W.R. KUMARASWAMY MUDALIAR Vs. P.M. RADHAKRISHNAN

JUDGEMENT

(1.) A case of wilful default has to be treated with caution, as every default is not wilful default and ought not to be treated as wilful. As a matter of fact, the Legislature by introducing the Explanation to S. 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, has given a helping hand to tenants not to commit default by enunciating that if, after, demand for arrears they fail to pay the arrears of rent within the prescribed time then it is statutorily called wilful default. No doubt, this does not mean that the tenant can commit default in payment of rent for a considerable time and await a notice of demand and accumulate the arrears without any justifiable cause and yet plead that there is no wilful default. These principles have not been borne in mind in this case at all. The petitioner is the father who was impleaded as one of the respondents in the Rent Control Petition. The short history of this case has to be noted in order to adjudge whether there has been wilful default. It is the common case that the tenant and his son were residing in the premises in question. There was no dispute about the payment of rents till August, 1971. Afterwards, the landlord gave a notice on 15th March, 1972, Ex. P -1, demanding the accumulated arrears, but addressed it only to the respondent's son, as if he was the tenant who had been inducted into the property by him and who was responsible for the payment of rent. When the respondent's son denied such a tenancy, the landlord sent another notice d. 17th April, 1972, Ex. P -3, to both the father and son describing them as joint tenants and demanding the arrears of rent from 1st September, 1971 to May 1972. The father and son sent reply dated 22nd April, 1972, stating that there was never a case of default in the payment of rent upto February, 1972, and in that context they sent the rents for March, April, May and June by money order. It is conspicuous to note that the father alone admitted that he was the tenant and contended that the arrears as claimed were not due. The landlord filed a Small Cause Suit for arrears of rent from 1st September, 1971 to 31st January 1972, and contemporaneously took action for eviction of the tenant under the Tamil Nadu Buildings Rent Control Act on the ground of wilful default in the payment of rent from 1st September, 1971 to May 1972. The Rent Controller rightly dismissed the application on the ground that as the landlord himself was not sure as to who his tenant was, it could not be said that this was a case of wilful default. The Appellate Authority reversed this finding, but without adverting to the main question as to what wilful default is. After narrating the facts it came to the conclusion that there was such a default. It was in this context that we referred to the distinction between default and wilful default even in the opening. When a landlord is not sure as to who his own tenant is, and when he went to court calling both the father and the son as tenants, and ultimately gave up the son in the course of the litigation and sought for an order of eviction as against the father alone on the ground that he had committed wilful default then it is a matter which has to be viewed with caution. Again the landlord had to file a Small Cause Suit, which was hotly contested by the father as well as the son, against whom the suit was filed for recovery of such arrears. All these factors show that there was apparently some confusion and that, though there was default in the payment of rent by one or the other (father or son) it could not be said to be wilful default. This is not a case where the landlord has maintained accounts or issued receipts. This is only a case in which the oath by the landlord is put against the oath by the tenant. Wilful default, as has been understood by this court, springs from supine in differences, and wilful abstinence from performing a statutory obligation. That is not the case here, either. In these circumstances, the order of the Appellate Authority cannot stand. In fact, the Appellate Authority while setting out the facts, did not advert to the essential limbs of the concept of wilful default, but suddenly concluded that non -payment of rent by itself would amount to wilful default in the payment of rent for the alleged period. It would not advert to the material circumstances that the landlord asked the rent, not from the father, but from the son, when he gave the first notice. Even in the second notice he described the son as the joint tenant, who according to him, was liable to pay such rents. He gave up the son during the enquiry, though he had impleaded him as a party to the proceedings, on the foot that he was not the tenant. Under these circumstances, it cannot be said that the non -payment of rent by the father to the landlord was wilful. The Civil Revision Petition is accordingly allowed, and the order of the Appellate Authority is set aside. There will be no order as to costs.