R KANTHIMATHI Vs. BEATRIE XAVIER

JUDGEMENT

(1.) THE tenants are petitioners herein. THE landlady filed a petition for eviction against the tenants under Secs. l0 (2) (i) and 10 (2) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as'act'), before the Rent Controller of Coimbatore. THE landlady is residing at Hyderabad. THE petition for eviction was filed on the ground of wilful default in payment of rent and on the ground of acts of waste. THE 1st respondent before the Rent Controller is the wife of 2nd respondent, both of them are tenants under the landlady, on a monthly rent of Rs. 120. THE rent was paid upto March, 1977. THEreafter they did not pay the rent regularly to the landlady. In May, 1977, the 1st respondent requested the landlady to sell the petition premises and an agreement dated 4. 5. 1977 was entered into between them. Subsequently, the 1st respondent committed breach of the said agreement. THE 1st respondent was not willing and ready to comply with the said agreement. THE respondents/ tenants made certain alteration to the building in question. THE said alterations are illegal and unlawful. THE landlady issued a notice to the tenants, but there was no response. Hence the petition.

(2.) . According to the tenants, the 1st respondent took the premises on lease on a monthly rent of Rs. 120. The 2nd respondent is an unnecessary party. The 1 st respondent entered into an agreement with the landlady to purchase the petition premises for a sum of Rs. 25,000 on 4. 5. 1977. A sum of Rs. 20,000 was paid by way of advance. As per the agreement, the 1 st respondent continued to be in possession of the petition premises. Therefore, it is not correct to say that the respondents/ tenants were not paying the rent regularly. After paying a sum of Rs. 20,000 towards the sale agreement, the respondents cannot be asked to pay the rent. As per the agreement, the 1 st respondent was always ready and willing to pay the balance of sale price, but the landlady was not ready and willing to execute the sale deed in favour of the 1st respondent. Therefore, there is no wilful default in payment of the rent as alleged by the landlady. The 1st respondent put up a temporary shed with the permission of the landlady. Therefore, it is not cor- rect to state that the 1 st respondent committed acts of waste, impairing the value and utility of the building. Hence the petition is liable to be dismissed.

(3.) LEARNED counsel appearing for the tenant/petition-eis submitted that the possession was handed over to the tenants in pursuance of the sale agreement, and therefore, it cannot be said that the tenants committed wilful default in payment of the rent. The tenants paid a sum of Rs. 20,000 towards advance as per the sale agreement. Therefore, it cannot be said that there is wilful default in payment of rent. According to learned counsel for the petitioners/ tenants, even if there is any default in payment of rent, that can be adjusted towards the advance amount paid by the tenants. The tenants are entitled to the benefit of part performance of the contract as contemplated under Sec. 53-A of the Transfer of Property Act. It was therefore, pleaded that there is no wilful default in payment of rent. The acts of waste said to have been committed by the tenants was not proved by the landlady. There is no engineer's report to support the plea put forward by the landlady, the acts of waste were committed impairing the utility and value of the building. It was therefore, pleaded that the authorities were not correct in ordering eviction under Sec. l0 (2) (i) of the Act.