Tenant not entitled for exemption from payment of rent.

Padmini Jesudurai, J.

1. The two civil revision petitions are filed by the tenant and the landlords respectively, each challenging the findings adverse to him in R.C.A. 8/1985 rendered by the learned Rent Control Appellate Authority, (Subordinate Judge, Coimbatore).

2. The facts giving rise to the present revision briefly are as follows : The proceedings relate to non-residential premises in Door No 20/803 and 804 in Big Bazaar Street, Coimbatore. The petitioners in C.A.P. No. 18 97 of 1985 (hereinafter referred to as the petitioners) are the owner of the premises. The petitioner in C.A.P. No. 1344 of 1985 (hereinafter referred to as the respondent) is a tenant under the petitioners. The petitioners filed R.C.O.P. No. 361 of 1981 before the Rent Controller (District Munsif), Coimbatore seeking eviction of the respondent both on the ground of wilful default in the payment of rent (under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) and also claiming the premises for their own business under Section 10(3)(a)(iii) of the Act. The petitioners had purchased the premises on 30-9-1980 for the purpose of shifting there the business they were carrying on in rented premises in the same street. The respondent had been a tenant even under the previous owner and was carrying on business in the premises on a monthly rent of Rs. 550/- Despite repeated demands for the payment of rent, the respondent had not paid the rent from September, 1980 upto the date of the filing of the petition for eviction, viz., 21-9-1981. The default was wilful. The premises were required by the petitioners for carrying on their business, since the building which they were occupying and in which they were carrying on business was not owned by them and had been rented out to them by their landlord, who required the premises. Eviction therefore was sought for on both the grounds stated above.

3. The respondent resisted the move contending that there was no default in the payment of rent since the premises had been mortgaged by one Ramesh Babu on 9-6-1978 for Rs. 25,000/-, that the respondent got assignment of the above mortgage on 9-5-1980 and the interest on the mortgage amount at the rate of 24% P.a. coming to Rs. 500/- P.M. had to be adjusted towards the rent and that, therefore, there was no default in the payment of rent, much less was there any wilful default. The respondent further contended that the petitioners were not doing any business, but that the first petitioner's -husband, was doing business in premises owned by him and that, therefore, the petition deserves to be dismissed on both the grounds.

4. Before the Rent Controller, the husband of the first petitioner and father of the second petitioner was examined as P.W. 1 and Exs. A.1 to A.20 were marked on the side of the petitioners. R.W. 1 was examined on the side of the respondent and Exs. B.1 to B.3 have been marked on his side.

5. Learned Rent Controller, on a consideration of the materials, found that there was default in the payment of rent from September, 1980 to September, 1981 and that the default was wilful. He also found that the petitioners were doing business in the name and style of "Ponmani Steel House" and the premises occupied by them for the above business was not their own and that the claim of the petitioners was BONA FIDE entitling them to have eviction of the respondent from the premises. Eviction, therefore, was ordered on both the grounds. On appeal, learned Appellate Authority, concurred with the finding of the learned Rent Controller that there was default in the payment of rent and that the default was wilful. However, on the question as to whether the petitioners would be entitled to have the premises under Section 10(3)(a)(iii) of the Act for the purpose of carrying on their business there, the learned Appellate Authority, on the basis of Exs. B.1 to B.3, which were portions of the evidence given by P.W. 1 in a