The burden of proof regarding non-payment of rent cannot be shifted to the landlord, and actions taken by the tenant in good faith, such as seeking permission to deposit rent and depositing rent in a separate bank account, do not constitute wilful default.

This revision is arising out of the concurrent findings against the landlord in his petition for eviction on the ground of wilful default, owner's occupation, demolition and re-construction.

2. The pleadings as found in the petition for eviction are as under:-

The revision petitioners are father and son. The respondent is the tenant under them. The petition premises is let out to him for non residential purpose on a monthly rent of Rs.250/- initially and later increased to Rs.1,100/-. The 1st petitioner sold out a portion of the property to 2nd petitioner and tenancy of the respondent was attorned in favour of the 2nd petitioner. From 01.10.2009 to 29.02.2012, the respondent is at fault in paying the rent. The respondent to avoid paying rent has filed suit O.S.No.84/2012 alleging threat of forcible eviction and also filed RCOP.No.38/12 seeking permission to deposit the rent. The 2nd petitioner is running a business in the remaining property. The portion in occupation of the respondent is required for additional accommodation. Further, the revision petitioners are ready to demolish and reconstruct the building. Hence, RCOP.No.52/12 for eviction of the tenant was filed.

3. The case of the respondent/tenant as found in his counter in RCOP is as under:-

The respondent came as tenant in the year 1991 for rent after paying advance of Rs.20,000/-. The rental agreement was renewed in the year 2003. The landlord was not in the habit of giving rental receipt except making an entry in a pocket note book kept with him. The 2nd petitioner is not carrying on any business. He has no intention of demolish the building. All the allegations of the petitioners are denied as false. They refused to receive the rent when duly tendered which forced the respondent to file RCOP.No.38/12 seeking permission to deposit the rent. The petitioners tried to evict him by force and illegally, hence, he filed O.S.No.84/12 for permanent injunction not to evict him without following the due process of law.

4. After examining the witnesses and the documents relied by the parties, the Rent Controller dismissed the eviction petition. On appeal, the Rent Control Appellate Authority confirmed the order of the Rent Controller.

5. The aggrieved landlord through this revision petition is now questioning the legality of the order passed by the Courts below on the ground that the belated payment of rent, refusal to pay rent despite demand, depositing the rent in the Bank account without the Court's direction amount to default. Ex.R11-receipt for depositing the rent in the bank account, is not the proper tender of rent and the deposit made not at the instance of the Court's direction. While so, such an act of depositing the rent in the bank account instead of tendering it to the landlord or obtaining leave of the court ought not to have been considered as proper tender of rent.

6. It is further contended that when there is no evidence to prove the payment of rent for the period from 01.10.2009 to 29.02.2012, the Courts below ought not to have dismissed the petition for eviction. The reasoning of the Rent Controller that the landlord did not take any steps for non payment of rent from November 2009 and therefore, no default in payment of rent is perverse. The pocket note book maintained for payment of rent is with the custody of the tenant which is ceased to be the normal practice followed by the landlords. Failure of the tenant to produce the note book leads to adverse inference against the tenant.

7. The learned counsel for the respondent submitted that there is no perversity in the orders of the Court below. While the landlord alleges default in payment of rent by the tenant from 01.10.2009 to 29.02.2012, he did not take any legal recourse like issuance of notice or filing of petition either for recovery of rent or for eviction on the ground of wilful default for about 29 months. Only after the attempt to evict by force and illegal means was prevented by the tenant by fili