petition challenging the said order of the appellant Court. 3. Mr. Ketkar who appears for the petitioner defendant contended that the finding given by the courts below that the suit premises were not used for the purpose for which they were let out for a continuous period of six months prior to the date of the filing of the suit or erroneous in law. 3. Mr. Ketkar who appears for the petitioner defendant contended that the finding given by the courts below that the suit premises were not used for the purpose for which they were let out for a continuous period of six months prior to the date of the filing of the suit or erroneous in law. In the first instance according to him, the trial Court relying on the counterfoils of the receipts signed by the sister of the petitioner-tenant and held that from 1965 till March, 1967, the petitioner was not residing in the suit premises. In this connection he points out that the counterfoils which the trial Court relied on were for the period from 9-9-1966 to March, 1967 and admittedly there are no other counterfoils particularly of the period after March 1967 signed by the petitioners sister. The suit was filed on 25-4-1967. Inasmuch as there is no document such as a counterfoil to show that the petitioner was not residing in the premises after March, 1967, it cannot be said that the petitioner had not used the premises for a continuous period of six months prior to the date of filing of the suit which is 25-4-1967. His second contention was that the courts below relied upon the fact that the petitioners sister had made an application on 19-5-1966 for change of the ration card from the address of the petitioner at the suit premises to her address which is Dandekar building adjoining to the building in which the suit premises are situate. The ration card thereafter remained at the same address of the petitioners sister till 13-4-1967 when an application was made by the petitioner for change of the ration card from the address of her sister to the address at the suit premises. Even assuming, according to him that the fact that the address of the petitioners sister in the adjoining building showed that the petitioner was residing at her sisters address and not at the suit premises, such residence at the sisters address will be from 19-5-1966 till 13-4-1967. Admittedly the suit was filed on 25-4-1967. Even assuming, according to him that the fact that the address of the petitioners sister in the adjoining building showed that the petitioner was residing at her sisters address and not at the suit premises, such residence at the sisters address will be from 19-5-1966 till 13-4-1967. Admittedly the suit was filed on 25-4-1967. There was, therefore, a gap of at least 12 days and the requirements of section 13(1)(k) of the said Act are that the premises should not have been used for the purpose for which they were let continuously for a period of six months immediately preceding the date of the suit. Both the courts below have slurred over this infirmity in the landlords case, whereas the section being in the nature of a penal section, inasmuch as it provide for eviction of the tenant and loss of the tenancy rights in the premises, it was obligatory on the landlord to have prove that all the requirements of section 13(1)(k) of the said Act were strictly complied with. His third contention was that both the courts below have relied on irrelevant documentary evidence to come to the conclusion that the petitioner was not residing the suit premises. The trial Court on the basis of the signatures of the petitioners sister on the counter foils of the rent receipts has come to the conclusion that from 1965 till March 1967, the petitioner was not residing in the suit premises but her sister Chandrabai was residing in the suit premises. This finding has been confirmed by the Appellate Court relying upon the very same evidence. In support of this conclusion both courts below have also relied on additional documentary evidence viz. the application dated 19-5-1966 made by the petitioners sister for change of the ration card from the address at the suit premises to her own address in the adjoining building and the later application dated 13-4-1967 made by the petitioner for change of the ration card from the address of her sister to the address at the suit premises. As stated earlier, relying on these two pieces of documentary evidence, the courts below have come to the conclusion that the petitioner was not residing in the suit premises, but during this period it was the petitioners sister who was residing in the suit premises. As stated earlier, relying on these two pieces of documentary evidence, the courts below have come to the conclusion that the petitioner was not residing in the suit premises, but during this period it was the petitioners sister who was residing in the suit premises. It may be mentioned that the rent receipts and the counterfoils on which reliance has been placed are in fact spread over a period from September 1966 to March 1967 and the two applications for change of the address on the ration card cover the period from May 1966 to 13-4-1967. The periods are almost co-extensive. Therefore, the conclusion that the petitioners sister was residing during the said period, attributable to the said two pieces of documentary evidence must be held to relate to the residence of the petitioners sister during the said period. All that therefore the conclusion arrived at by the courts below means is that during this period it was the petitioners sister and not the petitioner who was residing in the suit premises. This is apart from the evidence led by the petitioners of her witnesses showing that it was she who was residing in the suit premises. Assuming therefore that the conclusion arrived at by both the courts below is correct it is difficult to under stand as to how, on the basis of this conclusion, the petitioners case would be covered by the ground mentioned in Clause (k) of sub-section (1) of section 13 of said Act which is as follows :- "That the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately proceeding the date of the suit". It is not the conclusion of the courts below the premises were not used for residence at all and they were kept closed during this period. The conclusion is that it was the petitioners sister who was using the said premises for residence and not the petitioner. Therefore, it is not a case of non-user of the premises for the purpose of residence, the purpose for which they were let. The conclusion is that they were being used by some other person. The conclusion is that it was the petitioners sister who was using the said premises for residence and not the petitioner. Therefore, it is not a case of non-user of the premises for the purpose of residence, the purpose for which they were let. The conclusion is that they were being used by some other person. If at all, this conclusion will give rise to the ground mentioned in section 13(1)(e) of the said Act, but by no stretch of imagination this conclusion will spell out the ground mentioned in section 13(1)(k) of the said Act which is reproduced herein above This is therefore an obvious error of law on the face of the record 4. Admittedly further, the respondent No. 1 landlord had not produced any independent oral evidence in support of his case that the petitioner was not residing in the suit premises. He relies only upon the documentary evidence which as stated consists of the signatures on the counterfoils of the rent receipts for the period from September, 1966 to March, 1967 and application dated 19-5-1966 made by the sister of the petitioner for change of the address on the ration card, it is not necessary in the present case to offer much comment on this documentary evidence. In the circumstances of the present case, when the respondent No. 1-landlord had not produced any independent evidence and the defendant-tenant had adduced oral evidence of two witnesses. I am of the opinion that it was not safe to depend upon the said documentary evidence alone to come to the conclusion that the defendant-tenant was not residing in the suit premises. As regards the counterfoils of the rent receipts on which the petitioners sister had affixed her signatures, it may be stated that it is at best an evidence showing that it is the sister of the petitioner who had paid the rent. She might have paid rent on behalf of herself or on behalf of the petitioner-tenant. It is not unoften that the rent is paid on behalf of the tenant by others and particularly the relations. Therefore, this was certainly not a piece of evidence which conclusively show that the petitioner was not residing in the suit premises. As regards the application for change of the address on the ration card, admittedly the petitioners sister was residing in the adjoining building viz., Dandekar building. Therefore, this was certainly not a piece of evidence which conclusively show that the petitioner was not residing in the suit premises. As regards the application for change of the address on the ration card, admittedly the petitioners sister was residing in the adjoining building viz., Dandekar building. Admittedly further, the petitioner was not a married woman. It is, therefore, possible that the petitioner was taking her food at her sisters residence in the adjoining building and for that purpose she had to get the address on the ration card change to that her sisters residence. Therefore, merely because between the period from 19-5-1966 till 13-4-1967, the ration card in the name of the petitioner stood at the address of her sister in the adjoining building, it will not go to prove conclusively that the petitioner was not residing in the suit premises. I therefore, find that there is much force in this argument advanced by Mr. Ketkar, as well. 5. The third circumstance on which Mr. Ketkar relied was that there was a gap of at least 12 days between the date when the fresh application was made for change of the address on the ration card on 13-5-1967 and the date on which the suit was failed viz., 25-4-1967 which made unavailable the ground for passing the decree under section 13(1)(k) of the said Act, need not be gone into since I am of the opinion that on the first contention alone, he is entitled to succeed in this petition viz., that it was not a case of non-user of the premises even on the admitted findings given by both the courts below. 6. In this view of the matter, the petitioner is entitled to succeed. I, therefore make the rule absolute, set aside the orders of both the courts and dismiss the suit of the respondent No. 1 plaintiff with costs. -----