Non-payment of rent is a willful as willful default.

Abdul Hadi, J.

1. This Civil Revision Petition by the tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act is against the order of the appellate authority confirming the eviction order passed by the Rent Controller.

2. Three grounds were raised for eviction, namely, (1) Wilful default in the payment of rent; (2) Owner's occupation and (3) demolition and reconstruction. On the latter two grounds both the courts below concurred. On the former ground of wilful default, though the Rent Controller held that there was default in the payment of rent for the period in question, namely 15.1978 to 315.1980 he did not hold it as wilful. But the appellate authority held it is wilful also.

3. So far as demolition and reconstruction, the following passage in Ex.B.1 letter dt. 25.4.1980 sent by the counsel for the tenant is significant. 'As the house (demised building) was also damaged by the fire accident, which took place about seven years ago in that area, the thatches have to be renewed now and they are in damaged condition. Further the eastern wall was affected by the fire accident. It is fully damaged and it is in a falling condition and it is dangerous to all the inmates of the house and especially it is dangerous to the children of my client. The said wall has to be completely demolished and it must be replaced by erecting a new wall.' So, the bona fides of the landlord in his application for eviction on the ground of demolition and reconstruction are clear from the very averments of the tenant himself in the abovesaid letter. That apart, the courts below also held that R.W.1 tenant himself admitted about the damaged condition of the building. No doubt, the learned Counsel for the petitioner pointed out a passage from P.W.1's evidence to show that the respondent was not having means to demolish and put up a new building. In the said evidence P.W.1 says that he has got bank balance of Rs. 25,000. But he has not filed the pass book showing the bank balance. But I was not drawn to any plea in the counter statement of the tenant before the Rent Controller stating that the landlord has no means. So, this argument has no substance, particularly because the landlord is a businessman having four godowns and the eviction order on this ground has to be sustained.

4. Then, coming to wilful default, both the Courts below have held that there was default in the payment of rent for a very long period, namely, 1.5.1978 to 31.5.1980 and there is proof of payment only for the month of March, 1980 under Ex.B.12 Money Order. For the period prior to March, 1980 there is no documentary proof. No receipt showing payment of rent for the said period has been filed. But the contention is that the landlord was not in the habit of giving receipts. But there are documentary evidences showing that the landlord was giving the receipts for the period prior to 1.5.1978. Ex.A.22 is one such counterfoil of the receipts. It is dated 20.3.1971. Ex.A.8 to A.11 are certain counter foils of the receipts. That is why, the trial court says that the petitioner was issuing the receipt 'and the contention of the tenant belies his own statement'. The trial court also observed that Ex.A.21 and 23 to 30 go a long way to show that upto 17.1.1980 the respondent-tenant has paid the rent. These are also documentary evidence showing payment of rent. So, it cannot be said that the landlord was not in the habit of giving any receipt. This court also held in Maruthachala Udayar v. Dandapani (1980)1 M.L.J. 169 as follows:

Where a wilful default in the payment of rent is alleged by the landlord and the answer of ' the tenant is that the landlord never issued receipts for the payment of rents, the Court cannot ignore the implication of Section 8 to assess the controversy without reference to such implication. In the absence of proof of payment of rent, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rent, and the landlo