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On this construction of Clause (f) of Section 12(1), it is necessary for the respondent to prove that the accommodation is needed directly and substantially for his occupation for the purpose of continuing or starting his business.

Thereafter, their Lordships refused to order eviction on the ground that the petitioner therein was only a sleeping partner and that he was not managing the business either solely or with other partners. In that view of the matter, their Lordships said that it cannot be termed as 'his business'. After that, their Lordships distinguished the various citations placed before them on the ground that in most of the cases, the partner was a managing partner or had sufficient interest in the business. One thing that is clear from the above decision is that if the requirement is for the purpose of own use, the landlord should not be a sleeping partner. He must have some voice in the management.

Our attention was drawn to a decision of this Court in D.N. Sangavi and Sons v. Ambalal Tribhuvan Das where the meaning of the expression 'his business' under Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 came up for consideration. The said section was in pari materia with the present section. Therefore this Court held that the meaning of the expression "his business' under Section 12(1)(f) of the said Act is to be determined by the examination of the object of the Act and setting of the phrase 'his business'. There Dwivedi, J. speaking for the court found that before the partnership, it was stated that the father was to run the shop. Father died during the pendency of the suit and neither of these two passages nor anywhere else in the facts during the pendency had stated that on the terms of the partnership they were entitled to manage the partnership business or even that would also occupy the suit accommodation along with his other partners on obtaining possession from the appellant was not stated that the other partners have agreed to shift the business. The court observed that if the deed of partnership had excluded the son expressly or impliedly from the management of the firm of business and had made him a sleeping partner it could not be held that the accommodation was needed directly and substantially for his occupation by way of his business. The firm is carrying on the business in the premises in respect of which the eviction was asked for the said firm. But here there is no evidence that the sons were sleeping partners. On the contrary, there is evidence that they were in the leather business and had carried on the business previously before shifting to the premises in question. If that is the position, it cannot be accepted that they were sleeping partners. On the contrary, having regard to the number, they were active partners in the business and as such the sons needed the accommodation with others would be for sons' business under Section 10(3)(a)(iii) of the Tamil Nadu Act. We may mention that in the subsequent decision of this Court in Shantilal Thamordas v. Chimalal Magantlal , this question did not directly arise but here this Court noted that some of the High Courts have taken the view that occupation by partner who was a member of the family would be the occupation of the landlord. This Court felt that they should not express any opinion in that regard, but doubt was expressed as to whether the requirement of the premises by the landlord for the occupation of the partnership firm in which he was a partner would tantamount to the occupation by landlord. It appears that the attention of this Court was not drawn to the earlier decision referred to hereinbefore. In any event, the court had no occasion to express any opinion where the sons are active partners in a partnership firm whether such business carried on by the sons would not come within the provisions of Section 10(3)(a)(iii) of the Act.

Even if we assume for the purposes of this judgment that an argument on a point of law can be canvassed for the first time in this Court provided the factual foundation for it exists on the record, we cannot entertain this argument on a point of law for the factual foundation for it does not exist on the record. The partnership deed, while it calls the landlord the financing partner and the other partner the managing partner and invests the management in the hands of the managing partner, also contains a clause which states, "such partner shall attend diligently to the business of the partnership and carry on the same for the greatest advantage of the partners". Having regard to this clause, we find it difficult to hold that it is established that the landlord is a mere sleeping partner. The foundation for the argument that has not been advanced ought to have been laid in the written statement of the tenant so that evidence could have been laid upon the basis of which the courts could have determined whether or not the landlord was a sleeping partner.

12. The Kerala High Court had occasion to consider a similar question in the decision reported in Govinda Pai v. Sarvothama Rao 1981 K.L.T. 330, wherein it was held thus:

The idea of exclusive occupation is not necessarily indicated by the term "for his own occupation" in Section 11(3). Even when a person carries on business as a partner of a firm he occupies the business premises along with his partners. The one exception to this could be a case where he does not have any hand in the conduct of the business, though he is a partner. A dormant or sleeping partner does not actively associate himself with the conduct of the business though he may contribute capital and share in the profits or losses. Such a person may not be occupying the premises where the business is carried on by the firm. But in other cases where partners are actively associated with and are concerned in the conduct of the business they occupy the business premises for the purpose of the firm's business and such occupation is of all those who carry on such business. Therefore within the meaning of the term "for his own occupation", occupation by a partner of a firm other than a dormant or sleeping partner would be comprehended. To give a narrow meaning to the term his own occupation' under Sub-section (3) of Section 11 would not promote the object of the Act.