The failure to pay the difference between the fair rent and the agreed rent constitutes willful default under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, and attracts the provisions of Section 11(4) of the Act.

(Prayer: Petition under Section 25(1)(b) of the T.N.B. (Lease & Rent Control Act praying the High Court to revise the order of the Court of Small Causes (VIII Judge), Madras, dated 21-09-1994 and made in R.C.A. No.1255/93 (M.P. No.700 of 1993 in RCOP. No.1184 of 1993, IV Judge, Court of Small Causes, Madras.) K.A. Swami, C.J.

On a reference made by the learned single Judge, this Civil Revision Petition is posted before this Division Bench.

2. The facts, which led to this reference are as follows: Petitioner-landlady filed RCOP.No.1184 of 1993 before the 15th Judge, Court of small Causes, Madras, for eviction of the respondent from the scheduled premises on the ground that he has committed willful default in the payment of rent. The eviction was sought for under Section 10(2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as “the Act”). Before RCOP.No.1184 of 1993 was filed, the landlady had filed RCOP.No.466 of 1988 for fixation of fair rent. The agreed rent was Rs.50%- per month. The Rent Controller passed an order dated 10. 1990 fixing the fair rent at Rs.1,396/- per month. The order of the Rent Controller was affirmed by the Appellate Authority by the order, dated 20.4.1993. The revision filed by the tenant was also dismissed. The landlady gave notice to the respondent – tenant on 24. 1993 demanding the difference of the amount between the fair rent fixed and the agreed rent from the date of the order passed fixing the fair rent. The respondent did not respond to the notice and did not pay the arrears. In the counter affidavit filed by him in RCOP No.1184 of 1993, the tenant took a stand that the said petition was not maintainable because he had taken up the matter relating to fixation of fair rent before the revisional authority as against the order of the Appellate Authority. Hence, the petition for eviction was premature.

2A. It is also relevant to notice that the Revision filed by the tenant against the order of the Appellate Authority relating to fixation of fair rent was also dismissed. When the eviction petition in RCOP.No.1184 of 1993 was pending on the file of the XV Judge, Court of Small Causes, Madras, the landlady filed M.P.No.700 of 1993 under Section 11

(4) of the Act for stopping further proceedings and directing the respondent to put the landlady in possession of the premises on the ground that he has not deposited the arrears of rent as required under Section 11 of the Act. However, the Rent Controller by the order dated 111. 1993 allowed that application. The tenant, being aggrieved by the aforesaid order went up in appeal in RCA.No.1255 of 1993 before the Appellate Authority, who allowed the appeal on the ground that RCOP.No.1184 of 1993 was premature, as it was filed within the period prescribed for filing revision. Aggrieved by the said order of the Appellate Authority, the present revision has been filed.

3. The reference to the Division Bench has been necessitated by reason of the fact that the learned single judge found it difficult to agree with the view expressed in Nelson and Another v. P. Ranganathan Mudaliar (1995 T.L.N.J.270) and C. Ranganathan v. M. Suri (100 L.W.708)

4. In this case, it is not in dispute that the tenant has not paid the arrears of rent accrued as a result of fixation of fair rent even to this day. Whether such failure on the part of the tenant to pay the arrears of rent would amount to willful default, which alone would entitle the landlady to obtain an order of eviction against the tenant is the point that has to be considered.

5. In C. Ranganathan’s case (100 L.W.708) (Supra), Chandurkar, C.J., as he then was, has held that the failure to pay the difference between the fair rent and the agreed rent will not attract the provisions of Sections 10(2) (i) of the Act and consequently, the provisions of Section 11(4) also are not attracted. The relevant portion of the order reads thus:

“……Now, it is true that once fair ren