The burden is on the Tenant to show that the default is not intentional or deliberate.

1. This Revision has been filed under Section 25(1) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (hereinafter referred to as the `Act’) against the fair and final order dated 21.10.2005 in R.C.A. No.18 of 2005 on the file of the Appellate Authority cum Subordinate Judge, Udhagamandalam, confirming the fair and final order dated 13.4.2005 made in R.C.O.P No.19 of 1996 on the file of the Rent Controller cum District Munsif, Coonoor.

2. The Tenant is the Revision Petitioner and the Respondent is the Landlord. The tenancy is in respect of a non-residential premises bearing Door No.21, V.P. Street Coonoor, herein after referred to as the petition premises. For easy reference, the parties shall be referred to as the Landlord and Tenant.

3. The Landlord filed a Petition for eviction under Section 10 (2)(1) of the Act, alleging willful default in payment of the monthly rent of Rs.300/-. The period of default was from 1.4.1995 to 30.6.1996. Initially the Eviction Petition was filed against one N. Prasenchand. Since after filing of the Revision Petition, he died, his legal heirs namely his widow Mrs. Renuga and his mother N. Gumanibai were impleaded as Respondents by an order dated 30.3.2000 in I.A. No.71 of 1999 and by an order dated 19.9.2002 in I.A.No.80 of 2001 respectively. Earlier the Eviction Petition was taken on file by the learned Rent Controller and notice was issued to the Tenant returnable by 17.9.1996. On the first hearing date, the Counsel for the Tenant undertook to file vakalat and counter by 24.9.1996 and on 24.9.1996, vakalat was filed and time for filing the Counter was extended till 14.11.1996. On 14.11.1996, Counter was filed, the matter was posted for enquiry on 10.1.1997 and on the same day a sum of Rs.5,400/- was paid towards arrears of rent which was received by the Landlord without prejudice his rights and the payment was recorded by the learned Rent Controller.

4. The Tenant resisted the Eviction Petition by filing a Counter stating that rent had been upto 14.5.1996; that the last payment was by cheque, that since the Landlord wanted to receive the rent in lumpsum and believing the representation of the Landlord, rent was not paid for the period from 14.6.1995 to 14.6.1996, when it was offered to be paid during first week of July 1996, it was refused to be received by the Landlord and the Eviction Petition was filed. Therefore, it was contended that there was no willful default and in order to establish the bonafides, the entire arrears being a sum of Rs.5,400/- was paid.

5. Before the learned Rent Controller, the Landlord examined himself as P.W.1 and one Nirmalchand, the brother of the deceased First Respondent/ Tenant and son of the Third Respondent was examined as R.W.1. The Landlord did not mark any documents and on the side of the Tenant, Exs. R1 to R7 were marked.

6. The Rent Controller by an order dated 13.4.2005 held that there was wilful default in payment of rent and ordered eviction. Aggrieved by the said order, the Tenants preferred an Appeal before the learned Appellate Authority in R.C.A. No.18 of 2005 and the learned Appellate Authority also confirmed the finding of the learned Rent Controller. Aggrieved by the concurrent findings, the Tenant has filed the present

Revision.

7. The learned Counsel for the Petitioners contended that the Tenant had deposited the entire arrears on the first date of hearing and therefore there is no wilful default. In support of the said contention, the learned Counsel placed reliance on the decision of the Hon’ble Supreme Court in Sundaram Pillai v. V.R. Pattabiraman, 1985 (98) LW 49. It was further contend by the learned Counsel that N. Prasenchand was the Tenant and at the time of hearing of the Eviction Petition, he had passed away and therefore his legal heirs who were impleaded as Respondents to the Eviction Petition were precluded from examining any witness to support the contention that the Landlord was receiving the rents in lumps