Judgment : 1. The petitioner/tenant who suffered an order of eviction before the appellate authority, has filed the above revision. 2. The respondents/landlords filed the petition in R.C.O.P.No.2955 of 1988 on the file of the learned Rent Controller/XII Judge, Court of Small Causes, Madras against the petitioner/tenant for eviction on the ground that the tenant has ceased to occupy the premises in question for eight months and the tenant has sublet the premises unauthorisedly. The tenant has contested the petition by filing counter stating that the case of the landlords that he ceased to occupy the premises was not correct and he did not sublet the premises to anybody. Accepting the case of the tenant, the Rent Controller rejected the eviction petition. Aggrieved, the landlords filed appeal in R.C.A.No.1100 of 1991 on the file of the learned Appellate Authority/VII Judge, Court of Small Causes, Madras, who found that the tenant has ceased to occupy the premises for substantial period and the premises was unauthorisedly sublet by the tenant. On the basis of the abovesaid findings, the appellate authority set aside the order of the Rent Controller and ordered eviction. Still aggrieved, the tenant has filed the above revision. 3. The landlords leased out the shop B of the premises bearing door No. 159, Mint Street, Madras-79 to the tenant. It is the case of the landlords that the tenant has not carried on any business and has kept the shop under lock and key for about 8 months and so it has to be construed that he had ceased to occupy the same and is liable for eviction under Section 10 (2) (vi) of the Act. A Commissioner has been appointed in the present case. He has inspected the premises and found that some empty ulmirahs were found in the premises. Moreover, in the petition it is specifically stated as follows:- "All the stock-in-trade furniture fittings and other articles in which the respondent was doing business were removed. The shop was empty." While answering the above statement, in the counter, it is simply denied by the tenant, as follows:- "In regard to allegations made in paragraph 5 of the petition about the alleged closure of the shop and ceasing to carry on the business, the respondent states the said allegations are false, misleading and untrue". The shop was empty." While answering the above statement, in the counter, it is simply denied by the tenant, as follows:- "In regard to allegations made in paragraph 5 of the petition about the alleged closure of the shop and ceasing to carry on the business, the respondent states the said allegations are false, misleading and untrue". It is not stated in the counter that the tenant is carrying on the business continuously or no explanation is available for such closure of the shop for a long period. Now as found by the appellate authority the empty ulmirhas and other things of the petitioner are alone available in the shop. On the basis of the said statement, the learned counsel for the petitioner has submitted that since the said articles are available, it has to be construed that the premises is in occupation of the tenant. In support of his submission, the learned counsel has relied on the decision in Abdul Rahim & Bros v. Selvam Bros, 1956 (1) M.L.J. 237 . In the said case, while dealing with the scope of section 7(2)(v) of the Act XXV of 1949, the learned Judge has held as follows:- "He has found, and it is not disputed, that the tenant had furniture in the premises and was thus "occupying" it. The Act does not require that the tenant should carry on the business in order to prevent eviction. It is sufficient if he occupies it. Keeping his furniture in the premises is sufficient occupation, in my opinion, within the meaning of section 7(2)(v). In this view the other questions raised need not be discussed." 4. Following the abovesaid decision, V. Ratnam, J., as he then was, in Gulam Mohammed v. Pichai Maracair, 1981 (1) MLJ 99 has held as follows:- "The first question that arises for consideration is, whether the respondent has ceased to occupy the building. The word occupy means to take possession of’, or to hold and have in possession. It is not in dispute in the present case that the respondent is keeping the articles required in connection with his business inside the premises in question and even the evidence of the petitioner examined as P.W.1 supports this. Whether this would amount to occupation of the building or not has to be cons idered in the light of the surrounding circumstances and the intention of the parties. Whether this would amount to occupation of the building or not has to be cons idered in the light of the surrounding circumstances and the intention of the parties. The evidence of the respondent examined as R.W.1 is to the effect that it is not as if he has abandoned the premises in his occupation as a place of business, but that the business is being carried on, though not continuously, through his agents as well. It is thus obvious that the intention of the respondent is not to give up or end or terminate his possession of the premises, but that on the other hand, he has exhibited an intention to continue to keep the premises in his possession as before by keeping the articles and also by placing the business under the control of somebody else. From the above, it is clear that though for the time being the respondent is at Madras living with his family members, yet, he has not in any manner either abandoned or even manifested any idea of abandonment of the premises in his occupation as tenant. Therefore, the circumstance that the respondent still retains possession of the premises under his occupation by keeping his articles therein and locking it and also allowing his agents and others to carry on the business in the premises in question would indicate that the respondent has not ceased to occupy the premises". The said judgment cannot be an authority for a proposition that mere keeping empty ulmirahs into shops for a number of years has to be construed as the tenant is in occupation of the shop. It is held that the issue regarding the occupation of the building by the tenant has to be decided in the light of the surrounding circumstances and the intention of the parties. In the said case, the tenant was carrying on business through his agent, and on that basis the learned Judge held that the tenant was occupying the premises. so, the said decision cannot be made applicable to the facts of the present case. 5. In the said case, the tenant was carrying on business through his agent, and on that basis the learned Judge held that the tenant was occupying the premises. so, the said decision cannot be made applicable to the facts of the present case. 5. Similar view has been taken by M.N. Chandurkar, C.J., as he then was, in summary of judgments (extracts) M.R.M. Duraiappa Nadar v. P. Thirupurasundari Ammal, 1989 (1) L.W.46 wherein, it has been held as follows:- “Mere ceasing to occupy a building for a continuous period of four months is by itself not enough to entitle a landlord for an order of eviction. It has in addition to be established that the conduct of the tenant in ceasing to occupy the building is without reasonable cause. Occupation of any building and carrying on business in that building are really two different things. While carrying on of a business in a building will clearly show that the building is in occupation of the tenant, the converse do es not necessarily follow. Even though a business of the tenant has been stopped, it will not mean that the tenant has ceased to occupy the building. It may mean that the tenant has ceased to use the building but the building continues to be in occupation of the tenant as long as his articles and things are lying in the building. Both the authorities have equated ceasing to carrying on business with ceasing to occupy the building which is not justified by the provisions of S.10(2)(vi). Apart from this, it is obvious that the primary burden of proving the ingredient of S.10(2)(vi) is on the landlord though the tenant cannot be absolved of the responsibility to adduce the necessary evidence because the facts with regard to his occupation are facts within his special knowledge. But there must be some prima facie evidence on the part of the landlord to show that the tenant has ceased to occupy the building". As held by the learned Judges in the abovesaid decisions, the intention of the parties regarding the question of continuing the business has to be gone into. 6. In the present case as stated earlier, the respondent therein had not set out his intention in the counter that he is going to continue the business. His denial that he is not occupying the premises has been rejected by the appellate authority. 6. In the present case as stated earlier, the respondent therein had not set out his intention in the counter that he is going to continue the business. His denial that he is not occupying the premises has been rejected by the appellate authority. Both the authorities below have concurrently found that for a long period the tenant has not been carrying on the business for which the premises was leased out to him. The said provision, making the tenant liable for eviction, in the Act has been introduced only to prevent the tenant from keeping the premises without any use for which it was leased out. But the tenant can avoid eviction on that ground if he is able to properly explain the reason for not using the premises. In this case, such evidence is not available. From a reading of the said provision, it is clear that the burden is on the tenant to establish the reasons for not using the premises for the period. In this case no pleading as such is available explaining the reason for the same, in spite of the fact that the respondents have come forward with the specific case that the petitioner herein had ceased to occupy the premises and vacated the things inside the shop. The tenant has simply denied the same. 7. The learned counsel for the petitioner based on the abovesaid decisions and also on the basis of the findings given by the authorities below has submitted that the tenants articles are in the shop portion of the premises and so it has to be construed that he has been continuing in occupation of the premises. I am not able to accept the said submission. Construing the decisions in Gulam Mohammed v. Pichai Maracair, 1981(1) M.L.J. 99 and M.R.M. Duraiappa Nadar v. P. Thirupurasundari Ammal, 1989 (1) L.W.46, Venkataswami, J., as he then was, in the decision in Rethinaswami, P., v. S.M.A. Kamal, 1995 (2) L.W. 655 has found that the issue regarding the non-occupation is one of fact and the same has to be construed on the facts of the case, and the abovesaid decisions will not help the petitioner as both the said cases have been decided on the basis of the facts of those cases. 8. 8. In the decision reported in Brown v. Brash and Ambrose, their Lordships of Kings Bench observed “that on principle, there must be proved by the tenant not only an animus possidendi, but a corpus possession is; that is to say, the tenant must have an intention to continue in possession of the property and also should have actual possession". 9. It is also observed a non-occupying tenant prima facie forfeits his status as a statutory tenant under the Rent Restriction Acts, but the term non-occupying tenant cannot cover every tenant who, for however short a time, or however necessary a purpose, or with whatever intention as regards returning, absents himself from the demised premises. But absence may be sufficiently prolonged or unintermittent to compel the interference prima facie of access or of occupation. The issue is one of fact and of degree". 10. The owner should be in actual possession and enjoyment of the house, property or shop by himself as agent or servant. It is not easy to give an accurate and exhaustive definition of the word occupying. As pointed out by Lush, J., in Reg. v. St. Pancras Assessment committee, 1877 (2) Q.B.D. 581 at p.588: (46 L.J.M.C.243): “Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation". 11. In Martin Estates co. Ltd. v. Watt & Hunter, 1925 N1 79 (85) “Occupation" has been described as “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 dwelling for some time in the year by the owner or his family or by his domestic servants". In Amba Prasad v. Mohaboob Ali , AIR 1965 S.C.54 it is held that occupant must mean a person holding the land in possession or actual enjoyment. 12. While construing similar provision, the Apex Court in M/s. Babu Ram Gopal v. Mathra dass, AIR 1990 S.C. 879 , has held as follows:- The argument is that the appellants occupation of the shop was never interrupted as it was in his effective control, although closed and secured under the appellants lock which nobody ever disturbed. 12. While construing similar provision, the Apex Court in M/s. Babu Ram Gopal v. Mathra dass, AIR 1990 S.C. 879 , has held as follows:- The argument is that the appellants occupation of the shop was never interrupted as it was in his effective control, although closed and secured under the appellants lock which nobody ever disturbed. We do not find ourselves in a position to accept the interpretation of the section as attempted on behalf of the appellant. The reason of including the clause (v) in S.13(2) is to ensure that buildings, which are scarce in number specially in the towns, necessitating rent control legislation, do not remain unused at the instance of tenants who do not actually need them. A tenant who is in possession of a building in the legal sense only cannot be said to be in occupation thereof for the purpose of S.13(2)(v); otherwise a question of his eviction as envisaged in that section would not arise. The section, by making provisions for his ejectment, assumes that he is in possession, but, still includes cessation of occupation as one of the grounds. The clause, therefore, has to be interpreted in this background and it must take colour from the context. We, therefore, hold that if a tenant stops the business which he is carrying on in a shop and closes the premises continuously for a period of four months without a reasonable cause he will be liable for eviction". 13. In view of the above discussion, it cannot be accepted that mere keeping empty ulmirahs in the shop it has to be construed as the tenant has been occupying the shop. Since the tenant has not explained reasonably his non-occupation of the premises, he is liable for eviction as held by the Apex Court. Accordingly, the orders of the appellate authority in R.C.A.No.1100 of 1991 dated 110. 1993 is confirmed. Therefore, I am not dealing with the other ground. This revision is dismissed accordingly. No costs.