Non-payment of rent without following the procedure specified in the Act and making payment of property tax without the landlord's permission constitutes wilful default.

1. The petitioner filed a petition under section 10 (2)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, in M.R.C.O.P. No. 118 of 1981 on the file of the Rent Controller, Trichy to evict the respondents/tenants on the ground that the respondents have not paid the rent for 37 months from 2. 1978.

2. The non payment of rent is not disputed by the tenants. According to the tenants, they sought to send the rent by money order, which was refused and the tenants paid the property tax to the Municipality with respect to the property in question. In view of the above fact, the tenants case is that the non payment of the rent cannot be construed as wilful. It is also not disputed that the petitioner issued a notice dated 3. 78 to the respondents.

3. The Rent Controller in his order dated 30.10.1987 found that the tenants have defaulted the payment of rent which amounts to wilful default and on the basis of the aforesaid fact, ordered eviction. Aggrieved against the same, the tenants filed an appeal

R.C.A. No.1 of 1988. The Appellate Authority accepting the case of the tenants found that the tenants have not committed wilful default in payment of rent. Aggrieved against the same, the landlord has filed the above revision.

5. As rightly contended by the learned counsel for the petitioner, when the tenants have not paid the rent and also have not taken any steps to deposit the rent invoking Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, the non payment of rent will be considered as wilful only. He raised a contention that payment of property tax without his permission cannot be a ground for the tenants to contend that they have not committed wilful default.

6. Learned counsel for the Respondent has submitted that in view of the judgment reported in Durai Ammal v. Mani, 1989 (1) LW 155, the Appellate Authority is correct in holding that when the landlord refused to receive the rent, the non payment of rent cannot be considered as wilful. I am not sell to accept the said submission.

7. As held by the Apex Court in Molly Joseph Nish v. George Sebastian Joy, 1997 (1) M.L.J. 109 that even if the landlord refuses to receive the rent, the tenants have to follow the procedure and if such is not followed, the non payment of rent should be considered only as a wilful default.

8. With respect to the payment of property tax, it is well settled that unless the landlord gives permission, the said payment cannot be taken into consideration to test the wilful intention of the tenants for payment of rent. In view of the above, the order of the Appellate Authority cannot be sustained. Hence, it is set aside and the order of the Rent Controller is restored. C.R.P. is allowed. No Costs.

9. Learned counsel for the respondents requests time so as to enable the tenants to vacate the premises. Accepting the same, six months time is granted to the respondents from this date on condition that the respondents should file an affidavit of undertaking stating that they would vacate and hand over the vacant possession of the premises to the landlord on or before the said period, without dragging the landlord to the Court for taking possession. Such an affidavit should be filed on or before 20.98. If such an affidavit is not filed within the said period, the order of eviction will come into operation with immediate effect.