Subsequent payment no sufficient excuse.

ORDER :- The landlady is the revision petitioner, who filed an application for eviction of the respondent from the petition mentioned premises on the ground that he had committed wilful default in the payment of rent for the period commencing from 1st February, 1976 to 30th June, 1976. The application for eviction itself came to be filed on 27th July, 1976. In August 1976, the respondent sent a money-order. That money-order having been refused a demand draft was sent on 25th August, 1976, which was received by the landlady on 30th Aug., 1976. Under these circumstances, the plea of the tenant that he had not committed wilful default in the payment of rent since the payment had later been accepted, was rejected by the Rent Controller and he held that whatever might have been the subsequent conduct of the tenant, in so far as absolutely no explanation was offered for the non-payment of rent for the period covered by the application for eviction, it was supine or callous in difference on the part of the tenant. Therefore the Rent Controller ordered eviction under S.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act. On appeal by the tenant, the Appellate Authority was of the view that no doubt, there was non-payment of rent for the period from 1st Feb. 1976 to 30th June, 1976. However, this according to him must have been due to some difficulties in the family of the tenant. Be it noted at this stage that this was not pleaded by the tenant much less proved. In this view, the Appellate Authority set aside the order of eviction passed by the Rent Controller. Hence the present civil revision petition.

2. What is contended by Mr. G. Natarajan, learned counsel for the petitioner, which in my view is justified, is that the Appellate Authority has made out a special pleading in favour of the tenant holding that the non-payment of the rent was due to certain difficulties in the family of the tenant. This was not even pleaded by the tenant in his counter, nor was it proved by any evidence. Therefore, in the absence of any explanation for the non-payment of the rent, the fact that there was a subsequent payment would not relieve the tenant of the charge of wilful default in the payment of the rent. In opposition to this, Mr. G. Nandalal, learned counsel for the respondent would urge that the subsequent payment of rents would clearly go to show that the tenant had no intention of withholding the rent, but on the contrary, he was anxious to avoid his liability by payment and that, therefore, this may be a case of default, but not wilful default.

3. On a careful consideration of the above aspects. I am of the view that this is a clear case where the tenant had committed wilful default in the payment of the rent. I have perused the counter-statement filed by the tenant in opposition to the application for eviction. Nowhere does it adduce any reason for the non-payment of rent between 1st February, 1976 and 30th June, 1976. After the application for eviction came to be filed on 27th July, 76, any tender of rent would not relieve him of the earlier charge of wilful default. Therefore rightly the complaint is made before me that the Appellate Authority has made out a special pleading in favour of the tenant. In the absence of any plea by the tenant that the delay in the payment of rent for the period between 1st February, 1976 and 30th June, 1976, occasioned because of the difficulties in the family, such a theory should not have been thought of by the Appellate Authority. Accordingly, I set aside the order of the Appellate Authority and restore the order of eviction as passed by the Rent Controller. The civil revision petition is allowed accordingly. No costs.

4. As agreed to by the landlady the tenant is given six months time from today to hand over vacant delivery of possession. But this is subject to the following two conditions, namely. (1) the rent for the six months shall be paid by the tenant on or before the 15th of e