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PETITIONER: V. KRISHNA MUDALIAR

       Vs.

RESPONDENT: LAKSHMI AMMAL

DATE OF JUDGMENT18/09/1995

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) AHMAD SAGHIR S. (J)

CITATION:  1996 AIR  129            1995 SCC  (5) 689  1995 SCALE  (5)398

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This  is  tenant’s  appeal.  Respondent-landlord  filed eviction-petition against  the appellant under Section 10(2) (i) of  the Tamil  Nadu Buildings  (Lease and  Rent Control) Act, 1960  (the Act) on the ground that the tenant committed willful default  in the payment of rent. The application was allowed by  the Rent  Controller. The appellate court upheld the  findings   of  the  Rent  Controller.  The  High  Court dismissed the revision petition filed by the appellant.      The respondent  purchased the  premises in  dispute  on March 30,  1977. It  is not  disputed that  at that time the appellant was  occupying the  said premises as a tenant on a monthly rent  of Rs.60/-.  The respondent  filed a  suit for declaration and  injunction against  the appellant  alleging that after the purchase of the property by him the appellant surrendered the  possession of the premises to him but later on tress-passed  into the  property. The  appellant, in  the suit, contended that he was a tenant in the property and had never surrendered  possession of the building to anyone. The suit was  dismissed. The  appeal  filed  by  the  respondent against the said order was also dismissed.      The respondent served a notice dated August 12, 1981 on the appellant  demanding arrears of rent for the period from March 30, 1977 to August 12, 1981. Section 10(2) (i) and the proviso thereunder which are relevant are as under:      "10. Eviction of  tenants.-(1) A  tenant      shall  not   be   evicted   whether   in      execution  of   a  decree  or  otherwise      except in accordance with the provisions      of this section or sections 14 to 16 :      Provided that  nothing contained  in the      said sections  shall apply  to a  tenant      whose landlord is the Government:      Provided further  that where  the tenant      denies the  title  of  the  landlord  or

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    claims right  of permanent  tenancy, the      Controller  shall   decide  whether  the      denial or  claim is  bona fide and if he      records a  finding to  that effect,  the      landlord shall  be entitled  to sue  for      eviction of  the tenant in a civil Court      and the  Court may  pass  a  decree  for      eviction on any of the grounds mentioned      in the  said  sections,  notwithstanding      that the  Court finds  that such  denial      does not involve forfeiture of the lease      or that the claim is unfounded.      (2)  A landlord  who seek’s to evict his      tenant shall apply to the Controller for      a  direction  in  that  behalf.  If  the      Controller, after  giving the  tenant  a      reasonable opportunity  of showing cause      against the application, is satisfied-           (i) 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, or      .............      Provided that  in any case falling under      clause  (i)   if   the   Controller   is      satisfied that  the tenant’s  default to      pay or  tender rent  was not  wilful, he      may, notwithstanding  anything contained      in  section   11,  give   the  tenant  a      reasonable time,  not exceeding  fifteen      days, to  pay or  tender the rent due by      him to  the landlord  upto the  date  of      such  payment  or  tender  and  on  such      payment or tender, the application shall      be rejected.      [Explanation.-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.]" It is  not disputed  that in  October,  1981  the  appellant deposited  all   the  arrears   of  rent   before  the  Rent Controller.      The only contention raised before us by learned counsel for the appellant is that the default in the payment of rent by the  appellant, if any, was not wilful and as such he was entitled to  the benefit of the proviso to Section 10(2) (i) of the Act. According to him the Rent Controller should have given time  not exceeding  15 days to pay or tender the rent due by him to the landlord. It is further contended that the appellant had  in fact  deposited the rent immediately after the ejectment-application  was filed  by the  respondent. We see force  in the contention of the learned counsel. Despite the fact  that the  appellant was  tenant of the property in dispute under  the earlier owner, the respondent dragged the appellant to  the civil court on the allegations that he was a tress-passer.  The civil  court decided the controversy in favour of the appellant and held that he was a tenant in the

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property purchased by the respondent. In reply to the notice dated August 12, 1981 the appellant stated that he could not pay the  rent because  the respondent  never accepted him as his  tenant   and  refused  to  accept  the  rent  till  the proceedings were finally decided by the civil courts. In the reply it was further stated that the non-payment of rent was not due to any fault on the part of the appellant and he was prepared to  pay the same in easy instalments. We are of the view that the courts below have not taken into consideration these facts  in the  right perspective.  Keeping in view the peculiar facts  and circumstances of this case, we hold that the default  in the  payment of  rent on  the  part  of  the appellant was  not  wilful.  Admittedly  the  appellant  had deposited the  rent in  the court  of  the  Rent  Controller within one month of the institution of the application.      We allow the appeal and set aside the impugned judgment of the courts below and dismiss the application filed by the respondent before the Rent Controller. No costs.