Burden of proving wilful default not discharged by the tenant.

1. Landlord in R.C.O.P.No.398 of 1991, on the file of X Judge, Small Causes Court, Madras, is the revision petitioner.

2. The only ground that survives for consideration in this revision is, whether the tenant is liable to be evicted on the ground that he has committed wilful default in payment of rent.

3. According to landlord, eviction petition was filed in 1986 in R.C.O.P.No.2169 of 1986 against respondents on the grounds of sub-letting, conversion and acts of waste, and the same was allowed. There was also another rent control petition for fixation of fair rent. It is the case of the landlord that in spite of pendency of the said proceedings, and in spite of warnings to pay rent regularly, tenant did not take care to pay rent regularly in time, but paid the same irregularly and improperly. Petitioner/landlord did not take action then and there itself considering their relationship and pendency of proceedings, and also with a view to avoid further litigation. It is further said that rent was not tendered from 1.9.1990 to 31.12.1990, for four months, amounting to Rs.4,000. This, according to landlord, is wilful default, which enables him to get possession. It is also said that rent for January, 1991 has also become due and payable.

4. In the counter statement filed by tenant, it is said that the landlord did not take care to collect the rent regularly, and the respondent used to pay rents in cash when the petitioner, his wife and his agent came for collection, but they were not regular. According to respondent, sometimes at the interval of two or three months, petitioner or his agent would come for collection and receive the rent, and, when they stopped collecting the rent, he started sending the rent by cheques, and now the practice is to send it by demand draft. Rent for September to December, 1990 was sent on 7.3.1991, and on 30.3.1991, the rent for January, 1991 was paid. According to him, he has paid rents upto August, 1991, and there is no arrears or default. Even before the notice dated 12.3.1991 and eviction proceedings, respondent has paid rents. After he sent the rent, he received the notice dated 12.3.1991 and summons in the R.C.O.P. According to tenant, the default committed by him cannot be construed as wilful, and, therefore, he is not liable to be evicted.

5. Rent Controller took oral and documentary evidence. Landlord got himself examined as P.W.1. Tenant got himself examined as R.W.1. Documentary evidence considered of Exs.A-1 to A-7 and Exs.B-1 to B-9. After evaluating the entire evidence, both oral and documentary, Rent Controller came to the conclusion that the explanation offered by the tenant for not paying the rent in time, cannot be accepted, and he is liable to be evicted. Rent Controller found that it is for the tenant to tender the rent as and when it became due, and it is his obligation. It was further found by Rent Controller that at least from 1986, litigations are pending and, therefore, the tenant should have been little more careful in paying rent, and he should have been punctual. The further explanation that the landlord used to collect the rent was also found against the tenant. It was found that only because the tenant used to pay the rent once in two or three months, landlord was compelled to receive the same. Rent Controller directed the tenant to put the landlord in possession, and two months time was given to vacate the premises.

6. Aggrieved by the order of eviction, tenant filed R.C.A.No.1193 of 1992, on the file of Appellate Authority, Small Causes Court, Madras. The Appellate Authority set aside the order, and came to the conclusion that the tenant has not committed wilful default, and he cannot be termed as a wilful defaulter, mainly for the reason that even before the first hearing of the eviction petition, the entire rent was tendered. Appellate Authority found fault with the landlord in receiving the rent when the same was tendered once in two or three months, for, a