Civil revision petition dismissed holding tenant guilty for wilful default.

The revision petitioner is the respondent/ tenant in R.C.O.P.No.226 of 1986 on the file of the Rent Controller, Coimbatore and the appellant in R.C.A.No.128 of 1989 on the file of the Appellate Authority (Second Additional Sub-Judge), Coimbatore. The respondent is the landlord/petitioner in the rent control petition. In this judgment, the parties to this revision will hereinafter be referred to as the landlord and the tenant. There is an order of eviction passed by the Rent Controller on the ground of owner’s occupation in respect of a non-residential building under Sec. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The Rent Controller rejected the eviction sought for on the ground of wilful default. The tenant filed an appeal and the learned appellate Judge held that the requirement of the landlord for owner’s occupation falling under Sec.l0(3) (a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) is not made out and therefore that finding went in favour of the tenant. However, the appellate authority after going into the finding of the Rent Controller on the ground of wilful default and dis- agreeing with the Rent Controller on that finding, ordered eviction in the appeal against the tenant on that ground. The correctness of the judgment of the appellate authority as referred to above is questioned in this revision.

2. It appears that the landlord had not filed any appeal at all against the order of the Rent Controller rejecting his request for eviction on the ground of wilful default. However, the question whether in the absence of an appeal by the landlord on that finding, could the appellate authority in the appeal filed by the tenant go into that question and reverse it, is no longer was integra in view of the judgments of this Court reported in (1989)1 L. W. (Summary of Judgments) 46 and (1996)1 M.L.J. 16. Therefore, the appellate authority was legally justified in taking up that question in the absence of an appeal before it.

.3. There is no dispute that there exists the landlord-tenant relationship. The rent agreed is Rs.500 and that is also not disputed. The payment of rent up to October, 1985 is also not disputed. The petition was filed for eviction stating that the tenant is in wilful default in paying the rent from November, 1985. Admittedly a sum of Rs. 10,500 under Ex.B.5, dated 27. 1987 came to be paid by the tenant to the landlord. This payment covers arrears of rent from November, 1985 onwards. In defence to the ground of wilful default, the tenant pleaded that he sent a cheque dated 1. 1986 for a sum of Rs. 1,000 representing the rent for the months of November and December, 1985 to the landlord, which he refused. Thereafter in February 1986, he had sent a Money Order for a sum of Rs.500 the coupon of which is marked as Ex.B-2, which was also refused. Then the tenant filed an application under Sec.8(5) of the Act which is marked as Ex.B-3 in this case. Ex.B-3 was returned by the office of the Rent Controller, stating that it must be pointed out as to how the court has got jurisdiction to entertain the petition. The tenant would further contend that be opened a separate Savings Bank account and the Pass Book of which is marked as Ex.B-4 and in that he had deposited the entire arrears of rent up to that date as well as continued to deposit the subsequent arrears. Exs.B-6 to B-27 are the rental receipts for the payment of rent for the subsequent period. On these documentary evidence, it is contended on behalf of the tenant that even though there might have been a default by the tenant, yet it cannot be termed as a wilful default. It is also contended by the learned counsel for the tenant that the landlord has unjustly refused the rent sent under Exs.B-1 and B-2 and therefore it does not lie in his mouth to say that the tenant is guilty of committing wilful default. This is more so because, the tenant did not keep quiet after