Order of eviction passed for not making payment of rent regularly.

1. M.S. Premchand, the petitioner herein is the landlord, Karuppiah Nadar, the partner of Sri Jagadeeswara Vilas, the first respondent is the tenant. In the petition filed by the petitioner before the Rent Controller, Madurai, in R.C.O.P.No.166 of 1984, an order was passed against the respondents 1 and 2 evicting them on the ground of wilful default. On being aggrieved, the tenants/the respondents 1 and 2 herein filed an appeal in R.C.A.No.141 of 1990 before the Appellate Authority, Madurai. The said appeal was allowed and the order of eviction was set aside. Hence, this revision by the landlord.

2. According to the landlord, the petitioner herein, the tenant fell in arrears of rent for 11 months and as he did not make the payment for 11 months’ arrears wilfully, he is liable to be evicted under Sec.10(2)(1) of the Act. According to the tenant, he has already deposited the entire amount in the court and as such, there is no arrears.

3. The Rent Controller on consideration of the evidence, oral and documentary from both sides, concluded that there is a wilful default in making the payment of arrears for 11 months on the part of the tenant and directed the respondents 1 and 2 to vacate and hand over the premises to the landlord.

4. The appellate authority, while setting aside the order of eviction, mainly would rely upon the factors relating to the earlier petitions filed by the petitioner in R.C.O.P.No.520 of 1981 for additional accommodation and R.C.O.P.No.700 of 1981 for wilful default in payment of rent for three months from July, 1981 to September, 1981 and the same had been dismissed by the Rent Controller and the appeals by the appellate authority. According to the impugned judgment of the appellate authority, it was earlier decided by the authorities in R.C.O.P.Nos.520 and 700 of 1981 that there is no wilful default. It is also observed that the arrears for 11 months was subsequently paid by the tenant on the orders of the court in M.P.No.1119 of 1984 filed under Sec.11(4) of the Act and as such, it cannot be considered to be a wilful default.

5. On hearing the learned counsel Mr.Kandasamy, appearing for the petitioner and the learned counsel Mr.Thiagarajan, appearing for the respondents 1 and 2, and also on perusal of the impugned orders and other records, I am of the opinion that the above view taken by the appellate authority is not substainable under law.

6. At the outset, I shall mentioned that in para. 11 of the impugned judgment rendered by the appellate authority, details have been mentioned relating to the facts and figures showing the entire arrears having been paid to the petitioner/landlord. On verification, it is revealed that those details are not factually correct. Therefore, it can be very well concluded that on the date of filing of the petition requesting for eviction on the ground of wilful default, that is on 5.3.1984, there was arrears for 11 months.

7. It is also an admitted fact that the petitioner filed an application in M.P.No.1119 of 1984 under Sec.11(4) of the Act claiming arrears of Rs.3,600. Though this application was contested by the tenant, ultimately, the Rent Controller ordered for the payment of Rs.3,600 by the order dated 4.9.1986. Only thereafter, the said amount was paid on 7.9.1986.

8. Though the above application under Sec.11(4) was contested by the tenant initially, the order passed by the Rent Controller directing the tenant to make the payment of Rs.3,600 towards the arrear of rent was not challenged by the tenant by filing an appeal. This would also make it clear that the tenant did not make the payment of arrears for 11 months till 4.9.1986, that is, the date of the order in 11(4) application. There is also no explanation as to why he did not make the said payment to the landlord either before the filing of the application or at least at the time of first hearing. The appellate authority has wrongly observed that there is no details as to the period of months for wh