Willingness to pay admitted rent cannot be held as wilful default.

1. C.R.P.No.1929 of 1997 has arisen out of an order passed by the Rent Control Appellate Authority, (Subordinate Judge) Erode, dated 22.7.1996 in R.A.No.7 of 1993, confirming the fair and decretal order dated 28.6.1993 in R.C.O.P.No.26 of 1992, on the file of the District Munsif, Erode.

2. The respondent landlady filed an eviction petition R.C.O.P.No.26 of 1992 on four grounds, namely, wilful default, sub-letting waste, damages and different user. But the Rent Controller found that the landlady failed to prove the other grounds except the grounds of wilful default and subletting. On appeal, the appellate authority confirmed the eviction order only on the ground of wilful default. He reversed the finding with reference to the sub-letting. He also considered the other grounds rejected the contention of the landlady. Hence, the aggrieved tenant has filed the above civil revision petition.

3. C.R.P.No.1323 of 1997 has arisen out of R.C.O.P.No.28 of 1992 on the file of the District Munsif, Erode, under Sec.8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on rejecting the said petition. On appeal, the Rent Control Appellate Authority (Subordinate Judge), Erode, confirmed the said order in R.C.A.No.8 of 1993, dated 22.7.1996. Hence, the tenant has filed this civil revision petition.

4. The learned senior counsel for the petitioner Thiru M.Venkatachalapathy, appearing on behalf of the counsel for the petitioner in both the petitions contended that the finding of the lower courts with reference to wilful default is not sustainable from the facts and circumstances of the case. On the other hand, learned counsel for the respondent/landlady Thiru A.K.Kumarasamy, contended that the order of eviction on the ground of wilful default and the ground of sub-letting also should be found in favour of the landlady. Hence, the civil revision petitions have to be dismissed.

5. In both the cases, the main question that arise for consideration is whether the petitioner has committed wilful default in payment of rent.

6. The case of the landlady is that from January, 1991, the respondent failed to pay the rent and there was a default for 18 months when the petition was filed. According to the landlady, the rent was increased from Rs.750 to Rs.1,000 in 1990. But according to the tenant, the rent was only Rs.500 and it was regularly paid. The landlady did not issue any receipt for payment of rent. Taking advantage of her default to issue receipt, she has come with the case of default etc. The further contention of the tenant is that as there was an attempt to wrest possession of the tenant, he filed a suit O.S.No.44 of 1992 and obtained injunction. Only thereafter, the landlady refused to receive the rent and came with the case of default etc. Hence, she in turn filed R.C.O.P.No.28 of 1992 for default in payment of rent. Therefore there is no default at all. He also contended that there was no sub-letting.

7. Both the courts below have come to the conclusion that the rent paid from 1990 was Rs.1,000 and not Rs.500. Therefore, from such conclusions they straight-away found that there was filful default. Prima facie this inference is incorrect.

8. The Courts below rely upon Exs.A-6 and A-7. As per these documents, the rent paid on 2.6.1986 and 31.3.1989, the rent was Rs.750. These two documents are receipts issued to the landladys husband in connection with his payment of chit contribution to the petitioner. After deducting the amounts due to the petitioner from the rent of Rs.750, for the balance due from the respondents husband, the receipt is issued. The case of the respondent is that from May 1990, the rent was increased to Rs.1,000. The increase is spoken to by P.W.1. Then we have the evidence of P.W.2, said to be a friend of the petitioners son. He has admitted that the petitioners son informed him that the rent was Rs.1,000. There is an admission that the petitioners son is his customer and he knew him because of it. He