KRUSHNALAL BUXI Vs. SUDARSHAN PANI

JUDGEMENT

(1.) Application for substitution is allowed.

(2.) The appellant is the tenant. These two appeals arise against the judgment of the High court of orissa in OJC Nos. 276 and 277 of 1973 dated 30/7/1974. The first respondent landlord filed an application under Section 7 (2 (i) of the orissa House Rent Control Act for eviction on the ground that the appellant, among other grounds, had committed wilful default in payment of the rents. Two applications have been filed for two successive periods. In the first case, default was for five months but it was concurrently found that there was no wilful default in that behalf. In the second case, there was a default for two months. Though the Rent Controller found the default to be wilful and ordered eviction, the appellate court set it aside on the ground that the landlord waived the default. In the writ petition, the High court interfered with and held that the appellant had not proved that the landlord agreed to receive the rent at irregular intervals. The appellant seeks to press before us that it is always open to the landlord to waive the regular, payment of the rents. In view of the conduct of the landlord, namely, even after the filing of the petition for eviction by the landlord, received rent, default in payment for two months was waived by the landlord and the default is not wilful. He relied on S. P. Deshmukh v. Shah Nihal Chand Waghajibai Gujarati in support of his contention. Normally, the monthly tenant has to pay rent month to month but it would be subject to the contract to the contrary. This contract need not be reflected in writing but may be inferred from the conduct of the parties spread over a fairly long period of time. There is a concurrent finding by the courts that the landlord had received rent at irregular intervals for a long period thereby waived the regular payments by his conduct. Under these circumstances, by conduct, an inference was drawn by this court that there was implied contract to the contrary. The word 'wilful' is a word of many meanings with its construction often influenced by its context. Wilful act may be construed as one done intentionally, knowingly, and purposely with supine indifference or without justifiable excuse so distinguished from an act done carelessly, thoughtlessly, needlessly or inadvertently. A wilful act differs essentially from a negligent act. The former is positive and the latter is negative. When the tenant committed default for two months pending proceedings for eviction the necessary inference drawn was that the act of the tenant in committing default was wilful and is perfectly justified. In this case since the landlord had already filed an application for eviction and while the first application was pending and the tenant had committed further default, in 1 1977 3 SCC 515these circumstances, the question of drawing an inference of waiver and an intention of agreeing to receive rent contrary to the contract at irregular intervals does not arise. Therefore, we do not find any ground for interference. The finding of the High court is well justified. The appeals are dismissed in the circumstances without costs. Three months' time from today is granted to the appellant to vacate the premises, with usual undertaking. The undertaking is to be filed within one month from today.