THAYAMMAL Vs. K SUBRAMANIAM

JUDGEMENT

(1.) This civil revision petition arises out of an eviction petition filed on two grounds, viz., wilful default in payment of rent and bona fide requirement for demolition and reconstruction. Both the authorities below have accepted the evidence let in by the landlord and held that he has made out both the grounds of eviction with the result an order of eviction has been passed.

(2.) Learned counsel for the tenant-revision petitioner contends that there is no question of default being wilful as the tenant had been paying her previous landlord from whom the present landlord had purchased the property in 1978 the rent in instalments once in three or six months. The tenant has produced Exs.B. 1 to B.4, which are receipts issued by the prior landlord on 15-9-1976, 21-11-1976, 20-1-1977 and 15-4-1978. On those occasions, rents were paid for several months together. It is also seen from Ex.B.7 that the rent was sent to the present landlord for ten months together by one money order. It is the contention of learned counsel for the petitioner that the documentary evidence produced by the tenant proves that she was in the habit of paying the rents once in two months and that it was an implied contract between the landlord and the tenant. It is also deposed by her as RW 1 that the present landlord had told her that she could pay the rent in the same manner in which she was paying to the prior landlord Mohammed Ismail Sahib. Learned counsel placed reliance on the decisions of this court in Ramaswami Pathar v. Thiagaraja Chettiar, (1983) 1 Mad LJ 114, Chitravadivoammal v. Dr. Moses T. Sunear, (1982) 1 Mad LJ 334, and Komalammal v. Ashoka Cycle and Motor Co., (1980) 1 Mad LJ 194, in support of the proposition that when a landlord has accepted the rent from the tenant in lump sum, it could not be said that merely because there was some delay in payment of rent, there was wilful default.

(3.) On the other hand, learned counsel for the respondents draws my attention to the counter statement filed by the tenant in the R.C.O.P. In para 3 of the counter statement, a plea was raised as follows - "The respondent denies the allegation that she has been irregular in paying the rent. Ever since the petitioner brought the building, he has been postponing receipt of the rent when the same was offered every month The petitioner wanted to collect the rent once in few months whenever he needed the money. It was at the instance of the petitioner that rent was allowed to be accumulated in the respondent's hands." This is the specific plea raised by the tenant to the effect that in spite of the offering of the rent made by the tenant every month it was the landlord who refused to accept the same and was postponing the receipt of it and on account of the same, there was accumulation of rents. The period in question is from 15-4-1982 to 14-4-1983, i.e. one year. There is no evidence on the side of the tenant that she made any offer during that period to pay the rent for any particular month. Having raised a specific plea in the counter statement as stated above, it is not open to the tenant to change her case in the course of the evidence and make a suggestion when the landlord was in the witness box that she was permitted to pay the rent in the same manner in which she was paying the prior landlord. It might be that the prior landlord had not taken any proceedings for eviction of the tenant or for the recovery of rent even when there was accumulation of rent for several months. That does not mean that there was an implied contract between the present landlord and the tenant that the latter could pay the rent as and when she pleased.