N. Ramaswami Reddiar vs S.N. Periamuthu Nadar

Ratnam, J.—The tenant is the Petitioner in this civil revision petition which arises out of a petition for eviction filed by the Respondent herein

on the ground that the Petitioner had wilfully defaulted in the payment of rent. Admittedly, the premises in question belongs to the Respondent and

had been leased out to the Appellant for the purpose of running a hotel. According to the landlord, the monthly rent that is payable in respect of the

premises leased out to the Petitioner is Rs. 145, whereas, according to the Petitioner, the rent is only Rs. 70. The Respondent claimed hat the

Petitioner had not paid the rents for five months that is from Margali to Panguni of Nala year and Chitrai of Pingala year and thereby committed

wilful default in the payment of rent and, therefore, he is entitled to an order for eviction.

The Petitioner resisted the said petition on the ground that the monthly rent was only Rs. 70 and that he had paid the rent till the month of Chitrai

of Pingala year and there was no arrears whatever and, therefore, there was no question of default much less wilful default.

The learned Rent Controller found that the monthly rent was Rs. 145 and that the tenant had not paid it for the period in question and, therefore,

he had committed wilful default in the payment of rent and accordingly passed an order for eviction. Aggrieved by that order, the Petitioner herein

preferred an appeal in Civil Miscellaneous Appeal No. 14 of 1978. The learned Subordinate Judge agreed with the conclusion of the learned Rent

Controller and held that the Petitioner had committed wilful default in the payment of rent and confirmed the order of eviction.

In this civil revision petition, the learned Counsel for the Petitioner contends that the view taken by the appellate authority on the question of

wilful default is incorrect. According (sic) him, after the receipt of the notice exhibit A-2, from the landlord demanding the arrears, the Petitioner

sent money order on 5th July, 1977 that is within a period of two months and consequently, there cannot be any wilful default which would justify

an order of eviction being passed against the Petitioner. It may be stated that under the provisions of the Tamil Nadu Buildings (Lease and Rent

Control) Act as they stood prior to the Amending Act XXIII of 1973, there was no prevision as to what exactly wilful default meant. By amending

Act XXIII of 1973, an explanation was added to Sub-section (2) of Section 10 of the principal Act. The explanation reads thus:

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 month''s notice by the landlord claiming the rent.

The learned Counsel for the Petitioner relies on this explanation and contends that in the instant case in so far as the rents have been paid within

two months after the receipt of the notice exhibit A-2, there cannot be any question of wilful default on the part of the Petitioner in the payment of

rent. A reading of the explanation indicates that it is not exhaustive of all cases of wilful default, but it specifies only one instance where the default

should be construed as wilful. If a tenant does not pay the rents at all for a considerable time and the landlord files a petition for an order of eviction

on the basis that the tenant had committed wilful default without issuing any notice, then, in the absence of any otter explanation by the tenant, the

default should be construed as wilful, inspite of the fact that the landlord had not chosen to issue a notice to the tenant claiming the rents. In this

view, I hold that the explanation relied on by the learned Counsel for the Petitioner cannot be of any assistance to him. In the instant case, though

there was some dispute with regard to the quantum of rent, there is no explanation offered by the Petitioner for the non-payment of even the

admitted rent of Rs. 70 every month. The Petitioner would no doubt allege that a note book in which the payments of rents were entered had been

left in the custody of the wife of the Respondent herein. But there is no acceptable evidence with reference to the same. In the absence of any

explanation by the Petitioner for the non-payment of rents as and when they fell due, the default should be construed only as wilful and the Courts

below were therefore perfectly right when they passed an order of eviction against the Petitioner. The civil revision petition therefore fails and the

same is dismissed with costs.

Learned Counsel for the Petitioner requests that some time may be given to the Petitioner to vacate the premises and the learned Counsel for the

Respondent has no objection to the grant of three months to the Petitioner to vacate the premises. Accordingly, the Petitioner is given three

month''s time from today to vacate the premises.