M. Duraiswami Achari vs Pavunammal

V. Sethuraman, J.—This revision petition has been filed against the judgment of the learned Subordinate Judge of Vellore, dated 31st

January, 1976 in C.M.A. No. 28 of 1975. The tenant was the appellant before him. The tenant had filed R.C.O.P. No. 6 of 1974 for depositing

14 months'' rent in Court and also to deposit future monthly rents in accordance with the provisions of Section 8 of the Tamil Nadu Buildings

(Lease and Rent Control) Act, 1960. The landlady filed R.C.O.P. No. 11 of 1974 for eviction on the ground of wilful default. It is this eviction

petition which came up for consideration before the Rent Controller and by his order dated 22nd March, 1975, the Rent Controller held that the

tenant had committed wilful default in the payment of rent, and therefore ordered eviction of the tenant from the premises. It is against this order

that C.M.A. No 28 of 1975 was filed. The Rent Controller had also dismissed R.C.O.P. No. 6 of 1974 seeking to deposit the arrears of rent and

also the future monthly rents. No further proceeding appears to have been taken against the order in R.C.O.P. No. 6 of 1974.

In C.M.A. No. 28 of 1975 the learned Subordinate Judge went into two questions, namely (1) whether the tenant had committed wilful default

in the payment of rent, and, (2) whether there was a proper notice to quit. He held that there was a proper notice to quit and that the tenant had

committed default. He, therefore, confirmed the order of the Rent Controller. It is this order of the learned Subordinate Judge that is now

challenged in the present revision petition by the tenant.

The learned Counsel for the petitioner contended that there was no wilful default, in the payment of rent and that the Court below was wrong in

proceeding as if there was such a default.

The tenant had filed R.C.O.P. No. 6 of 1974 for depositing 14 months rent. It is clear from this position itself that he was in default for 14

months in the payment of rent. On 17th December, 1973 the landlady sent a notice to the tenant intimating that he had to pay 8 months'' rent and

that the non-payment of rent was wilful. She, therefore, terminated the tenancy and required the tenant to surrender possession on or before 1st

February, 1974. The tenant did not take any action on the basis of this notice, which has been marked as Exhibit B-1. In the reply notice dated

2nd May, 1974, marked as Exhibit A-4, the tenant did not deny that rent was due from him for 8 months. He claimed to have visited the landlady

in person and tendered the rent and that it was the landlady that had refused to receive the same. He repeated this, also in his evidence. The

landlady''s son also went into the witness-box and denied this statement. There are thus only statements of one or the other from the witness-box

as to whether there was a meeting between the tenant and the landlady and as to what happened at the time of such a meeting. The learned

Subordinate Judge has drawn the inference that if the tenant had approached the landlady and she had refused to receive the rent, the tenant could

or would have sent the rent due by him by money order or at least named the Bank wherein he deposited the rent due by him, in accordance with

law. Since he had not done so, it was held that he had committed default.

The learned Subordinate Judge has referred in this connection to the provisions of Section 10(2) of the Act. Section 10(2) provides that a

landlord who seeks to evict his tenant shall apply to the Controller for direction in that behalf, if the Controller is satisfied that the tenant came

within the scope of any of the sub-clauses, then he was liable to be evicted. There is an Explanation which provides:

For the purpose of this sub-section default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of

rent continues after the issue of two months'' notice by the landlord claiming the rent.

This Explanation was added in 1973. As pointed out already, the landlady gave a notice on 17th December, 1973. She required the tenant to pay

up the arrears and to vacate the premises. The tenant did not take any action within the period of two months as contemplated by the Explanation.

The Explanation, therefore, squarely applies to the facts here so as to hold that the default was wilful. The conclusions of wilful default would,

therefore, have to follow.

The learned Counsel for the petitioner drew my attention to two decisions of Ramaprasada Rao, J., as he then was, in T.S. Rajagopalan v.

M.N. Saraswaihi Ammal C.R.P. No. 303 of 1975 and Thaiyanayagi Ammal and Ors. v. Ayyavu Chettiar C.R.P. Nmo. 3845 of 1974. These two

decisions came to be rendered on 23rd January, 1975, and 5th February, 1976, respectively. It is not clear from these decisions as to whether the

learned Judge had occasion to consider the Explication to Section 10(2) of the Act, extracted above. In view of the fact that the Explanation has

made the inference of wilful default mandatory in certain circumstances and since the facts in the present case come within the scope of the

Explanation so as to hold that the tenant was in wilful default, the Rent Controller and the learned Subordinate Judge were right in ordering the

eviction of the petitioner.

The revision petition accordingly fails and is dismissed. No costs. Time for vacating the premises three months from this date.