(Prayer: Petition under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18of 1960 as amended 23 of 1973 on Act 1 of 1980 read with Sec.151 of C.P.C., praying the High Court to revise the order of the VII Judge, Court of Small Causes, Madras, dated 24.3.1998 and made in R.C.A.No.836 of 1994. (R.C.O.P.No.3143 of 1992, dated 6.9.1994 on the file of the 11th Judge, Court of Small Causes, Madras), etc.)

1. The revision petitioner is the respondent/tenant and the first respondent is the petitioner/landlord before both the courts below.

2. This civil revision petition is filed as against the judgment and decree dated 24.3.1998 passed in R.C.A.No.836 of 1994 on the file of the VII Judge, Court of Small Causes, Madras confirming the fair and decretal order passed on 6.9.1994 in R.C.O.P.No.3143 of 1992 on the file of the XI Judge, Court of Small Causes at Madras.

3. The deceased first respondent/landlord died during the pendency of this revision petition and his legal representatives were brought on record as per order dated 15.10.1998 in C.M.P.No.14298 of 1998.

4. The deceased first respondent/landlord filed an application against the revision petitioner/tenant under Sec.10(2)(i) of Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23 of 1973 for eviction of the revision petitioner/tenant from the building in question on the ground of wilful default in payment of monthly rent of Rs.120 excluding the electricity charges from 1.7.1987 till the date of the filing of the R.C.O.P.No.3143 of 1992 before the Rent Control Court in November, 1992.

5. It is the case of the deceased first respondent/landlord in his petition for eviction that he purchased the building in question from one Koteeswari Ammal and others under a registered sale deed dated 13.7.1987 and on the very date itself the first respondent landlord issued a notice on 13.7.1987 to the revision petitioner/ tenant informing him about the purchase of the petition mentioned property and to pay the monthly rent to him from 1.7.1987, and the previous owner of the building in dispute viz., Koteeswari Ammal also gave a notice on 13.7.1987 to the revision petitioner/ tenant confirming the same in favour of the landlord, who is the deceased first respondent, and so the revision petitioner/ tenant was liable to pay the rent to the landlord from 1.7.1987 onwards till 31.9.1992 and the revision petitioner tenant has committed wilful default in payment of the same, and the revision petitioner/ tenant is liable to be evicted.

6. The revision petitioner/ tenant filed a counter before the Rent Control Court stating that the entire rent for the period from 1.7.1987 to 31.9.1992 were deposited every month into the court under the orders of the Rent Control Court in R.C.O.P.No.194 of 1984, and there is no default much less wilful default, and the deceased first respondent/ tenant can come on record as a party to the earlier R.C.O.P.No.194 of 1984 and draw the amount deposited by the revision petitioner/ tenant towards the rent payable by him, and the revision petitioner/ tenant has requested the deceased first respondent to furnish the copy of the sale deed, but he did not oblige, and therefore the rent from 1.7.1987 till 31.9.1992 are available in court deposit, and it is not a default at all, and hence the application for eviction is liable to be dismissed.

7. On the above pleadings and after considering the oral and documentary evidence placed before him, the learned Rent Controller viz., XI Judge, Court of Small Causes, Madras allowed the application for eviction in R.C.O.P.No.3143 of 1992 with costs directing the revision petitioner/ tenant herein to vacate and deliver possession of the petitioner mentioned building within two months.

8. Aggrieved against the said findings of the Rent Controller, the revision petitioner/ tenant filed an appeal in R.C.A.No.836 of 1994 and the learned appellate authority viz., VII Judge, Court of Small Causes, Madras also came to the very same conclusions that the revision petitioner/ tenant herein has committed wilful default in payment of rent, and so he dismissed the appeal with costs, confirming that fair and decretal order passed by the Rent Controller in R.C.O.P.No.3143 of 1992.

9. Not satisfied with the concurrent findings of both the courts below, the revision petitioner/ tenant has come forward with the present revision questioning the findings of both the courts below.

10. The learned counsel for the revision petitioner/ tenant contended that both the courts below have not appreciated the facts that the rents have been deposited regularly by the revision petitioner/ tenant and in fact a month in advance, and each time a deposit was made into the court in the earlier R.C.O.P.No.194 of 1984 and an intimation was sent to the previous landlady about the same, and the deceased first respondent/ landlord knew fully well about the abovesaid facts, and he did not take any steps to withdraw the rents deposited into court, and so the revision petitioner/ tenant has not committed any wilful default in payment of rent.

11. The learned counsel for the respondent-landlords repudiated the above contentions and argued that notwithstanding the notice dated 13.7.1987 on which date the registered sale deed was executed in favour of the first respondent/ landlord by the previous landlady Koteeswari, the revision petitioner/ tenant did not pay the rent to the deceased first respondent/ tenant, and instead he was going on depositing the rent into the Rent Control Court in the earlier R.C.O.P.No.194 of 1984, wherein the deceased first respondent/ landlord was not at all made as a party, and the deceased first respondent/ landlord after the purchase of the building in question was prepared to receive the rent, and he duly informed the revision petitioner/ tenant about the same, and yet the revision petitioner/ tenant had not chosen to pay the rent to the deceased first respondent landlord, but he withhold the same on the basis that he was depositing the rent into Rent Control Court in the earlier R.C.O.P.No.194 of 1984, which was filed only against the previous owner of the building by name Koteeswari, and as the concurrent findings of both the courts below that the revision petitioner/ tenant has committed wilful default in payment of rent need not be disturbed, and this revision petition deserves a dismissal.

12. I have carefully considered the rival contentions raised by both the counsel on record and gone through the papers in the type set submitted along with revision petition.

13. It is not in dispute that the original owner of the building in question was one Koteeswari, and the revision petitioner/ tenant has taken the building from the said Koteeswari on lease on monthly rent of Rs.120. It is also not in controversy that the revision petitioner/ tenant has filed an application in R.C.O.P.No.194 of 1984 for deposit of rent on the ground that the rent was refused by the previous owner Koteeswari, and the same was ordered by the court, and so the revision petitioner/ tenant was going on depositing the rent into the Rent Control Court as against the previous owner koteeswari in R.C.O.P.No.194 of 1984. It is also not disputed that the deceased first respondent/ landlord purchased the building in question from Koteeswari and others under a sale deed dated 13.7.1987, and the deceased first respondent/ landlord gave a notice dated 13.7.1987 to the revision petitioner/ tenant informing him about the purchase of the petition mentioned property and requesting the revision petitioner/ tenant to attorn the tenance and pay the monthly rent from 1.7.1987, and the previous owner of the petition mentioned property viz., Koteeswari also sent a separate notice on the same date, i.e., on 13.7.87 to the revision petitioner/ tenant confirming the abovesaid sale, and these two notice are marked as Exs.A-1 and A-2 before the Rent Control Court in this R.C.O.P.No.3143 of 1992. Notwithstanding the notice sent by the previous landlady as well as by the deceased first respondent/ landlord about the sale of the petitioner mentioned property to the deceased first respondent/ landlord, the revision petitioner/ tenant has not sent any rent by Money Order to the deceased first respondent landlord. Nor the revision petitioner/ tenant has taken any efforts to implead the deceased first respondent/ landlord as a party in the earlier R.C.O.P.No.194 of 1984 filed by him as against the original owner Koteeswari only. The deceased first respondent/ landlord has filed an application for eviction in R.C.O.P.No.3143 of 1987 claiming the arrears of rent for the period from 1.7.1987 till 31.9.1992, and these arrears of rents were not paid nor sent to the deceased first respondent/ landlord admittedly, and instead the revision petitioner/ tenant was going on depositing the rent into the Rent Control Court in pursuance of the order passed against the erstwhile owner Koteeswari in R.C.O.P.No.194 of 1984. These are the admitted facts in this case.

14. In the light of the admitted facts we have to consider the question as to whether the revision petitioner/ tenant committed wilful default in payment of rent to the deceased first respondent/ landlord for the period from 1.7.1987 till 31.9.1992

15. The deceased first respondent/ landlord cannot withdraw the rents deposited into the Rent Control Court in the earlier R.C.O.P.No.194 of 1984 because he was not a party made therein, and the said R.C.O.P.No.194 of 1984 was filed only as against Koteeswari. In spite of the notice given by the deceased first respondent/ landlord, who purchased the property from Koteeswari and despite the notice given by Koteeswari to the revision petitioner/ tenant on 13.7.1987 marked as Exs.A-1 and A-2, the revision petitioner/ tenant deliberately avoided the payment of the rent to the deceased first respondent/ landlord. When the previous owner Koteeswari and the present owner viz., deceased first respondent intimated the fact of the sale deed to the revision petitioner tenant and when the deceased first respondent/ landlord demanded the payment of the rent to him, the revision petitioner/ tenant did not pay the rents deliberately for the period from 1.7.1987 till 31.9.1992 and it would definitely constitute wilful default rendering the revision petitioner/ tenant liable to the evicted. The deposit of rent to some other person than the deceased first respondent to the credit of the earlier R.C.O.P.No.194 of 1984 knowing fully well about the sale and intentionally, so that the deceased first respondent/ landlord could not and cannot realise the same and not complying with the demand of the deceased first respondent/ landlord, will amount to wilful default. The deceased first respondent/ landlord did not refuse to receive the rent. As a matter of fact he was willing to receive the same and as a matter of fact he was demanding the same by issuing the notice dated 13.7.1987 marked as Exs.A-1 and A-2. There was no proper tender to the deceased first respondent/ landlord by the revision petitioner/ tenant herein, and there was no proper deposit of rent into a court of law as against the deceased first respondent/ landlord, who purchased the petition mentioned building from the previous owner Koteeswari under a sale deed dated 13.7.1987. Even after the required formalities were complied with by the deceased first respondent/ landlord as successor-in-title of the building in dispute, rent was not paid to him or deposited into account in any other R.C.O.P. as against the deceased first respondent and when the payment was made only into the account of Koteeswari, and when the said amounts could not be made available to the deceased first respondent/landlord, it can only be termed as wilful default in payment of rent. In other words there had been intentional refusal to pay the rent to the deceased first respondent/ landlord by the revision petitioner/tenant, and the revision petitioner/ tenant was deliberately withholding payment of rent to him for the period from 1.7.1987 till 31.9.1992.

16. I am fortified with the above views by two decisions of our Madras High Court reported in T.Ezhumalai v. Padmawathi Ammal T.Ezhumalai v. Padmawathi Ammal T.Ezhumalai v. Padmawathi Ammal, (1971)2 MLJ. 121 [LQ/MadHC/1984/344] and Indian Organic Chemicials Limited, Madras v. Radha Venkataraman Indian Organic Chemicials Limited, Madras v. Radha Venkataraman Indian Organic Chemicials Limited, Madras v. Radha Venkataraman, (1997)2 MLJ. 431 [LQ/MadHC/2004/492] :(1997)2 L.W. 517.

17. The learned counsel for the revision petitioner/ tenant stated that subsequently all the arrears of rent have paid to the respondents when the deceased first respondents filed an application under Sec.11 of Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 and as per the directions in another C.R.P.No.938 of 1996, which was the revision petition filed as against the order passed under Sec.11 of the said Act, and therefore the subsequent payment of the arrears will preclude the respondents from contending that there has been default in payment, and in any event there cannot be wilful default in payment of rent. The above contentions is also untenable because where the default occurs with regard to several months, and where the arrears of rent were subsquently paid, it is difficult to accept the argument that the default was not wilful. This was the view taken by our High Court in the decision reported in Nagarathinam Pillai v. Mahadeva Iyer, (1969)2 MLJ. 492 [LQ/MadHC/1985/93] :83L.W. 12wherein it was laid down as follows:

Wilful default implies a conscious or volitional failure to discharge obligation laid down by law on a tenant which includes a supine indifference to those obligations. Naturally enough each case will have to be judged on its merits and the case may be different where the default has occurred with regard to a single month. But where it occurs with regard to several months, it is difficult to accept the argument that the default was not wilful. Neither the fact that the tenant deposited the rent subsequently and quite early after the inception of eviction proceedings nor the fact that the landlord had advance rent with him is a ground for holding that the tenant was not guilty of wilful default.There is no condonation on the part of the landlord merely because he takes the rents deposited into court.

18. Taking into consideration of the above facts and circumstances of the case, I am to hold that the revision petitioner/ tenant has committed wilful default in payment of rent from 1.7.1987 till 31.9.1992 to the deceased first respondent/ landlord, and therefore the revision petitioner/ tenant is liable to be evicted from the petition mentioned building, and so this revision petition is devoid of merits, and the same is dismissed with costs, and the fair and detail order of both the courts below have to be confirmed, and consequently I answer this point as against the revision petitioner/ tenant and in favour of the respondents/ landlords.

19. In the result the revision petition is dismissed with costs. The judgment and decree passed in R.C.A.No.836 of 1994 dated 24.3.1998 on the file of the VII Judge, Court of Small Causes, Madras and the fair and decretal order passed in R.C.O.P.No.3143 of 1992 dated 6.9.1994 by the XI Judge, Court of Small Causes, Madras are confirmed. The revision petitioner/ tenant is given three months time from this date to vacate and deliver possession of petition mentioned building to the respondents/ landlords herein. Consequently the stay petition in C.M.P.No.13100 of 1998 is also dismissed as unnecessary.