Conduct of tenant amounts to wilful default.

1. The above revision is directed against the order dated 22. 1994 made in R.C.A.No.8 of 1990 on the file of the learned Rent control Appellate Authority (Principal Sub Judge), Tiruchirapalli, confirming the order dated 30.11.1989 made in R.C.O.P.No.292 of 1982 on the file of the learned Rent Controller (3rd Additional District Munsif), Thiruchirapalli.

2. The unsuccessful landlord before the authorities below is the revision petitioner in the above revision who filed the above R.C.O.P. seeking eviction of the respondent-tenant under Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, for an alleged wilful default in the payment of rent for 46 months, from 18. 1978 to 16. 1982 at the rate of Rs.100 per month.

3. The defence put forth by the respondent tenant for the said wilful default in paying the rent for 46 months for the period from 18. 1978 to 16. 1982, as weighed by the authorities below, are:

.(a) the revision petitioner-landlord was a borrower of money from the respondent-tenant and therefore, the rent payable during the said period were adjusted; and

.(b) the respondent-tenant was constrained to pay the property tax with respect to the petition premises as he was facing a distraint notice for non-payment of the property tax issued by the Municipality , which is marked as Ex.R-3.

4. The courts below, placing reliance on the decision of this court in Yousufv. AkbarAli, 1986 T.L.N.J. 114 held that non- payment of rent by the respondent-tenant cannot be termed as wilful default, within the meaning of Section 10(2)(i) of the Act, in view of the fact that the respondent-tenant had paid the property tax payable towards the petition premises, assuming there was any agreement for such adjustment. Hence, the above revision.

5. The learned counsel for the revision petitioner brought to my notice that the alleged borrowal of money by the revision petitioner-landlord from the respondent-tenant was ultimately decided in a suit filed by the respondent-tenant in O.S.No.599 of 1978 on the file of the Sub Court, Trichy, which was decreed on 1. 1981 in favour of the revision petitioner-landlord and also got executed in E.P.No.240 of 1983 and therefore, the respondent-tenant is not entitled to claim that he has not committed wilful default in paying the rent for the said 46 months, at the rate of Rs.100 per month.

6. The learned counsel for the revision petitioner contends that the authorities below erred in overlooking the binding force of explanation to sec.10(2)(i) of the act, particularly in the light of an order of the authority made in I.A.No.407 of 1993 under Sec.1 1(4) of the act, wherein the respondent-tenant was directed to deposit the rent in the court.

7. The learned counsel for the revision petitioner, placing reliance on the decision in Shabul Hammed and four others v. Rasool Bivi, 1993 (2) L.W. 583 contends that the order of the authorities under statute made under Sec. 11(4) of the act, determines the liability of the respondent -tenant in paying the rent and thereafter, there cannot be any exception to dilute a wilful conduct of the respondent-tenant for non- payment of the rent, under the pretext of the payment of the same towards property tax.

8. Per Contra, learned counsel for the respondent-tenant, taking note of the fact that the suit O.S.No.599 of 1978 filed by the respondent-tenant was decreed by the learned subordinate judge, Trichy on 1. 1981 and the same was executed in E.P.No.240 of 1983, restricted his submissions only with regard to the fact that the respondent-tenant had made the payment of property tax, in view of the compelling circumstances under Ex.R-3 wherein the respondent-tenant was served with distraint notice for the nonpayment of the property tax and therefore, contends that the payment of property tax with regard to the petition premises has cured the defect of default in the payment of rent as bonafide and hence, there is no wilful default on the part