ORDER: The tenant, who was successful in resisting the eviction petition before the Rent Controller, unable to sustain the same when the same was challenged before the Rent Control Appellate Authority, is the revision petitioner. 2. The respondent, as landlord has filed the petition for eviction of the tenant on the grounds that the tenant had committed willful default in payment of rent; that he had used the building for the purpose other than that for which it was leased out; that the tenant had committed not only nuisance but also committed acts of waste and that the petition mentioned premises is required for the purpose of immediate demolition and reconstruction, which is bona fide. 3. As per the averments in the petition, the wilful default, said to have been committed by the tenant, is from August, 1990 till the date of filing of the petition as well as the non-deposit of the amount, in time as ordered in R.C.O.P.No.5 of 1991, which is a petition filed by the tenant seeking permission to deposit the rent. The different user, is that the building was let out for the purpose of running a school, whereas the tenant is using the same for the purposes like marriages and other activities not connected with education. The acts of waste, alleged is, that the tenant had pull down the thatched shed, and altered the same by putting up asbestos roofing without the consent of the landlord. The ground of demolition and reconstruction is sought, on the basis that the building is more than 80 years, which needs demolition and reconstruction. 4. The acts of waste, alleged is, that the tenant had pull down the thatched shed, and altered the same by putting up asbestos roofing without the consent of the landlord. The ground of demolition and reconstruction is sought, on the basis that the building is more than 80 years, which needs demolition and reconstruction. 4. The revision petitioner/tenant opposed the application, contending that the landlord refused to receive the rent originally, which resulted in filing an application in R.C.O.P.No.5 of 1991, which was allowed and in pursuance of the same, the rent is periodically deposited and therefore, there is no question of either default or wilful default; that occasionally, in holidays, the premises was given once for marriage function of the poor school staff, which practice also stopped thereafter; that the tenant had not committed any acts of waste or nuisance and what the tenant did was that the thatched shed owned by the school was not safe and therefore, it was removed substituting asbestos sheet, which should come within the meaning of improvement and not an act of waste and that the claim of the landlord for demolition and reconstruction is not bona fide, and this ground is invented by the landlord, only for the purpose of evicting the tenant, since the landlord has failed in his attempt to evict the tenant on any other grounds. 5. On the basis of the above contentions, the parities went on trial before the Rent Controller, and during the course of the trial, the petitioner examined himself as P.W.1 seeking support from Exs.P-1 to P-25. To nullify the above material, R.W.1 and R.W.2 have been examined, seeking support from 45 documents. The learned Rent Controller, while scanning the above materials and assessing the same from proper perspective, came to the conclusion that all the grounds alleged for the eviction of the tenant are false and they were aimed to evict the tenant, purposely. In this view, he constrained to dismiss the rent control application on 22.3.2001, which was under challenge in R.C.A.No.5 of 2001 before the Rent Control Appellate Authority viz., Sub Judge, Nagapattinam. 6. The appellate authority, upon perusing the documents and hearing the parties, felt that the Rent Controller had committed an error in not accepting the case of the landlord viz., wilful default. 6. The appellate authority, upon perusing the documents and hearing the parties, felt that the Rent Controller had committed an error in not accepting the case of the landlord viz., wilful default. The materials disclosed, according to the appreciation of the appellate authority, that the tenant had committed default and that default is nothing but wiful default. As far as the other grounds are concerned, the Rent Control Appellate Authority, unable to deviate from the findings rendered by the Rent Controller and in this view, he confirmed the other findings. Because of one finding viz., wilful default went against the tenant, the appellate authority ordered eviction, allowing the petition on 16.11.2001, which is under challenge in this revision. 7. Heard the learned counsel Mr.M.S.Subramanian for the revision petitioner and the learned counsel Mr.B.Ramamoorthy for the respondent. 8. The learned counsel Mr.M.S.Subramanian, appearing for the revision petitioner submits, that a well reasoned finding rendered by the Rent Controller is set aside by the appellate authority, under misconception as if the tenant had not deposited the rent periodically, by misreading the facts as well as the documents and in this view that finding has to be necessarily erased, restoring the finding of the Rent Controller. As far as the other findings are concerned, since they are concurrent, it is the submission of the learned counsel for the revision petitioner, that they deserve full acceptance. 9.Per contra, the learned counsel Mr.B.Ramamoorthy, who is appearing for the respondent/tenant submits, that the Rent Controller had not properly construed the ground of wilful default, which was properly appreciated by the appellate authority and therefore, the finding of the appellate authority, thus, deserves the acceptance. 10. It is the further submission of the landlord’s counsel that though the Courts below have concurrently held against the landlord in respect of the other grounds, those grounds are still available to be agitated in this revision and in this view, the landlord is entitled to sustain the eviction order on the basis of the other grounds also, for which sufficient materials are available, which are not properly considered by the Courts below. In order to appreciate the rival contentions of the parties, in view of the reversing finding, as well as in view of the long dispute between the parties, we have to see the pleadings in support of the claim for eviction as well the previous litigation between the same parties. 11. The legal battle between the parties commenced in the year 1980. This is the third round of litigation, for the same property. The landlord had filed a suit against the tenant in O.S.No.312 of 1980 on the file of District Munsif Court, Nagapattinam for mandatory injunction, directing the tenant for the removal of furnitures and also articles as well as to forbear them from interfering with the possession and enjoyment of the property, as if the property is with the landlord. The suit was hotly contested by the tenant, contending that they are in occupation of the property, under the registered lease deed from 1913, onwards and there is no restriction in the lease of 1913 to put up any extra building etc. It seems the owner of the property contended, that there is no landlord and tenant relationship between the parties and their possession if any is traceable to license. But the trial Court held, the school is in possession, on the basis of the registered lease deed, which is not a licensee and the remedy of the owner of the property is only to move the Rent Control Court, and as such, the suit for mandatory injunction is not maintainable. The said finding was accepted by the appellate authority in A.S.No.165 of 1989, which was impugned by the owner before this Court in S.A.No.381 of 1989. In the meantime, the tenant moved an application, for deposit of rent in R.C.O.P.No.5 of 1991 which was accepted, put to challenge before this Court in C.R.P.No.1563 of 1995. This Court, taking the Second Appeal as well as the C.R.P. together, disposed of the same, on 31.10.1996, concluding that the plaintiff as owner of the property, is not entitled to any relief and the petition filed by the tenant, seeking the relief under Sec.8(5) of the Rent Control Act, is well maintainable, which judgment is reported in R.M.Sundaram alias Meenakshi Sundaram and another v. The Correspondent, National Elementary School, Pundarigakulam, (1998)1 C.T.C. 195 . This decision reached the finality. 12. This decision reached the finality. 12. The petition mentioned property, lies within the municipal limits of Nagapattinam, bearing Door No.2, T.S.No.435/2, measuring an extent of 4884 sq.ft, including the building. In this property, the revision petitioner is running a school for the past 78 years. It seems, the landlord refused to receive the rent, agreed viz., Rs.105 somewhere in the month of July 1990, and the refusal continued, despite a lawyer’s notice, thereby compelling the tenant, to move the Rent Controller under Sec.8 of the Rent Control Act, seeking permission to deposit the rent. After contest, that petition was allowed on 29.7.1992, granting permission, to the tenant to deposit the rent from August to December, 1990 i.e., for five months, totaling a sum of Rs.525, with further direction that the subsequent rent should be paid, without default in the succeeding months. This is confirmed in the C.R.P.No.1563 of 1995. The tenancy is according to English Calendar month and the rent should be paid on or before 10th of every succeeding English Calendar month. Despite the fact, such a permission was given to the tenant, it is the case of the landlord, that the tenant had committed wilful default in payment of rent from August 1990, till the date of filing of this R.C.O.P. viz., 19 of 1997. It is the further case of the landlord, that in spite of the order, allowing the respondent to deposit the rent under Sec.8(5) of the Rent Control Act, the respondent is not relieved from proving, that he had made deposits complying with the provisions under Sec.10(2)(i) of the Act. Therefore, as far as the wilful default is concerned, because of the previous order in R.C.O.P.No.5 of 1991, reached the finality, we have to see whether the tenant had complied with the orders, if not, whether it would amount to wilful default. 13. The submission of the learned counsel for the revision petitioner, that the tenant has not committed any default, much less wiful default in this case, appears to be well founded, which is accepted by the Rent Controller, by assigning unquestionable reason, but unfortunately set aside by the Rent Control Appellate Authority. The contention of the tenant, before the Rent Controller in R.C.O.P.No.5 of 1991 was that the landlord refused to receive the rent, from August, 1990 and that contention was accepted and the tenant was permitted to deposit the rent. The contention of the tenant, before the Rent Controller in R.C.O.P.No.5 of 1991 was that the landlord refused to receive the rent, from August, 1990 and that contention was accepted and the tenant was permitted to deposit the rent. Therefore, the alleged non-payment of rent, to the landlord from August, 1990 till the date of filing of this R.C.O.P. will not come, certainly within the meaning of default or wilful default, as the case may be. Therefore, the contention that the tenant is not relieved from the wilful default, appears to be baseless, unfounded and intended with sole purpose of evicting the tenant, who has not committed anything, contravening the Rent Control Act. The grievance of the landlord that he is unable to evict the tenant, who occupied the premises from 1913, may be from his point of view, genuine. When the law gives protection to the tenant, the tenant, following the guidelines of the law, when seeks protection, that must be made available to him, and that is done by the Rent Controller, which was unfortunately undone by, the appellate authority. 14. The appellate authority, though had given the details of deposits in paragraph 10 of its judgment correctly, failed to reach the conclusion correctly, misreading the facts, as if the tenant had deposited the rent always belatedly 15 to 20 days, which is not the case, except in one occasion. The R.C.O.P.No.5 of 1991 was allowed on 29.7.1992. Immediately, on 18.8.1992, five months rent were deposited. Till the date of the order, the rent accrued for 19 months also, were deposited on the same day. The rent payable from August, 1992 to December, 1992 appears to have been deposited on 27.10.1992. August month’s rent is payable in the month of September and September month’s rent is payable in the month of October, as per the agreement in this case on or before 10th. Unfortunately, the tenant, though obtained an order for deposit of rent, failed to deposit the rent for August, September. The rent payable for August and September, in addition to the future rents viz., October, November and December were paid on 27.10.1992, thereby showing he had committed some default in payment of rent for the months of August and September, though he had deposited the future rents in advance. The rent payable for August and September, in addition to the future rents viz., October, November and December were paid on 27.10.1992, thereby showing he had committed some default in payment of rent for the months of August and September, though he had deposited the future rents in advance. Considering the conduct of the parties, and the prolonged litigation between them as well as the fact the tenant is running a school, in the premises, non-deposit of rent, for two months cannot be termed as wilful default, though it may be a default. The tenant has not committed this default, with an intention to commit the same, defying the order passed by the Rent Controller in R.C.O.P.No.5 of 1991. If at all, maximum, it could be described as some slackness on the part of the tenant, occasioned, knowingly or unknowingly. In this view, in my considered opinion, the non-paymentof rent or non-deposit of rent for two months did not amount of wilful default, and the penalty of eviction, should not be allowed, to be visited on the tenant, on this ground. If this tenant had committed the same kind of default subsequently also, unmindful of the previous default committed by him and its consequences, then there would be nothing wrong in labeling this tenant as wilful defaulter. This opportunity is not available to the landlord. The rent for the months of January, February and March 1993, was deposited in January itself on 25.1.1993, though January month’s rent is payable in the month of February. In the same manner, as seen from the schedule available in the typed set page 41, the tenant had deposited the rents in the same month, as well as future rents also for some months. Upto 31.3.2001, for 120 months at the rate of Rs.105, he had deposited a sum of Rs.13,440. The tenant, who is very conscious that he is liable to be thrown out, if he had not complied the order in R.C.O.P.No.5 of 1991, very cautiously not only paid the rent, on the same month, but also deposited the advance rent also. Such a person should not be labeled, as wilful defaulter, taking a sporadic default, committed for two months, which should be condoned. 15. Such a person should not be labeled, as wilful defaulter, taking a sporadic default, committed for two months, which should be condoned. 15. The learned Rent Controller, assigning reasons, justifiably, concluded that there was no wilful default, which was unjustifiably set aside, by the appellate authority under surmise and conjecture, as if the tenant has not paid the rent within 10th of every succeeding month, forgetting the fact, as aforementioned that has paid or deposited the rent on the same month, within 10th of every succeeding month. The document discloses, as repeatedly, said, the rent deposited within the same month, in addition to the deposit of future rents also, which is overlooked by the appellate authority, thereby landing incorrect conclusion, requiring eraser by this Court. 16. In T.Gopalasamy and another v. R.Ranganathan and others, (2000)1 M.L.J. 703 : (2000)2 L.W. 699 , it is held as follows: “Tenant is not absolved of consequences merely because he made some deposit in the way he chooses”. Thereby bringing that kind of person, within the definition of wilful defaulter. Placing reliance upon the above decision, the learned counsel for the respondent, would contend that this tenant had not deposited the rent as directed, whereas he had chosen to deposit the rent, as he likes and such a person is not entitled to protection. The facts, as pointed out, even by the appellate authority does not disclose that this tenant had committed any mistake, in depositing the rent and if at all, it can be said that he committed mistake, in depositing the rent in advance, which will not bring him, as wilful defaulter. In this view, this ruling fails to come to aid of the respondent/landlord to order eviction. 17. The learned counsel for the respondent/landlord submits, that the grounds rejected or negatived by the Courts below could be agitated, in this revision in order to sustain the eviction order, though it was passed only under Sec.10(2)(i) of the Act and in aid, reliance is placed in Athimoolam v. Arokianathan, (1993)1 L.W. 663 ,Dr.Jayalakshmi, V.K. v. Mrs.M.S.Meenakshi and another, (1998)1 L.W. 682 , which position not to be disputed at present. 18. In this view, we have to see whether the other grounds aimed for the eviction of the tenant, has been made out. The admitted position is, that the petition mentioned building was let out to the tenant, only to run school. 18. In this view, we have to see whether the other grounds aimed for the eviction of the tenant, has been made out. The admitted position is, that the petition mentioned building was let out to the tenant, only to run school. The grievance of the landlord is, that the respondent is using the building for purposes, like marriages unconnected with education. In the counter, the premises was once used for the marriage function is admitted. On that basis, the learned counsel for the landlord/respondent, submits that the building is (was) used for the purpose other than that, it was leased out thereby giving right to the landlord to sustain an eviction order under Sec.10(2)(b) of the Act. On the other hand, the learned counsel for the respondent submits, that the original purpose is not ceased and only on one occasion or so, demised premises was used, for the marriage that too for the staff of the school, which will not come within the meaning of other purposes. 19. By going through the materials, and the continuous usage of the building, for which purpose this was let out, I am unable to agree with the contention of the learned counsel for the respondent/landlord. Had the tenant discontinued the usage, for which this building was taken on lease and put it to different use, continuously atleast for some time, then only it could be said that the tenant used the building for a purpose other than that for which it was leased. A sporadic instant extended on the basis of human consideration, allowing the school staff to have the marriage function, in this premises, certainly cannot be treated as different user. If it is commercially, as well periodically done, with profit motive, ignoring the purpose for which the lease was taken, then only Sec.10(2)(ii)(b) could be invoked, to evict such tenant, not otherwise. Considering these facts, both the Courts below have concurrently held, that there is no different user, which requires confirmation. 20. The acts of waste or nuisance alleged invoking Sec.10(2)(v) of the Act appears to be the fertile imagination of the landlord, since it is not available. Conversion of the roof, replacing the thatched roof by asbestos sheets, would not come within the meaning of nuisance or acts of waste and it should be construed as improvement. 20. The acts of waste or nuisance alleged invoking Sec.10(2)(v) of the Act appears to be the fertile imagination of the landlord, since it is not available. Conversion of the roof, replacing the thatched roof by asbestos sheets, would not come within the meaning of nuisance or acts of waste and it should be construed as improvement. In fact, the lease deed itself provides, as already held by this Court, that the tenant is entitled to put up the roof and in this way considering the safety of the school boys, removing the thatched roof, the tenant had put up asbestos sheets, which cannot be termed as act of waste or nuisance, impairing materially the value or utility of the building, as contemplated under Sec.10(2)(iii) of the Act. Sec.10(2)(vii) is also not available, since the tenant has not denied the title at any point of time, which is so held by this Court in R.M.Sundaram alias Meenakshi Sundaram v. The Correspondent, National Elementary School, Pundarigakulam, (1998)1 C.T.C. 195 . Therefore, this ground is also not available to the landlord. 21. The last ground is under Sec.14(1)(b). The building may be old, but it is not in a dilapidated condition, requiring immediate demolition. True, as per the settled law at present, that too, to invoke Sec.14(1)(b), it is not an absolute one, that the building must be in a position threatening to fall, endangering the occupants. The landlords are at liberty to demolish their building and erect a new building in that site, provided as mandated in law, their requirement is bona fide. Here is a landlord, aiming to throw out the tenant, by one way or other, for the past two decades, and such a tenant if he wants possession of the premises, for demolition and reconstruction, he must make out a case, with clear materials, exposing his bona fide, irrespective of the previous conduct, for that, he must prove what is the steps taken by him, for reconstruction of the building such as preparation of sketch, estimate, approval and the financial condition etc. Assuming that the landlord is sound in financial condition, unless it is made out that his intention is to put up a new building after demolishing the existing building, that will not prove his bona fide. Assuming that the landlord is sound in financial condition, unless it is made out that his intention is to put up a new building after demolishing the existing building, that will not prove his bona fide. Considering the long legal battle, between the landlord and tenant and considering the fact, that nothing has done by the landlord, regarding the demolition and reconstruction at least in anticipation of recovering possession, both the Courts below have entertained doubt, about the bona fide requirements of the premises, and the said doubt is still lingering in the minds of this Court also, which is not erased. In the concurrent findings of the Courts below regarding this ground, I find no perversity and in fact, the finding is purely based on the fact, not warranting any interference under the revisional jurisdiction. 22. For the foregoing reasons, I am of considered opinion, that the appellate authority had committed an error in not appreciating the case properly, thereby erroneously ordered eviction under Sec.10(2)(i) of the Act, which is to be set aside, for that purpose, the revision deserves acceptance. 23. The civil revision petition is allowed and the order of the appellate authority in R.C.A.No.5 of 2001 is set aside, restoring the order of the Rent Controller in R.C.O.P.No.19.1997, confirming the order of dismissal with cost throughout. Consequently, the connected C.M.P., is closed.