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Andhra High Court · body

2008 DIGILAW 838 (AP)

S. Pentaiah v. Khatija Bee

2008-09-29

VILAS V.AFZULPURKAR

body2008
COMMON ORDER :- These three revision petitions are preferred by three different sets of tenants against the common judgment of the lower Appellate Authority passed in three separate rent appeals. The landlords are same in all these three matters. These revision petitions are clubbed, heard together and are being disposed of by this common order. The parties are being referred to as "the landlords" and "the tenants" for the sake of convenience. Premises Monthly Name of Default Witnesses RCC R.A. C.R.P No. Rat the tenant period examined No No. No. and Exhibits markco. 12-8-330 Rs.200/- Pentaiah 1.12.1996 Petr Resp 285/99 285/2001 6813/05 to RW1 30.9.1999 Ex.P1 Ex.R1 to R-21 12-8-329 Rs.1201- Panshram 1.3.1999 Petr Resp 286/99 286/2001 6817/05 to RW1 30.9.1999 Ex.P1 Ex.R1 to R-28 12-8-328 Rs.1 801- Nagaiah 1.9.1998 Petr Resp 287/99 287/2001 6814/05 to RW1 30.9.1999 Ex.P1 Ex.R1 ToR-27 2. As stated above, the landlords are common in all three cases and three different premises bearing Nos. 12-8-328, 12-8-329 and 12-8-330 all situated at Mettuguda, Secunderabad are subject-matters of different rent control cases filed by the landlords against the three different tenants on the ground of wilful default of various periods. The details of each tenant and the necessary particulars of each case are mentioned in the table below: 3. It would be noticed that in item No.1 above the default alleged is of three years and in item No.2 the default alleged is of 7 months and in item No.3 the default alleged is of about 14 months. 4. Counter filed by each of the tenants in all these cases, inter alia, raised a defence that the rents were paid upto a particular time to the landlords and thereafter since the rent receipt book was exhausted, the landlords asked the tenants to open a separate book and note down the rents paid and the said book contains the endorsements whenever the landlords received the rents. The tenants alleged that the landlords refused the rents tendered personally and therefore the tenants were forced to send the rents by money orders which were refused and thereafter the tenants issued notices to the landlords calling upon them to furnish and nominate the details of the bank account for which there was ,no reply. The tenants alleged that the landlords refused the rents tendered personally and therefore the tenants were forced to send the rents by money orders which were refused and thereafter the tenants issued notices to the landlords calling upon them to furnish and nominate the details of the bank account for which there was ,no reply. The tenants also claimed that the premises in their occupation is in a dilapidated condition and required immediate repairs, but the landlords orally permitted the tenants to adjust the amounts towards repairs in future rents and thereafter the tenants claimed that they had spent considerable a amounts towards repairs and electrification which the landlords refused to adjust as promised and therefore the tenants sent the arrears of the said rents by money orders again for various amounts for different periods commencing from January, 2000. 5. For the purpose of appreciating the matter, the facts and particulars of CRP No.6813 of 2005 are taken in brief and most of the facts are common except to the extent of variations indicated in the table above. 6. During the trial, no witness was examined on behalf of the landlords. The tenant examined himself as R.W.I and marked Exs.R1 to R21, all of which are in the nature of postal receipts and money order acknowledgements. Ex.P1 is the legal notice sent by the landlords which was also marked through R.W.I. The learned Rent Controller upheld the defence of the tenant that all the rents were deposited or paid by the first date of hearing of the RCC and as such the tenant cannot be branded as a wilful defaulter and even though there were defaults committed by the tenant, the same was done by bona fide impression that he was entitled to adjust the rents towards expenses incurred for repairs and consequently dismissed the eviction petitions. Aggrieved thereby, the landlords preferred the appeals referred to above. The lower Appellate Authority found that the stand taken by the tenant that he was permitted to repair the premises by the landlords was not substantiated as the consent of the landlords was not proved and secondly it was found that even after adjusting the arrears of rent towards repairs said to have been made by the tenant after long default, the same was also not accounting for the full payment and the tenant was still due arrears of rent. The lower Appellate Authority, therefore, found that in any case part remittance of the arrears of rent cannot save the tenant from wilful default and consequently allowed all the appeals directing the eviction of the tenants. 7. In these revisions, the point involved for consideration is whether the tenants have committed wilful default as alleged by the landlords and whether they are liable for eviction? 8. The learned Counsel for the tenants has strenuously• and elaborately argued that the landlords having not entered into the witness box, there is no evidence on the part of the landlords and therefore the lower Appellate Authority wrongly placed the burden on the tenants, specially when the landlords have not discharged the burden placed on them. He has also relied upon the fact that the tenants themselves not only attempted to pay the rents personally, but had given a notice requesting the landlords to nominate a bank, which was not appreciated by the lower Appellate Authority. He further contends that the findings of the lower Appellate Authority based on the wilful default against the tenants are liable to be set aside and since it is a reversing judgment passed by the lower Appellate Authority, this Court, under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act (for short "the Act"), is fully justified in considering the oral and documentary evidence and set aside the lower Appellate Authority's judgment. 9. Per contra, the learned Counsel for the landlords contends that the default in payment of rents was being admitted by the tenants, the burden to prove that it is not wilful is primarily is on the tenants and the said burden would shift to the landlords only after the tenants discharged the said initial burden. The learned Counsel also contends that the plea of undertaking repairs by the tenants is completely unsubstantiated and relies upon the notice issued by the tenants to point out that there is no reference to the repairs said to have been undertaken by the tenants. The learned Counsel, therefore, says that the defaults of long periods were committed by the tenants and thereafter to cover up the same, after committing substantial defaults, attempted to send money orders which do not cover the entire period of default. The learned Counsel, therefore, says that the defaults of long periods were committed by the tenants and thereafter to cover up the same, after committing substantial defaults, attempted to send money orders which do not cover the entire period of default. It is, therefore, contended that even after adjusting the rents tendered under Exs.R1 to R21, the tenants are still due a substantial amount of arrears of rent and as such the findings of wilful default reached against the tenants by the lower Appellate Authority are fully justified and therefore require no interference by this Court. 10. I have considered the submissions made by the learned Counsel for the parties in the light of the findings of both the Courts below as well as the evidence, oral and documentary, adduced in this case. As stated above, the plea of the tenants is two fold viz., (1) that they were permitted to undertake repairs of the premises and adjust the rents against the costs of the repairs and (2) that they had sent money orders when the landlords did not act upon their promise. In order to assess the veracity of the stand of the tenants, it is necessary to first look at Ex.P1-notice dated 20.7.1999 sent by the tenant to the landlords. In first para of the notice, the tenancy and the monthly rent is admitted and it was also admitted that the rents were being collected by Mr. Mohd. Ibrahim during his lifetime and later it is being collected by sons and daughters of Smt. ( Khatija Bee i.e., the landlords in this case. In Para-2 of the notice it is alleged that the I rents were paid upto November, 1996 and thereafter the landlords stopped receiving the rents with ulterior motive. It is alleged that the rents thereafter were sent through money orders, but they were refused and thereafter the landlords also refused to take the rents which were personally tendered and as such the tenant has sent a money order for Rs.5,000/- on 13.2.1999 inclusive of previous arrears, but the same was deliberately refused, as also the subsequent money orders sent on 1.7.1999. The notice, therefore, was issued calling upon the landlords to nominate a bank. 11. The notice, therefore, was issued calling upon the landlords to nominate a bank. 11. It is very crucial to point out that the aforesaid notice does not even contain a reference with respect to the plea taken by the tenants that they undertook repairs and they spent considerable amounts for the repairs and electrification. In fact, the said plea of repairs etc., is completely absent in the said notice. It would also be evident that even as per the said notice, the default commenced from December, 1996, when, according to the tenants, the rents were not received by the landlords. For the first time, the tenant sent money order for Rs.5,000/on 13.2.1999. Even by then default of two years and at least three months had already set in. Thus, even according to the tenants, for the first time when the money order was sent, there was a considerable default. The money orders spoken to by the tenants viz., Exs.R1 to R2l are all subsequent to the aforesaid money order of 13.2.1999 and they are pertaining to different periods of default for different amounts. In cross-examination the tenant as R.W.1 admits that when he sent a cheque for Rs.5,000/to the landlords, it was returned on the ground that the said amount does not cover the entire period of rent and subsequent money orders sent were accepted under protest. R.W.1 also admits that the landlords did not give permission in writing to get the repairs to the premises and the said permission was only oral. 12. In counter as well as in evidence the tenant has mentioned of having spent Rs.25,000/- towards repairs and renovation and Rs.5,000/- towards electrification. The said claim was disputed by the landlords by giving appropriate suggestions during the cross-examination of RW.1, but more importantly the tenants have not submitted any proof whatsoever of having spent these amounts towards alleged repairs or electrification. Not a single receipt or document or ill of any nature is produced by the tenants. I do not even find evidence of any neighbour to speak of the repairs and electrification- got done by the tenants to the demised premises. The entire claim of having spent almost Rs.30,000/- for the repairs and electrification as claimed in the counter by the tenant remained unsubstantiated by any evidence. I do not even find evidence of any neighbour to speak of the repairs and electrification- got done by the tenants to the demised premises. The entire claim of having spent almost Rs.30,000/- for the repairs and electrification as claimed in the counter by the tenant remained unsubstantiated by any evidence. Thus the Said claim of having spent amounts for repairs and electrification cannot be accepted as it is without any basis and without any evidence either oral or documentary. Section 19 of the Act deals with contingencies where the tenant undertakes repairs to the demised premises and seeks to adjust the rents. None of the ingredients of Section 19 of the Act are fulfilled in this case. In fact, admittedly as per R.W.1, the permission granted to him to undertake repairs was oral, which is contrary to Section 19 of the Act and could not have been accepted by the learned Rent Controller. 13. In fact, a similar contention was rejected by this Court in M.V.s. Prasada Rau v. K. Mangamma, 1996 (1) ALD 889 and Paras-13 and 14 which are relevant are as follows: "13. It is necessary to have a look at Section 19 of the Rent Control Act. 13. In fact, a similar contention was rejected by this Court in M.V.s. Prasada Rau v. K. Mangamma, 1996 (1) ALD 889 and Paras-13 and 14 which are relevant are as follows: "13. It is necessary to have a look at Section 19 of the Rent Control Act. "Section 19: Failure by landlord to make necessary repairs.-If a landlord fails to make necessary repairs to the building within a reasonable time after notice is given- (a) by the authorized officer in respect of a building of which the Government shall be deemed to be tenant under subsection (6) of Section 3; (b) by the tenant in respect of any other building; The authorized officer aforesaid may, in the case referred to in Clause (1), make such repairs or have them made by the allottee and deduct the cost thereof from the rent payable for the building or ask the allottee to make such a deduction from the rent payable; and the Controller may, in the case referred to in Clause (b), direct, on application by the tenant, that such repairs may be made by the tenant and that the cost thereof may be deducted by the tenant from the rent payable for the building: Provided that the cost of repairs, and the deduction thereof which the authroised officer or the Controller, as the case may be, may authorize shall not exceed in anyone year one-twelfth of the rent payable in respect of the building for that year." 14. A bare reading of Section 19 of the Act indicates that the tenant is expected to give a notice to landlord requiring him to make necessary repairs to the demised building and after waiting for a reasonable time, he has to approach the Rent Controller for necessary directions and only on the directions of the Rent Controller, the tenant may undertake the repairs and in such a case he will be entitled for deduction of the cost of the repairs which shall not exceed in anyone year one-twelfth of the rent payable. Turning to the case on hand, it is not the case of the tenant that he gave a notice to the landlady to effect any repairs or that he approached the Rent Controller for necessary directions or that he effected repairs in accordance with the directions of Rent Controller. Turning to the case on hand, it is not the case of the tenant that he gave a notice to the landlady to effect any repairs or that he approached the Rent Controller for necessary directions or that he effected repairs in accordance with the directions of Rent Controller. In any event it is mandated by the above provision that the cost of repairs shall. not exceed in anyone year one twelfth of the rent payable. That means that in anyone year, a month's rent can at the most be deducted towards cost of repairs subject to the above procedure. Evidently, appropriation of Rs.3,600/- from out of months rent by the revision petitioner/tenant is contrary to law and the same has to be held as wilful default in payment of rent" 14. Similar point with respect to claim of the tenants that they had spent extensive amounts towards repairs and electrification of building was considered by this Court in Sri Manda Kameswara Rao (died) by LRs. and others v. Sri Pulle Venkateswantlu, 2002 (5) ALD 702 and the relevant paragraphs 5 to 7 are extracted below: "5. On the ground that Exs.Al and A3 money order coupons and EX.A5 to A 7 money order receipts show that the tenant Kameswar Rao was paying rents once in two months, the Rent Controller held that the practice of the respondent is to receive rent for the building once in two months and in view of EX.A.9 it has to be taken that the electrification of the building by the tenant, Kameswar Rao was done with the consent of the respondent with the rent payable from April to September, 1991 and so the tenant Kameswar Rao cannot be said to be a wilful defaulter. The appellate authority, basing on the evidence of P.W.l that pennission was not given to the tenant, Kameswar Rao to electrify the building, is corroborated by Exs.A 10 to B 1, and keeping in view the ratio in M.V.S. Prasada Rao v. Mangamma (supra), held that non-payment of rent From April to September, 1991 by the tenant Kameswar Rao amounts to wilful default. 6. Even assuming that the respondent was in the habit of receiving rents for two months at one time, non-payment of rent for a period of six months from April to September, 1991 cannot be said to be in accordance with the said practice. 6. Even assuming that the respondent was in the habit of receiving rents for two months at one time, non-payment of rent for a period of six months from April to September, 1991 cannot be said to be in accordance with the said practice. A tenant who takes a premises, which does not have the facility of electricity and electrical fittings on lease, can get it electrified with the rent payable only with the consent of the landlord, and cannot unilaterally take a decision to have the facility of electricity and make use of the amount payable as rent to the landlord for that purpose. If a tenant feels that the premises taken on lease by him is not in accordance with his taste or requirement, he can surrender the lease and take another premises suitable to his taste on lease. But he cannot unilaterally take a decision to add amenities to the building from out of the rent payable and contend that since he spent the rent for providing amenities to the premises taken on lease by him, he is not a wilful defaulter in payment of •rent to the landlord. The Rent Control Act, which contains a provision in Section 14 enabling a tenant seeking restoration of the amenities, which are withheld by the landlord, does not empower the tenant creating a fresh amenity unilaterally, from the rent payable by him to the landlord. So a tenant who creates a facility to the premises without the consent of the landlord and fails to pay the rent to the landlord till the amount spent by him for creating the amenity is recouped cannot but be said to be a wilful defaulter in payment of rent to the landlord. 7. If a landlord fails to affect repairs to the demised premises, as per Section 19 of the Rent Control Act the tenant, after following the procedure prescribed therein can get repairs affected to the demised premises and can adjust only one month's rent in an year towards the amount spent by him for repair, and cannot deduct more than one month's rent to meet the expenses for repair. Even assuming that the provisions contained in Section 19 of the Rent Control Act can be applied to cases where a tenant creates a fresh amenity himself, the tenant Kameswar Rao deducting rents from April to September, 1991 towards expenses incurred by him for electrification of the building cannot but be said to be an act of wilful default. Therefore, I find no ground to interfere with the finding of the learned appellate authority that Kameswar Rao committed wilful default in payment of rent from April to September, 1991." 15. Thus when the defence of the tenants relating to undertaking repairs is rejected, the only circumstance that needs to be considered is the act of tenant in sending money orders and his claim that all the money orders were accepted by the landlords and as such there is no cause of action for maintaining the eviction petitions. 16. As mentioned above, the very first money order was sent by the tenant after more than two years of default. Secondly the said money order did not cover the entire arrears of rent and as such was not received. Subsequently the tenant has sent other money orders which were received by the landlords under protest. In -such circumstances, it has to be seen whether the conduct of the landlords in receiving the money orders under protest would wipe off the default committed by the tenant and whether it can be said that the said default is not wilful. In order to substantiate the said point, the learned Counsel for the tenants has relied upon a decision of the Hon'ble Supreme Court reported in Chordia Automobiles v. S. Mopsa and others, 2000 (4) ALD 49 (SC) = (2000) 3 SCC 282 , wherein it is held in Paras 8 and 9: "8. Wilful default means an act consciously or deliberately done with open defiance and intent not to pay the rent. In the present case the amount of rent defaulted firstly is on account of fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of default contained disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in terms of the Explanation to the proviso of Section 10(2). The dispute of rent admittedly was genuine. Further, notice of default contained disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in terms of the Explanation to the proviso of Section 10(2). The dispute of rent admittedly was genuine. Further, we find conduct of the appellant throughout in the past being not of a defaulter or irregular payer of rent. Thus, all these circumstances cumulatively come to only one conclusion that the appellant cannot be held to be a wilful defaulter. 9. In S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 see 591 = AIR 1985 SC 582 , this Court had occasion to consider the words 'Wilful default' under Section 10(2) of the aforesaid Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 which is reproduced below : (SCC pp.605-06, Paras 21-26) "21. Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary of Law by L.B. Curzon, at page 361 the words 'wilful' and 'wilful default' have been defined thus: 'Wilful' - deliberate conduct of a person who is a free agent, knows that he is doing and intends to do what he is doing. 'Wilful default' - Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty. 22. In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Volume 11A (permanent Edition) at page 268 the word 'default' has been defined as the nonperformance of a duty, a failure to perform a legal duty or an omission to do something required. In Volume 45 of Words and Phrases, the word 'wilful' has been very clearly defined thus: 'Wilful' - Intentional; not incidental or involuntary; - done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently; - in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary. P.296 - 'Wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary. 23. P.296 - 'Wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary. 23. In Volume III of Webster's Third New International Dictionary at page 2617, the word 'wilful' has been defined thus: governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed. 24. The word 'default' has been defined in Vol. I of Webster's Third New International Dictionary at page 590 thus: to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation. 25. In Black's Law Dictionary (Fourth Edn.), at page 1773 the word 'wilful' has been defined thus: 'Wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice. The word 'reckless' as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'. 26. Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrorn. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or other Acts referred to above. " 17. The learned Counsel for the tenants, based on the above decision, contends that nothing wilful can be attributed to the tenants, even assuming that there was a default on their part. He also claims that the tenants are old tenants and there is no such instance of default and as such on the basis of the aforesaid decision of the Hon'ble Supreme Court, the learned Rent Controller had rightly answered the said default as not being wilful default and therefore the lower Appellate Authority's order reversing the same is unjustified. He has also relied upon a decision of this Court in Omer Bin Salam Askari v. Dr. Yousuf, 1998 (2) ALD 258 = 1998 (2) AL T 486 and particularly para-14 thereof. 18. He has also relied upon a decision of this Court in Omer Bin Salam Askari v. Dr. Yousuf, 1998 (2) ALD 258 = 1998 (2) AL T 486 and particularly para-14 thereof. 18. So far as the decision of the Hon 'ble Supreme Court in Chordia Automobiles v. S. Moosa and others referred to above (supra), by the learned Counsel for the tenants is concerned, the said case arose under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Section 10(2) of the said Act is conspicuously different from A.P. Act. Explanation 1 of the Tamil Nadu Act makes all the difference in appreciating the case. The Explanation I of the Tamil Nadu Act is extracted hereunder: Explanation I: For the purpose of this subsection, default to payor tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months' notice by the landlord claiming the rent......" (Emphasis supplied) 19. Thus under the Tamil Nadu Act whenever a tenant commits default, the sanie would amount to wilful default if such default continues even after landlord gives two months' notice claiming the rents. On the facts of that case it was evident that a notice as contemplated under Explanation 1 to Section 10(2) of the Tamil Nadu Act extracted hereinabove was issued by the landlord to the tenant on 9.8.1989 stating that the rent has not been paid for the periods specified therein and before expiry of 60 days from the date of notice the tenant was served with eviction proceedings initiated by the landlord. The Hon 'ble Supreme Court has pointed out in Para 7 that even before the two months' notice period was over eviction proceedings were initiated, which was not tenable and as such it was held that it is not a case of wilful default. As stated above, since the statutory provision covered by A.P. Act to the extent of wilful default being committed, the said decision cannot be of any assistance to the learned Counsel for the tenants. 20. The aforesaid decision was considered by this Court in Kodangi Sethu Madhava Rao and others v. Chakka Prabhar Rao and another, 2001 (5) ALD 352 and it will be useful to extract paragraph-4 of the said decision which is as follows: "4. 20. The aforesaid decision was considered by this Court in Kodangi Sethu Madhava Rao and others v. Chakka Prabhar Rao and another, 2001 (5) ALD 352 and it will be useful to extract paragraph-4 of the said decision which is as follows: "4. Sri N. V. Suryanarayana Murthy, senior learned Counsel, appearing for Sri Subrahmanyam Kurel/a, learned Counsel for the petitioners, strenuously contends that mere default in payment of rent cannot entitle the landlord to recover the possession of the premises unless the landlord proves that committing default in payment of rent should be a wilful one as contemplated under the proviso to Section 10(2) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (Act XV of 1960) (for short "the Act"); that in this case, whatever may be the conduct of the first petitioner in not paying the rent for four months, the moment he received the notice from the first respondent, the 2nd petitioner sent the amount to the first respondent by money order to prove his bona fides and therefore the default in payment of rent cannot be treated as wilful one. The sheet anchor of the argument of Sri Suryanarayana Murthy is based on the decision in M/s. Chordia Automobiles v. S. Moosa, 2000 (4) ALD 49 (SC) = AIR 2000 SC 1880 , wherein their Lordships of the Supreme Court considered the effect of Section 10(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), the Explanation I of which reads: "For the purpose of this sub-section, default to payor tender rent shall be construed as 145 wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months' notice by the landlord claiming the rent..... The effect of the above explanation is that if the tenant commits default in payment of rent the landlord has to give two months' notice to the tenant with regard to the same and that if the tenant fails to pay the rent within the period of two months from the date of receipt of the notice then only the default is construed as wilful default. In the A.P. Act, such a provision is not there. In the A.P. Act, such a provision is not there. On the other hand, a Five Judge Bench of this Court, in P. Narasimha Rao v. K.R.K. Acharyulu, 1978 (1) APLJ 308 , having considered the provisions of the Act, overruled the Full Bench decision of this Court in A. Abbayi v. R. Choultry, AIR 1974 AP 139 and observed at paragraph 8 as follows: "Under Section 10(2)(1) the Controller shall make an order directing the tenant to put landlord in possession of the building if the Controller is satisfied that the tenant had not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement by the last day of the month next following that for which the rent is payable..........There is nothing in this section which enables the tenant to contend that the right is lost merely because he pays or tenders the rent due by him subsequently." Paragraph 13 of the same ,decision reads as follows: "For the reasons stated above and particularly in view of the decisions of the Supreme Court in Mangilal v. Sugen Chand, AIR 1965 SC .101 and Gajanan v. SoH Patel, AIR 1975 SC p. 2156, we are of the view that it cannot be contended that the eviction petition was not maintainable merely beeause the landlord received the rent prior to the eviction petition and on this aspect the decision in A. Abbayi v. R. Choultry (supra) and Paro Bai v. Sitharamji Bajaj, 1974 (I) APU 148, were not correctly decided." As the decision of the Five Judge Bench of this Court in P. Narasimha Rao v. K.R.K. Acharyulu (supra), is directly on the point in this case, I am bound by that decision than drawing inference from the decision of 'their Lordships of the Supreme Court in Mis. Chordia Automobiles v. S. Moosa (supra), whereunder the language of Section 10(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act was considered. Chordia Automobiles v. S. Moosa (supra), whereunder the language of Section 10(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act was considered. In fact, in this Act also, it is seen that if the tenant fails to pay the rent within 15 days after expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, the default in payment of rent has to be treated as wilful." 21. The other decision in Orner Bin Salam Askari v. Dr. Yousuf (supra), relied on by the learned Counsel for the tenants referred to above Chordia Automobiles v. S. Moosa and others (supra), is also clearly distinguished from the facts of the present case. In that case the landlord was mostly residing abroad and the tenant was not informed as to whom he has to pay the rents while the landlord remained abroad. It was also the case that the landlord never issued the receipts for the rents and in those circumstances this Court held that it was for the landlord to say and prove that the tenant was in arrears of rent. Further the case of the tenant in that case was that the rents were paid, but receipts were not issued. On the basis of the facts situation in that case, therefore the default in that case was held to be not wilful and the facts in the present case clearly show that the said decision is not applicable to the facts of the present case. 22. The 1earned Counsel for the tenants further relied upon another decision of the Hon'ble Supreme Court reported In Vidhyadhar v. Mankikrao and another, AIR 1999 SC 1441 = 1999 (2) ALD (SCSN) 17, to suggest that if a party does not enter of into a witness box and does not examine himself in support of his case, an adverse inference can be drawn against him. The proposition held under the aforesaid decision is unexceptional and undoubtedly would apply to the present case if the tenant had not admitted the default. It is well f settled that when the default is admitted, it is for the tenant to establish that the said default is not wilful. The proposition held under the aforesaid decision is unexceptional and undoubtedly would apply to the present case if the tenant had not admitted the default. It is well f settled that when the default is admitted, it is for the tenant to establish that the said default is not wilful. In this connection, reliance is placed on a decision in Fatima v. Baheerunnissa Begum, 1974 AP HN 301. Once non-payment of rent having been admitted by the tenant, the initial burden always remains with the tenant and then only on its discharge, the burden would shift to the landlord. On the facts, as discussed above, the tenant failed to discharge the said initial burden and therefore the said burden did not shift back to the landlords. As such the examination of landlord or otherwise was of no consequence whatsoever. In my view, the point of wilful default, therefore, has to be answered in favour of the landlord against the tenant. 23. The last contention of the learned Counsel for the tenants is that having paid all the arrears of rent on the first date of hearing, the cause of action for claiming wilful default does not survive and for that proposition the learned Counsel for the tenants has relied upon a decision of the Hon'ble Supreme Court reported in Dakiya v. Anjani, AIR 1995 SC 383 and also the decisions reported in K.A. Ramesh Kumar v. Susheela Bai, AIR 1998 SC 1395 = 1998 (2) ALD (SCSN) 9 and Vinukonda Venkata Ramana v. M. Venkateswara Rao, 2001 (6) ALD 27 . The aforesaid decisions laid down a proposition that where the tenant paid the entire arrears of rent before filing of the eviction petition, the ground of wilful default vanishes. 24. Per contra, the learned Counsel for the landlords relied on two decisions of this Court in Gopisetty Shankaraiah (died) by LRs. v. Ravi Co. and others, 2002 Suppl. (1) ALD 179 and Narasaiah v. P. Narasimha Reddy (died), 1995 (1) ALD 851 , which were also cited by him before the Court below. Both the aforesaid decisions held that if there is a payment of arrears of rent by the tenant after filing of the eviction petition, it cannot be said that the cause of action for seeking eviction on the ground of wilful default vanishes. Both the aforesaid decisions held that if there is a payment of arrears of rent by the tenant after filing of the eviction petition, it cannot be said that the cause of action for seeking eviction on the ground of wilful default vanishes. On the facts of this case, it is noticed that the payment of arrears of rent, even according to the tenants, was made on the date of first hearing i.e., after filing of the eviction petition and as such the decisions relied upon by the learned Counsel for the tenants are of no assistance to them. Secondly, on facts it is found that money orders of arrears of rent which were sent by the tenant were accepted by the landlord under protest which in other words does not wipe off the default nor does it amount to waiver of landlords' rights. The said third contention raised by the learned Counsel for the tenants also, therefore, fails. 25. The findings of the lower Appellate Authority are, therefore, fully justified and liable to be confined and accordingly hereby confirmed. The revision petitions are dismissed. No order as to costs. 26. However, to offset the hardship, if any, that may be caused to the tenants in vacating the petition schedule premises, I deem it appropriate to grant time to him till 31 st December, 2008 to vacate the petition schedule premises subject to following conditions: (1) That the tenants shall file an undertaking before the Rent Controller on or before 20th October, 2008 that they shall vacate the schedule premises by or before 31st December, 2008, pay the arrears of rent, if any, and shall continue to pay the monthly rents to the landlords during the period of occupation and file the receipts thereof before the Rent Controller or deposit the rents to the credit of RCC before the Rent Controller; and they shall also undertake that (a) That the tenants shall not alienate, transfer or otherwise part with the possession or create any third party interest over the schedule premises, and; (b) That the tenants shall handover peaceful and vacant possession of the schedule property to the landlord on or before 31st December, 2008; (2) That in default of fulfilling of any of the above conditions, the landlords shall be free to approach the executing Court for execution of the decrees.