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1998 DIGILAW 1425 (MAD)

K. Nanjappan v. V. K. Janaki

1998-10-26

S.M.SIDICKK

body1998
Judgment 1. The revision petition is the tenant/the 1st respondent before the courts below, and the respondent herein is the landlady/petitioner before the courts below. 2. The respondent/landlady herein filed the application in R.C.O.P.No.37 of 1990, on the file of the Rent Controller/ (II Additional District Munsif) at Coimbatore for eviction of the revision petitioner/tenant under Secs.10(2)(i) and 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 on the ground of wilful default in payment of rent and on the ground of subletting. 3. The material averments in the eviction petition filed by the respondent/landlady are as follows: The first respondent is the tenant under the petitioner in occupation of her building bearing new Door No.15, Huzur Road, Coimbatore on a monthly rent of Rs.250 and a further sum of Rs.15 towards electricity charges, totalling Rs.265 for each English calendar month payable on or before the 1st day of the succeeding month. The 1st respondent has been very irregular in the payment of the rents due by him. As on 1.2.1990 the total arrears of rent due by the 1st respondent to the petitioner amounts to Rs.3,180. On the ground of wilful default in the payment of the rents the 1st respondent is liable to be evicted from the premises. Further without the petitioners knowledge or consent the 1st respondent has sublet a portion of the premises to one N.Balasubramanian, on this ground of unauthorised who is the 2nd respondent in the R.C.O.P. sub-letting the respondents are liable to be evicted. 4. The revision petitioner/tenant filed a counter statement before the lower court raising the following contentions: First of all the monthly rent is not Rs.250 as alleged by the petitioner in para. 3 of the petition but only Rs.125 per month and becomes it is payable on the 1st day of the succeeding month. The 1st respondent tenant also denies the allegations that as on 1.2.1990 the total arrears of rent was Rs.3,180 as stated by the petitioner in para. 5 of the petition. On the other hand, it is the petitioner, who is trying to suppress the huge advances received by her and her predecessor-in-title and suppressed the repairs done by the 1st respondent at his cost. Considering the abovesaid facts the court will find that there are no arrears of rent and that the 1st respondent has not committed any wilful default. On the other hand, it is the petitioner, who is trying to suppress the huge advances received by her and her predecessor-in-title and suppressed the repairs done by the 1st respondent at his cost. Considering the abovesaid facts the court will find that there are no arrears of rent and that the 1st respondent has not committed any wilful default. The further allegation that the 1st respondent sublet a portion of the premises to one N.Balasubramaniam without the knowledge or consent of the petitioner as alleged in para. 7 of the petition is also false. The 1st respondent never sublet any portion of the premises to any body including the 2nd respondent. The 1st respondent became tenant in respect of the petition mentioned premises under Advocate Mr.P.R.Rangaswami Iyengar, Coimbatore on 24.8.1974 by paying a sum of Rs.500 as advance and Rs.75 as advance rent for one month, and the tenancy commenced from 1.9.1974, Thereafter the petition mentioned property was demolished and reconstructed in 1978 and 1979 into a pucca R.C. building. The rent was revised and re-fixed at Rs.125 per month by the Advocate late Mr.P.R.Rangaswami Iyengar including all amenities charges. The previous landlord Sri P.R.Rangaswami Iyengar had totally received a sum of Rs.1,125 from the 1st respondent towards advance and one month advance rent. Originally the electricity charges were collected at the rate of Rs.5 per month from 1.4.1981. Then it was increased to Rs.10 and then to Rs.15 per month. Since the 1st respondent refused to pay higher rent, the petitioner issued a lawyers notice on 24.3.1988 falsely claiming the rent at Rs.200 per month. Thereafter since the petitioner persisted in her demand for a higher rent and the 1st respondent agreed to pay another sum of Rs.675 as additional security on 29.6.1988. For this sum also the petitioner did not give any receipt. Then the petitioner cut off all the amenities one by one enjoyed by the 1st respondent. Not satisfied with this the petitioner again issued another lawyers notice to the 1st respondent making false allegations and in that notice she claimed the rent at the rate of Rs.250 per month though she claimed rent at Rs.200 in the previous notice and the alleged arrears of rent as though there were no arrears of rent till July, 1989. Not satisfied with this the petitioner again issued another lawyers notice to the 1st respondent making false allegations and in that notice she claimed the rent at the rate of Rs.250 per month though she claimed rent at Rs.200 in the previous notice and the alleged arrears of rent as though there were no arrears of rent till July, 1989. The 1st respondent has been depositing the rent into court at the rate of Rs.125 per month and continued to do so since the petitioner refused to receive the rent at Rs.125 per month. Since the petitioner has not committed any wilful default in paying the rent, nor sublet any portion of the premises, the petitioner is not entitled to any relief. 5. The revision petitioner/main tenant later on filed an additional counter statement denying the title of the respondent/landlady and by stating as follows: The petitioner is neither the owner of the petition mentioned building nor the 1st respondent is her tenant. So the petitioner is bound to prove the relationship and terms of tenancy between the petitioner and the 1st respondent Late Mr.P.R.Rangaswami Iyengars wife late Smt.Chellammal was the owner of the building, and so late Sri P.R.Rangaswami Iyengar let out the building to the 1st respondent. So the present petitioner has no right to file the eviction petition against the 1st respondent. The petition is bad for non-joinder of necessary parties. Since the petitioner has no title to the petition mentioned building, and since ownership is in question, the Rent Controller has no jurisdiction to enquire into the eviction petition as title cannot be decided by him. 6. On the above pleadings and after considering the oral and documentary evidence adduced on both sides, the learned Rent Controller (II Additional District Munsif) at Coimbatore in R.C.O.P.No.37 of 1990 came to the conclusion that the respondent/landlady has not proved the subletting but the revision petitioner/tenant has committed wilful default in payment of rent, and she ordered eviction of the revision petitioner/tenant from the petition mentioned premises. 7. 7. Aggrieved against the said findings of the Rent Controller, the revision petitioner/tenant filed the appeal in R.C.A.No.29 of 1996 on the file of the Rent Control Appellate Authority (I Additional Sub-Judge) at Coimbatore, and the learned appellate authority also came to the conclusion that the revision petitioner/tenant has committed wilful default in payment of rent and he is liable to be evicted. 8. Not satisfied with the concurrent findings of both the courts below, the revision petitioner/tenant has preferred this revision petition. 9. After hearing the counsel for both parties, the points that arise for determination in this revision petition are as follows: (1) Whether there is relationship of landlady and tenant between the revision petitioner and respondent herein and whether the eviction petition filed by the respondent/landlady herein is maintainable under law. (2) What is the monthly rent agreed to be paid by the revision petitioner/tenant herein to the respondent/landlady. (3) Whether the revision petitioner/tenant committed wilful default in payment of rent from 1.2.1989 as mentioned in the lawyers notice issued by landlady marked as Ex.A-1 till the date of filing of the eviction petition in R.C.O.P.No.37 of 1990 before the Rent Controller on 24.2.1990 and whether the revision petitioner/tenant is liable to be evicted on the ground of wilful default in payment of rent. 10. Point No.1:The learned counsel for the revision petitioner/tenant contended that the revision petitioner/tenant has taken the premises in dispute on lease from one P.R.Rangaswami Iyengar, Advocate at Coimbatore and he died long before the eviction petition being filed in this case, and the wife of Mr.P.R.Rangaswami Iyengar was one Chellammal and she is the owner of the building and so the respondent/landlady has no title to the petition mentioned building, and there is no relationship of landlady and tenant between the respondent and the revision petitioner herein. The above contentions are untenable for the following reasons. 11. The Eviction Petition in R.C.O.P.No.37 of 1990 was filed as early as on 24.2.1990. The revision petitioner/tenant herein filed his counter on 15.4.1991. Not a whisper was made in this counter statement dated 15.4.1991 that the respondent/landlady is not the owner of the petition mentioned premises and there is no relationship of landlady and tenant between the respondent and the revision petitioner herein. The revision petitioner/tenant herein filed his counter on 15.4.1991. Not a whisper was made in this counter statement dated 15.4.1991 that the respondent/landlady is not the owner of the petition mentioned premises and there is no relationship of landlady and tenant between the respondent and the revision petitioner herein. Then after a lapse of nearly 4 ½ years the revision petitioner/tenant has filed his additional counter statement before the Rent Control Court, wherein he stated that the respondent/landlady is not the owner of the petition mentioned premises. There is no explanation offered as to why the revision petitioner/tenant has not denied the title of the landlady as early as in the year 1991 when he filed his original counter-statement. It is obvious from the above facts that it is only an after thought on the part of the revision petitioner/tenant in disputing the title of the respondent/landlady herein. 12. Even ignoring the absence of the plea of denial of the title of the respondent/landlady in the original counter-statement, and eschewing the delay in filing the additional counter statement after a lapse of 4 ½ of years, for disputing the title of the respondent/ landlady let us consider as to whether there is relationship of landlady and tenant between the respondent and the revision petitioner herein and whether the eviction petition filed by the respondent/landlady is maintainable under law. 13. It is well borne out by the original sale deed dated 2.6.1962 marked as Ex.A-7 in this case that the petition mentioned building was purchased by Chellammal wife of Advocate P.R.Rangaswami Iyengar and the respondent/landlady by Name Janakiammal from Ramanuja Desikar and Vekatesan. It follows that originally the petition mentioned building belonged to Chellammal and the respondent/landlady herein. The view of this registered sale deed marked as Ex.A-7, it is futile to contend that the respondent/landlady has no title to the petition mentioned property. At the best the respondent/landlady is joint purchaser along with Chellammal, and so the respondent/landlady is a co-owner of the petition mentioned building. 14. The view of this registered sale deed marked as Ex.A-7, it is futile to contend that the respondent/landlady has no title to the petition mentioned property. At the best the respondent/landlady is joint purchaser along with Chellammal, and so the respondent/landlady is a co-owner of the petition mentioned building. 14. The learned counsel for the respondent/landlady stated before this Court (revisional court) that there was an oral partition and in the said oral partition, the petition mentioned building fell to the share of the respondent/landlady by name Janakiammal, and in pursuance of the same the assessment of property tax was made in the name of the respondent/landlady by Coimbatore Municipal Corporation and there was change of name in the Tax Registry, and this is borne out by the order passed by the Commissioner of Coimbatore Corporation on 19.8.1994 and the same was sent to the respondent/landlady along with a covering letter of the Commissioner of Coimbatore Corporation dated 29.8.1994, and a copy of the same was filed in the typed-set of papers on the side of the respondent/landlady in this revision. But the order dated 19.8.1994 and the letter of the Commissioner, Coimbatore Corporation dated 29.8.1994 were not produced before the learned Rent Controller and they were not marked as exhibits on the side of the respondent/landlady. Therefore, at this stage the order of the Commissioner, Coimbatore Corporation changing the name in the Tax Register in favour of the respondent/landlady cannot be looked into when such an order of Coimbatore Corporation and the letter of the Commissioner of Coimbatore Corporation did not form part of the records in this case before the Rent Controller. I do not propose to go into the question of oral partition in this rent control proceedings and the allotment of the petition mentioned premises to the respondent/landlady, and it is a matter to be decided elsewhere between necessary and proper parties. But we will proceed on the footing in this revision petition that the respondent/landlady is a co-owner of the petition mentioned building by virtue of the registered sale deed dated 2.6.1962 marked as Ex.A-7 before the rent control court. 15. But we will proceed on the footing in this revision petition that the respondent/landlady is a co-owner of the petition mentioned building by virtue of the registered sale deed dated 2.6.1962 marked as Ex.A-7 before the rent control court. 15. The learned counsel for the revision petitioner/tenant argued that the respondent as a co-owner is not entitled to file a petition for eviction under the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960, and in support of his contention he relied on the decision of His Lordship Mr.Justice S.Natarajan J. (as he then was) reported in A.Alagiyanathan v. M.Swaminatha Pillai A.Alagiyanathan v. M.Swaminatha Pillai A.Alagiyanathan v. M.Swaminatha Pillai (1980)1 MLJ. 274 wherein it was held as follows: “…Therefore where there is more than one landlord for a building, it must necessarily be held that any action taken against the tenant of the building seeking his eviction must be instituted by all the landlords or at least by one or more of them on behalf of and for the benefit of all of them.” 16. As against these decisions the learned counsel for the respondent/landlady relied on the later decisions of our High Court reported in Ehasan Bivi and others v. Nagalakshmiammal Ehasan Bivi and others v. Nagalakshmiammal Ehasan Bivi and others v. Nagalakshmiammal , (1981)1 MLJ. 240 Devadossand M.V.Swami v. Ameer Basha and another M.V.Swami v. Ameer Basha and another M.V.Swami v. Ameer Basha and another , (1985)1 MLJ. 53 wherein His Lordships Justice P.R.Gokulakrishnan and Justice V.Ratnam, have taken a different view by stating that a co-owner can maintain a petition for eviction as against the tenant. In particular His Lordship Mr.Justice V.Ratnam, in the decision reported in Devadoss v. Velu (1984)1 MLJ. 301 and in para. 12 at 307 in para. 12 wherein it was held stated as follows: “For the purposes of the Act, it is not necessary that the landlord should be the owner of the property in the sense of having exclusive title to it. It would suffice for the purpose of the Act, if a person was entitled to receive the rent from the tenant in occupation.” I am bound to follow the later decisions of our Madras High Court of His Lordships Justice P.R.Gokulakrishnan and Justice V.Ratnam, in preference to that of the earlier Judgment of His Lordship Mr.Justice S.Natarajan, J. (as he then was). 17. 17. Even otherwise the view taken by His Lordship Mr.Justice S.Natarajan in the decision reported in A.Alagiyanathan v. M.Swaminatha Pillai A.Alagiyanathan v. M.Swaminatha Pillai A.Alagiyanathan v. M.Swaminatha Pillai (1980)1 MLJ. 274seems to be not correct in view of two decisions of the Supreme Court reported in A.I.R. 1976 S.C. 2335 and Kanta Goel v. B.P.Pathak and others Kanta Goel v. B.P.Pathak and others Kanta Goel v. B.P.Pathak and others , A.I.R. 1977 S.C. 1599: (1977)2 S.C.C. 814 . 18. In the first decision of the Supreme Court reported in Sri Ram Pasricha v. Jagannath and others Sri Ram Pasricha v. Jagannath and others Sri Ram Pasricha v. Jagannath and others , A.I.R. 1976 S.C. 2335 the Supreme Court had occasion to consider whether a co-owner would be the owner within the meaning of Sec.13(1)(f) of the West Bengal Premises Tenancy Act of 1956. The Supreme Court pointed out that jurisdically it is incorrect to say that a co-owner of a property is not its owner as such co-owner owns every part of the composite property along with others and be cannot be said to be a part owner or a fractional owner of the property. 19. To the similar effect is the second decision of the Supreme Court reported in Kanta Goel v. B.P.Pathak and others Kanta Goel v. B.P.Pathak and others Kanta Goel v. B.P.Pathak and others, A.I.R. 1977 S.C. 1599: (1977)2 S.C.C. 814 . In that decision of the Supreme Court the question that arose was as to whether with reference to the eviction proceedings initiated under Sec.14(4) of the Delhi Rent Control Act of 59 of 1958, it would be necessary to implead the other-co-owners as landlords and whether the omission to do so will be fatal to the eviction petition itself. The Supreme Court had occasion to consider the definition of landlord in Sec.2(e) of the Delhi Rent Control Act of 58 of 1958, which is similar and identical in all respects i.e., in pari materia to the definition of landlord in Sec.2(6) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960. After referring to the earlier decision of the Supreme Court in, A.I.R. 1976 S.C. 2335, the Supreme Court in the later decision reported in Kanta Goel v. B.P. Pathak and others Kanta Goel v. B.P. Pathak and others Kanta Goel v. B.P. Pathak and others , A.I.R. 1977 S.C.1599 in para. After referring to the earlier decision of the Supreme Court in, A.I.R. 1976 S.C. 2335, the Supreme Court in the later decision reported in Kanta Goel v. B.P. Pathak and others Kanta Goel v. B.P. Pathak and others Kanta Goel v. B.P. Pathak and others , A.I.R. 1977 S.C.1599 in para. 7 laid down the law in the following words: “…It is therefore not possible to accept the submission that the plaintiff, who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaning of Sec.13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Sec.13(1)(f) as long as he is a co-owner of the property being at the same time acknowledged landlord of the defendants.. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails.” 20. In view of the above said decisions of the Supreme Court reported in Sri Ram Pasricha v. Jagannath , A.I.R. 1976 S.C. 2335 and Kanta Goel v. B.P.Pathak and others Kanta Goel v. B.P.Pathak and others Kanta Goel v. B.P.Pathak and others , A.I.R. 1977 S.C. 1599 it seems that the view taken by His Lordship Mr.Justice S.Natarajan (as he then was) reported in (1980)1 MLJ. 274is not entitled to acceptance. 21. In the light of the aforesaid decisions of the Supreme Court in Sri Ram Pasricha v. Jagannath, A.I.R. 1976 S.C. 2335and Kanta Goel which clearly laid down that the presence of the other co-owners is unnecessary, the objection in that regard raised by the learned counsel for the revision petitioner/tenant in this case cannot be countenanced at all. In other words, I am of the view that even assuming that the respondent/landlady herein is a co-owner of the petition mentioned building, she can maintain the application for eviction as against the revision petitioner/tenant and so the application filed by the respondent/landlady herein is maintainable under law. 22. Now turning to the question of relationship of landlady and tenant between the respondent and the revision petitioner herein, it is the categorical admission of the revision petitioner/tenant in para. 12 of his original counter-statement that the revision petitioner has paid additional security in a sum of Rs.675 to the respondent/landlady. 22. Now turning to the question of relationship of landlady and tenant between the respondent and the revision petitioner herein, it is the categorical admission of the revision petitioner/tenant in para. 12 of his original counter-statement that the revision petitioner has paid additional security in a sum of Rs.675 to the respondent/landlady. The said admission as found in para. 12 of the original counter statement is as follows: “Thereafter since the petitioner persisted in her demand for a higher rent, this respondent agreed to pay another sum of Rs.675 as additional security on 29.6.1988. For this sum also, the petitioner did not give any receipt..” In the light of the candid admission made in para. 12 of the original counter-statement filed by the revision petitioner/tenant, it is not open to him to say that there is no relationship of landlady and tenant between the respondent and the revision petitioner herein. If there is no relationship of landlady and tenant, then there was no necessity for the revision petitioner/tenant to pay a sum of Rs.675 as additional security to the respondent/landlady herein. 23. More than anything else the revision petitioner/tenant filed an application for deposit of rent under Sec.9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 in R.C.O.P.No.335 of 1996 only as against the respondent/landlady, and there are no other respondents in the said R.C.O.P.No.335 of 1996. If the respondent/landlady is not the person who is entitled to receive the rent and if she does not come squarely within the definition of landlord in Sec.2(6) of Tamil Nadu Buildings (Lease and Rent Control) Act of 1960, then there was no occasion for the revision petitioner/tenant herein to file an application for deposit of rent under Sec.9(3) of the said Act only as against the respondent/landlady herein and not as against others. So it goes without saying that there is relationship of landlady and tenant between the revision petitioner and the respondent herein. 24. To crown all these things, the respondent/landlady issued two lawyers notice one on 24.3.1988 marked as Ex.B-5 and another on 10.7.1989 marked as Ex.A-1 in this case to the revision petitioner/tenant, and the revision petitioner/tenant kept silent without repudiating the averments made in these notices contained therein that the respondents/landlady herein is the landlady of the premises in question. 24. To crown all these things, the respondent/landlady issued two lawyers notice one on 24.3.1988 marked as Ex.B-5 and another on 10.7.1989 marked as Ex.A-1 in this case to the revision petitioner/tenant, and the revision petitioner/tenant kept silent without repudiating the averments made in these notices contained therein that the respondents/landlady herein is the landlady of the premises in question. Inasmuch as the revision petitioner/tenant has not issued any reply controverting the stand taken by the respondent/landlady that she is the landlady, it is too late in the day on the part of the revision petitioner/tenant herein that there is no relationship of landlady and tenant between the revision petitioner and the respondent herein, For the above reasons I am of the view that there is relationship of landlady and tenant between the revision petitioner and the respondent herein and the eviction petition filed by the respondent/landlady herein is maintainable under law, and consequently I answer this point as against the revision petitioner/tenant and in favour of the respondent/landlady herein. 25. 25. Point No.2:The learned counsel for the revision petitioner/tenant argued that the monthly rent payable by the revision petitioner/tenant is only a sum of Rs.125 and not Rs.250 as claimed by the respondent/landlady herein, and the husband of the respondent/landlady examined as P.W.1 Krishnan admitted during his cross examination that he was maintaining the receipt book from 1.8.1986 till 1988, and yet he did not produce the said receipt book to show the payment of monthly rent of Rs.200 or Rs.250 as mentioned in the lawyers notices of the respondent/landlady marked as Exs.B-5 and A-1 in this case, which are dated 24.3.1988 and 10.7.1989 respectively, and so in the absence of any documentary proof it must be held that the monthly rent is only a sum of Rs.125 The learned counsel for the respondent/landlady repudiated the above contentions and stated that it is the evidence of P.W.1 Krishnan that after the issue of the first notice dated 24.3.1988 marked as Ex.B-5, the revision petitioner/tenant paid all the arrears and then agreed to pay the monthly rent of Rs.250 from 1.6.1988 and in spite of the lawyers notices dated 24.3.1988 and 10.7.1989 marked as Exs.B-5 and A-1, the revision petitioner/tenants has not issued any reply repudiating the averments made in these two notices, and so in view of the action of the revision petitioner/tenant in not replying to these notices it must be held that the monthly rent is only a sum of Rs.250 from 1.6.1988. 26. Before considering the above contentions of both sides, it is but necessary for me to refer to the oral evidence of the husband of the respondent/landlady examined as P.W.1 Krishnan, who stated in Tamil in his chief examination as well as in the cross examination as follows: "TAMIL" 27. Thus P.W.1 Krishnan categorically stated that the revision petitioner/tenant has acknowledged the monthly rent of Rs.200 in the counterfoil of the rent receipt marked as Ex.A-6, and after the issue of the notice dated 24.3.1988 and marked as Ex.B-5 on the side of the revision petitioner tenant himself, the arrears were paid by the tenant, and thereafter the revision petitioner/tenant agreed to pay the monthly rent of Rs.250 from 1.6.1988 onwards. This statement of P.W.1 Krishnan that after paying the arrears of rent, the revision petitioner/tenant agreed to pay Rs.250 per month from 1.6.1988, was not at all challenged during the cross examination of P.W.1 Krishnan. Therefore it follows that the monthly rent agreed to be paid by the revision petitioner/tenant from 1.6.1988 is Rs.250. 28. This is corroborated by the conduct of the revision petitioner/tenant himself by not issuing any reply to the second lawyers notice dated 10.7.1989 marked as Ex.A-1 in this case, wherein it is specifically, stated as follows: “After receiving my previous notice (Ex.B-5) and when my client was arranging to file eviction petition against you, you approached my client and undertook to pay the entire arrears of rent shortly thereafter and further agreed and undertook to pay enhanced rent at Rs.250 per month and in addition to Rs.15 towards electricity charges…” This averment in the second lawyers notice dated 10.7.1989 marked as Ex.A-1 was not at all denied by the revision petitioner/tenant by issuing any reply. Nor the revision petitioner/tenant has offered any explanation for not giving the reply to the two lawyers notices marked as Exs.B-5 and A-1 in the counter and additional counter statement filed in this case. While so, the revision petitioner/tenant examined as R.W.1 Nanjappan would give an explanation in the witness box in the following words in tamil: "TAMIL" Thus R.W.1 Nanjappan stated that he could not give reply to the two lawyers notices issued by the respondent/landlady because it is mentioned in those two notices that the respondent herein alone is the owner and there are no particulars in these two notices to show as to how the respondent landlady has got title to the petition mentioned property and from which date she is the owner, and that apart he lost the receipts issued by the Advocate late P.R.Rangaswami Iyengar, and so he could not give any reply to these two lawyers notices marked as Exs.B-5 and A-1 in this case. Such a version comes for the first time in the witness box. R.W.1 Nanjappan has not whispered about this explanation either in the first counter statement filed on 15.4.1991 or in his additional counter-statement filed on 8.1.1996. Such a version comes for the first time in the witness box. R.W.1 Nanjappan has not whispered about this explanation either in the first counter statement filed on 15.4.1991 or in his additional counter-statement filed on 8.1.1996. Therefore the belated attempt to offer the explanation in the witness box by the revision petitioner/tenant examined as R.W.1 Nanjappan is only an after thought and it is not entitled to any credibility in this case. 29. The learned counsel for the revision petitioner/ tenant strongly relied on the circumstance of the non-production of the receipt book from 1.8.1986 till 1988 as admitted by P.W.1 Krishnan during his cross examination, and in those circumstances he wanted to draw an adverse inference to disbelieve his version of the monthly rent at Rs.250. Such a contention cannot be countenanced in view of the reported decision of our Madras High Court in Thirumalai Iyengar v. Subba Raja, (1962(1 MLJ. 193whereinit has been held as follows: “Unless a party is called upon to produce documentary evidence in his custody, the court should not draw any adverse inference from the mere non-production of such accounts.” In the present case the revision petitioner/tenant has not issued any notice to the respondent/landlady to produce the receipt book from 1.8.1986 till 1988 as spoken to by the husband of the respondent/landlady examined as P.W.1 Krishnan and so no adverse inference can be drawn. That apart, even if such receipt book is produced, then it would be commented by the revision petitioner/tenant that it has been fabricated for the purpose of this case, especially when the revision petitioner/tenant disowned his signature on the back of the counter-foil of the rent receipt marked as Ex.A-6 in this case. For the above reasons I am of the view that the non-production of the receipt book from 1.6.1988 till 1988 maintained by the respondent/landlady is not fatal to her claim that the monthly rent is only Rs.250, There are telling circumstances as narrated above to come to the conclusion that the monthly rent is Rs.250 and not Rs.125 as claimed by the revision petitioner/tenant. Hence, I hold that the monthly rent agreed to be paid by the revision petitioner/tenant due to the respondent/landlady is Rs.250 only and not Rs.125 as claimed by the revision petitioner/tenant, and consequently I answer this point also in favour of the respondent/landlady and as against the revision petitioner/tenant. 30. Hence, I hold that the monthly rent agreed to be paid by the revision petitioner/tenant due to the respondent/landlady is Rs.250 only and not Rs.125 as claimed by the revision petitioner/tenant, and consequently I answer this point also in favour of the respondent/landlady and as against the revision petitioner/tenant. 30. Point No.3:Even assuming and without admitting that the monthly is not Rs.250 as claimed by the respondent/landlady but it is only Rs.125 as claimed by the revision petitioner/tenant, let us consider as to whether the revision petitioner/tenant has committed wilful default in payment of rent. The learned counsel for the revision petitioner/tenant commented that the respondent/landlady has not mentioned the period of default in her eviction petition but she merely stated in para. 5 of her eviction petition that as on 1.2.1990 the total arrears of rent due by the revision petitioner/tenant to her amounts to a sum of Rs.3,180, and on this ground it must be held that there is no wilful default in payment of rent. Such a contention does not merit any for consideration because it is the definite stand taken by the respondent/landlady in her second lawyers notice dated 10.7.1989 marked as Ex.A-1 that the revision petitioner/tenant wilfully defaulted to pay the rent and electricity charges due by the revision petitioner/tenant from 1.2.1989. Merely because the dates or the months of the default in payment of rent are not mentioned in para. 5 of the eviction petition, it cannot be said that the plea of wilful default cannot be sustained. 31. Then the learned counsel for the revision petitioner/tenant contended that the respondent/landlady and her predecessors-in-title were having advance amount paid by the revision petitioner/tenant, and the revision petitioner/tenant had spent substantial sum towards the costs of repairs effected to the petition mentioned buildings, and in those circumstances it must be held that there is no wilful default in payment of rent. The learned counsel for the respondent/landlady refuted the above arguments and contended that the advance amount alleged to have been paid to the Advocate late P.R.Rangaswami Iyengar and the amounts spent for effecting the repairs are not at all true, and even taking for granted that the advance amounts of the previous landlord are available with the respondent/landlady, it cannot be said that the revision petitioner/ tenant has not committed wilful default in payment of rent because the revision petitioner/tenant has not called upon the respondent/landlady to adjust the arrears of rent in the alleged advance amounts paid by the revision petitioner/tenant in respect of the petition mentioned building. 32. On a perusal of the counter-statement filed by the revision petitioner/tenant as well as his additional counter-statement I am able to gather from the averments made in paras. 10, 12 of the original counter-statement that the previous landlord Mr.P.R.Rangaswami Iyengar had totally received a sum of Rs.1,125 from the revision petitioner/tenant as advance and one month advance rent, and the revision petitioner/tenant paid another sum of Rs.675 as additional security on 29.6.1988 to the respondent/landlady, and altogether the total sum of Rs.1,900, according to the revision petitioner/tenant, is available as advance amount. Though the revision petitioner/tenant in para. 7 of the counter statement ventured to state that he did repairs and renewed the electric installations in the petition mentioned building at his cost, he did not specify the amount spent by him towards the repairs and the electric installation in the petition mentioned building. So it follows from the above statements made by the revision petitioner/tenant in paras. 7, 10 and 12 of the original counter statement that he has paid a total advance of Rs.1,900 only. 33. In so far as this High Court is concerned, it has been consistently held that unless the tenant has called upon the landlord to make an adjustment of the advance amount as against the arrears of rent, he cannot escape the consequences of wilful default in payment of rent. A Division Bench of the Madras High Court in Navaneethammal IN RE. (1950)2 MLJ. A Division Bench of the Madras High Court in Navaneethammal IN RE. (1950)2 MLJ. 579 : 63 L.W. 1176, held that the tenant who committed wilful default in payment of rent, should have called upon the landlord to make the adjustment in the advance amount, and the mere fact that the landlord had with him the advance amount does not mean that the tenant had not committed wilful default. This decision of the Division Bench has been followed in several cases subsequently in this Madras High Court. Suffice it to mention the following decisions: (1) Venkataraman v. Aravamudhan (1981)1 MLJ. 516 (2) P.S.Venkatarajan v. T.A.Govindarajan P.S.Venkatarajan v. T.A.Govindarajan P.S.Venkatarajan v. T.A.Govindarajan, (1990(1 MLJ. 508: (1990)1 L.W. 563 (3) Sahabudeen etc. v. Mariammal Sahabudeen etc. v. Mariammal Sahabudeen etc. v. Mariammal , (1995(2 L.W. 732 and (4) Mohammed Zackriya etc. v. Abdul Aziz Mohammed Zackriya etc. v. Abdul Aziz Mohammed Zackriya etc. v. Abdul Aziz , (1995)2 L.W. 737 . Therefore, the revision petitioner/tenant herein cannot claim without exercising the option for adjustment of the alleged advance amount towards the arrears of rent that with the advance amount in the hands of the respondent/landlady would be more than adequate to cover the arrears of rent on the basis of which the eviction petition was filed and so to contend that there is no wilful default in payment of rent. 34. One another contention that was urged on behalf of the revision petitioner/tenant is that he has filed R.C.O.P.No.335 of 1996 for deposit of monthly rent of Rs.125 and he has been regularly depositing the same into count in R.C.O.P.No.335 of 1996. It is significant to note that the eviction petition in R.C.O.P.No.37 of 1990 was filed on 24.2.1990. The original counter was filed on 15.4.1991, and the additional counter was filed on 8.1.1996. Thereafter, only the revision petitioner/tenant has filed the petition in R.C.O.P.No.335 of 1996 for the deposit of the monthly rent of Rs.125 on 12.6.1996. Neither the fact that the revision petitioner/tenant deposited the disputed monthly rent subsequently and quite early to the disposal of the eviction petition in R.C.O.P.No.37 of 1990 on 16.2.1996, nor the fact that the respondent/landlady had advance amount with her is the ground for holding that the tenant was not guilty of wilful default. Neither the fact that the revision petitioner/tenant deposited the disputed monthly rent subsequently and quite early to the disposal of the eviction petition in R.C.O.P.No.37 of 1990 on 16.2.1996, nor the fact that the respondent/landlady had advance amount with her is the ground for holding that the tenant was not guilty of wilful default. There is no condonation on the part of the respondent/landlady merely because she has withdrawn the deposit of the rents made by the revision petitioner/tenant subsequently to the credit of R.C.O.P.No.335 of 1996, which was filed later in June, 1996. 35. One another contention that was raised on behalf of the revision petitioner/tenant was that the respondent/landlady was not in the habit of issuing receipt for the payment of the arrears of rent. This contention is also untenable for the simple reason that nowhere in the counter statement as well as in the additional counter statement the revision petitioner/tenant has stated that he has paid the arrears of rent from 1.2.1989 as mentioned in the second lawyers notice dated 10.7.1989 marked as Ex.A-1 till the date of the eviction petition in this R.C.O.P.No.37 of 1990, which was filed on 24.2.1990. According to the respondent/landlady the revision petitioner/tenant has committed wilful default in payment of rent from 1.2.1989 till February, 1990. It is not the case of the revision petitioner/tenant that he has paid the arrears after 1.2.1989 and thereby discharged his obligation as a tenant. In the absence of the plea of discharge of the payment of arrears of rent from 1.2.1989 till February, 1990, there is no substance in the contention of the learned counsel for the revision petitioner/tenant that the respondent/landlady was not in the habit of issuing receipts and therefore there is no wilful default in payment of rent. 36. It is significant to note that the respondent/landlady has issued two lawyers notices dated 24.3.1988 and 10.7.1989 marked as Exs.B-5 and A-1 respectively in this case. Admittedly the revision petitioner/tenant has not raised his little finger to the allegation of wilful default in payment of rent in both these two notices issued by the respondent/landlady under Exs.B-5 and A-1. The explanation offered by the revision petitioner/tenant in the witness box, as already stated, is not entitled to any credence in this case. Admittedly the revision petitioner/tenant has not raised his little finger to the allegation of wilful default in payment of rent in both these two notices issued by the respondent/landlady under Exs.B-5 and A-1. The explanation offered by the revision petitioner/tenant in the witness box, as already stated, is not entitled to any credence in this case. So the conduct of the revision petitioner/tenant in remaining silent without any demur or protest to the allegation of wilful default in payment of rent from 1.2.1989 as mentioned in Ex.A-1 till the filing of R.C.O.P.No.37 of 1990 in February, 1990 would go a long way to show that the revision petitioner/tenant has committed wilful default in payment of rent even after the issue of the notice on 10.7.1989 marked under as Ex.A-1. It is also pertinent to note that the respondent/landlady waited for nearly 7 months i.e., from the date of Ex.A-1, 10.7.1989 till the date of the filing of the eviction petition in R.C.O.P.No.37 of 1990 in February, 1990, and then only the respondent/landlady initiated the eviction proceedings. 37. There were catena of decisions previously, which had taken the view that the default in payment of rent for two months or for three months or four months is wilful default. There was no consistent view taken by this Court about the period of default to construe as wilful default. There was no uniform yardstick previously to construe the default as wilful default. This difficulty was overcome by the Legislature by adding the Explanation to Sec.10(2)(i) of Tamil Nadu Rent Control Act of 1960 by Amendment Act 23 of 1973. The Explanation added to Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 reads as follows: “For the purpose of this sub-section, default to pay or tender rent shall be construed as wilfull, if the defaultby the tenant in the payment or tender it may continue after the issue of two months’ noticeby the landlord claiming the rent.” 38. The word “shall” appearing in the Explanation added to Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960, makes it clear that it is a mandatory provision. The Explanation added to Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 admits no exception and no Explanation for the non-payment of rent. The word “shall” appearing in the Explanation added to Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960, makes it clear that it is a mandatory provision. The Explanation added to Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 admits no exception and no Explanation for the non-payment of rent. According to the explanation added to Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960, default shall be construed as wilful default, if the default in payment of rent continues after the issue of two months’ notice by the landlord. In other words if the tenant pays the rent within two months from the date of the notice given by the landlord calling upon him to pay the rent, then there would not be wilful default in payment of rent. But if the tenant persists in not paying the rent even after the notice by the landlord for more than two months then such default must be necessarily construed as wilful default and the tenant cannot offer any explanation whatsoever for the non-payment of rent. 39. However, I am of the view that the two months’ notice mentioned in the Explanation added to Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 is a debatable point. In other words it may be said that two months’ notice must be given by the landlord before ever the default shall be construed as a wilful default. In other words it may be stated on behalf of the tenant that in the absence of two months’ notice the default cannot be construed as a wilful default. But this point was not raised in this revision petition by the revision petitioner/tenant and therefore such a question is a matter to be left open to be decided in other cases as and when the question of necessity of two months’ notice is raised by the tenant. Since I am not called upon to consider the question of the necessity of issuing two months’ notice in this case, it may be decided in other cases as and when such question was raised. 40. Suffice it to say, the Explanation added to Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960, gives a definition of wilful default. 40. Suffice it to say, the Explanation added to Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960, gives a definition of wilful default. It makes default in the payment of arrears of rent wilful, if the tenant fails to pay or comply with the demand of the landlord for such arrears of rent within two months from the date of the notice. Therefore, it follows that in the present case the revision petitioner/tenant defaulted to pay the arrears of rent from 1.2.1989 till February, 1990 even after the demand for the said period was made by the respondent/landlady by issuing the lawyers notice under Ex.A-1 dated 10.7.1989 and the revision petitioner/tenant in spite of such notice remained silent for more than two months, and therefore the default committed by the revision petitioner/tenant shall be construed as wilful default in payment of rent. For the above reasons I hold that the revision petitioner/tenant committed wilful default in payment of rent from 1.2.1989 till February, 1990, and the revision petitioner/tenant is liable to be evicted on the ground of wilful default in payment of rent, and this revision petition is devoid of merits, and the same has to be dismissed with costs, and the fair and decretal order of the learned Rent Controller (II Additional District Munsif) of Coimbatore dated 16.2.1996 and the judgment and decree of the learned Rent Control Appellate Authority (I Additional Subordinate Judge) at Coimbatore dated 26.6.1998 in A.S.No.29 of 1996 have to be confirmed, and consequently I answer this point as against the revision petitioner/tenant and in favour of the respondents/landlady. 41. In the result the civil revision petition is dismissed with costs. The fair and decretal order of the Rent Controller (II Additional District Munsif) at Coimbatore dated 16.2.1996 in R.C.O.P.No.37 of 1990 and the judgment and decree dated 26.6.1998 in R.C.A.No.29 of 1996 on the file of Rent Control Appellate Authority (I Additional Sub-Court) at Coimbatore are confirmed. The revision petitioner/tenant is given three months’ time from this date to vacate and deliver possession of the petition mentioned premises to the respondent/landlady. 42. Consequently the stay petition in C.M.P.No.14944 of 1998 and the Caveat Petition No.2229 of 1998 are also dismissed as unnecessary.