C.K.R. Murugan Vs. T.S. Arunagiri and anr. - Court Judgment

Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. orders.s. subramani, j.1. landlord in r.c.o.p. no. 398 of 1991, on the file of x judge, small causes court, madras, is the revision petitioner.2. the only ground that survives for consideration in this revision is, whether the tenant is liable to be evicted on the ground that he has committed wilful default in payment of rent.3. according to landlord, eviction petition was filed in 1986 in r.co.p. no. 2169 of 1986 against respondents on the grounds of sub-letting, conversion and acts of waste, and the same was allowed. there was also another rent control petition for fixation of fair rent. it is the case of the landlord that in spite of pendency of the said proceedings, and in spite of warnings to pay rent regularly, tenant did not take care to pay rent regularly in time, but paid the same irregularly and improperly. petitioner/landlord did not take action then and there itself considering their relationship and pendency of proceedings, and also with a view to avoid further litigation. it is further said that rent was not tendered from 1.9.1990 to 31.12.1990, for four months, amounting to rs. 4,000. this, according to landlord, is wilful default, which enables him to get possession. it is also said that rent for january, 1991 has also become due and payable.4. in the counter statement filed by tenant, it is said that the landlord did not take care to collect the rent regularly, and the respondent used to pay rents in cash when the petitioner, his wife and his agent came for collection, but they were not regular. according to respondent, sometimes at the interval of two or three months, petitioner or his agent would come for collection and receive the rent, and, when they stopped collecting the rent, he started sending the rent by cheques, and now the practice is to send it by demand draft. rent for september to december, 1990 was sent on 7.3.1991, and on 30.3.1991, the rent for january, 1991 was paid. according to him, he has paid rents upto august, 1991, and there is no arrears or default. even before the notice dated 12.3.1991 and eviction proceedings, respondent has paid rents. after he sent the rent, he received the notice dated 12.3.1991 and summons in the r.c.o.p. according to tenant, the default committed by him cannot be construed as wilful, and, therefore, he is not liable to be evicted.5. rent controller took oral and documentary evidence. landlord got himself examined as p.w.1. tenant got himself examined as r.w.1. documentary evidence considered of exs.a-1 to a-7 and exs.b-1 to b-9. after evaluating the entire evidence, both oral and documentary, rent controller came to the conclusion that the explanation offered by the tenant for not paying the rent in time, cannot be accepted, and he is liable to be evicted. rent controller found that it is for the tenant to tender the rent as and when it became due, and it is his obligation. it was further found by rent controller that at least from 1986, litigations are pending and, therefore, the tenant should have been little more careful in paying rent, and he should have been punctual. the further explanation that the landlord used to collect the rent was also found against the tenant. it was found that only because the tenant used to pay the rent once in two or three months, landlord was compelled to receive the same. rent controller directed the tenant to put the landlord in possession, and two months time was given to vacate the premises.6. aggrieved by the order of eviction, tenant filed r.c.a. no. 1193 of 1992, on the file of appellate authority, small causes court, madras. the appellate authority set aside the order, and came to the conclusion that the tenant has not committed wilful default, and he cannot be termed as a wilful defaulter, mainly for the reason that even before the first hearing of the eviction petition, the entire rent was tendered. appellate authority found fault with the landlord in receiving the rent when the same was tendered once in two or three months, for, according to it, this gave an impression to the tenant that the landlord shall receive the rent whenever paid, even though there was delay.7. the finding of the rent controller that the tenant was avoiding receipt of notice dated 12.3.1991 was also explained by the appellate authority by saying that the tenant is a businessman, and merely because he had gone out in connection with his business, it could not be said that he was avoiding receipt of notice. holding so, the appellate authority set aside the order of rent controller and allowed the appeal and eviction petition was dismissed.8. the propriety of the judgment of the appellate authority is challenged in this revision by the landlord, under section 25 of the tamil nadu buildings (lease and rent control) act.9. the fact that rent from 1.9.1990 to 31.12.1990 was not paid in time is admitted by the tenant. eviction petition was filed in february, 1991. even in the eviction petition, it is said that rent for january, 1991 has become due. the question whether the tenant is a wilful defaulter or a simple defaulter is a matter to be decided taking into consideration the facts and circumstances of the case. landlord gets a right of eviction if it is found that the tenant is a wilful defaulter.10. in sundaram pillai v. pattabiraman : [1985]2scr643 , it was held that the landlord is entitled to get an order of eviction only if the tenant is shown to have committed default and that he is a wilful defaulter. their lordships of the supreme court held that the default, in order to be wilful, must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. probably, it is on the basis of this judgment of the honourable supreme court, the appellate authority set aside the order of eviction. but, one thing which the appellate authority omitted to consider is, that once the default is admitted, it is for the tenant to prove that the default was neither wilful nor wanton, or deliberate, and that he was not aware of the legal consequences arising therefrom.11. in sundaram v. indian airlines : (1988)2mlj385 , in paragraph 9 of the judgment, m.n. chandurkar, c.j., has considered the effect of the judgment in sundaram pillai's case. relevant portion of that paragraph reads thus:some reference was made to the decision of the supreme court in sundaram pillai v. pattabiraman : [1985]2scr643 in support of the proposition that before a tenant is evicted for default, it must be shown that the tenant was a wilful defaulter. in that decision undoubtedly it was pointed out that default in order to be wilful must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. the burden to show that the default is not intentional or deliberate is on the tenant. the effect of that decision will only be that a mere proof of default may not necessarily lead to an inference of wilful default. but whether a defaulter or not is a conclusion to be arrived at on the facts and circumstances of each case. if there was a continuous default which is unexplained, a court will be well justified in coming to the conclusion that the default is wilful and deliberate. .. .. 12. in mohammed rowther v. s.s. rajalinga raja and two ors. : (1994)2mlj509 , in paragraph 4, it was held thus:.it is settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from the landlord in that regard. .. ..in that case, when there was default for six months, the entire amount was not paid. only one month's rent was paid. the question was, whether he was a wilful defaulter. learned judge of this court held that the only conclusion that could be arrived at in such cases is that he is a wilful defaulter. learned judge also took into consideration sundaram pillai's case : [1985]2scr643 and distinguished the same on facts. in fact, learned judge also took into consideration an earlier decision of this court in nagarathina pillai v. mahadevier : (1969)2mlj492 , wherein it was held thus:the fact that the tenant deposited the rent subsequently and quite early, after the inception of the proceeding may serve to extenuate his default in the sense that he might be now granted a reasonable time for vacating the premises. but, it is not a ground that the law can recognise for holding that a tenant who deposits such rent, is not guilty of 'wilful default' with regard to the period of default preceeding the petition for eviction. [italics supplied]13. in a recent decision reported in the nilgiris co-operative marketing society v. uthandi : (1998)2mlj745 , r. balasubramanian, j., has considered this question and has said thus:.it is needless to say that there is legal obligation on the part of the tenant to tender the rent to the landlord month after month, whether there is any demand for it or not. if he wants to displace this legal obligation, he must prove it by acceptable documentary or oral evidence....learned judge also took note of an early decision of this court in delux road lines v. p.k. palani chetty : (1992)2mlj481 , wherein m. srinivasan, j., as he then was, has held thus:unexplained default is undoubtedly wilful. it is for the tenant to plead and prove the circumstances under which he failed to pay the rent as required by the statute. the obligation to pay rent is not merely contractual but also statutory. section 10(2)(1) of the tamil nadu buildings (lease and rent control) act (hereinafter referred to as the act) reads that if the controller after giving the tenant a reasonable opportunity of showing cause against the application for eviction, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, he shall issue a direction evicting the tenant. the proviso to the section reads that if the controller is satisfied that the tenant's default was not wilful, he may give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him. a reading of the main section and proviso makes it clear, 'that it is for the tenant to prove that his default is not wilful. it is only the tenant who knows the relevant facts and he should plead the same and prove them before the controller in order to satisfy the controller that the default was not wilful. if the tenant is not able to satisfy the controller that there were circumstances which prevented him from carrying out his contractual or statutory obligation of having paid the rent, then the necessary consequential inference is that the default is wilful. no doubt, the explanation introduced by the amending act of 1973 is to the effect that a default should be construed as wilful if the tenant fails to pay even after issue of two months notice by the landlord claiming the rent. but it is not necessary in every case that a notice should have been issued by the landlord to the tenant in order to hold that the default is wilful. even in cases where there was no notice calling upon the tenant to pay the rent, the default could still be held to be wilful. [italics supplied]r. balasubramanian, j, has also held in the nilgiris co-op. marketing society's case : (1998)2mlj745 thus:.i am yet to come across a case, where the tenant was relieved of the disqualification, which he has suffered, to continue any more in the occupation of the building, on the mere fact of paying the rent pending proceeding without there being any acceptable explanation for non-payment of the same as and when it became due. there cannot be any hard and fast rule to that effect, because, if that is the position in law, then there can never be an order of eviction on the ground of wilful default, if the tenant, who had been indifferent all along in paying the rent after the rent control petition was filed....14. when this is the legal position, let us see how far the tenant was successful in proving that he has not committed wilful default in paying the rent.15. as i said already, the burden is only on him, since it is something which is within his personal knowledge, the proof will have to be as stated by m. srinivasan, j., (as he then was) in delia road lines v. p.k. palani chetty : (1992)2mlj481 , viz., that he was prevented from carrying out his contractual or statutory obligations. if that is the scope of enquiry, i have to say that there is no pleading in that regard. the tenant only finds fault with the landlord for not collecting the rent regularly. what he says in paragraph 3 of the counter is that he used to pay rents in cash when the petitioner, his wife, and his agent came up for collection. since they were not regular and since they used to come only at an interval of two or three months, thee was delay in payment. since the landlord stopped collecting the rent, sometimes, it was sent by cheque and now it has become the practice to send it by demand draft. there is no case by tenant that he was prevented from discharging his contractual or statutory obligations. if that be so, there is a presumption of wilful default.16. the parties are relations. but, at least from 1986 onwards, the relationship has become strained, and litigations are pending. it is admitted by tenant himself that till 1986, he used to send the amount (rent) to the residence of the landlord as and when it became due. only after misunderstanding arose, the tenant was insisting on the landlord to come and collect the rent. till then, as per contract or by way of discharging the statutory obligation, tenant used to tender the rent in time. merely because the landlord accepted the rent as and when it was paid by tenant, it cannot be taken as a ground that there is change in the contractual terms of the tenancy. even the tenant has no case that there is any change in the contractual terms that rent can be paid once in two or three months. the helplessness of the landlord in receiving the rent should not be exploited by the tenant to his advantage, to put forward such a plea.17. in the eviction petition, it is said that the rent for the months of september to december, 1990 are in default and rent for january, 1991 has also become due. the rent control petition was filed on 14.2.1991. the deposit was made on 12.3.1991 for the months of september to december, 1990. by that time, even the rent for january, 1991 was due and that also amounts to default. if there was any bona fide on the part of tenant, he should have deposited the rent due for january, 1991 also when he deposited the rent for september to december, 1990. the only reason that could be found is, that he received notice intimating the default for these four months and he also came to know that petition for eviction had already been filed. when the relationship had also become strained very much, tenant cannot expect the landlord to come to his doors to collect the rent. even according to the tenant, he used to send the rent by cheque or draft. what prevented him from doing so for the months from september to december, 1990 is not explained in his counter of in his deposition. it is his case that only when the petitioner failed to collect the rent, he used to send the cheque or draft and that was his practice. why he failed to follow that practice in the months from september to december, 1990, is not in evidence in this case. the conduct of the tenant shows that he wanted to harass the landlord and he did not want to pay rent as and when it be-came due. even the practice alleged by him in paragraph 3 of his counter was not followed by him in paying the rent. only when he knew that eviction petition was filed, he thought of paying the amount, and that too, not in full discharge of the arrears. when five months rent was due on 18.3.1991, i.e., on the first hearing date, he has paid only four months rent. i do not think that any evidence has been let in by the tenant to show that he was prevented from discharging his statutory or contractual obligation. the appellate authority has not considered this legal position. the appellate authority was swayed away by a wrong understanding of law that payment of arrears of rent before the first hearing date would relieve the tenant from all his legal obligations. certain passages of the judgment of the appellate authority, especially, paragraph 12, only show that the very approach by the appellate authority is perverse. the appellate authority's interpretation to certain circumstances in the instant case is typical. for instance, in respect of a letter written by landlord to the tenant was returned as 'not found', the appellate authority has said that because the tenant happens to be a busy businessman, sometimes it so happens that such endorsements are made. according to me, if such a businessman did not think of getting time even to fulfil his contractual or statutory obligation and even a registered notice is returned with the endorsement 'not found', that is also another reason to say that he did not want to pay rent in time. the tenant, by his own conduct, has proved that he is a wilful defaulter. apart from showing that he is a wilful defaulter, he has himself shown that he is liable to be evicted. the judgment of the appellate authority is illegal and is based only on surmises, without taking into consideration the facts of the case. mere narration of certain legal words or extracts from judgments, is not disposal according to law. appellate authority has failed to see whether those decisions will apply to the facts of the case on hand.18. learned senior counsel for respondent relied on v. krishna mudaliar v. lakshmi ammal (1996)2 l.w. 467, k.a. ramesh v. susheela bai : [1998]1scr892 and also the decision of our high court reported abdul hameed v. m. sultan abdul kader : (1996)2mlj579 .19. in the decision of the supreme court reported in v. krishna mudaliar v. lakshmi ammal (1996)2 l.w. 467, the landlord refused to receive the rent and the landlord even initiated the proceedings alleging that he is a trespasser. once it was found that he is a tenant, eviction proceedings were initiated on the ground that he has not paid the rent in time and, therefore, he is a wilful defaulter. tenant contended in that case that once he has been treated as a trespasser and landlord is not receiving rent, he could not be made liable for eviction. that contention was upheld.20. k.a. ramesh v. susheela bai : [1998]1scr892 was also a case where the tenant was insisting on issuance of receipt for rents paid by him. when landlords denied payment of rent, tenant sent a bank draft, and landlords encashed the same. in the absence of receipts, a contention was taken that the tenant was a wilful defaulter. but, on proof, it was found that he was not a defaulter.21. abdul hameed v. m. sultan abdul kader : (1996)2mlj579 , is a case where all along the practice was to collect rent once in four or six months and landlord was also a person who was not in station. entire amount was also paid on the first hearing of the case. all these three cases, referred to by learned senior counsel for respondent are distinguishable on facts. as already said, as held by r. balasubramanian, j. in the decision referred to above, no court has held that a wilful defaulter will be relieved of the obligations on payment of rent after rent control petition is filed.22. in the result, i hold that the decision of the appellate authority is illegal, improper and irregular and, therefore, this is a fit case where i should invoke the revisional powers under section 25 of the tamil nadu buildings (lease and rent control) act. accordingly, the civil revision petition is allowed, and judgment of the appellate authority is set aside, and the order of rent controller is restored. tenant is directed to surrender vacant possession of the premises in question forthwith. revision petitioner is entitled to his costs of this revision, quantified at rs. 1,000 (rupees one thousand).

Judgment:
ORDER

S.S. Subramani, J.

1. Landlord in R.C.O.P. No. 398 of 1991, on the file of X Judge, Small Causes Court, Madras, is the revision petitioner.

2. The only ground that survives for consideration in this revision is, whether the tenant is liable to be evicted on the ground that he has committed wilful default in payment of rent.

3. According to landlord, eviction petition was filed in 1986 in R.CO.P. No. 2169 of 1986 against respondents on the grounds of sub-letting, conversion and acts of waste, and the same was allowed. There was also another rent control petition for fixation of fair rent. It is the case of the landlord that in spite of pendency of the said proceedings, and in spite of warnings to pay rent regularly, tenant did not take care to pay rent regularly in time, but paid the same irregularly and improperly. Petitioner/landlord did not take action then and there itself considering their relationship and pendency of proceedings, and also with a view to avoid further litigation. It is further said that rent was not tendered from 1.9.1990 to 31.12.1990, for four months, amounting to Rs. 4,000. This, according to landlord, is wilful default, which enables him to get possession. It is also said that rent for January, 1991 has also become due and payable.

4. In the counter statement filed by tenant, it is said that the landlord did not take care to collect the rent regularly, and the respondent used to pay rents in cash when the petitioner, his wife and his agent came for collection, but they were not regular. According to respondent, sometimes at the interval of two or three months, petitioner or his agent would come for collection and receive the rent, and, when they stopped collecting the rent, he started sending the rent by cheques, and now the practice is to send it by demand draft. Rent for September to December, 1990 was sent on 7.3.1991, and on 30.3.1991, the rent for January, 1991 was paid. According to him, he has paid rents upto August, 1991, and there is no arrears or default. Even before the notice dated 12.3.1991 and eviction proceedings, respondent has paid rents. After he sent the rent, he received the notice dated 12.3.1991 and summons in the R.C.O.P. According to tenant, the default committed by him cannot be construed as wilful, and, therefore, he is not liable to be evicted.

5. Rent Controller took oral and documentary evidence. Landlord got himself examined as P.W.1. Tenant got himself examined as R.W.1. Documentary evidence considered of Exs.A-1 to A-7 and Exs.B-1 to B-9. After evaluating the entire evidence, both oral and documentary, Rent Controller came to the conclusion that the explanation offered by the tenant for not paying the rent in time, cannot be accepted, and he is liable to be evicted. Rent Controller found that it is for the tenant to tender the rent as and when it became due, and it is his obligation. It was further found by Rent Controller that at least from 1986, litigations are pending and, therefore, the tenant should have been little more careful in paying rent, and he should have been punctual. The further explanation that the landlord used to collect the rent was also found against the tenant. It was found that only because the tenant used to pay the rent once in two or three months, landlord was compelled to receive the same. Rent Controller directed the tenant to put the landlord in possession, and two months time was given to vacate the premises.

6. Aggrieved by the order of eviction, tenant filed R.C.A. No. 1193 of 1992, on the file of Appellate Authority, Small Causes Court, Madras. The Appellate Authority set aside the order, and came to the conclusion that the tenant has not committed wilful default, and he cannot be termed as a wilful defaulter, mainly for the reason that even before the first hearing of the eviction petition, the entire rent was tendered. Appellate Authority found fault with the landlord in receiving the rent when the same was tendered once in two or three months, for, according to it, this gave an impression to the tenant that the landlord shall receive the rent whenever paid, even though there was delay.

7. The finding of the Rent Controller that the tenant was avoiding receipt of notice dated 12.3.1991 was also explained by the Appellate Authority by saying that the tenant is a businessman, and merely because he had gone out in connection with his business, it could not be said that he was avoiding receipt of notice. Holding so, the Appellate Authority set aside the order of Rent Controller and allowed the appeal and eviction petition was dismissed.

8. The propriety of the judgment of the Appellate Authority is challenged in this revision by the landlord, under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act.

9. The fact that rent from 1.9.1990 to 31.12.1990 was not paid in time is admitted by the tenant. Eviction petition was filed in February, 1991. Even in the eviction petition, it is said that rent for January, 1991 has become due. The question whether the tenant is a wilful defaulter or a simple defaulter is a matter to be decided taking into consideration the facts and circumstances of the case. Landlord gets a right of eviction if it is found that the tenant is a wilful defaulter.

10. In Sundaram Pillai v. Pattabiraman : [1985]2SCR643 , it was held that the landlord is entitled to get an order of eviction only if the tenant is shown to have committed default and that he is a wilful defaulter. Their Lordships of the Supreme Court held that the default, in order to be wilful, must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. Probably, it is on the basis of this judgment of the Honourable Supreme Court, the Appellate Authority set aside the order of eviction. But, one thing which the Appellate Authority omitted to consider is, that once the default is admitted, it is for the tenant to prove that the default was neither wilful nor wanton, or deliberate, and that he Was not aware of the legal consequences arising therefrom.

11. In Sundaram v. Indian Airlines : (1988)2MLJ385 , in paragraph 9 of the judgment, M.N. Chandurkar, C.J., has considered the effect of the judgment in Sundaram Pillai's case. Relevant portion of that paragraph reads thus:

Some reference was made to the decision of the Supreme Court in Sundaram Pillai v. Pattabiraman : [1985]2SCR643 in support of the proposition that before a tenant is evicted for default, it must be shown that the tenant was a wilful defaulter. In that decision undoubtedly it was pointed out that default in order to be wilful must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. The burden to show that the default is not intentional or deliberate is on the tenant. The effect of that decision will only be that a mere proof of default may not necessarily lead to an inference of wilful default. But whether a defaulter or not is a conclusion to be arrived at on the facts and circumstances of each case. If there was a continuous default which is unexplained, a court will be well justified in coming to the conclusion that the default is wilful and deliberate. .. ..

12. In Mohammed Rowther v. S.S. Rajalinga Raja and two Ors. : (1994)2MLJ509 , in paragraph 4, it was held thus:.it is settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from the landlord in that regard. .. ..

In that case, when there was default for six months, the entire amount was not paid. Only one month's rent was paid. The question was, whether he was a wilful defaulter. Learned Judge of this Court held that the only conclusion that could be arrived at in such cases is that he is a wilful defaulter. Learned Judge also took into consideration Sundaram Pillai's case : [1985]2SCR643 and distinguished the same on facts. In fact, learned Judge also took into consideration an earlier decision of this Court in Nagarathina Pillai v. Mahadevier : (1969)2MLJ492 , wherein it was held thus:

The fact that the tenant deposited the rent subsequently and quite early, after the inception of the proceeding may serve to extenuate his default in the sense that he might be now granted a reasonable time for vacating the premises. But, it is not a ground that the law can recognise for holding that a tenant who deposits such rent, is not guilty of 'wilful default' with regard to the period of default preceeding the petition for eviction.

[Italics supplied]

13. In a recent decision reported in The Nilgiris Co-operative Marketing Society v. Uthandi : (1998)2MLJ745 , R. Balasubramanian, J., has considered this question and has said thus:.It is needless to say that there is legal obligation on the part of the tenant to tender the rent to the landlord month after month, whether there is any demand for it or not. If he wants to displace this legal obligation, he must prove it by acceptable documentary or oral evidence....

Learned Judge also took note of an early decision of this Court in Delux Road Lines v. P.K. Palani Chetty : (1992)2MLJ481 , wherein M. Srinivasan, J., as he then was, has held thus:

Unexplained default is undoubtedly wilful. It is for the tenant to plead and prove the circumstances under which he failed to pay the rent as required by the Statute. The obligation to pay rent is not merely contractual but also statutory. Section 10(2)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) reads that if the controller after giving the tenant a reasonable opportunity of showing cause against the application for eviction, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, he shall issue a direction evicting the tenant. The Proviso to the Section reads that if the controller is satisfied that the tenant's default was not wilful, he may give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him. A reading of the main section and proviso makes it clear, 'that it is for the tenant to prove that his default is not wilful. It is only the tenant who knows the relevant facts and he should plead the same and prove them before the Controller in order to satisfy the controller that the default was not wilful. If the tenant is not able to satisfy the controller that there were circumstances which prevented him from carrying out his contractual or statutory obligation of having paid the rent, then the necessary consequential inference is that the default is wilful. No doubt, the Explanation introduced by the Amending Act of 1973 is to the effect that a default should be construed as Wilful if the tenant fails to pay even after issue of two months notice by the landlord claiming the rent. But it is not necessary in every case that a notice should have been issued by the landlord to the tenant in order to hold that the default is wilful. Even in cases where there was no notice calling upon the tenant to pay the rent, the default could still be held to be wilful.

[Italics supplied]

R. Balasubramanian, J, has also held in The Nilgiris Co-op. Marketing Society's case : (1998)2MLJ745 thus:.I am yet to come across a case, where the tenant was relieved of the disqualification, which he has suffered, to continue any more in the occupation of the building, on the mere fact of paying the rent pending proceeding without there being any acceptable explanation for non-payment of the same as and when it became due. There cannot be any hard and fast rule to that effect, because, if that is the position in law, then there can never be an order of eviction on the ground of wilful default, if the tenant, who had been indifferent all along in paying the rent after the rent control petition was filed....

14. When this is the legal position, let us see how far the tenant was successful in proving that he has not committed wilful default in paying the rent.

15. As I said already, the burden is only on him, since it is something which is within his personal knowledge, The proof will have to be as stated by M. Srinivasan, J., (as he then was) in Delia Road Lines v. P.K. Palani Chetty : (1992)2MLJ481 , viz., that he was prevented from carrying out his contractual or statutory obligations. If that is the scope of enquiry, I have to say that there is no pleading in that regard. The tenant only finds fault with the landlord for not collecting the rent regularly. What he says in paragraph 3 of the counter is that he used to pay rents in cash when the petitioner, his wife, and his agent came up for collection. Since they were not regular and since they used to come only at an interval of two or three months, thee was delay in payment. Since the landlord stopped collecting the rent, sometimes, it was sent by cheque and now it has become the practice to send it by demand draft. There is no case by tenant that he was prevented from discharging his contractual or statutory obligations. If that be so, there is a presumption of wilful default.

16. The parties are relations. But, at least from 1986 onwards, the relationship has become strained, and litigations are pending. It is admitted by tenant himself that till 1986, he used to send the amount (rent) to the residence of the landlord as and when it became due. Only after misunderstanding arose, the tenant was insisting on the landlord to come and collect the rent. Till then, as per contract or by way of discharging the statutory obligation, tenant used to tender the rent in time. Merely because the landlord accepted the rent as and when it was paid by tenant, it cannot be taken as a ground that there is change in the contractual terms of the tenancy. Even the tenant has no case that there is any change in the contractual terms that rent can be paid once in two or three months. The helplessness of the landlord in receiving the rent should not be exploited by the tenant to his advantage, to put forward such a plea.

17. In the eviction petition, it is said that the rent for the months of September to December, 1990 are in default and rent for January, 1991 has also become due. The rent control petition was filed on 14.2.1991. The deposit was made on 12.3.1991 for the months of September to December, 1990. By that time, even the rent for January, 1991 was due and that also amounts to default. If there was any bona fide on the part of tenant, he should have deposited the rent due for January, 1991 also when he deposited the rent for September to December, 1990. The only reason that could be found is, that he received notice intimating the default for these four months and he also came to know that petition for eviction had already been filed. When the relationship had also become strained very much, tenant cannot expect the landlord to come to his doors to collect the rent. Even according to the tenant, he used to send the rent by cheque or draft. What prevented him from doing so for the months from September to December, 1990 is not explained in his counter of in his deposition. It is his case that only when the petitioner failed to collect the rent, he used to send the cheque or draft and that was his practice. Why he failed to follow that practice in the months from September to December, 1990, is not in evidence in this case. The conduct of the tenant shows that he wanted to harass the landlord and he did not want to pay rent as and when it be-came due. Even the practice alleged by him in paragraph 3 of his counter was not followed by him in paying the rent. Only when he knew that eviction petition was filed, he thought of paying the amount, and that too, not in full discharge of the arrears. When five months rent was due on 18.3.1991, i.e., on the first hearing date, he has paid only four months rent. I do not think that any evidence has been let in by the tenant to show that he was prevented from discharging his statutory or contractual obligation. The Appellate Authority has not considered this legal position. The Appellate Authority was swayed away by a wrong understanding of law that payment of arrears of rent before the first hearing date would relieve the tenant from all his legal obligations. Certain passages of the judgment of the appellate authority, especially, paragraph 12, only show that the very approach by the appellate authority is perverse. The appellate authority's interpretation to certain circumstances in the instant case is typical. For instance, in respect of a letter written by landlord to the tenant was returned as 'not found', the appellate authority has said that because the tenant happens to be a busy businessman, sometimes it so happens that such endorsements are made. According to me, if such a businessman did not think of getting time even to fulfil his contractual or statutory obligation and even a registered notice is returned with the endorsement 'not found', that is also another reason to say that he did not want to pay rent in time. The tenant, by his own conduct, has proved that he is a wilful defaulter. Apart from showing that he is a wilful defaulter, he has himself shown that he is liable to be evicted. The judgment of the Appellate Authority is illegal and is based only on surmises, without taking into consideration the facts of the case. Mere narration of certain legal words or extracts from judgments, is not disposal according to law. Appellate Authority has failed to see whether those decisions will apply to the facts of the case on hand.

18. Learned Senior Counsel for respondent relied on V. Krishna Mudaliar v. Lakshmi Ammal (1996)2 L.W. 467, K.A. Ramesh v. Susheela Bai : [1998]1SCR892 and also the decision of our High Court reported Abdul Hameed v. M. Sultan Abdul Kader : (1996)2MLJ579 .

19. In the decision of the Supreme Court reported in V. Krishna Mudaliar v. Lakshmi Ammal (1996)2 L.W. 467, the landlord refused to receive the rent and the landlord even initiated the proceedings alleging that he is a trespasser. Once it was found that he is a tenant, eviction proceedings were initiated on the ground that he has not paid the rent in time and, therefore, he is a wilful defaulter. Tenant contended in that case that once he has been treated as a trespasser and landlord is not receiving rent, he could not be made liable for eviction. That contention was upheld.

20. K.A. Ramesh v. Susheela Bai : [1998]1SCR892 was also a case where the tenant was insisting on issuance of receipt for rents paid by him. When landlords denied payment of rent, tenant sent a bank draft, and landlords encashed the same. In the absence of receipts, a contention was taken that the tenant was a wilful defaulter. But, on proof, it was found that he was not a defaulter.

21. Abdul Hameed v. M. Sultan Abdul Kader : (1996)2MLJ579 , is a case where all along the practice was to collect rent once in four or six months and landlord was also a person who was not in station. Entire amount was also paid on the first hearing of the case. All these three cases, referred to by learned Senior Counsel for respondent are distinguishable on facts. As already said, as held by R. Balasubramanian, J. in the decision referred to above, no court has held that a wilful defaulter will be relieved of the obligations on payment of rent after rent control petition is filed.

22. In the result, I hold that the decision of the Appellate Authority is illegal, improper and irregular and, therefore, this is a fit case where I should invoke the revisional powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. Accordingly, the civil revision petition is allowed, and judgment of the Appellate Authority is set aside, and the order of Rent Controller is restored. Tenant is directed to surrender vacant possession of the premises in question forthwith. Revision petitioner is entitled to his costs of this revision, quantified at Rs. 1,000 (Rupees one thousand).