A tenant cannot be evicted for non-payment of rent if the arrears are not due to the landlord on the basis of an agreement of tenancy.

Tenant in R.C.O.P. No. 23 of 1986; on the file of the Rent Controller, Vellore, , is the revision petitioner.

2. The respondent filed eviction petition against the petitioners on the ground that the petitioner has committed wilful default in paying the rent.

3. The material averments are as follows:

The agreed rent as per the rent deed executed by the petitioner was Rs. 5, 000/- per mensem. But the respondent herein filed R.C.O.P. No. 37 of 1980 before the Rent Control Court, Vellore, for fixation of fair rent. The application was filed on 10-3-1980. On 30-1-1982, the Rent Controller fixed the fair rent at Rs. 1050/- per mensem. Against the decision, two appeals were filed before the Appellate Authority as C.M.A. Nos. 63 and 64 of 1982. Both the appeals were heard jointly and the Appellate Authority modified the order on 5-1-1985 and fixed the fair rent at Rs. 1, 100/-. Against the decision the tenant filed C.R.P. No. 2437 of 1985, and, as per Ex.B.4 dated 29-7-1985, the operation of the judgments and decreed in R.C.O.P. No. 37 of 1980 and R.C.A. No. 64 of 1982 were stayed by this Court. The stay order was in force till the revision was finally disposed of by this Court. The landlord also filed C.R.P. No. 2109 of 1985. This Court fixed the fair rent at Rs.1, 125/- and thus partly allowed the revision of the landlord and dismissed the revision of the tenant. The order of this Court is dated 11-9-1987. In the meanwhile, i.e., after the appeal was disposed of by the Appellate Authority on 17-10-1985; the landlord issued a notice demanding payment of rent at the rate of Rs. 1, 100/- and also arrears of rent from 10-3-1980 as fixed by the Sub- Court. The notice issued by the landlord was admittedly at a time when the matter was stayed by this Court. The notice was replied by the revision petitioner herein as per reply dated 29-10-1985 where he stated that the landlord has no right to claim eviction on the ground of wilful default. The rejoinder was sent by the landlord on 16-11-1985 repeating the averments in the notice. After a few months, the present application is filed wherein eviction is claimed on the ground that the tenant has committed default in paying the rent. In the eviction petition, the arrears that are claimed are as follows:-

"Rent payable from 10-3-1980 till 31-3-1980 at the rate of Rs. 600/- p.m. being the difference between Rs. 1, 100/and Rs. 500/-. .. Rs.426/-

Arrears of rent due from 1-4-1960 till 31-3-1986 at the rate of Rs. 600/- p.m. .. Rs. 42, 000/-

Total arrears of rent due up to 31-3-1986. .. Rs. 42, 426/-

In the revision petition, the revision petitioner contended that in view of the pendency of the civil revision petition and also the stay order of this Court, the application is not maintainable and is premature. He also contended that under Section 10(1) of the Act, the application is not maintainable and he cannot be treated as a defaulter, much less a wilful defaulter.

4. Before the Rent Controller, no oral evidence was adduced, and, on the basis of the admitted facts, the documents were marked, and the matter was heard. The Rent Controller held that the petitioner is liable to be evicted since he has committed default in paying the rent, and that he has not explained the reasons for non-payment of rent by adducing sufficient evidence. The said decision was confirmed by the Appellate Authority, against which the tenant has taken this revision.

5. The only question that, arises for consideration in this case is, whether the revision petitioner is liable to be evicted on the ground that he is wilful defaulter in paying the rent for the period mentioned in the eviction petition.

6. Section 10(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act. 1960 enables the landlord to evict his tenant after having him a reasonable opportunity in case the tenant has not paid or tendered the rent due by him in respect of the building within 15 days after the expiry of the time fixed in the agreement of tena