JUDGMENT - Lodha R.M., J.:—Surendrakumar, the landlord has filed the petition under Articles 226 and 227 of the Constitution of India, challenging the order passed by the Deputy Collector, Amravati dated 16-8-1988 confirming the order passed by the Rent Controller, Amravati dated 30-9-1987, whereby the said authority rejected the application of the landlord seeking permission of the Rent Controller to issue quit notice to the respondent under Clause 13(3)(ii) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 (hereinafter referred to as the Rent Control Order, 1949). 2. The brief facts of the case are that the petitioner Surendrakumar (hereinafter referred to as the 'landlord') is the landlord to the premises in occupation of the respondent Subhash, (hereinafter referred to as the 'tenant'). The tenant is occupying the said premises at the rent of Rs. 120/- per month. According to the landlord, the tenant executed a rent note dated 1-5-1982 and agreed to pay rent in advance every month. An application under Clause 13(3)(i) and (ii) under the Rent Control Order, 1949 was filed by the landlord before the Rent Controller, Amravati on 16-9-1986 seeking leave of the Rent Controller, Amravati to issue quit notice to the tenant. It was averred by the landlord in his application that the tenant has not made payment of rent from 1-11-1985 to 30-9-1986 and the rent was outstanding for a period of 11 months amounting to Rs. 1,320/- plus municipal tax Rs. 214/- total amount of Rs. 1534/-. It was thus stated that not only the tenant was in arrears of rent aggregating more than 3 months and therefore defaulter under Clause 13(3)(i) but was also habitual defaulter within the meaning of Clause 13(3)(ii) of the Rent Control Order, 1949. It was also averred by the landlord in the application that the tenant has been always irregular in payment of rent and he used to pay rent some time for two months, sometimes for 3 months and the mental attitude of the tenant was to remain in arrears of rent. Registered notice, according to the landlord, was given to the tenant. In reply thereto, the tenant undertook that he would be making payment regularly but still thereafter he did not make payment regularly and he was in arrears of rent of more than 11 months from 1-11-1985 to 30-9-1986. Registered notice, according to the landlord, was given to the tenant. In reply thereto, the tenant undertook that he would be making payment regularly but still thereafter he did not make payment regularly and he was in arrears of rent of more than 11 months from 1-11-1985 to 30-9-1986. On the basis of the aforesaid facts, as stated above, the landlord sought permission of the Rent Controller to issue quit notice to the tenant under Clause 13(3)(i) and (ii) of the Rent Control Order, 1949. 3. The tenant contested the application filed by the landlord before the Rent Controller and set up the defence that due to his bad financial position, the rent was in arrears. He also stated that the landlord was to collect rent after 1-11-1985 at his convenience which he did not do. 4. The Rent Controller held enquiry, recorded the statement of the parties and vide his order dated 30-9-1987 held that the rent of more than 3 months was outstanding and, therefore, under Clause 13(3)(i) of the Rent Control Order, 1949, he granted permission to the landlord to issue quit notice to the tenant, in case the arrears of rent were not paid by the tenant within 3 months from the date of the communication of the order. As regards habitual default under Clause 13(3)(ii) of the Rent Control Order, the Rent Controller found that the rent from 1-11-1985 till 30-9-1986 remains unpaid but he has not intentionally remained in arrears and, therefore, he should not be termed as habitual defaulter. 5. Dissatisfied by the order passed by the Rent Controller on 30-9-1987, the landlord challenged that order in appeal before the Resident Deputy Collector, Amravati. After hearing the appeal and the arguments for the parties, the Appellate Authority also dismissed the appeal and found that the tenant cannot be termed as habitual defaulter and the order passed by the Rent Controller did not call for any interference. 6. I have heard the learned Counsel for the parties, perused the writ petition and the annexures annexed to the petition and the relevant record with the assistance of the learned Counsel for the parties. 7. Mr. 6. I have heard the learned Counsel for the parties, perused the writ petition and the annexures annexed to the petition and the relevant record with the assistance of the learned Counsel for the parties. 7. Mr. J. N. Chandurkar, learned Counsel for the petitioner strenuously urged that both the Rent Controller as well as the Appellate Authority have seriously erred in law in not declaring the tenant 'habitual defaulter' within the meaning of Clause 13(3)(ii) of the Rent Control Order, 1949, despite its categorical finding that arrears of rent of more than 11 months were outstanding and the fact that after the notice was given by the landlord to the tenant to make the payment regularly, and the tenant undertook to make the payment of rent regularly every month, he did not make the payment every month and after 1-11-1985 no amount was paid till filing of the application by the landlord. According to the learned Counsel for the petitioner, such conduct on the part of the tenant showed his consistent and deliberate attempt in not making the payment regularly and he was in the habit of being in arrears of rent month after month and the arrears of rent accumulated upto 11 months. 8. On the other hand, Mr. V.C. Daga, learned Counsel for the non-petitioner vehemently contended that though arrears of rent of 11 months had fallen due on the date of the application but it was not tenant's intention to not to make the payment of rent to the landlord regularly but he could not do so because of his weak financial condition. According to the learned Counsel, if the tenant desired to make the payment of rent regularly but could not do so because of financial difficulties, it could not be said that tenant was habitual in arrears of rent and he could not fall within the mischief of sub-clause (ii) of Clause 13(3) of the Rent Control Order. Mr. Daga submitted that on the basis of the available facts, both the authorities have concurrently held that the tenant was not habitual defaulter and this finding of fact should not be interfered with by this Court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Mr. Mr. Daga submitted that on the basis of the available facts, both the authorities have concurrently held that the tenant was not habitual defaulter and this finding of fact should not be interfered with by this Court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Mr. Daga submitted that because of financial hardships, if no payment of rent was made regularly by the tenant, whether he could be said to be habitual defaulter within the meaning under sub-clause (ii) of Clause 13(3) of the Rent Control Order was a possible view which could be taken and when the authorities below have taken that view, the same should not be interfered by this Court in its writ jurisdiction. In support of this the learned Counsel for the respondent relied on the decisions reported in the case of (Satyanarayan and others v. Mallikarjun)1, A.I.R. 1960 S.C. 137, (M/s Pioneer Trades v. Chief Controller, Import and Export)2, A.I.R. 1963 S.C. 734, (Mohd. Yunus v. Mohd. Mustaqim)3, A.I.R. 1984 S.C. 38, (State of Madras v. G. Sundaram)4, A.I.R. 1965 S.C. 1103. The learned Counsel for the respondent also relied on the observations made by the Apex in the case (S. Sunderam Pillai and others v. V.R. Pattabiraman and others)5, 1985(1) S.C.C. 591 . 9. The Rent Controller, while considering the case of habitual default, has observed that the schedule of rent on record would show that till 31-10-1985 the tenant was regular in making payment of rent though he was late by few days or few months or so. The Rent Controller also observed that the rent 1-11-1985 to 30-9-1986 remained unpaid in spite of the reply to notice by the tenant that he would be punctual in paying monthly rent. After observing this, the Rent Controller immediately jumped to the conclusion that it was apparent that the tenant did not intentionally remain in arrears of rent but he desired to pay rent and thus he could not be termed as habitual defaulter. In appeal, the Resident Deputy Collector i.e. the Appellate Authority found that at the time of filing of the application the tenant was in arrears of rent from 1-11-1985. In appeal, the Resident Deputy Collector i.e. the Appellate Authority found that at the time of filing of the application the tenant was in arrears of rent from 1-11-1985. The Appellate Authority also found that the schedule filed by the landlord showed that in 1982 the tenant did pay rent for 2-3 months and at a time for few months, but for that there was no grievance of the landlord. Then the Appellate Authority observed that the Rent Controller found that tenant was not withholding the payment intentionally and by observing this, the Appellate Authority confirmed the finding of the Rent Controller that in such circumstances withholding of the payment of rent by the tenant would not constitute habitual default within the meaning of Clause 13(3)(ii) of the Rent Control Order, 1949. 10. The facts which have been found by the authorities below have not been challenged and that would show that the tenant has not paid the rent for a period of 11 months from 1-11-1985 to 30-9-1986, at the time of filing of application by landlord though he was required to make the payment of rent every month. Schedule of payment of rent made by the tenant which is on record at Ex. A-3 would also show that after 30-10-1985 the tenant has not paid any rent to the landlord i.e. from 1-11-1985 to 30-9-1986 at the time of filing of application. It is true that the schedule of payment made by the tenant reveals that prior thereto the rent has been paid by the tenant many a time for two months or three months together and that has been accepted by the landlord. However, the most vital and important fact is that despite the undertaking given by the tenant that he would make the payment regularly when no payment was after 31-10-1985, the landlord issued again a notice on 14-6-1986 to the tenant to make the payment of rent and admittedly even despite that notice no payment was made by the tenant to the landlord till the date of filing of the application by the landlord under Clause 13(3)(i) and (ii) of the Rent Control Order, 1949, and the only defence set up by the tenant was that he was not in a financial condition to make the payment. Before the Rent Controller, the tenant has not given any details about his financial condition and a bald statement of the tenant that he was not in a position to make the payment because of the weak financial condition would not bring him out of the mischief of Clause 13(3)(ii) of the Rent Control Order that he was not a habitual defaulter in payment of rent. Not only once but twice the landlord has put tenant on guard to make the payment regularly by giving notices, one in the year 1983 and the other on 14-6-1986. This fact is not disputed by the learned Counsel for the tenant. The learned Counsel for the tenant also admit that in reply to the notice, the tenant had undertaken that he would make the payment regularly but still he did not make the payment regularly and was in arrears of rent for a period of 11 months from the date of filing of the application by the landlord. This conduct of the tenant clearly discloses the mental attitude and intention of the tenant not to make the payment regularly and in the absence of any detailed reasons of his weak financial condition, the tenant cannot be permitted to take advantage that he was not habitual defaulter because he wanted to make the payment of rent to the landlord for the premises occupied by him but he could not do so. Ordinarily, arrears of rent for a period of 10-11 months after the tenant has already been put on guard by the landlord to make the payment regularly every month would lead to an inference that tenant was not regular in making the payment and he was habitual in arrears of rent. To rebut this, burden lies on the tenant to lead evidence to show that despite his efforts to make the payment regularly to the landlord, he could not do so. In deposition of the tenant, not a single word is stated about the efforts made by him for making the payment of rent regularly. 11. The words “habitually in arrears with rent” under Clause 13(3)(ii) of the Rent Control Order means something more than the arrears of rent. To make out a case under Clause 13(3)(ii), it is true that the landlord is required to show something more than that tenant was in arrears of rent. 11. The words “habitually in arrears with rent” under Clause 13(3)(ii) of the Rent Control Order means something more than the arrears of rent. To make out a case under Clause 13(3)(ii), it is true that the landlord is required to show something more than that tenant was in arrears of rent. The conduct of not making the payment regularly or the habit of being in arrears is to be inferred from tenant's conscious intention not to make payment regularly, with full knowledge of legal consequences flowing therefrom and that would constitute habitual default within the meaning of Clause 13(3)(ii) of the Rent Control Order, 1949. The fact that the landlord gave notice to the tenant first in the year 1983 to make the payment of rent regularly, to which the tenant replied and undertook that he would make the payment of rent regularly and did not do so and thereafter the landlord again sent a notice on 14-6-1986 for making the payment regularly, would show that the tenant was well aware of the legal consequences flowing from his conduct by not making the payment of rent regularly to the landlord and that his arrears of rent may bring him within the mischief of Clause 13(3)(ii) of the Rent Control Order. After having given an undertaking that payment of rent would be made by him regularly, when the tenant did not make the payment regularly and was in arrears for a period of 11 months from the date of filing of the application, it clearly showed the conscious intention of the tenant and it cannot be said that he was not habitual in arrears of rent. A bald statement of the tenant without any proof that he was in a bad financial condition to make the payment of rent regularly would not prove cause that tenant was unable to pay rent regularly. In a judgment reported in (Nathuji v. Narendra)6, 1981 Mh.L.J. 446, it was held as under:- “It will be difficult to hold that non-payment of rent for about 45 months can be said to be only one consolidated default so as to take the case out of Clause 13(3)(ii) namely, habitual default. In a judgment reported in (Nathuji v. Narendra)6, 1981 Mh.L.J. 446, it was held as under:- “It will be difficult to hold that non-payment of rent for about 45 months can be said to be only one consolidated default so as to take the case out of Clause 13(3)(ii) namely, habitual default. On the contrary, a consistent attitude on the part of the tenant not to pay the rent which was due and payable every month and to continue with that attitude for a period of 45 months would itself be a proof that he was habitually in arrears of rent. To treat the non-payment of rent for 45 months as only one default would be erroneous particularly when in the case of monthly tenancy the rent is ordinarily payable by the end of the month. There would be a default for every month if the rent is not paid and thus there would in all be 45 defaults, and it is needless to say that with a case of 45 defaults the tenant has to be stamped as a habitually in arrears of rent.” 12. In S. Sunderam Pillai and others v. V.R. Pattabiraman and others, 1985(1) S.C.C. 591 , cited supra the Apex Court by considering the meaning of the word 'wilful default' occurring under Tamilnadu Rent Control Act, held as under :- “Thus, a consensus of the meaning of the words “wilful default” appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or re- minders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act by other Acts referred to above.” 13. Applying the aforesaid principles it would be clear that non-payment of rent month after month for a period of 11 months despite notice given by the landlord and undertaking given by the tenant that he would make the payment of rent regularly every month, the conduct of the tenant, obviously would be that the tenant did not make the payment intentionally and his conduct was wilful and deliberate in not making the payment regularly with full knowledge of legal consequences and, therefore, he was habitually in arrears with rent. 14. The whole approach of the two authorities below was absolutely misdirected and without taking into consideration the relevant facts that the landlord issued notice to the tenant to make the payment of rent regularly and in reply thereto, the tenant undertook to make the payment regularly but he did not do so. Even about the weak financial condition both the authorities below have not said except the casual observation that the tenant has not intentionally remained in arrears but he desired to pay rent. 15. In view of the discussion made hereinabove, the authorities cited by Mr. Daga about the interference of this Court under Articles 226 and 227 of the Constitution of India, have no application to the facts of the present case. 16. In view of the aforesaid discussion, this petition deserves to be allowed and it is hereby allowed. The order dated 18-8-1988 passed by the Resident Deputy Collector, Amravati (Annexure III) confirming the order dated 30-9-1987 passed by the Rent Controller, Amravati (Annexure II) are quashed to the extent, the permission has not been granted to the landlord to issue quit notice to the tenant under Clause 13(3)(ii) of the Rent Control Order, 1949. The application filed by the landlord seeking permission to issue quit notice under Clause 13(3)(ii) of the Rent Control Order is allowed. Rule is made absolute in the abovestated terms. No order as to costs. Writ petition allowed. -----