Judgment : Landlords in R.C.O.P.No.2 of 1993 on the file of Rent Controller/District Munsif, Madurai Taluk are revision petitioners. 2. Petitioners herein filed eviction petition against tenant on the ground that tenant has defaulted in payment of rent and also on the ground that the building is required for their bona fide own occupation. 3. According to the petitioners, scheduled building is a residential building, and the same was let out to tenant in the year 1964 by their mother. During the lifetime of their mother, she was receiving rent and on her death in 1980, petitioners are receiving rent. At present, the rate of rent is Rs.1,000 per month, and the tenancy is in accordance with English calendar month. Rent is also payable on or before 5th of every succeeding month. Landlords further allege that tenant is a chronic defaulter and he was never been paying rent regularly. Whenever rent is paid, printed receipt is issued and in the counterfoil also landlords used to get endorsement from tenant. It is further averred that tenant has failed to pay rent from September, 1989 to November, 1989 and there is no justification for not paying rent for the above three months. It is further said that the first petitioner got married on 4.12.1981 and he got two sons. Second petitioner also got married on 12.12.1986 and he got two daughters. From 1988 onwards there is misunderstanding between wives of petitioners 1 and 2 and it has become impossiblee for them to live together peacefully and second petitioner wanted to vacate the house where they are now residing i.e., Door No.34, Palmall Cross Street and occupy the scheduled building. They also wanted to divide the scheduled building and occupy the respective portions. It is alleged that petitioners are not owning any other residential building in Madurai Town. Even though several demands were made, tenant has not vacated, which necessitated filing of this eviction petition. 4. Inthe counter statement filed by the tenant the admitted the rental arrangement and that he has been in possession of the building from 1959 onwards. He also admitted that rate of rent is Rs.1,000 per month. According to tenant, it was never the habit of landlords to renovate the building and tenant had to do renovation spending a sum of Rs.1,50,000 and it also paid property tax for the period of six years which comes to Rs.15,600. He also admitted that rate of rent is Rs.1,000 per month. According to tenant, it was never the habit of landlords to renovate the building and tenant had to do renovation spending a sum of Rs.1,50,000 and it also paid property tax for the period of six years which comes to Rs.15,600. He has also spent Rs.25,000 for erecting borewell in the demised building with the consent of landlords. It is said that when tenant tendered rent for the month of October, 1989, landlord postponed receipt of same stating that a sum of Rs.1,90,600 spent by him could be adjusted by him in the rent payable by tenant from October, 1989. Again tenant tendered rent for the month of November, 1989 and the same reply was repeated by landlords. Contrary to their promise, eviction petition has been filed as if tenant is wilful defaulter. In regard to rent payable for the month of September, 1989, petitioners have signed cash vouchers but not passed on receipt even though tenant insisted for such receipt. It is said that landlords have never taken care to keep the building in good condition. Tenant has incurred lot of expense to keep the building in good condition and in the year 1989 a borewell was dug by tenant for which he has incurred an expense of Rs.25,000. The allegation that tenant has committed wilful default in payment of rent is therefore denied. 5. Claim for eviction on the ground of bona fide own occupation is also denied by tenant. The alleged misunderstanding between wives of petitioners 1 and 2 is false. According to tenant, all the petitioners are residing together as joint family and there is no misunderstanding between them. It is also alleged that landlords also filed R.C.O.P. 576 of 1989 for fixation of fair rent, and claim for eviction for bona fide own occupation also cannot be allowed. He further took a contention that claim for bona fide own occupation also not be sustained since the building was let out both for residential and non-residential purposes. Tenant is doing business in the scheduled building and has developed his business and if he is evicted, he will be put to great hardships. He therefore prayed for dismissal of eviction petition. 6. On the above pleadings parties went on trial. Tenant is doing business in the scheduled building and has developed his business and if he is evicted, he will be put to great hardships. He therefore prayed for dismissal of eviction petition. 6. On the above pleadings parties went on trial. Rent Controller marked Exs.P-1 to P-9 on the side of landlords and Exs.R-1 to R-10 on the side of tenant. Oral evidence consist of P.Ws.1 and 2 and R.W.1. 7. After evaluating entire evidence, Rent Controller dismissed the eviction petition. Rent controller held that tenant has paid rent for the month of September, 1989 since there is voucher signed by first petitioner. Regarding payment of rent for October, 1989 and November, 1989, it was found that since tenant has dug borewell, the amount spent by him could be adjusted in rent It was also found by Rent controller since tenant has spent huge amount i.e., Rs.1,90,600 for maintaining the building, case put forward by tenant that landlords agreed to adjust rent might be true. It further held that claim of eviction on the ground of bona fide own use is not maintainable and also without any bona fides. Main reason for so holding was that scheduled building was used by tenant for residential and non-residential purpose and petitioners wanted the building for their residential purposes only and the same cannot be allowed under Rent Control Act. Secondly, residential building which petitioners are occupying were sold subsequent to institution of petition to a stranger and that shows that they have no bona fides in claiming eviction. Even though second petitioner alleged that he is residing in a rented premises, Rent controller did not believe that statement. Both grounds were found against landlords and eviction petition was dismissed. 8. Aggrieved by the said finding of Rent Controller, landlords filed R.C.A.No.62 of 1995 on the file of Rent Control Appellate authority, who confirmed all the findings of Rent Controller. Appeal was dismissed. 9. The concurrent findings of authorities below are assailed in this revision petition under Sec.25 of Tamil Nadu Buildings (Lease and Rent Control) Act. 10. I heard the learned counsel on both sides. 11. Appeal was dismissed. 9. The concurrent findings of authorities below are assailed in this revision petition under Sec.25 of Tamil Nadu Buildings (Lease and Rent Control) Act. 10. I heard the learned counsel on both sides. 11. Regarding the claim for eviction on the ground of default in payment of rent, it is not the case of tenant that he has paid rent for the month of October, 1989 and November, 1989, According to him, he has paid rent for September, 1989 and for subsequent two months same was tendered as and when it became due. In para.5 of the counter statement, tenant has said thus: “…It is further submitted that when this respondent tendered the rent for the month of October, 1989, the petitioners postponed the receipt of the same stating that a sum of Rs.1,90,600 spent by the respondent will be adjusted with rents payable by the respondent form October, 1989. Again when the respondent tendered the rent for the month of November, 1989 the petitioners told the respondent that they will adjust the same towards the amount spent by the respondent as stated earlier.” To prove the so called adjustment or agreement, absolutely there is no evidence, If there was an agreement to adjust the rent when the rent for October, 1989 was tendered, there is no necessity for tenant to tender rent for November, 1989. That itself shows that there would not have been any agreement regarding adjustment. It is not the finding of Rent Controller or Appellate Authority that there was an agreement to adjust the rent. Relevant portion of finding of Rent Controller reads thus: Appellate authority in his judgment has held thus: 12. Both the above findings are against the settled legal position and also against the evidence in the case. Though concurrent finding is that tenant has not committed default in payment of rent and he is entitled to adjust rent since he has effected repairs and dug borewell and paid property tax, that is not even the claim put forward by tenant. Both authorities below have held that tenant is entitled to adjust rent in the alleged amount spent by him. Both Rent Controller as well as Appellate Authority have held that tenant has paid property tax and therefore that amount which landlord is bound to pay was paid by tenant and consequently liable to be adjusted. Both authorities below have held that tenant is entitled to adjust rent in the alleged amount spent by him. Both Rent Controller as well as Appellate Authority have held that tenant has paid property tax and therefore that amount which landlord is bound to pay was paid by tenant and consequently liable to be adjusted. It is true that property tax is liable to be paid by landlord only, unless there is a contract. Rent arrears that is claimed in the eviction petition is for the months September, 1989 to November, 1989. Exs.R-2 to R-10 are various property tax receipts. None of them relate to that period. Ex.R-6 is for the year 1990-91; R-8 for the year 198889, but payment is made on 11.3.1994. Likewise, Ex.R-5 is also for the second half of 1990-91. Each and every property tax receipts are only for the subsequent period, So, tenant cannot claim that he is entitled to adjust the rent for the amounts paid towards property tax. Both courts below have not taken into consideration the periods for which property tax was paid and the dates of payment. Adjustment could arise if only amount has been spent by tenant ton behalf of landlords. From Exs.R-2 to R-10 it is clear that no amount was paid by tenant prior to or during September to November, 1989. All payments are made long thereafter. 13. It is not the case of tenant that he had informed landlords about the demand made by the local authorities regarding property tax and landlords requested or directed tenant to pay the same. If without informing landlords tenant pays the property tax, same is no liable to be adjusted in rent. The same was so decided by this Court by Justice V.Rathinam (as His Lordship then was) in the decision reported in Jagannatha Chettiar v. Swarnambal , (1984)2 MLJ. 6 . In para.11 of the judgment, learned Judge held thus: “…Whatever applies to the demands made in respect of property tax would be equally applicable with reference to the demand for water charges also, as the evidence does not disclose that there was any prior arrangement come to between the parties regarding the payment of taxes by the tenant and the adjustment thereof from out of the rents payable by the tenant to the landlord. In the ordinary course of events, even if a demand notice for property tax or water tax had been received by the tenant it was the duty of the tenant to have brought it to the notice of the landlord and only thereafter the tenant should have acted in accordance with the directions given by the landlord or as a prudent occupier of the property, if she was driven to adopt that course. In this case, the evidence does not disclose that the tenant informed the landlord about the receipt of the demand notices and that there was a direction by the landlord that the tenant should pay the property and water taxes and adjust the same out of the rents. In the absence of any such direction or understanding, any payments made by the tenant would only be in the nature of a voluntary payment and would not in any manner bind the landlord nor would it give rise to any right in the tenant for an adjustment of those amounts against the rents payable. Considered in that light, the property and the after taxes claimed to have been paid by the tenant in this case would partake the character of only voluntary payments. It may be that the tenant can recover those amounts in accordance with Sec.375 of the Madras City Municipal Corporation Act or by other modes, but that would not shield her from the consequences of non-payment of rents for nearly a period of 11 months without any justification at all. Inasmuch as on the facts and in the circumstances of this case, the payments stated to have been made by the tenant have been held to be voluntary, those payments cannot be taken advantage of by the tenant and cannot be pleaded as an answer to the prayer for a order of eviction on the ground of wilful default. [Italics supplied] 14. The above decision was followed by Justice Venkataswami (as His Lordship then as) in the decision reported in Mrs.Manoranjitham v. Mrs.T.S.Gangabai Mrs.Manoranjitham v. Mrs.T.S.Gangabai Mrs.Manoranjitham v. Mrs.T.S.Gangabai , (1991)2 L.W. 203 . 15. According to tenant, he has repaid the building spending more than Rs.1,50,000 Not a scrap of paper has been produced to show that in fact he repaired the building and that too with consent of landlords. 15. According to tenant, he has repaid the building spending more than Rs.1,50,000 Not a scrap of paper has been produced to show that in fact he repaired the building and that too with consent of landlords. Authorities below relies don the decision reported in N.S.Ramamoorthy v. N.S.Laxmana Achary N.S.Ramamoorthy v. N.S.Laxmana Achary N.S.Ramamoorthy v. N.S.Laxmana Achary , (1974)2 MLJ. 3 (NRC.) rendered by Justice Ramprasada Rao (as His Lordships then as), learned Judge held thus: “In the peculiar circumstances of this case as the expenditure was incurred for an amenity which the landlord did not provide and which was necessary for living. though the expenditure was unauthorised, the resultant non-payment of the rent by the tenant cannot be held to be due to indifference or conscious avoidance. The order of the court below was liable to be set aside.” But, authorities below have not taken in to consideration the subsequent decisions on this point. 16. In Associated Traders & Engineers Ltd. v. Alamelu Ammal , (1984)1 MLJ. 251 in para.3 of the judgment it is held thus: “So far as the next ground of wilful default is concerned, it is admitted that the tenant withheld Rs.1,200 towards alleged execution of repairs to the building. The alleged execution of repairs to the building is nothing but whitewashing to the building according to the revision petitioner. It is not in dispute that the petitioner did not obtain the written consent of the landlady before spending for whitewashing. The fact that the consent of the landlady is paramount for spending any portion of the rent towards execution of repairs so the demised building will be seen from the provision in the Rent Control Act to the effect that in case that the landlord is not willing to executed repairs to the building, the tenant should obtain the permission of the Rent Controller before spending any amount by way of repairs to the building. In fact, the landlady appears to have refused permission for spending any amount of the rent towards executing repairs or white-washing is apparent from the notice sent by the landlady under Ex.A-10, dated 9th June, 1977. Repeatedly the landlady was demanding the amount of Rs.1,200 which was deducted by the tenant. Admittedly the tenant has not obtained the permission of the Rent Controller for executing such repairs. Repeatedly the landlady was demanding the amount of Rs.1,200 which was deducted by the tenant. Admittedly the tenant has not obtained the permission of the Rent Controller for executing such repairs. The Appellate Authority has found that the alleged white-washing of the building by the tenant is without the written consent of the landlady and that as such the deduction of Rs.1,200 from the rents due at Rs.100 per month amounted to wilful default.” 17. Both these decisions came for consideration before Justice Sivasubramaniam in the decision reported in A.Vasudevan v. S.Ramasubramanian A.Vasudevan v. S.Ramasubramanian A.Vasudevan v. S.Ramasubramanian , (1988)1 L.W. 509. After extracting Sec.22 of the Tamil Nadu Buildings (Lease and Rent Control) Act, learned Judge considered this question para.7 thus: “… It is submitted that in view of the positive provision in the Act, in case of default by the landlord in making necessary repairs to the building, within a reasonable time after notice by the tenant, the only remedy available to the tenant is to approach the learned Rent Controller and get an order as contemplated under this section. There is also a ceiling for the expenses that can be incurred by a tenant. According to this section, such expenses shall not exceed in any one year one-twelfth of the rent payable by the tenant. The scope of Sec.22 of the Act has been considered by Balasubramanyam, J. in V.Rajamanickam v. Avilamal Ammal V.Rajamanickam v. Avilamal Ammal V.Rajamanickam v. Avilamal Ammal , (1980)2 MLJ. (S.N.) 17 where it was held that since S.22 provides for adjustment of repairing charges only upto a maximum amount equal to one months rent, no argument even of a bona fide belief on the basis of Sec.22 could be put forward in cases where the expenses exceeded one months rent. It was further held as follows: “The mere fact that the tenant had carried out the repairs and the mere circumstances that he might possibly have a claim against landlord for reimbursement could not provide him with any lawful excuse for withholding the payment of rent.” This question was again considered by Fakkir Mohammed, J., in Associated Traders and Engineers Ltd. v. Alamelu Ammal Associated Traders and Engineers Ltd. v. Alamelu Ammal Associated Traders and Engineers Ltd. v. Alamelu Ammal , (1984)1 MLJ. 251 , wherein the learned Judge took the view that the fact that the consent of the landlord is paramount for spending any portion of rent towards execution of repairs to the demised building will be seen from the provisions of the Rent Control Act to the effect that in case the landlord is not willing to execute repairs to the building, the tenant should obtain the permission of the Rent Controller before spending any amount by way of repairs to the building. The same view was expressed by Chinnappa Reddy, J., as he then was in C.Subba Rao v. N.Venkamma C.Subba Rao v. N.Venkamma C.Subba Rao v. N.Venkamma , (1979)2 An.W.R. 446, while dealing with the similar provisions, in the Andhra Pradesh Rent Control Act. With respect, I fully endorse the view taken by the learned Judge in the said decisions as the statute itself provides the procedure and restrictions in the matter of effecting repairs to the buildings coming under the purview of the Act. Therefore it is not possible to give any interpretation to the meaning of Sec.22 of the Act in such a way as to take away the effect of the said provisions. Unfortunately, the provisions contained in Sec.22 were not brought to the notice of Ramprasada Rao, J., as he then was in N.S.Ramamoorthy v. N.S.Lakshmanan Achary N.S.Ramamoorthy v. N.S.Lakshmanan Achary N.S.Ramamoorthy v. N.S.Lakshmanan Achary , (1974)2 MLJ. (NRC.) 3, and therefore, the said decision cannot be taken to be a decision in accordance with Sec.22 of the Act. “ [Italics supplied] 18. In 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 learned Judge V.Rathnam (as His Lordship then was) again considered this question which reads thus: ”…I had occasion to consider the question of adjustment of a sum stated to have been spent on repairs by the tenant and it was laid down that without recourse to Sec.22 of the Act. The tenant cannot proceed to carry out the repairs and fasten the liability on the landlord for the expenses of such repairs or even claim an adjustment of such amounts. To similar effect is the decision reported in Vasudevan v. Rama Subramanian Vasudevan v. Rama Subramanian Vasudevan v. Rama Subramanian , (1988)1 L.W. 509 where, after referring to V.Ramamanickam v. Avilambal Ammal V.Ramamanickam v. Avilambal Ammal V.Ramamanickam v. Avilambal Ammal , (1980)1 MLJ. To similar effect is the decision reported in Vasudevan v. Rama Subramanian Vasudevan v. Rama Subramanian Vasudevan v. Rama Subramanian , (1988)1 L.W. 509 where, after referring to V.Ramamanickam v. Avilambal Ammal V.Ramamanickam v. Avilambal Ammal V.Ramamanickam v. Avilambal Ammal , (1980)1 MLJ. (NRC.) 17 and Associated Traders and Engineers Ltd it was pointed out that in the matter of effecting repairs to the buildings, the Act provides the procedure as well s restrictions on Sec.22 of the Act and it cannot be so interpreted as to nullify its effect. Considering the facts of this case, though the petitioner had issued notice to the respondent calling upon him to effect the repairs and that was repudiated by the respondent in his reply notice, still, the petitioner was not in order in having proceeded to carry out the repairs without obtaining the permission of the Controller in that regard. It follows that the incurring of the expenditure by the petitioner for repairs was not in any manner binding on the respondent and consequently, the purported adjustment of the rents payable by the petitioner to the respondent for the period between May, 1984 and March, 1985 towards the amount spent by the petitioner for repairs was also not in order. It would not make any difference whether the amount spent by the petitioner was limited to a months rent or was in excess of it. In either event, the tenant cannot be heard to seek an adjustment of the amount spent towards repairs against the rents payable by him, as he did not resort to Sec.22 of the Act at all.” [Italics supplied] 19. It is clear from the above decisions that there cannot be any question of adjustment. As I stated earlier, from the counter statement it is clear that himself knows that there cannot be any adjustment and the only relies on a representation alleged to have been made by landlord. Landlord denied it and courts below have not held that in fact landlord made such representation. Authorities below only allowed adjustment since tenant has effected repairs of the building without proof or he paid property tax and therefore liable to adjust the amount in rent. Again, tenant has pleaded that he has paid more than Rs.1,50,000 for repairing the building, No document is filed before court and when landlord has not consented to the same. Authorities below only allowed adjustment since tenant has effected repairs of the building without proof or he paid property tax and therefore liable to adjust the amount in rent. Again, tenant has pleaded that he has paid more than Rs.1,50,000 for repairing the building, No document is filed before court and when landlord has not consented to the same. Landlord cannot be fastened with liability and that cannot be the reason for non-payment of rent. It tenant has effected some repairs or alterations to suit his convenience for running press, that cannot add to the valued of the building or its utility. Tenant wants to make use of the building in more convenient manner. Even if he has effected such repair, it is only for his own convenience and the same is not liable to be adjusted in rent. 20. Authorities below have also held that tenant has dug a borewell spending nearly Rs.25,000 Ex.R-1, dated 25.5.1989 is the receipt evidencing the expenses. The very act that there cannot be any adjustment is clear from the fact that after 25.5.1989 rent was paid till September, 1989 (According to tenant though payment of rent for September, 1989 is disputed by landlord). As stated earlier even counter statement does not say anything about prior agreement or adjustment. It could be seen from the counter statement itself that tenant was in the possession of building form 1959 onwards. It is not stated that building was without any amenities. When all the amenities are available in the building, what was the necessity for digging a borewell and whether consent of landlord is obtained is the matter tenant ought to have pleaded and proved. Absolutely there is no evidence in this case that landlords consent was obtained. 21. Tenant has also no case that he had any bona fide belief that he is entitled to adjust rent on the amount alleged to have been spent by him. Ex.R-1 is dated 25.5.1989 and the same is produced in Court only on 20.8.1994. From Ex.R-1, it could be seen that it is a bill for Rs.25,830. If the bill was available with the tenant when counter statement was filed, he could have specified the amount correctly in the counter statement. Counter statement also do not make any reference to any bill at all. From Ex.R-1, it could be seen that it is a bill for Rs.25,830. If the bill was available with the tenant when counter statement was filed, he could have specified the amount correctly in the counter statement. Counter statement also do not make any reference to any bill at all. Authorities below were generous enough in concluding that the amount might have been spent by tenant and the same could be adjusted in rent when he himself has not pleaded for adjustment. 22. It is clear from the above that for the months October and November, 1989, tenant has not paid rent and he is also not entitled to adjust that amount towards expenses alleged to have been incurred by him. 23. Regarding payment of rent for the month of September, 1989, definite case of tenant is that the cash voucher was signed by petitioner and the rent was received but no receipt was issued. Tenant is conducting business For any expenses to be incurred, the same will be entered in a voucher and even a request for rent payable must be entered in the voucher. On the basis of voucher, payment is made and rent receipt is issued. Neither voucher nor receipt is produced in this case. It is true that when P.W.1 was examined, he has said that voucher might have been signed by first petitioner. Merely signing of voucher will not amount to payment. Signing of voucher is only a demand or request for payment. Only when payment is made, receipt is issued. Authorities below have simply held that merely because first petitioner signed the voucher, rent for September, 1989 might have been paid by tenant. It is admitted by tenant himself that till 1989 landlord used to issue receipts whenever payment is made and even in the counterfoil landlord used to get the signature of tenant for having obtained receipt. The concurrent finding of authorities below that rent for September, 1989 was paid is based on no evidence. 24. Subsequent conduct of tenant also shows that he was never vigilant in paying rent. Eviction petition was filed in December, 1989 i.e., on 11.12.1989 and was numbered as R.C.O.P.No.576 of 1989. It was subsequently renumbered as R.C.O.P.No.2 of 1993. It was originally filed before the District Munsif Court, Madurai Town and transferred to the file of District Munsif, Madurai Taluk. Subsequent conduct of tenant also shows that he was never vigilant in paying rent. Eviction petition was filed in December, 1989 i.e., on 11.12.1989 and was numbered as R.C.O.P.No.576 of 1989. It was subsequently renumbered as R.C.O.P.No.2 of 1993. It was originally filed before the District Munsif Court, Madurai Town and transferred to the file of District Munsif, Madurai Taluk. Tenant entered appearance in February, 1990 and sought adjournment of the case. Thereafter he deposited sum of Rs.6,000 being rent for the months of October, November and December, 1989 and for the months of January, February and March, 1990 as per challan dated 28.3.1990. Even on the first hearing date he did not deposit any amount. Subsequent payments were also made in lump and that too when applications under Sec.11(4) of the Act was filed by landlord. It also could be seen that the rent from November, 1994 to April, 1996 were paid on 24.3.1996 in lump for 18 months together. 25. An argument was put forward before Rent Controller as well as Appellate authority that subsequent conduct also will have to be taken into consideration while considering the question of wilful default. Both the authorities have held that after application filed under Sec.11(4) of the Act and before nay order could be passed, tenant has deposited rent and consequently he cannot be termed as wilful defaulter. Such finding of Rent Controller as well as Appellate Authority goes against the very statutory provisions. It is the duty of tenant to pay rent as and when it becomes due an there is no question of any demand to be and by landlord. It is contractual as well as statutory obligation. When amount was deposited after Sec.11(4) application is filed naturally, the application becomes infructuous and landlords counsel endorsed that in view of the deposit application was not pursued, It is clear from the conduct, that tenant will deposit the amount only when he is pressurized to pay the amount and he will not pay the amount voluntarily. While appeal was pending before Appellate Authority also rent was never paid in time. This conduct on the part of the tenant was not taken into consideration by the authorities below. 26. In A.P.Swamy v. V.Kunjithapadam A.P.Swamy v. V.Kunjithapadam A.P.Swamy v. V.Kunjithapadam , (1994)2 MLJ. While appeal was pending before Appellate Authority also rent was never paid in time. This conduct on the part of the tenant was not taken into consideration by the authorities below. 26. In A.P.Swamy v. V.Kunjithapadam A.P.Swamy v. V.Kunjithapadam A.P.Swamy v. V.Kunjithapadam , (1994)2 MLJ. 536 : (1994)2 L.W. 661 Justice Thanikkachalam (as His Lordship then was) held that it is the duty of tenant not only pay rent in due time but also to pay rent regularly during the pendency of eviction proceedings. If the conduct shows hat he has not paid rent regularly that will be a ground to hold that he is a wilful defaulter. In para.8 of the judgment, learned Judge held thus: “….According to the tenant, he paid the admitted rent of Rs.1,000 per month during that period, but no receipt was issued by the landlord. Both the authorities below pointed out that during that period the parties were fighting acrimoniously. In such circumstances, it was pointed out that it would not have been possible for the tenant to say that he paid the rent for the said period and he did not obtain the receipt from the landlord. There is no evidence on record to show that he ever demanded the issue of receipt for payment of rent for the said period from the landlord. Further it remains to be seen that during the pendency of the eviction petition the tenant failed to pay the rent to the landlord. The landlord file to petitions under Sec.11(4) of the Act. In pursuance of the orders passed in the said petition, the tenant paid a sum of Rs.15,000 and Rs.4,000 respectively on 6.10.1989 and 2.5.1990 respectively. Under Sec.11(1) of the Act, the tenant should not only pay the arrears of rent, but also should pay the rent regularly every month during the pendency of the eviction proceedings. In any event, there is no evidence on the side of the tenant to show that the rent at the rate of Rs.1,000 was paid between July, 1988 and February, 1989. Therefore, the tenant is liable to be evicted under Sec.10(2)(1) of the Act. …” 27. In Anraj Pipada v. Umayal , (1998)2 MLJ. 624 my learned brother followed the earlier decisions reported in Poormans Depot Registration Firm v. Krishnan , (’1997)2 MLJ. 467 and Sundaram Steel Company etc. v. S.Lakshmi Sundaram Steel Company etc. Therefore, the tenant is liable to be evicted under Sec.10(2)(1) of the Act. …” 27. In Anraj Pipada v. Umayal , (1998)2 MLJ. 624 my learned brother followed the earlier decisions reported in Poormans Depot Registration Firm v. Krishnan , (’1997)2 MLJ. 467 and Sundaram Steel Company etc. v. S.Lakshmi Sundaram Steel Company etc. v. S.Lakshmi Sundaram Steel Company etc. v. S.Lakshmi , (1997)1 MLJ. 376 : (1997)2 L.W. 501 and held in para.6 thus: “When the eviction proceedings have been initiated on the ground of wilful default, one would expect the tenant to pay the rent regularly every month at least after the initiation of the proceedings. When the tenant has failed to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying the rent as he likes, will amount to wilful default. …” 28. I also had occasion to consider the said legal position in the decision reported in Majestic Leatherware v. Govinda Chetty Majestic Leatherware v. Govinda Chetty Majestic Leatherware v. Govinda Chetty , (1999)3 MLJ. 398 . 29. While extracting facts, I have said that landlord also field an application R.C.O.P.No.576 of 1989 for fixation of fair rent. It is admitted that fair rent was fixed at more than Rs.8,000. Landlord moved an application when the appeal was pending that tenant must be directed to pay rent as fixed in the fair rent application. The same was seriously opposed by tenant and as per order dated 11.7.1996, Appellate Authority dismissed it on the ground that while considering the question as to whether tenant has committed wilful default the non-deposit of fair rent would be relevant consideration but not in an application under Sec.11(4). Holding that view the application was dismissed. 30. The effect of non-payment of rent after fair rent is fixed was not considered by Appellate Authority while disposing of he appeal. If fair rent is to be deposited, that relates back to the date of application for fixing of fair rent and even during 1996 more than Rs.1.50 lakhs was due from tenant to landlord. Tenant admitted that there is delay in depositing the admitted rent, but he further explains that he has entrusted the amount to his counsel who has not deposited the same in time. Tenant admitted that there is delay in depositing the admitted rent, but he further explains that he has entrusted the amount to his counsel who has not deposited the same in time. I do not think the said explanation could be accepted, especially in view decision reported in Dr.Mohammed Ghouse v. K.A.Hameed Dr.Mohammed Ghouse v. K.A.Hameed Dr.Mohammed Ghouse v. K.A.Hameed , 97 L.W. 66 (S.N.) wherein it is held thus: “There is no clinching material to show that the petitioners directed the first respondent to pay the rents to Thiru T.Ramalingam and in the absence of any evidence in support of that, the payments stated to have been made by the first respondent to Thiru T.Ramalingam would not enable him to avoid the consequences of the non-payment of rent. It is not in dispute that during the course of the proceedings before the Rent Controller. Thiru T.Ramalingam was available and the first respondent could have examined him to throw light upon the circumstances under which the rents were paid by him to Thiru T.Ramalingam, and received by Thiru T.Ramalingam. The first respondent had been alive to his obligation to pay the rent to the petitioners at Rs.65 per mensem and has been discharging that obligation by prompt payments till December, 1980 and had also obtained receipts therefore. Undoubtedly, therefore, the first respondent was fully conscious of his obligation to the petitioners in the matter of payment of rents and had not discharged that obligation at least for the period January to March, 1981, There is no convincing or acceptable explanation supported by the evidence for such non-payment. Under those circumstances, the default in the payment of rents by the first respondent for the months of January to March, 1981 at last should be considered to be wilful.“ 31. Since authorities below have not considered the evidence in this case and the entire finding is based on surmises, I am constrained to set aside the order of authorities below and hold that tenant is liable to be evicted on the ground that tenant has committed default in payment of rent. Merely because tenant has paid rent after Sec.11(4) applications are filed or after eviction petition was filed that will not absolve him from the consequences of eviction if it is found that he is a wilful defaulter. Merely because tenant has paid rent after Sec.11(4) applications are filed or after eviction petition was filed that will not absolve him from the consequences of eviction if it is found that he is a wilful defaulter. When tenant has come forward with a false case and there is no explanation for his non-payment and authorities below have also ignored the well settled legal position that will be a ground for interference under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, I have extracted various decisions of this Court which held that the amount alleged to have been spent by tenant is not liable to be adjusted in rent. Even tenant is not claiming the case of adjustment. It is only the case of authorities below who found a reason for dismissing the application. In the very recent decision of Honourable Supreme Court reported in C.Chandramohan v. Sengottaiyan C.Chandramohan v. Sengottaiyan C.Chandramohan v. Sengottaiyan , (2000)2 MLJ. (S.C.) 1: (2000) 1 S.C.C. 451 it is held thus: “….The question of wilful default to pay or tender rent to a landlord by a tenant is a mixed question of law and fact. Where the findings recorded by the Appellate Authority are illegal, erroneous or perverse, the High Court, having regard to the ambit of its revisional Jurisdiction under Sec.25 of the Act, Will be well within its jurisdiction in reversing the findings impugned before it and recording its own findings”. I feel the above decision fully applies to the facts of this case, I hold that the tenant is ‘wilful defaulter’. 32. The other ground of eviction is that the landlord requires the buildings for his own occupation. In para.3 of the petition, landlord has specifically stated thus: “The residential building described hereunder is situated at Madurai Town within the jurisdiction of this Honourable Court.” In para.13, the particulars regarding building is given and in column (5) regarding the nature of the building ‘whether the building is residential or non-residential. In fact, there is no answer either to para.3 or para.13 in the Rent Control Petition. If it is a residential building, can the landlord be denied eviction merely on the ground that tenant is making use of the same for non-residential purpose also. It is not the case of tenant that the building is not a residential building. In fact, there is no answer either to para.3 or para.13 in the Rent Control Petition. If it is a residential building, can the landlord be denied eviction merely on the ground that tenant is making use of the same for non-residential purpose also. It is not the case of tenant that the building is not a residential building. What he says in para.11 of the counter is that the building is used for residential and for non-residential purposes and therefore eviction cannot be ordered. Both the authorities held that since tenant is making use of the building for non-residential purposes and running press, tenant is not liable to be dispossessed. Both the authorities have held that since landlord wants eviction for residential purpose only and since tenant is using the same for non-residential purpose eviction cannot be had. If only authorities below considered the legal position on the admitted facts, such finding would not have been entered. 33. In the decision rendered by Justice T.N.Vallinayagam, reported in Kovilpillai Nadar v. Tiresha Ammal , (1997)1 L.W. 585 this question was considered. Learned Judge also took into consideration the previous decisions of Honourable Supreme Court as well as this Court. In para.2 of the judgment, learned Judge took note of earlier decision of this Court reported in Padmavathy Ammal v. Manickam , (1981)1 MLJ. 359 wherein it was held that if tenant is making use of the building for nonresidential purposes landlord cannot claim eviction for residential purposes. Learned Judge thereafter took into consideration the change of law and held thus: “It is no doubt true that the view earlier taken by this Court was that the landlady cannot ask a residential premises for non-residential purpose. But this view underwent a change, as could be from the decision of this Court in Indira v. Vinayagam Chettiar , (1989)1 MLJ. 186 wherein it has been held as follows: “On a reading of sub-clauses (i) to (iii) of Sec.10(3)(c), it is important to notice that the building which is the subject-matter of those clauses is referred to either as residential building or non-residential building. The clauses do not refer to a building used for non-residential purpose or residential purpose. The use of the adjective ‘residential’ or ‘non-residential’ qualifying the word ‘building’ therefore clearly indicates that what is important is the nature of the building and not the use to which it is put. The clauses do not refer to a building used for non-residential purpose or residential purpose. The use of the adjective ‘residential’ or ‘non-residential’ qualifying the word ‘building’ therefore clearly indicates that what is important is the nature of the building and not the use to which it is put. This construction is supported by the restriction on the power of the landlord or the tenant to convey a residential building into a non-residential building imposed by Sec.21. The conversion referred to has reference to the nature and character of the building as such. When the three Sub-clauses of Sec.10(3)(a) refer to the building being residential or non-residential the reference is obviously to the nature and structural characteristics of the building as such. If a residential building is used for non-residential purpose, it cannot be said to be a non-residential building within the meaning of sub-clause (iii). A building which by its nature is non-residential in character will not become residential merely because it is used for residential purposes unless it has been so converted to facilitate its use for residential purpose. Whether a building is non-residential building or not will, therefore, have to be determined on the structural characteristics of the building and the purpose for which it is constructed. There is a statutory bar against conversion of a residential building into a non-residential one. A building which has a bathroom or kitchen and other amenities which are characteristics of a residential building must therefore be treated as a residential building notwithstanding its use for a non-residential purpose.” This view came to be confirmed by the Supreme Court in the case reported in Busching Scimtz Private Limited v. P.T.Menghani Busching Scimtz Private Limited v. P.T.Menghani Busching Scimtz Private Limited v. P.T.Menghani , (1977)2 S.C.C. 835 wherein the Supreme Court has considered the question as follows: “The question that was posed for consideration before the Supreme Court is as follows: “Is the purpose of the lease decisive of the character of the accommodatione While answering the said question, the Supreme Court held as follows: “Guided by this project oriented approach, we reject the rival extreme positions urged before us by Shri Nariman and Shri Jain, Residential premises are not only these which are let out for residential purposes as the appellant would have it. Nor do they cover all kinds of structures where humans may means to dwell. Nor do they cover all kinds of structures where humans may means to dwell. If a beautiful bungalow were let out to a businessman to run a showroom or to a meditation group or music society or meditational or musical uses, it remains nonetheless a residential accommodation. Otherwise premises, may one day be residential, another day commercial and, on yet a later day, religious, use or purpose of the letting is not conclusive test. Like wise, the fact that many poor persons may sleep under bridges or live in large hume pipes or crawl into verandahs of shops and bazaars cannot make them residential premises. This is a case of Reduction Ad Absurdum… The house we are considering was built on land given for constructing a residence, is being used even now for residence, is suitable otherwise for residence and is being credibly demanded for the respondents residence. Residential suitability being the basic consideration this building fills the bill. Nothing said in the affidavit in opposition puts it out of the pale of residential accommodation. A building which reasonably accommodates a residential user is a residential accommodation nothing less, nothing else. The circumstances of the landlord ar not altogether out of place in reaching a right judgment. The purpose test will enable others who own houses to defeat the government by pleading that they do not own residential premises because the lease is for commercial use, built though it was and suitable though it is, for residence.” The above cited decision of the Supreme Court clearly laid down that the usage or purpose test is not at all a criterion to find out whether a building is residential or non-residential but one must got by structural and physical features of the building to find out whether it is a residential or non-residential building. “In fact, this view of the Apex Court has been followed by this Court in Rajamanickam v. Ranganathan , (1995)2 MLJ. 139 : (1994)2 L.W. 86 wherein this Court has held as follows: “Sec.14 (3) of the Tamil Nadu Buildings (Lease and Rent Control) Act contemplates conversion of a residential building into non-residential building and vice versa. This provision contemplates the structural alteration in the case of conversion of one building into another or vice versa and not on the basis of purpose test. This provision contemplates the structural alteration in the case of conversion of one building into another or vice versa and not on the basis of purpose test. In the instant case, the authorities below have concurrently taken the view that structurewise, the let out building is a residential one and fit for residential accommodation. Therefore, by applying the law laid down in Busching Schmitz Private Limited v. P.T.Mehghani Busching Schmitz Private Limited v. P.T.Mehghani Busching Schmitz Private Limited v. P.T.Mehghani , (1977)2 S.C.C. 835 it must be held that the application for eviction by the landlord in this case under Sec.10(3)(a)(i) of the Act is maintainable. Therefore, there is no difficulty in holding that if the structure of a building indicates that it is a residential purpose, and it is used for nonresidential purpose, a petition for eviction filed against a tenant who is carrying on business in that place, is maintainable by the landlord, who wants it for residential purpose.” 34. In view of this decision, which is not taken note of by the authorities below, it has to be held that the finding requires interference. 35. Rent Controller further found that subsequent to the eviction petition landlords sold Door No.34, Palmall Cross Street, Madurai, It is in that address landlords were residing is clear from the eviction petition itself. In para.9 of the eviction petition, they have said that as between first and second petitioners, though they are brothers, in view of the difference of opinion between their wives second petitioner wants to shift from that building. It has come out in evidence that this building itself has to be sold by all members of the family and as per two documents for northern portion and southern portion one Amarnath became the purchaser. Out of the sale proceeds, first petitioner and second petitioner purchased the building. While P.W.1 was examined, he said that out of the sale proceeds, he purchased a building P.W.1 further explains that building purchased by him is shop building. In the next sentence, he has said, It is clear therefrom that second petitioner is not in possession of any residential premises. After sale of their family house i.e., Door No.34, Palmall Cross Street, second petitioner is residing in a rented premises and landlord of that building has been examined as P.W.2, Exs.P-4 to P-8 show that second petitioner is paying rent to his landlord. After sale of their family house i.e., Door No.34, Palmall Cross Street, second petitioner is residing in a rented premises and landlord of that building has been examined as P.W.2, Exs.P-4 to P-8 show that second petitioner is paying rent to his landlord. Whether P.W.2 is owner of that building was doubted by Rent Controller and P.W.2 had to produce Ex.P-9 to prove that he is the owner of the building where P.W.2 resides. Since Rent Controller doubted whether P.W.2 was owner, naturally a doubt arises whether P.W.1 was occupying rented building. For that reason it held that landlord has not proved his bona fides in claiming the building for his own occupation. 36. When landlord has admittedly sold the building and when it is proved that P.W.2 is not in possession of any residential building. It is for tenant to prove that landlord got other residential building or that landlord is not residing in a rented premises. When landlord says that after institution of proceedings he is residing in a rental premises and same is proved by oral and documentary evidence. Rent controller was not inclined to accept the same without any reason. This finding of Rent Controller is not considered by Appellate Authority. Only reason rendered by Appellate Authority is landlord is not entitled to get eviction because tenant is making use of the building for non-residential purposes also. In regard to this approach of Appellate Authority, there is no concurrent finding. When finding of Rent Controller is perverse and is not supported by any evidence, this Court is entitled to re-consider the same even though sitting in revision. 37. Though the findings of authorities below are concurrent, since authorities have not taken into consideration the law declared by this Court and the Honourable Supreme Court, and finding is only based without looking into the evidence, such a decision can never be said as “in accordance with law.” The concurrent findings are therefore set aside and I allow the revision petition with costs. It is held that landlord is entitled to get eviction both on the ground of wilful default in payment of rent and also for bona fide own occupation. R.C.O.P.No.2 of 1993 on the file of Rent Controller/District Munsif Court, Madurai Taluk is allowed with costs. 38. The revision petition is allowed as above with costs. C.M.P.No.15234 of 1998 is closed.