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Madras High Court · body

2010 DIGILAW 2250 (MAD)

K. Balaraman v. K. Ponnurangam

2010-06-08

M.VENUGOPAL

body2010
Judgment : 1. The Revision Petitioner/Appellant/Landlord has filed this Civil Revision Petition as against the order dated 10.1.2003 in R.C.A. No.19 of 2001 passed by the learned Appellant Authority viz., Sub-Judge, Vellore. 2. The learned Appellate Authority viz., Sub-Judge, Vellore while passing order in R.C.A No. 19 of 2001 on 10.1.2003 has inter alia observed that ‘there is no room to come to the conclusion that the Respondent/Tenant has not paid the rent intentionally and has remained in arrears’ and resultantly, held that the Rent Control Petition filed by the Revision Petitioner cannot be allowed and dismissed the Rent Control Appeal without costs. 3. Being dissatisfied with the order dated 10.1.2003 in R.C.A. No.19 of 2001 passed by the learned Appellate Authority viz., Sub-Judge, Vellore, the Revision Petitioner/Landlord has projected this Civil Revision Petition before this Court. 4. According to the learned counsel for the Revision Petitioner/Landlord, the order of the learned Rent Controller dated 21.11.2001 in R.C.O.P. No.55 of 1997 and the order of the Learned Appellate Authority viz., Sub Judge, Vellore in R.C.A.No.19 of 2001 dated 10.1.2003 are contrary to law, weight of evidence and probabilities of the case and that both the authorities have failed to appreciate the fact that there is admittedly a default from 1.2.1996 to 31.10.1996 in regard to the payment of rent from February 1996 to September 1996 and instead the authorities should have held that the Respondent/Tenant has committed willful default in regard to the payment on monthly rent for the period in issue. 5. Added further, it is the contention of the learned counsel for the Revision Petitioner/Landlord that the burden of showing that the default is not willful is on the Respondent/Tenant and the Respondent/Tenant has not discharged the same, which aspect has not been taken note of by both the statutory authorities under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 6. That apart, the learned Counsel for the Revision Petitioner/Landlord submits that the authorities have committed an error in coming to the conclusion that in Ex.B1-Receipt dated 8.9.1995 and Ex.B2-Receipt dated 26.2.1996, there is lumpsum payment of rent and there is a contract to receive rent after accumulation. 7. 6. That apart, the learned Counsel for the Revision Petitioner/Landlord submits that the authorities have committed an error in coming to the conclusion that in Ex.B1-Receipt dated 8.9.1995 and Ex.B2-Receipt dated 26.2.1996, there is lumpsum payment of rent and there is a contract to receive rent after accumulation. 7. Advancing his arguments, the learned counsel for the Revision Petitioner/Landlord contends that there have been earlier proceedings between the parties for eviction and in spite of the same, the Respondent/Tenant has failed to pay the monthly rent regularly and therefore, both the authorities ought to have held that the Respondent/Tenant has committed willful default and also there is no explanation on the side of the Respondent/Tenant which can be accepted for the delay in paying the monthly rent which admitted has to be paid every succeeding months, but these crucial aspects have not been appreciated by the statutory authorities in a proper perspective, which has resulted in miscarriage of justice. 8. The learned counsel for the Revision Petitioner/Landlord in support of his contention that subsequent payment of rent by the Respondent/Tenant will not cure the default committed, cites the decision of this Court in Kesavan v. S. Vincent Pillai, 1973 TLNJ 1, wherein, it is among other things held that ‘…However much the tenant has paid the amounts subsequently, the willful default committed by him cannot be cured. In the present case the tenant has committed willful default’. 9. Herelies on the decision in Pappu Reddiar v. T.K. Murugesa Udayar, 1996 (1) MLJ 403 , wherein, it is held thus: “As per agreement entered within the year 1976, Respondent (tenant) is liable to pay Rs.75 per month as rent regularly and that the same is payable on or before the 5th of every succeeding English month. So, there is an obligation on the part of the tenant to tender the rent regularly in accordance with the contract between the parties. The tenant cannot explain the default by saying that the Petitioner’s agent used to collect the rent only in a lumpsum. When there is a contract between the parties in regard to payment of rent, unless the tenant into, any default in payment of rent can only be presumed as wilful. It is for the tenant to explain before Court that the delay in payment was not wilful or for reasons which would satisfy the conscience of the Court. When there is a contract between the parties in regard to payment of rent, unless the tenant into, any default in payment of rent can only be presumed as wilful. It is for the tenant to explain before Court that the delay in payment was not wilful or for reasons which would satisfy the conscience of the Court. The reason mentioned by the Respondent for not paying the rent in time cannot be accepted”. 10. He brings it to the notice of this Court in A.S.K. Venkatachary v. M. Meeran Saheb, 2004 (4) LW 526 , wherein, it is held that ‘Merely because the Landlord was accepting the rent paid collectively once in three or four months, it will not absolve the liability of the Tenant from paying the rent every month and that a duty is cast upon the tenant to pay the rent regularly and that the Tenant was not careful enough to pay the rent every month despite the fact that the notice was issued under Ex.A.1 that the rental amount fell due for the months of June 1985 to March 1986’. 11. He invites the attention of this Court to the decision in S. Rajam v. M/s. Raja Stores, represented by its Proprietor, S. Ravichandran, 2005 (4) MLJ 195 , wherein, it is held thus: “The conduct of the Tenant in this case clearly goes to indicate that he was never regular in payment of rents and particularly even after filing of the R.C.O.Ps. he was not regular in paying rents and such conduct is nothing but a wilful one. No doubt, the Landlords have been receiving the rents in lumpsum without any other go and it does not mean that the Landlords have given a go by to monthly tenancy argument considering the conduct of the Tenant and the Landlord, the conduct of the Landlord appears to be reasonable and the conduct of the Tenant only appears to be a wilful one in not having paid regularly rents month after month as per the monthly tenancy arrangement”. 12. 12. Besides the above, the learned counsel for the Revision Petitioner cites the following decisions: (i) InDhanraj Bai (Dhanraj B. Shah) v. N. Srinivasalu, 1997 LW 212, it is held as follows: “First of all, in the instant case no such plea was specifically taken… From his own statement, it is amply borne out that the Tenant has not pleaded any agreement to pay the rent at irregular intervals. On the other hand, what is pleaded is that the Landlord used to collect the rent as and when he needed the money. Secondly, the default was admittedly occasional because the Tenant was out of station, but not because the Landlord did not call of the Tenant. Above all, the Tenant has specifically complained that the Landlord is expecting more rent from time to time. This will clearly indicate that there is no cordiality between the parties. In such an event, it is highly unsafe to infer any agreement permitting the Tenant to pay rent once in a way. None of the citations quoted above, therefore, come to the rescue of the Tenant before me. It there is no agreement, the default as rightly found by both the Court below is nothing but wilful”. (ii) In C. Natarajan v. S. Anandammal, 1989 (1) LW 29 at 30, it is held hereunder: “The conduct of the Tenant both prior to the filing of the Eviction Petition after 1978 and after the filing of the Petition the filing of the Application under Section 11(4) of the Act, shows that the Tenant is not at all inclined to pay the rent. This is a clear case of deliberate, intentional, calculated and conscious default with full knowledge of legal consequences. Having defaulted in payment of rent for 17 months and not paying the same even after the filing of Eviction Petition and waiting for the Landlady to file an Application under Section 11(4) of the Act, certainly, the conduct of the Tenant amounts to supine indifference and there is no doubt whatever that the default is wilful. Consequently, the orders of eviction passed by the authorities below have to be upheld”. (iii) In Majestice Leatherware, represented by its Proprietor, S.M. Mahboob Basha, Chennai v Govindachetty, 1999 (3) CTC 199 : 1999 (2) MLJ 398 , it is observed as follows: “when the Second Application was filed, 13 months rent was deposited in December 1993. Consequently, the orders of eviction passed by the authorities below have to be upheld”. (iii) In Majestice Leatherware, represented by its Proprietor, S.M. Mahboob Basha, Chennai v Govindachetty, 1999 (3) CTC 199 : 1999 (2) MLJ 398 , it is observed as follows: “when the Second Application was filed, 13 months rent was deposited in December 1993. From this conduct, it is clear that the Tenant was in the habit of paying rent on due dates. By making lump sum payment, monthly tenancy is sought to be converted into yearly tenancy. The rent control act does not say that before any Eviction Petition is filed, notice is required. Only, in cases where the Court has to presume the wilful default, a notice is contemplated In other cases, the Court can enter a finding taken into consideration the conduct of the Tenant, where the default is wilful, no notice is required. The only explanation was that the Landlord attempted to enhance the rent. That has been disbelieved by the authorities below, while exercising revisional jurisdiction, the Court need only consider whether the authorities below have committed any irregularity, illegality or impropriety while passing the order”. (iv) In The Nilgiris Co-operative Marketing Society, represented by its Secretary, Mr. K. Halan having its registered office at ‘Sailing House’ at Ootacamund (Registered and incorporated under the Tamil Nadu Co-operative Societies Act) v. C.T. Uthandi, 1998 (2) MLJ 745 , it is held thus: “In this case, the rent for the period from February 1988 which is complained of in the present Petition was paid by the Tenant by way of cheque dated 05.12.1988 to his counsel on 08.12.1988 which is the date fixed in the summons for the appearance of the Tenant. Such payment of rent by the Tenant would not absolve him of the disqualification which he had suffered already”. (v) In Nagammal v. Boomi and another, 2002 (4) LW 150 , it is observed as follows: “It cannot be laid down as an universal rule that whenever the Tenant deposits the arrears of rent into Court at the first hearing of the case, the Tenant should be absolved from the term ‘wilful default’. It is, thus, clear that the Tenant has offered explanation for not paying the rent and depositing the rent only after the RCOP is filed. It is, thus, clear that the Tenant has offered explanation for not paying the rent and depositing the rent only after the RCOP is filed. Therefore, it is clear that the fact that the Tenant deposited the rent into Court at the first hearing of RCOP alone is not a valid ground for coming to a conclusion that the default in the payment of rent is not wilful. There can be no dispute that the question whether the non-payment of rent would tantamount to supine indifference on the part of the Tenant can be inferred from certain admitted facts. If the Tenant is able to give valid explanation for non payment of rent till the same is deposited into Court, then there would be no difficulty in holding that the Tenant has not committed wilful default. On Tenant’s own showing, the explanation, offered by the Tenant/RW1 cannot be accepted at all. There are no materials to show that the Petitioner/Landlady demanded enhanced rent from the Tenant. There are also no materials to show that the 1st Respondent sent the amount by Money Order to the Landlady. If really there is any truth in the case of the Tenant that he could not pay the rent since there were litigations between the Landlady and the third party regarding the title to the property, he could have filed Petition under Section 8(5) of the Rent Control Act and the Tenant could have asked the Landlady to specify the name of the Bank for depositing the rent. It is not shown that the Tenant his initiated any proceedings for paying the rent in accordance with Section 8 (2 to 5) of the Act. It has to be held that the explanation trotted out by the Tenant now is an afterthought. It is, thus, established that the explanation given by the Tenant for non payment of rent till the same is deposited into Court cannot be accepted to be true. Absolutely, there was no justification for the Tenant to withhold the rent for about ten months prior to filing the RCOP. If all the above facts are taken into consideration, it would lead to a definite inference that the non-payment of rent by the Tenant for about ten months is nothing but wilful.” (vi) In Deluxe Road Lines rep. Absolutely, there was no justification for the Tenant to withhold the rent for about ten months prior to filing the RCOP. If all the above facts are taken into consideration, it would lead to a definite inference that the non-payment of rent by the Tenant for about ten months is nothing but wilful.” (vi) In Deluxe Road Lines rep. by its Partner Kushalchand B.Shah v. P.K. Palanichetty, 1992 (1) LW 262 , it is among other things held that “….Even in cases where there was no notice calling upon the Tenant to pay the rent, the default could still be held to be wilful. An unexplained default is undoubtedly wilful. It is for the Tenant to plead and prove the circumstances under which he failed to pay the rent as required by the Statute. The obligation to pay rent is not merely contractual but also statutory.” (vii) InMohammad Rowther v S.S. Rajalinga Raja and others, 1994 (2) MLJ 509 , it is held thus: “From the deposition of the Tenant as R.W.1, it could be clearly inferred that the default was wilful. All that the Tenant deposes as explanation for the delayed payment every month is that the Landlords did not demand it and hence he did not pay. But, it is settled law that it is the duty of the Tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from the Landlord in that regard”. (viii) In M.V. Venkiduswami Pillai (died) and 10 others v. S. Swaminatha Rao, 1996 (2) LW 752 , it is held hereunder: “it is the case of the Landlord that the Tenant is in arrears from January to June, 1986. It is not the case of the Tenant that he has paid the rent regularly every month on the due date. The Tenant has not taken steps to pay the rent regularly. It is settled law that it is the duty of the Tenant to pay the rent regularly every month on the due date and that the Landlord need not chase the Tenant to get the monthly rent. Therefore, the finding of the Appellate Authority ordering eviction on the ground of wilful default in payment of rent does not suffer from any infirmity or illegality and as such, the said finding is confirmed”. Therefore, the finding of the Appellate Authority ordering eviction on the ground of wilful default in payment of rent does not suffer from any infirmity or illegality and as such, the said finding is confirmed”. (ix) In P. Rayen v. Seyed Ali Fathima, 2002 (2) MLJ 102 at 103, it is held that ‘it is not open to the Tenant now to contend that the Petitioners agent failed to receive the rent every month regularly and that therefore he has not committed any wilful default. It is held that it is the duty of the Tenant to pay the rent regularly every month on the due date and that the Landlord need not chase the Tenant to get monthly rent’. (x) In Bahadurmul Sowcar and another v. M.R. Lakshmanan and others, 2006 (3) LW 844 , it is held that ‘having committed default willfully and intentionally, fully knowing about the consequences arising thereof, a Tenant is not entitled to invoke Section 8(5) of the Act. (xi) In S. Sundararajan v. S.A. Viswanathan Chetty and another, 1997 (2) LW 567 , it is observed thus: “Tender of rent must be in accordance with contract and Section 8 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (18 of 1960), can be invoked by the Tenant only if the Landlord refused to accept the rent. When the Landlord gets a cause of action for eviction, the subsequent refusal is justified and that, the Tenant must invoke Section 8(5) before the Landlord gets cause of action and must have tendered the rent in accordance with Section 10(2)(i) of the Act and that a defaulter is not entitled to benefits of the act”. (xii) In Nagarathinam Pillai v. Mahadevier, 1969 (2) MLJ 492 , it is held as follows: “Wilful default’ implies a conscious or volitional failure to discharge obligations laid down by law on a Tenant, which also includes a supine indifference to those obligations. Naturally enough, each case will have to be judged on its merits and the case may be different where the default has occurred with regard to a single month. But where it occurs with regard to several months it is difficult to accept the argument that the default was not wilful. Naturally enough, each case will have to be judged on its merits and the case may be different where the default has occurred with regard to a single month. But where it occurs with regard to several months it is difficult to accept the argument that the default was not wilful. Neither the fact that the Tenant deposited the rent subsequently and quite early after inception of Eviction proceedings, nor the fact that the Landlord had advance rent with him is a ground for holding that the Tenant was not guilty of ‘wilful default’, There is no condonation on the part of the Landlord merely because he takes the rents deposited into Court. (xiii) In A. Mohan and 2 others v. Tmt. Kamalam Ammal and 5 others, 1999 (3) LW 539 , it is observed as follows: “Time and again, the Courts have held that it is the duty of the Tenant to pay the rent regularly, every month, as enjoined by the statute even without expecting any demand from the Landlord. The Tenants should have taken care to pay the rent every month as required by law. Having defaulted in payment of rent regularly, the conduct of the Tenants amounts to supine indifference and there cannot be any doubt that if such a default is made, the same is wilful. In the instant case, it may be a default of one month, but it shall be noticed that the Landlords have demanded the amount orally, but the amount of rents was not paid for the months of January to June. This necessitated the Landlords to issue the notice on 13.07.1987. Despite the receipt of several notices, the Tenants have not paid the rent nor any proper explanation offered before the Court”. (xiv) In E.I. Velayutham v. Hajeera, 2003 (2) MLJ 490 , it is observed that ‘once default is admitted, it is for the Tenant to prove that he has not committed wilful default’. (xv) In K.S. Pandian v. G. Rukmani Bai and three others, 2001 (1) CTC 356 , it is held that ‘Landlord accepting rent without any demur resulting in payment of arrears of rent on date of filing Petition for eviction would result in dismissal of such Petition. (xv) In K.S. Pandian v. G. Rukmani Bai and three others, 2001 (1) CTC 356 , it is held that ‘Landlord accepting rent without any demur resulting in payment of arrears of rent on date of filing Petition for eviction would result in dismissal of such Petition. Also, it is held that the Landlord’s right to pursue Petition for eviction would not be lost by Tenant depositing arrears of rent or expressing willingness to deposit arrears of rent at first hearing of Petition’. (xvi) In C.K.R. Murugan v. T.S. Arunagiri and another, 1999 (1) LW 100 , it is held hereunder: “Merely because of acceptance of rent by the Landlord, it cannot be taken as ground that there is change in the contractual terms of tenancy and that helplessness of the Landlord should not be exploited by the Tenant to his advantage and when the relationship is strained, the Tenant cannot expect the Landlord to come to his door for collecting the rent”. (xvii) In Lingambhotla Subbayya v. The Subordinate Judge, Vijayavada and another, 1964 LW 396 , it is observed that ‘in an Application for eviction made on the ground of proved default in payment of rent, the mere fact that the Landlord had not been insisting on regular monthly payments of rent, by long practice cannot be a valid defence to the Tenant. There cannot be an agreement under which rent is payable at irregular intervals in the case of monthly tenancy’. 13. To lend support to the contention that the power of the High Court is wider under the Rent Control act than Section 115 of the Civil Procedure Code, the learned counsel for the Revision Petitioner Landlord cites the decision of the Hon’ble Supreme Court in P.S. Pareed Kaka and others v. Shafee Ahmed Saheb, 2004 (2) CTC 364 wherein it is held that ‘the High Court has jurisdiction to go into the legality or correctness of the decision which, in our view, includes the power to re-appreciate evidence and that the High Court can interfere with the findings of fact also. This apart, the jurisdiction of the High Court under Section 50 is to examine the legality and correctness of the order of the Trial Court. The examination as to the correctness involves appreciation of evidence and that the High Court can interfere if the finding of the Rent Controller is entirely improbable’. 14. This apart, the jurisdiction of the High Court under Section 50 is to examine the legality and correctness of the order of the Trial Court. The examination as to the correctness involves appreciation of evidence and that the High Court can interfere if the finding of the Rent Controller is entirely improbable’. 14. In Shaw Wallance & Co. Ltd. v. Govindas Purushothamdas and another, 2001 (2) CTC 52 (SC) ; 2001 (3) SCC 445 at 446, the Hon’ble Supreme Court has observed as follows: “On a plain reading of Section 25 of the Act, it is clear that the Revisional jurisdiction vested in the High Court under the Section is wider than Section 115 of the Code of Civil Procedure. The High Court is entitled to satisfy itself as to the regularity of the proceeding, of the correctness, legality or propriety of any decision or order passed therein and if, on examination, it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass such orders accordingly”. 15. In P.K. Vijayan and others v. M/s. Kalaimagal Account Book Shop, represented by its Partner, R.M. Natarajan, 2000 (2) MLJ 495 , it is held as follows: “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 allow the Revision Petition with costs”. 16. In K.S.R. Srirangaraja and others v. Ponniah Thevar, 2000 (2) MLJ 204 , it is observed that ‘under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, this Court is entitled to interfere if a material piece of evidence is omitted to be considered and the non-consideration has materially affected the decision of the case’. 17. 16. In K.S.R. Srirangaraja and others v. Ponniah Thevar, 2000 (2) MLJ 204 , it is observed that ‘under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, this Court is entitled to interfere if a material piece of evidence is omitted to be considered and the non-consideration has materially affected the decision of the case’. 17. In response, the Learned counsel for the Respondent/Tenant submits that the Revision Petitioner/Landlord used to collect the rent as and when he liked which was paid by the Respondent/Tenant and that the Revision Petitioner/Landlord has not come to collect the rent from February 1996 till August 1996 and that the Respondent/Tenant sent the rent for the period from February 1996 till July 1996 payable in August with a letter by Registered Post enclosing a Demand Draft and that the Revision Petitioner/Landlord have refused to receive the same and that the Respondent/Tenant issued a registered notice in September 1996 calling on the Revision Petitioner/Landlord to nominate a Bank in which the rent can be remitted and that the Revision Petitioner/Landlord after receiving the notice has not sent any reply and thereafter, the Respondent/Tenant issued a subsequent notice dated 28.10.1996 for which, the Revision Petitioner Landlord sent a reply containing false allegations and that the money order sent by the Respondent/Tenant has been returned by the Revision Petition/Landlord. 18. Further, itis the case of the Respondent/Tenant that he filed R.C.O.P. No.110 of 1996 as per Section 8(4) and (5) of the Act before the learned Rent Controller, Vellore for deposing the rent and when the Revision Petitioner/Landlord entered appearance through his Advocate and when the rent was tendered by giving notice of lodgment schedule, the same has been refused to be accepted by the Revision Petitioner/Landlord and on the first hearing date, the Respondent/Tenant tendered the rent amount before the learned Rent Controller, which has not been accepted and after noting the fact that the Revision Petitioner/Landlord has not accepted the entire amount, the learned Rent Controller issued the challan in R.C.O.P. No.110 of 1996 for depositing the rent and that the Respondent/Tenant continues to deposit the rent for the subsequent period after giving notice and therefore, it is not correct to state that the Respondent/Tenant has failed to pay the monthly rent and has committed default. 19. 19. Proceeding further, the Learned counsel for the Respondent/Tenant submits that both the authorities have come to the conclusion that the Respondent/Tenant has taken all endeavours to pay arrears of rent and further that after filing of R.C.O.P. No.110 of 1996 by the Respondent/Tenant, the Revision Petitioner/Landlord has filed R.C.O.P. No.55 of 1997 on the file of the learned Rent Controller, Vellore, and consequently, dismissed R.C.O.P No.55 of 1997 on merits and therefore, the same need not be interfered with by this Court sitting in Revision. 20. The learned counsel for the Respondent/Tenant relies on the decision of the Hon’ble Supreme Court in J.J. Lal Pvt. Ltd. and others v. M.R. Murali and another, 2002 (1) CTC 487 (SC) : 2002 (3) SCC 98 , wherein, it is held that ‘Course of conduct prevailing between the parties for collecting rent is one of the relevant factors. On facts, it is held that non-payment of rent for one or two months did not amount to wilfil default’. 21. She also cites the Hon’ble Supreme Court’s decision in C. Chandramohan v. Sengottaiyan (Dead) by L.Rs. and others, 2000 (1) CTC 239 (SC) : 2000 (1) SCC 451 , wherein, it is observed that ‘On facts, on the date of filing of Eviction Petition cause of action on ground of wilful default in payment of rent did not subsist and that the High Court in Revision rightly found that Respondent tenants did not commit wilful default in payment of rent and rightly set aside the orders of eviction’. 22. In Chordia Automobiles v. S. Moosa and others, 2000 (1) CTC 742 (SC) : 2000 (3) SCC 282 at 284, the Hon’ble Supreme Court has among other things held as follows: “…Wilful default means an act consciously or deliberately done with open defence and intent not to pay the rent. In the present case the amount of rent defaulted firstly is on account of the fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of default contained the 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 the 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, the conduct of the appellant throughout in the past was 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. Further, it is also observed that --- “All the three Courts below committed error in law in holding the Tenant to be a wilful/defaulter. Even if he was it in default it is not a case of wilful default”. 23. InRaja Muthukone (Dead) by L.Rs. v. T. Gopalasami and another, 2002 (4) SCC 204 at 205, it is observed as follows: “According to the provisions of Section 10(2)(i) and Explanation of the T.N. Buildings (lease and Rent Control) Act, 1960, once the Landlord gave notice to the Tenant claiming the rent in arrears, he should have waited for a period of two months from the date of service of notice and it is only on non-payment or non-tender of rent within the period of two months that the Landlord could have initiated the proceedings for eviction on the ground of wilful default and then it would have been for the Tenant to satisfy the Rent Controller that in spite of non-payment of rent for a period of two months from the date of service of notice, he was not a defaulter for some reason. In the present case, there is an additional fact that before the initiation of the proceedings for eviction, the factum of the Tenant having deposited the rent in the Court, though in the proceedings which had stood terminated was brought to the notice of the Landlord and the Landlord having initiated the proceedings for eviction withdrew the amount of rent and on the date when he sought for withdrawal, a period of two months from the date of notice had not expired. In such circumstances, in view of the law laid down in the case of S. Sundaram Pillai the Tenant cannot be held to be a wilful defaulter”. 24. In such circumstances, in view of the law laid down in the case of S. Sundaram Pillai the Tenant cannot be held to be a wilful defaulter”. 24. At this stage, it is useful for this Court to refer to the evidence of P.W.1 and R.W.1 which assume significance in the present case. 25. It is the evidence of PW.1 (Revision Petitioner Landlord) that initially, the Petition mentioned building has been owned by his father and he used to collect rent. Later his mother used to collect rent. After both of them expired, the Revision Petitioner is collecting the rent and that the Respondent is the Tenant who used to pay rent to him and that the Respondent is doing the job of book binding and that the monthly rent for the Petition mentioned building is Rs.400/- and that the Respondent in respect of the shop has not paid the rent every month regularly and therefore, he has committed wilful default deliberately. 26. It is the further evidence of P.W.1 (Revision Petitioner/Landlord) that the Respondent/Tenant has committed default in payment of monthly rent for 9 months from 1.2.1996 to 31.10.1996 amounting to Rs.3,600/- and during the period, he has demanded the rent every month after approaching the Respondent/Tenant and in spite of the same, the Respondent/Tenant has not paid the rent and near Petition mentioned shop, his godown is situated. 27. Further, the evidence of P.W.1 (Revision Petitioner/Landlord) is to the effect that the Respondent/Tenant has sent a Demand Draft for the rent due for the period from February 1996 to July 1996 and since the Respondent/Tenant has not paid the rent every month he refused to receive the same and thereafter, the Respondent/Tenant filed R.C.O.P. No.110 of 1996 against him for depositing the rent into Court and the said R.C.O.P. No. 110 of 1996 has been closed on 15.10.1998 with an endorsement by both the parties that the amount has been received without prejudice to the rights of the Revision Petitioner/Landlord in R.C.O.P. No.55 of 1997. 28. P.W.1 (Revision Petitioner/Landlord) in his cross-examination has specifically stated that Exs.B1 and B2 are the rent receipts dated 8.9.95 and 26.2.1996 respectively and that he has informed the Respondent/Tenant orally that the rent need not be paid in accumulation but the Respondent/Tenant used to pay the monthly rent in lumpsum. 29. 28. P.W.1 (Revision Petitioner/Landlord) in his cross-examination has specifically stated that Exs.B1 and B2 are the rent receipts dated 8.9.95 and 26.2.1996 respectively and that he has informed the Respondent/Tenant orally that the rent need not be paid in accumulation but the Respondent/Tenant used to pay the monthly rent in lumpsum. 29. Added further, P.W.1 (Revision Petitioner/Landlord) has also deposed that after 1.2.1996 till the date of draft being written, he has not issued any notice demanding the rental arrears and that the Respondent/Tenant has sending 7 months rent through draft which has not been received by him and that he and his mother during the year 1978 filed R.C.O.P. No.119 of 1978 for evidence the Respondent/Tenant from the Petition mentioned building, but he does not know whether the same has been dismissed. 30. R.W.1 (Respondent/Tenant in his evidence has stated that initially in the Petition mentioned building, his father has been doing the job of book binding for 35 years and now he is doing the book binding job and that he and his father have been doing the book binding job and after his father’s death, he is running book binding job in the petition mentioned building and he is currently paying the monthly rent of Rs.400/-. 31. R.W.1 (Respondent/Tenant) in his evidence has further deposed that the Revision Petitioner/Landlord has sent a reply to his notice and after receipt of the reply from the Revision Petitioner/Landlord, he has filed R.C.O.P. No.110 of 1996 before the learned Rent Controller, Vellore and that the Revision Petitioner/Landlord has refused to receive the entire amount during the first hearing of the case, which has been recorded by the learned Rent Controller and later, he has been depositing the rent before the learned Rent Controller and that presently, the Revision Petitioner/Landlord is receiving the amount and it is in correct to state that he has not paid for February 1996 to October 1996 amounting to Rs.3,600/- intentionally). 32. 32. R.W.1 (Respondent/Tenant) in his chief-examination categorically stated that the Revision Petitioner/Landlord used to receive the rent from him once in 4 or 5 months and from December 1994 till August 1995, the Revision Petitioner/Landlord has given receipt which is Ex.B1 and receipt for the period from September 1994 to January 1995 is Ex.B2 and that Ex.B3 is the draft sent in the Registered cover (which has been returned) and that he has changed the returned cover after opening the same and later, he has issued lawyer’s notice, Ex.B4. 33. R.W.1 (Respondent/Tenant) in his cross-examination has stated that he used to pay the rent once in 4 months to the Revision Petitioner/Landlord and to pay likewise. There is no agreement between his and the Revision Petitioner/Landlord and from the beginning, he used to pay the rent in lumpsum and as per Ex.B1, he has paid 9 months rent and as per Ex.B2, he has paid 5 months rent and that the Revision Petitioner/Landlord has filed the Petition on 8.11.1996 before the Learned Rent Controller stating that he has not paid 9 months rent for the period from 1.2.1996 to 31.10.1996. 34. InEx.A3 lawyer’s notice dated 14.9.96 issued on behalf of the Respondent/Tenant addressed to the Revision Petitioner/Landlord, it is among other things mentioned that the original rent of Rs.100/-was collected by the Revision Petitioner/Landlord’s mother till her death about 4 or 5 months and gradually, increased to Rs.400/- and that the Revision Petitioner was in the habit of collecting it in accordance with his convenience and from February 1996 till March 1996 and for the subsequent months Revision Petitioner/Landlord had not come for collection and the Respondent/Tenant himself to avoid accumulation has sent a crossed Demand Draft and that the Revision Petitioner/Landlord has refused to receive the rent sent by Demand Draft in a registered cover dated 28.8.1996 and further, the Revision Petitioner/Landlord has been called upon to collect the Demand Draft from the Respondent/Tenant or to nominate the Bank number in which the rent amount could be deposited by the Respondent/Tenant, etc. 35. 35. In Ex.A4, Revision Petitioner/Landlord’s Lawyer’s notice dated 8.11.1996 addressed to the Respondent’s lawyer, it is mentioned that the Respondent/Tenant is a chronic defaulter and he never used to pay the rent regularly and that he has not been paid the rent due for the period from 1.2.1996 to 31.10.1996 for 9 months amounting to Rs.3,600/- in spite of demand and request. Further, in Ex.A4, reply notice, the allegations that the Revision Petitioner has to collect the rent from February 1996 out of the ulterior motive and that the Respondent/Tenant has sent a sum of Rs.2,400/- being 6 months rent in July 1996 and again sent in August 1996, but the same refused to be received by the Revision Petitioner/Landlord, etc. are mentioned as incorrect and have not been admitted. 36. A perusal of Ex.B1-Receipt dated 8.9.1995 in Tamil signed by the Revisions Petitioners/Landlord, indicates that the Revision Petitioner/Landlord has received 9 months rent from December 1994 till August 1995 amounting to Rs.3,600/- from the Respondent/Tenant. 37. A scrutiny of Ex.B2 receipt dated 26.2.1996 signed by the Revision Petitioner/Landlord also goes to show that the Revision Petitioner/Landlord has received a sum of Rs.2,000/- being 5 months rent from September 1995 to January 1996 from the Respondent/Tenant. 38. It is to be noted that if any date is fixed in regard to the payment monthly rent, the Tenant is bound to pay the rent within 15 days thereafter, as per decision Venugopal v. Dayal Prasad, 1970 (1) MLJ 60 , 61. 39. If there is no condition to pay the rent before the fixed date and when the Tenant pays the rent by the last date of succeeding month, the Landlord cannot file a Petition earlier than that the day, as per decision Kandaswamy Pather v. Meenakshi Bai and another, 1996 TLNJ 398. 40. It is the basic duty of the Tenant to pay the monthly rent regularly as prescribed, under the statute without expecting any demand from the Landlord in this regard. 41. In Lakshmi Bai v. Gita Bai natwarlal and another, 1987 TLNJ 125 at 130, wherein, it is held that ‘while ordering eviction on the ground of wilful default the totality and cumulative effect of all the circumstances should be taken into account and not any particular feature in isolation, to decide whether the default is wilful or mere default’. 42. In Lakshmi Bai v. Gita Bai natwarlal and another, 1987 TLNJ 125 at 130, wherein, it is held that ‘while ordering eviction on the ground of wilful default the totality and cumulative effect of all the circumstances should be taken into account and not any particular feature in isolation, to decide whether the default is wilful or mere default’. 42. One cannot ignore a vital fact that Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is to be read along with Section 10 of the Act. More over, sub-section (2) of Section 8 requires where a Landlord refuses to issue receipts or evades receipts that can issue notice giving 10 days time for the Landlord to notify a bank with account number, etc. 43. If a Landlord refuses to receive the rent, the Tenant is bound to deposit the rent in any bank or before the learned Rent Controller. If the Tenant has not remitted the rent even after knowing the consequences of non-payment then the default committed by him will be taken to be wilful as per decision K. Jose and others v. Ramathal, 1980 (1) RCJ 418 at 419. 44. It is well settled principle of law that whether the default is wilful or not is a mixed question of fact and law. In terms of Section 10(2)(i) of the Act, the rent will have to be paid as and when it becomes dues. Even in a case, where the Landlord refuses to receive the rent remitted by the Tenant by money order, the obligation of the Tenant to deposit the rent as and when it becomes due continues. 45. Also, when the Tenant approaches the learned Rent Controller and projects a Petition under Section 8(5) of the Act, it is the duty of the Tenant to see to it that the rent does not fall in arrears. 46. The aspect of deposit of arrears of rent during the course of first hearing of the case will amount to wilful default or not will depend on the facts of each case. When the Tenant states that the Landlord has refused to receive the rent, he must take steps to deposit the into Court by following the procedure mentioned under Section 8 of the Act. Failure to adopt such procedure is fatal. 47. When the Tenant states that the Landlord has refused to receive the rent, he must take steps to deposit the into Court by following the procedure mentioned under Section 8 of the Act. Failure to adopt such procedure is fatal. 47. This Court worth recalls the decision of this Court in Abdul Hameed v. M. Sultan Abdul Kader, 1996 (2) LW 525 , wherein, it is held as follows: “The Appellate Authority failed to appreciate the peculiar circumstances of this case and the conduct of the Landlord in receiving the rent in lump sum for four months or six months. Though in the present case, the default was 12 months, immediately on the filing of the Petition, the entire arrears have been paid. The Trial Court exercised its discretion correctly and came to the conclusion that the non-payment of rent was only due to the practice, which existed between the Landlord and the tenant. The Petitioner-Tenant was not given to understand at any time either overtly or covertly that the Respondent-Landlord is going to utilize this situation as a ruse to get eviction. The petitioner deposited the entire arrears even at the first instance without the Trial Court granting any reasonable time. This important fact was not taken note of by the Appellate Authority. The order of the Appellate Authority, which is impugned in this Revision, is, therefore, liable to be set aside and the eviction ordered cannot, thereof, stand”. 48. Also, this Court aptly points out the decision of the Hon’ble Supreme Court in V. Krishna Mudaliar v. Lakshmi ammal, 1995 (2) CTC 540, wherein, it is observed that ‘since the Petitioner/Tenant has deposited the rent immediately on filing of the Eviction Petition by the Landlord, there cannot be any wilful default on the part of the Tenant.’ 49. As far as the present case is concerned, it is quite evident that the conduct of the Revision Petitioner/Landlord is to receive the rent in lumpsum for 9 months (for the period from December 1994 to August 1995) amounting to Rs.3,600/- as evidenced by Ex.B1-Receipt dated 8.9.95 from the Respondent/Tenant. Also, from Ex.B2 receipt dated 26.2.1996, it is clear that the Revision Petitioner/Landlord has received the rent for the period from September 1995 till January 1996 (for the period of 5 months) amounting to Rs.2,000/- in one lumpsum from the Respondent/Tenant. 50. Also, from Ex.B2 receipt dated 26.2.1996, it is clear that the Revision Petitioner/Landlord has received the rent for the period from September 1995 till January 1996 (for the period of 5 months) amounting to Rs.2,000/- in one lumpsum from the Respondent/Tenant. 50. It is the evidence of P.W.1/Landlord in his chief-examination that the Respondent/Tenant has sent the rent amount for the period from February 1996 to July 1996 through Demand Draft, but he has refused to receive the same because the Respondent/Tenant has not paid the rent every month. In cross-examination, it is the evidence of P.W.1 that after issuance of Ex.B6-notice, he has refused to receive the sum of Rs.3,600/- sent by money order. In Ex.B6-notice, the Respondent/Tenant’s lawyer has informed the Revision petitioner/Landlord that he has failed to collect February 1996 out of ulterior motive and that the draft of Rs.2,400/- representing 6 months’ rent due is July 1996 sent in August 1996 has been refused to be received. 51. However, the evidence of R.W.1 (Tenant) is to the effect that the Revision Petitioner used to receive the rent once in four or five months from him and the Revision Petitioner has issued Exs.B1 and B2-Receipts to prove the same and also that he has sent a draft through registered post. Ex.B3 for the arrears of rent for the period from February 1996 to August 1996 and the same has been returned. 52. The evidence of R.W.1 is also to the effect that he has filed R.C.O.P. No.110 of 1996 before the learned Rent Controller to deposit the rent into Court and during the first hearing case, the Revision Petitioner/Landlord has refused to receive the entire arrears amount and the Revision Petitioner/Landlord’s refusal to receive the same has been recorded by the learned Rent Controller. 53. Be that as it may, on a careful consideration of the respective contentions and taking note of the attendant facts and circumstances of the case, in an integral fashion and bearing in mind a very vital fact that the conduct of the Revision petitioner/Landlord is to receive the rent in lumpsum as evidenced by Exs.B1 and B2 receipts and that apart, the Respondent/Tenant has sent the rent for the period from February 1996 to July 1996 payable in August with a letter by registered post enclosing a Demand Draft, etc. and later when the Respondent/Tenant filed R.C.O.P. No.110 of 1996, wherein, the refusal of the Revision Petitioner/Landlord to receive the entire arrears of rent on the first hearing of the Petition has been recorded by the learned Rent Controller and subsequently, the same has been deposited into Court, etc. this Court comes to an inevitable conclusion that the Respondents/Tenant has not committed any deliberate or calculated wilful default in regard to the payment of monthly rent and suffice it for this Court to point out that in the instant case, there is no default much less wilful default and viewed in that perspective, this Civil Revision Petition fails. 54. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Consequently, the order passed by the learned Appellate Authority viz., Sub-Judge, Vellore in R.C.A. No.19 of 2001 dated 10.1.2003 and that the order passed by the learned Rent Controller, Vellore dated 21.11.2001 in R.C.O.P. No. 55 of 1997 are affirmed by this Court for the reasons assigned in this Revision.