K. RAMACHANDRAN Vs. K. KUMARASWAMY

JUDGEMENT

(1.) Before discussing the cases cited on behalf of the petitioner (tenant) by his learned Counsel, in this proceeding for eviction under the Madras Buildings (Lease and Rent Control) Act, I shall refer very briefly to the admitted and established facts. Though both the Courts below have held that the tenant was guilty of "wilful" default within the meaning of the Act, and was therefore liable for eviction, the only circumstance established against him is that the rent for July, 1958, which should have been paid by the tenant by the end of August, 1958, was only paid on 27th September, 1958, along with the rent for August. The landlord is an Advocate and a member of the Bar, and the case of the tenant (revision petitioner) is that be did attempt, after the rent for July had accrued, to see the landlord (respondent) at his house on Sundays upon three occasions, but that he failed to establish contact. There was hence no "wilful" default, though there was default in the payment of the July rent. This ought not to be made the sole ground for eviction, and that is the only argument pressed for the revision petitioner. With regard to the authorities cited, it is sufficient to refer to the following three cases of this Court, each of them decided by a learned single Judge.

(2.) In Ganesa Gurukkal v/s. Gopala -krishna, 1956 M. W. N. 399 Rajagopala Aiyangar, J. pointed out that that was a case, upon the facts, in which "except the non -payment of rent there was no other materiel from which an inference that the default which admittedly existed was wilful could be drawn." In this absence of circumstances pointing to the default being "wilful" the learned Judge allowed the revision, reversing the finding of the Courts below. In Lakshmi Ammal v/s. Gurunatha, 1957 M.W.N. 104, Basheer Ahmed Sayeed, J. pointed out that even the fact that the tenant (revision petitioner) put up a false defence before the Rent Controller, would not justify the inference per se that the default was "wilful". According to the learned Judge, any degree of false defence would not be adequate for such an inference, and this consideration ought not to prevail at all. With great respect to the learned Judge, I am of the view that the statement, in such unqualified terms, may not probably be valid. After all, "wilful default" or intentional default is a default accompanied by a particular state of mind, which cannot be directly proved but has to be inferred from the entire complex of circumstances. Though the fact that the tenant (revision petitioner) put forward an explanation for the default which was false might not constitute per se a justification for an inference that the default was "wilful". I do not think that it could be seriously contended that the fact that the tenant advanced a false explanation, and was not able to account for the delay or laches in any other manner, is not at least one relevant circumstance. The decision of Rajamannar, C. J., in Hazarimul and Co. v/s. Estate of P. C. Basudass, 1957 M.W.N. 481 which has also been cited, is merely authority for the view that all defaults are not "wilful" defaults and that a "wilful" default alone, established as such will entail the penalty of eviction, it may be that the principles applicable to this matter have to be laid down, in a somewhat more comprehensive terms, upon some convenient occasion. For instance, I am inclined to feel that, in the light of the incontestable principle that "wilful default" is a state of mind or intention, that cannot be proved directly but must be inferred from the totality of circumstances, it should ordinarily be for the tenant to explain why he delayed payment of rent, and, if his explanation is false, that is at least on circumstances which could be considered, along with others, in arriving at the conclusion that the default was or was not 'wilful'. It is perhaps impossible to lay down any rigid criteria but, at least, a balance has to be kept, in this matter, between the opposite interests of the landlord and the tenant. If the landlord should be expected to prove some element which cannot be proved at all, it would, In effect, involve the situation that no tenant could be evicted for "wilful" default, under circumstances ordinarily conceivable. But these observations do not impinge, in any manner, on the present facts. On the present facts, it is impossible either to conclude that the version of the tenant is necessarily false, or that he had committed 'wilful' default. Learned Counsel for the respondent contends that there was a prior occasion on which default occurred, and eviction had to be resorted to. But I find that that was some years back, and that the matter was compromised upon an undertaking to pay enhanced rent; hence, it is impossible to base any inference upon those facts. It appears very much as if there are other differences between the parties, which have become acute, and which are really responsible for the present proceedings. But those differences have to be ironed out elsewhere, and cannot be the basis or justification for eviction, where 'wilful' default has not been established. Hence I allow the revision petition and set aside the order of eviction in this case. There will be no order as to costs.