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PETITIONER: D.C. OSWAL

       Vs.

RESPONDENT: V.K.SUBBIAH AND ORS.

DATE OF JUDGMENT12/11/1991

BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) THOMMEN, T.K. (J)

CITATION:  1992 AIR  184            1991 SCR  Supl. (2) 203  1992 SCC  (1) 370        1991 SCALE  (2)1013

ACT:      Tamil  Nadu  Buildings  (Lease and  Rent  Control)  Act, 1960--Section 10--Eviction--Plea of wilful default--Landlord accepting   rent   for   two   to   three   months   at    a time---Non-payment  of  rent for  three  months--Not  wilful default.     Tamil  Nadu  Buildings  (Lease and  Rent  Control)  Act, 1960--Section 10--Eviction--Plea of change of user raised by landlord after seven years---Effect.

HEADNOTE:     Appellant was a tenant under the respondents. Action for eviction  against the appellant was initiated on  the  pleas that there was "wilful default" in the matter of payment  of rent and that the lease was residential but it had been used partly for commercial activity.     At the time of filing of the petition for eviction three months’  rent had fallen due. The appellant’s case was  that rent  was not being collected every month and every  two  to three  months  the respondents-landlords used  to  come  and collect rent at their convenience, and that mixed use of the premises was the basis of the tenancy.     The original authority dismissed the petition. In appeal it was reversed. The High Court upheld the reversal  holding that there was no case of wilful default and that the  prem- ises had been rented out also for business use.     In  the  appeal by special  leave  the  tenant-appellant contended that there was no case of wilful default and  that the  premises had been rented out also for business use  and the change of user was since 1973. Allowing the appeal of the tenant, this court,      HELD:  1.  In the several statutes  operating   in  the different states regulating the law relating to landlord and tenant ’wilful’ default has been made the ground of eviction while default is not. [205 E] 204     2.   A  situation where the landlord  had  consented  to collect rent for two to three months a time, non-payment  of rent for three months cannot constitute wilful default. [205 F]     3.   It  is not disputed that from 1973 there  had  been change  of  use. The petition for eviction was of  1980.  It

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follows  that  for seven years no objection was  raised  for change  of  use  and for the first time  when  eviction  was sought,  conversion  was made the second  ground.  In  these circumstances  the  landlords accepted the user to  be  also other than residential. [205 C-D]     S.  Sundaram  Pillai & Ors. etc. v.V.R.  Pattabiraman  & Ors. etc., [1985] 1 SCC 591; Premchand Banka v.A. Vasanthrai Khatod  & Ors., C.A.No. 1367 of 1991, decided on  27.3.1991, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION:Civil Appeal No. 4447 of 1991     From  the  Judgment  and Order dated  24.4.1991  of  the Madras  High  Court in Civil Revision Petition No.  4769  of 1984. E.C.Agarwala for the Appellant. Mrs. Jayashree Ahmed for the Respondent. The Judgment of the Court was delivered by RANGANATH MISRA, CJ. Special leave granted.     Appellant is the tenant of a premises located in Sivaka- si within the State of Tamil Nadu to which the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act apply. The rental of the premises is Rs. 275 per month. Respondents initiated  action  for eviction on the plea that  there  was "wilful default" in the matter of payment of rent and change of user. It was contended that the lease was residential but it had been used partly for commercial activity.     The  appellant  took the stand that rent was  not  being collected  every  month since the respondents  resided  away from the place where the property is situated and every  two to three months they used to come and collect rent at  land- lord’s  convenience. Two receipts were produced  to  support this stand. Rent was collected in one case for three  months and in the other for two months at a time. Admittedly at the time  of filing of the petition for eviction  three  months’ rent had fallen due. So far as the           205 change of user was concerned it was denied by pleading  that mixed use was the basis of the tenancy.     The  original authority dismissed the petition but  that has been reversed in appeal and the reversal has been upheld by the High Court.     Two  contentions were raised before us: (i) there is  no case  of wilful default particularly when the  two  receipts showed  acceptance  of rent for periods as  pleaded  by  the tenant  without  demur and (ii) that the premises  had  been rented out also for business use and at any rate  admittedly from 1973 there has been this change.     Counsel  for the respondents does not dispute that  from 1973 there has been change of use. The petition for eviction is of 1980. It follows that for seven years no objection was raised  for change of use and for the first time when  evic- tion  was sought, conversion was made the second ground.  In these  circumstances, we are prepared to accept the  submis- sion advanced on behalf of the appellant that the  landlords accepted the user to be also other than residential.     Both parties relied upon a decision of this Court in the case of S. Sundaram Pillai & Ors. etc. v.V.R. Pattabiraman & Ors.  etc.,  [1985] 1 SCC 591, where  default  and  ’wilful’ default  were  distinctly treated. In the  several  statutes operating in the different States regulating the law  relat- ing  to landlord and tenant ’wilful’ default has  been  made

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the  ground  of eviction while default is not. We  may  also refer  to a short but suggestive Order dated March  27,1991, of  this court in Civil Appeal no. 1367 of  1991  [Premchand Banka v. A. Vasanthrai Khatod & Ors.] to support our conclu- sion.  A situation where the landlord had consented to  col- lect  rent for two to three months at a time non-payment  of rent  for  three months cannot  constitute  wilful  default. Since  in  the present case default was of three  months  at time of filing of the case, we are prepared on the basis  of the  evidence  on record that it was not a case  for  wilful default.  Accordingly the conclusion reached in  appeal  and upheld by the High Court would not be sustainable.     We allow the appeal and reverse the Judgment of the High Court  and  dismiss  the petition for  eviction.  We  would, however.  like to add that judicial notice can be  taken  of the fact that rental has escalated everywhere and  appropri- ate rent in the present case should be raised to Rs. 400 per month  from 1.1.1992. The tenant should have a direction  to pay the rent in advance from month to month as stated by him in  the  Court below and it should be by the  end  of  every month. There will be no order as to COSTS. V.P.R.                                                Appeal allowed. 206