The burden of proof lies on the tenant to show that his default in payment of rent was not wilful.

JUDGMENT - D.B. DESHPANDE, J.:---The two courts below have passed an eviction order against the petitioner-tenant and therefore, the tenant has challenged the orders of courts below by filing this petition under Article 227 of the Constitution of India.

2. It is not disputed that respondent No.1 is the landlord and the petitioner is tenant. The monthly agreed rent is Rs. 75/- Respondent No. 1 originally started eviction proceeding against the petitioner on four grounds namely ;(1) default in payment of rent, (2) Bona fide requirement of the landlord, (3) Sub-letting by the tenant and (4) nuisance by the tenant. Petitioner resisted the petition and denied all the allegations made by the landlord. The trial Court held against the landlord on the points of bona fide requirement and sub-letting. But the trial Court held in favour of the landlord on the points that the petitioner-tenant was a wilful defaulter and that the petitioner-tenant was a nuisance and so he passed an eviction order against the tenant. After the tenant went in 'appeal the learned District Judge negatived the landlord's contention that the tenant was a nuisance but he upheld the finding of the trial Court that the petitioner tenant was a wilful defaulter and so he dismissed the appeal. This has given rise to this writ petition.

3. The only question before me is whether the petitioner-tenant is a wilful defaulter. It is not disputed that the landlord had filed Suit No. 75/1975 for recovery of arrears of rent from 1-1-1974 upto the end of March, 1975. It is not further disputed that the landlord was required to file another Suit No. 283/77, for further arrears of rent and it is also not disputed that the landlord was required to file another Suit No. 86/1980 for further recording very of arrears of rent. It is not disputed that all these suits ended in decrees in favour of the landlord. Shri Kasliwal, appearing for respondent No. 1, made a statement that even today the petitioner is in arrears of rent for five months and the landlord has served the petitioner with a notice. As against this Shri Godhamgaonkar, appearing for the petitioner, urged that the petitioner was not a wilful defaulter at all. On a plain reading of section 15 of the Hyderabad House (Rent, Eviction and Lease) Control Act, it is clear that once the landlord establishes that the tenant has committed a default in the matter of payment of rent, the Rent Controller has to satisfy himself that the tenant's default was not wilful. The proviso to Clause (vi) of sub-section (2) of section 15 of the Act runs as follows:

"Provided that in any case falling under Clauses (i) if the Controller is satisfied that the tenant's default to pay or pay or tender rent was not wilful he may,.........."

The other provisions are not relevant for my consideration and therefore, I have not re-produced them. In the instant case there is clear proof that the tenant committed default in the payment of rent and hence, it was the duty of the Rent Controller to get himself satisfied that the tenant's default was not wilful. The wording of the Proviso clearly gusto show that the burden lies upon the tenant to show that his default is not wilful. Shri. A.G. Godhamgaonkar was fair enough to admit that this is the correct position in law. Hence, it is duty of the tenant to show that the default is not wilful and It is no part of the job of the landlord to show that the tenant is a wilful defaulter. However, Shri. Godhamgaonkar placed reliance upon an unreported decision of this Court in (Mohd. Khadiruddin s/o Mohd Karimuddin v. Zakla Khatun w/o. Mehbobali Khan)1. Writ Petition No. 596-A/82 decided by Kanade J., on 14th June, 1983, at Aurangabad. On the particular facts and circumstances of this case. Kanade, J., has observed that a specification issue is required to be farmed so that the requirement of that proviso may be complied with Kanande, J., has never observed that the burden is required to be thrown on the landlord.

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