Failure to pay rent as and when it becomes due constitutes wilful default, justifying eviction under the Rent Control Act.

1. Tenant in R.C.O.P. 4 of 1994 on the file of Rent Controller, Uthagamandalam is the revision petitioner.

2. Landlord claimed eviction on the ground that tenant has defaulted in payment of rent and the said default is wilful.

3. Between same parties, there was earlier litigation as R.C.O.P. 129 of 1989, where also landlord claimed eviction on the ground that tenant committed default in payment of rent. In that petition, landlord claimed that tenant has not paid rent from 1.3.1983 to 31.8.1989 for a period of 78 months and an amount of Rs. 25, 350/- is due. In that case. Rent Controller as well as appellate authority found that the case of landlord that rent was not paid from 1.3.1983 is not true and default wasonlyfrom 1.3.1987 at the rateof Rs. 325/- per month. Since tenant has paid entire amount from 1.3.1987 Rent Controller found that tenant is not liable to be evicted on the ground of wilful default. The matter was also confirmed in appeal.

4. In the present application, landlord alleged that from 1.3.1987 till 31.12.1993 total rent payable is Rs. 26,650/-, out tenant has paid only Rs. 18,525 during the course of proceedings in R.C.O.P. 121 of 1989. According to landlord, even the said payment was made only in irregular intervals and a balance of Rs. 8.125/- is due as on 31.12.1993. Itwas alleged that the default committed is wilful and the tenant is liable to be evicted on that ground.

5. In the counter statement filed by respondent, he took a contention that the application itself is barred by res judicata . He also contended that in the earlier proceedings it was found that even though he was in default from 1.3.1987, since he has paid the entire amount, lie is not liable to be evicted. In the present claim, landlord is barred from contending that tenant is in default from 1.3.1987, which was subject matter of earlier litigation. He also said that amounts are paid as and when the matter was taken up in the earlier proceedings either monthly or in lumpsum and landlord never insisted for payment during rent control appeal and he was also paying rent as and when the matter was taken up. There is no wilful default and he prayed for dismissal of the petition.

6. On the above pleadings Rent Controller took oral and documentary evidence and as per order dated 12.7.1995 allowed the petition. Landlords son alone got examined as PW1 through whom Exs. A1 and A2 were marked. On the side of tenant no documentary or oral evidence was let in.

7. Rent Controller found thatfrom 1.3 1987 till 31.12.1993 a sum of Rs. 26.650/- is payable out of which tenant has only paid Rs. 18,525/- and even those payments were made at irregular intervals. Even during the pendency of proceedings, tenant has only paid an amount of Rs. 4,550/- and still a balance of Rs. 3675/- is due towards rent arrears. When Rent Controller held that when litigations are pending between parties, tenant should have been little more careful in paying rent and keeping arrears for long time shows his intention not to pay rent in time. He was found to be wilful defaulter and consequently liable to be evicted.

8. When the matter was taken in appeal in R.C.A. 33 of 1995 on the file of Rent Control Appellate Authority, it also did not find any reason to deviate from the reasonings of the Rent Controller. Before Appellate Authority, one more payment was also brought to his knowledge that an amount of Rs. 1,300/- was also paid. Still Appellate Authority held even that payment, will not help petitioner to hold that he is not defaulter. Appellate Authority also held that he is a wilful defaulter by dismissing the appeal.

9. The said concurrent findings of the authorities below are assailed in this revision petition under Section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act.

10. I heard the counsel on both sides. As was contended before authorities below, learned counsel for petitioner herein also contended that landlord is not entitled to contend that the rents