K DHARMARAJ Vs. A NARASIMHALU

JUDGEMENT

(1.) THE tenant is the petitioner herein. THE respondents filed the petition R.C.O.P.No.29 of 1982 for eviction of the petitioner herein on the ground of wilful default in payment of rent. It is alleged by the respondents in the eviction petition that the petitioner herein occupied the non-residential building bearing D.Nos.372/B, C and D in G.S.T.Road, Pasumalai village. THE petitioner became a tenant under the respondents from 1.6.1979 in respect of the petition mentioned building. In respect of building Nos.372/B and C the tenancy was for a period of 3 years from 1.6.1981 and in respect of D.No.372/D the tenancy was for 2 years. THE tenancy was according to English Calendar month commencing from the first day of the month ending with the last day and the rent was payable on or before the 5th of every succeeding month. THE petitioner agreed to pay Rs.75/- per month in respect of the building in D.No.372/B and C and Rs.80/-per month in respect of building bearing D.No.372/D. A receipt was given every month for payment of rent and for this a 40 pages note book was kept by the petitioner herein. According to the respondents, the petitioner paid rent upto April 1981 and for May 1981 till the date of filing the petition, the petitioner has not paid rent for a period of 13 months. THE arrears according to them in Rs.2,990/-. Thus according to the respondents, the petitioner has wilfully and wantonly withheld payment of arrears of rent and committed wilful default in payment of rent.

(2.) THE petitioner herein, in his counter denied all these allegations and said that he had sent the rent of Rs.230/- by money order which is marked as Exhibit B-5 and the same was refused by the respondents herein. THE petitioner then deposited the rent into the State Bank, Pasumalai Branch and Exhibit B-4 is the State Bank Pass Book for the same. On 19.3.1981, under Exhibit B-l, the petitioner had sent a sum of Rs.2,530/- demand draft which represented 11 months� rent. Thus according to the petitioner, there is no wilful default on the part of the petitioner herein to warrant his eviction.

(3.) MR. N. Thiagarajan, the learned Counsel appearing for the petitioner submits that there is no question of wilful default as such arising in this case and hence the orders passed by the authorities below are vitiated and they must be set aside. MR. Thiagarajan cited a number of decisions for the purpose of establishing his case that there is no question of wilful default as such arising in this case. In Rangaraju v. Parthasarathi, (1964)1 M.L.J. 12, Venkatadri, J. has observed that a mere default in payment of rent for a few days will not amount to wilful default and that to hold that a tenant is wilful in payment of arrears of rent, it must be proved beyond doubt that he had exhibited supine indifference and callousness. After setting out this principle the learned Judge held in that case that there was no wilful default as such committed by the tenant since there was only a few days� delay in remitting the rent. In Govindammal v. Rangaswami Naicker, (1956)2 M.L.J.69 (S.N.) Basheer Ahmed Sayeed, J. observed that where a landlord refuses to receive or evades the receipt of the rent payable by the tenant, the failure of the tenant to resort to section 6-A of the Madras Buildings (Lease and Rent Control) Act , will not bring the tenant within the mischief of wilful default liable to be evicted. I do not think this decision has any application to the facts of the present case. In Basappa v. Jamnadoss, (1979)1 M.L.J.317, Ramapra-sada Rao, C.J. has clearly brought out the circumstances under which the tenant must be construed as having committed wilful default by stating that the default as a ground for � eviction should be such that it should be so conspicuous to a reasonable person that the tenant� s attitude was nothing but supreme indifference and purposeful evasiveness resulting in his recalcitrance. No doubt in that case, on the facts and circumstances that existed, the learned Judge held that there was no wilful default. In Chithiravadivu Ammal v. Dr.Moses Thunder, (1982) T.L.N. J.57, Fakkir Mohammed, J. has referred to the principles laid down in Basappa v. Jumnadoss, (1979)1 M.L.J.317, and on the facts and circumstances of that case, held that there was no wilful default. In Komalam Ammal v. Ashoka Cycle and Motor Company, (1980)1 M.L.J.194, Sathia-dev, J. on the facts of that case found that the landlady in that case had agreed to receive the rents in a lump sum and when she had so agreed there was no question of wilful default. In Khivraj v. Maniklal, I.L.R. (1966)1 Mad.431: 78 L.W.352: A.I.R.1966 Mad.67, Ramamurthi, J. after referring to Rangaraju v. Parthasarathi, (1964)1 M.L.J.12 and other decisions, has succinctly stated that wilful default was a state of mind or intention which must be inferred from the totality of circumstances and that mere default by itself would not amount to wilful default and the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rent or reckless indifference. Thus according to the learned Judge, the difference between default and wilful default should be borne in mind before, coming to the conclusion that the tenant is liable to be evicted on the ground of wilful default. I have absolutely no hesitation in accepting the principles that have been laid down in the decisions referred to above. We have to consider on the facts and circumstances of the present case as to whether the petitioner herein has committed wilful default or not.