JUDGMENT :

S. Mohan and M.K. Mukherjee, JJ.

The appellant-tenant suffered a decree for eviction under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (here after referred to as 'the Act') on two grounds - (1) wilful default in payment of rent and (2) bona fide need of a non-residential building for starting a business. That decree was affirmed in the Court of Appeal. The revision against the same was dismissed in limine. In assailing the findings, Mr K.K. Venugopal, learned Senior Counsel, would submit that as regards the bona fide need, the petition for eviction does not plead,much less prove the necessary requirements of Section 10(3)(e)(iii) of the Act. In other words, he has to plead that he was not occupying a nonresidential building in the city or in possession of such a premises. Such a plea is totally absent. As laid down by this Court in Hasmat Rai v. Raghunath Prasad, (1981) 3 SCC 103, 109 : (1981) 3 SCR 605, 612 there must be pleas and proof thereof on these aspects. Therefore the petition on this ground of bona fide need was liable to be thrown out for lack of necessary pleadings.

2. As regards the arrears, there is no finding that there was wilful default on the part of the appellant-tenant. On the contrary, what has been found by the trial court is negligence or in difference. As a matter of fact the tenant had been lulled into a belief that the rent collector of the landlord would come and collect the rent. Because of this belief he did not pay the rent in due time. At no point of time, the tenant was informed that he was to pay1 regularly. On the contrary there had been acceptances of the rents by the landlord at intermittent intervals. On this aspect the law has been laid down by this Court in Rashik Lal v. Shah Gokuldas (1989) 1 SCC 542. That ratio ought to have been applied by the courts below. Then against in S. Sundaram Pillai v. V.R. Pattabiraman what is talked of is reckless negligence. There is no such recklessness in this case. Consequently it is submitted that the impugned judgments are liable to be set aside.

3. In opposition to this Mr K. Parasaran, learned Senior Counsel would urge that as regards arrears the appellant was issued a notice demanding arrears in the first instance for the period 1-2-1972 (sic) to 31-1-1972. In spite of such a notice, no step whatever was taken. Repeated reminders as seen from the various exhibits clearly show how the tenant had wilfully defaulted in payment of rents. In fact in the notice dated 15-10-1972, it has been clearly stated that there have been repeated and numerous wilful defaults in due payment of rents. The plea was met by stating that there was negotiation between landlord and tenant and the tenant was expecting adjustment of the amount incurred towards the repairs, as against the rent. Therefore, the plea that there was no wilful default is not correct. The courts below have rightly concluded the issue against the tenant on this aspect. This alone would be sufficient to uphold eviction. The case cited on behalf of the tenant in this regard will have no relevance because Rashik Lal v. Shah Gokuldas, (1989) 1 SCC 542 dealt with the case of habitual default. S. Sundaram Pillai v. V.R. Pattabiraman dealt with the scope of the provisos to Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, as to the deeming provision and the wilful default in the context. That case will have no application to the facts here.

4. Concerning the second ground, no doubt, there was no specific plea that the landlord was not occupying a non-residential building of his own nor that he was entitled to possession of any such building. Nevertheless, the parties had adduced evidence with full knowledge relating there to and understood the scope of their case and took the trial. Hence it is too late for the tenant to resile and urge the ground of non-pleading.

5. We have carefully considered the above submissions. As regards the arrears we find