Presumption of wilful default on the part of tenant in making payment of rent.

This revision petition is against the order in R.C.A.No.5 of 1986 dated 111. 19S6 of the appellate authority under the Tamil Nadu Buildings (Lease and Rent Control) Act.

2. The petitioners herein is the landlord. The petitioner herein filed a petition under Sec.l0(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘the Act’) for eviction of the tenant in respect of a residential premises No.16, Perumal Koil Garden, 10th Lane, Sowcarpet, on the ground of wilful default. The Rent Controller allowed the petition. The respondent/tenant preferred an appeal before the appellate authorily in R.C.A.No.3 of 1986 and the same was allowed. Aggrieved by the said order of the appellate authority, the petitioner/landlord, has preferred this revision petition.

3. It is vehemently con tended by the learned counsel for the petitioner that the impugned order of the appellate authority is erroneous and unsustainable in law. The learned counsel submitted that there was arrears of rent for a period of six months from March, 1984 to August, 1984 and the petitioner/landlord issued a notice under Ex.P-S dated 9. 1984 in accordance with the Explanation to Sec.10 of the Act, giving time to the tenant to tender the rent within a period of two months. However, the tenant did not tender the rent within the said period. Therefore, a petition was filed before the Rent Controller by the petitioner/landlord on 210. 1984 and after the filing of the rent control petition for eviction of the tenant, the arrears of rent was received by the petitioner/ landlord and there was a delay of 146 days in tendering the amount.The learned counsel therefore contended that there is wilful default upon the facts and circumstances of the case and the order of the Rent Controller was justified when it held that the respondent/tenant did not tender the arrears of rent within two months of issue of notice Ex.P-S dated 9. 1984 and the appellate authority in reversing the finding of the Rent Controller on the ground that the petitioner/landlord has not let in evidence to prove that the payment was given beyond two months and the appellate authority was of the view that (here was a delay of few days in tendering of the rent to the landlord.

4. On the other hand, the learned counsel for the respondent/tenant submitted that both the Rent Controller and the appellate authority erred in law in assuming that the facts of the instant case will come under Explanation to Sec.10(2) of the Act. In the instant case, the landlord after issuing a notice under Ex.P-8 dated 9. 1984 has filed the petition for eviction before the expiry of two months, to tender the rent and as such, the landlord is not entitled for the benefit of presumption of wilful default given in the Explanation to Sec.10 of the Act. Therefore, both the Rent Controller and the appellate authority erred in assuming that the facts of the instant case came under the benefit of Explanation to Sec. 10(2) of the Act. In this connection, the learned counsel for the respondent cited the ruling of the Supreme Court reported in S. Sundaram v. V.R.Pattabiraman, A.I.R. 1985 S.C. 582 and in particular para. 62 wherein the Supreme Court has observed as follows:

.(1) Where no notice is given by the landlord in terms of the Explanation, the Controller having regard to the four conditions spelt out by us has the undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful. If he feels that any of the conditions mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locus poenitentiae by giving a reasonable time, which the statute puts at 15 days, and if within that time the tenant pays the rent, the application for ejectment would have to be rejected.

.(2) If the landlord chooses to give two months’ notice to the tenant to clear up the dues and the tenant does not pay the d