Vasavambal vs Chenniappa Gounder

V. Ratnam, J.—The landlady, who succeeded before the Rent Controller and lost before the appellate authority, is the petitioner in this civil

revision petition, which arises out of an application filed by her for an order of eviction against the respondent under Sections 10(2)(1) and 10(3)

(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act According to the case of the petitioner, the premises in the possession of the

respondent was leased out to him on 14th March, 1971, on a monthly rent of Rs. 40. The rents in respect of the premises were not paid by the

respondent from 14th March, 1974. Thereupon, the petitioner issued a notice on 7th August, 1976, terminating the tenancy of the respondent and

in spite of repeated demands according to the petitioner the respondent had not paid the rents and had thus committed wilful default, which would

entitle her to obtain an order of eviction against him. In addition, the petitioner also claimed that since she is an old woman with no sons or

daughters to look after her and as she was living under the care and protection of the sister''s daughter, she required the premises for running a

shop to eke out her livelihood.

The respondent herein, while admitting the lease, contended that he had paid a sum of Rs. 500 as advance to the petitioner at the time of the

lease. He stoutly denied that he had committed wilful default in the payment of rents but on the contrary claimed that he was very regular in the

payment of rents. In addition it was also claimed by him that the petitioner refused to receive the rents with ulterior design to get an enhanced rent,

and if not, to evict him. The bona fide requirement of the petitioner was also disputed.

The Rent Controller found that the respondent had paid only Rs. 260 as advance as mentioned in the lease agreement marked as Exhibit A-1.

The claim of the respondent that he spent amounts towards the repair of the premises was negatived. The default in the payment of rent committed

by the respondent was held be wilful. It was also further held that the petitioner required the premises bona fide for running a shop. On those

findings an order of eviction was granted in favour of the petitioner. On appeal, in R.C.A. No. 2t of 1977 before the Appellate Authority,

Udumalpet, it found that the respondent had committed default in the payment of rent and that even after adjusting the advance amount, respondent

had not paid the rent for the period in question. However, the Appellate Authority held that under the notices issued by the petitioner, no clear two

month''s time as required by the Explanation added to Section 10(2) has been given and consequently, the default committed by the respondent

cannot be held to be wilful. On the question of bona fide requirement of the petitioner, the Appellate Authority held that such requirement is not

made out. On these findings, the application for eviction was dismissed.

In this civil revision petition, the learned Counsel for the petitioner contends that the view of the Appellate Authority that before the default could

be characterised as wilful, two months as contemplated in the Explanation should be given, is erroneous, especially in view of the finding recorded

by the Appellate Authority, to the effect that the respondent had allowed rents to remain unpaid for 32 months. The Explanation to Section 10(2)

(1) added by Tamil Nadu Act XXIII of 1973 does not contemplate that before a default could be construed as wilful two months notice should be

given. Indeed, such an argument was attempted before Justice Ismail in M. Ramaswami Pillai v. S.S. Varadhami Ammal C.R.P. No. 406 of 1978.

dated 27th April, 1978 and has been repelled on the ground that the Explanation does not contemplate any such notice being given or that the

Explanation states that only if after the issue of the notice of 2 months the rent remains unpaid, the default will be construed wilful. It must also be

pointed out that the Explanation is not exhaustive of all cases of wilful default and it is unnecessary for a landlord to issue a notice to the tenant

giving him two months clear time before eviction can be sought on the ground of wilful default. The omission, therefore, of the petitioner to issue

two months notice, will not render what is otherwise clearly wilful default, any the leas such willful default. It must also be mentioned that there has

been no explanation whatever by the tenant for not having paid the rents for several months. An argument was raised that it was on account of the

refusal of the petitioner to receive the rents when tendered, the rents had remained unpaid. Exhibits B-4 and B-5 are the only money order

coupons dated 20th January, 1975, for a sum of Rs. 40 and 7th February, 1975, for a sum of Rs. 80. The period for which the default has been

committed according to the petitioner is from 14th December, 1974, onwards till the date of the filing of the application in 1976. : Apart from

Exhibits B-4 and B-5 there is no other material to indicate that any attempt was made by the respondent to send the rents periodically to the

petitioner. If there was a refusal on the part of the petitioner to receive the rents as the respondent would allege, certainly it was open to him to

take appropriate proceedings u/s 8 of the Act. In the absence of any such proceedings, it is not possible to accept the case of the respondent on

the basis of Exhibits B-4 and B-5 that there was a refusal on the part of the petitioner to receive the rents as and when tendered. This explanation

not having been accepted, the conclusion is irresistible that the respondent as found by the lower appellate Court, was guilty of nonpayment of rent

for a very long time and the omission to pay the rents on time in the instant case is only on account of the supine indifference of the respondent and

not for any other justifiable reason. The respondent should therefore be held to have committed wilful default in the payment of the rents for the

period in question, which would justify an order of eviction being passed against him. In this view, it is unnecessary to consider the other ground on

which the petitioner sought an order of eviction. For the reasons stated above, the order of the Appellate Authority is set aside and there will be an

order of eviction against the respondent herein The Civil Revision Petition is allowed with costs, The learned Counsel for the respondent prays for

time to vacate the premises. The learned Counsel for the petitioner is agreeable to grant the respondent four months'' time to vacate the premises.

Accordingly the respondent is granted four months'' time from to day to vacate the premises in question.