Order of eviction of tenant can be executed.

The landlord is the petitioner. The petition for eviction has been filed on the ground of wilful default in payment of rent for the period 7. 1976 to 4. 1980. The petition was filed on 21. 1980. The monthly rent was Rs.125. The total amount due for the said period was Rs.5,875 out of which the tenant had paid Rs.3,725 in driblets on various occassions. The balance due as on the date of the filing of the petition was Rs.2,150.

.2. Before the filing of the petition, the landlord had issued a notice on 8. 1979 terminating the tenancy with the end of August, 1979. He had called upon the tenant to pay the arrears of rent due as on that date. The amount due on that date was Rs. 1,325 which was arrived by deducting a sum of Rs.3,500 which was paid by the tenant by then towards the total rent of Rs.4,825 due for the period 7. 1976 to 37. 1979. To the notice dated 8. 1979, the tenant sent a reply on 28. 1979 under Ex.A-4 wherein he denied the arrears. He sent a demand draft for Rs.400 in the name of the petitioner’s mother. The petitioner did not accept the draft and returned the same.

3. In the petition for eviction, the tenant admitted the ownership of the property with the petitioner and also the relationship of the landlord and the tenant between the petitioner and the respondent. The contention of the tenant is that he used to pay the rent in accumulated sums once in few months and that has been the practice from the inception. According to him, there are no arrears at all. A sum of Rs.375 was paid by him by way of advance and a sum of Rs.3,000 was paid by way of Pagadi to be adjusted in the rent. He claimed that as June, 1976 he was liable to pay Rs.50 by way of arrears and not Rs.200 as claimed by the landlord. It is further stated that a vacant site as taken in addition for a monthly rent of Rs.50. He had paid Rs.l50 by way of advance and Rs.275 representing 5 1/2 months rent in advance. Thus, the tenant paid Rs.425. According to him that should be adjusted in the rent due for the building, as the vacant site was not delivered to him. It is the further case of the tenants that Rs.125 was paid to Meenakshi Sundaram, a servant of the petitioner’s mother on 211. 1977.

4. The Rent Controller found that the case of the tenant that rent was being paid in lumpsum was not proved. He relied on the documentary evidence on record and held that rent was being paid monthly and the tenant was bound to pay in every month as and when it accrues. Secondly, it was held that the tenant was guilty of wilful default on the circumstances of the case. Consequently, the Rent Controller ordered eviction.

.5. The appellate authority did not disturb the finding that rent is to be paid every month and not in one lumpsum. However, he took a curious view that on the date of Ex.A-3 the amount due being Rs. 1,325 the tenant had sent with his reply Ex.A-4 a sum of Rs.400 leaving a balance of Rs.925. A sum of Rs.425 paid by way of advance for the vacant site should also be deducted and that thus the balance will be Rs.500 only. The appellate authority held that the said sum of Rs.500 represented the arrears of rent which accrued subsequent to Ex.A-3 dated 8. 1979. He has also held that the conduct of the tenant shows that he is not in wilful default though he has committed default. As regards the subsequent arrears also. The appel-late authority has taken the view that if the tenant had any intention not to pay the rent, he would not have paid any amount and that the fact that he had paid some amounts shows that he would not have committed any wilful default. On that finding, the appellate authority has reversed the order of the Rent Controller and dismissed the petition for eviction.

6. On the face of it, the order of the appellate authority is wholly unsustainable. The view taken by him that the balance due of Rs.500 even as calculated by him on 8. 1979would represent the arrears accrued subsequent to that date is erroneous. He has himself foun