Judgment : Inveighing the order dated 27. 2009 passed by the Rent Control-Appellate Authority (VIII Small Causes Court) Chennai,. in R.C.A.No.579 of 2007 confirming the order dated 16. 2007 passed by the XII judge, Court of Small Cause, Chennai, in R.C.O.P.No.252 of 2007, this civil revision petition is focussed by the tenant. 2. Broadly but briefly, narratively but precisely the relevant facts absolutely necessary and germance for the disposal of this revision petition would run thus: (a) Therespondent/landlady filed the R.C.O.P.No.252 of 2007 invoking Sections 10(2)(i) and 10(2) (vi) of the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the ‘Act’ for short) seeking eviction on the following grounds: (i) ‘Wilful default’ in paying the rents by the tenant; (ii) the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause. (b) Thematter was contested by the tenant. (c) Ultimately, the Rent Controller ordered eviction on the ground of ‘wilful default’ in paying the rent by the tenant. (d) As against the said order, the tenant preferred appeal in R.C.A.No.579 of 2007 for nothing but to be dismissed by the appellate authority. (e) Being aggrieved by and dissatisfied with the orders of the Courts below, this revision has been filed on various grounds. 3. Placing reliance on the grounds of revision, the learned counsel for the revision petitioner/tenant would develop his arguments, which could tersely and briefly be set out thus: (i) The certificate of postings relied on by the tenant by no stretch of imagination could be ignored by any Court for the reason that legal presumption is available as to the genuineness of such document. (ii) Even though the landlady contended that prelitigation notice as well as telegram was sent by her to the tenant, absolutely there is no evidence in that regard. There is only a vague reference in the averments in the RCOP about the despatch of the letter and telegram. (iii) It is an admitted fact that once in two months rents were paid by the tenant to the landlady and incommensurate with that alone, every two months cheques were issued, but those cheques were not returned by the landlady, which would indicate that the landlady deliberately wanted to raise her accusative finger as against the tenant as though he was a ‘wilful defaulter’. Accordingly, the learned counsel for the tenant would pray for setting aside the orders of the Courts below and for dismissing the RCOP. 4. By way of torpedoing and pulverising the arguments as put forth on the side of the revision petitioner/tenant, the learned senior counsel for the respondent/landlady would develop his arguments, the gist and kernel of them would run thus: (i) Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act is very clear that if there is any difficulty in paying the rent by the tenant to the landlady, it is open for the tenant to adhere to the said Section 8 of the Act. But in this case, peculiarly cheques were allegedly sent not even by Registered Posts but under the alleged certificates of posting. (ii) It is the bounden duty of the tenant to see that the rents are paid periodically without any default irrespective of the fact whether the landlady demanded for it or not. But in this case, the Courts below correctly alalysed the facts and held that the tenant failed to discharge her duty in paying the rents periodically and as such, he committed ‘wilful default’ in paying the rents, warranting no interference by this Court in revision. Accordingly, the learned senior counsel for the landlady would submit that absolutely there was nothing wrong in the orders passed by the Courts below and as such, he prays for dismissing the CRP. 5. The point for consideration is to whether the Courts below were justified in holding that the tenant committed ‘wilful default’ in paying the rents? 6. Heard both sides. 7. Relatingto the concept ‘wilful default’, at the outset itself, I would like to formulate an Universal logical proposition as under: All cases of non-payment of rent are not cases of willful default. Once a tenant is shown as defaulter in paying rent, he cannot be la-belled as a person, who committed wilful default. In order to constitute ‘wilful default’, the following elements should be there, as found delineated in the decisions of the Honourable Apex Court in Chordia Automobiles v. S. Moosa and Others AIR 2000 SC 1880 : (2000) 3 SCC 282 : (2000) 2 MLJ 108 at p. 111 of MLJ “8. In order to constitute ‘wilful default’, the following elements should be there, as found delineated in the decisions of the Honourable Apex Court in Chordia Automobiles v. S. Moosa and Others AIR 2000 SC 1880 : (2000) 3 SCC 282 : (2000) 2 MLJ 108 at p. 111 of MLJ “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 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, we find the 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. Sundaran Pillai v. V.r. Pattabiraman this Court had occasion to consider the word ‘wilful default’ under Section 10(2) of the aforesaid Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 which is reproduced below: “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 p. 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, ‘wildul default’ would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Vol 11-A (Permanent Edition) at p. 268 the word ‘default’ has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. 22. In other words, ‘wildul default’ would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Vol 11-A (Permanent Edition) at p. 268 the word ‘default’ has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Vol.45, of Words and Phrases, the word ‘wilful’ has been very clearly defined thus: ‘wilfil’ – 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. In Vol.III of WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at p.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.1 of WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at p.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 p.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 therefrom. 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 by other Acts referred to above.” 8. A mere poring over and perusal of those decisions would exemplify and demonstrate, display and convey that mere default in payment of rent would not constitute ‘wilful default’. To constitute ‘wilful default’, the mental element of wilfulness is absolutely necessary. 9. At this juncture, I call up and recollect the following maxim: “Acta exteriora indicant interiora secreta-External acts indicate undisclosed thoughts” 10. Here it has to be seen as to what are all the objective facts which would enable the Court to come to the conclusion that there was ‘wilful default’. 11. The tenant has come forward with the clear case that after sensing that there might be some problem in receiving rent by the landlady, he did choose to send the rent by way of cheque bimonthly, incommensurate with the admitted practice of paying rent once in two months and it is evidenced by the certificate of postings. Absolutely, there was no response from the landlady and those cheques were also not returned or encashed. 12. Whereas, the learned senior counsel on the side of the landlady would argue that the certificates of posting are cooked up ones and no importance can be attached to them. 13. At this juncture, I would like to recollect and call up Section 114 illustration (e) and (g) of the Indian Evidence Act, which is extracted hereunder: “Section 114………. (e) That judicial and official acts have been regularly performed; …… .(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.” .14. Ex facie and prima facie, Exhibits R-4 to R-6 are the certificates of posting bearing the postal seal. In such a case, the cited presumption ex facie and prima facie is attracted in respect of those documents. If at all the landlady had any doubt about such postal seals then it was for her to summon the postal official in order to expose the alleged malpractice or fraud perpetrated by the tenant. Half heartedly taking of a plea that the certificates of posting were fabricated ones would not fob off the burden of proof from the landlady to the tenant. 15. The landlady, who affirmed that such certificate of postings are fabricated ones, ought to have taken steps to prove her plea, but for the reasons best known to her, she had not taken any steps. 15. The landlady, who affirmed that such certificate of postings are fabricated ones, ought to have taken steps to prove her plea, but for the reasons best known to her, she had not taken any steps. In such a case, there is ex facie evidence to show that such cheques were sent periodically by the tenant to the landlady. 16. The lower Courts below misdirected themselves to a reasoning of their own that the tenant was not justified in sending rents once in two months forgetting for a moment that it was an admitted fact that ins tenant was in the habit of paying the rent once in two months and the landlady also accepted it. 17. The ratiocination adhered to by the appellate Court that the bank statement was not verified, once again fails to carry conviction with this Court. The landlady who was in receipt of such cheques should have either returned or encashed them. Even assuming the worst case that no such cheques at all were sent by the tenant to the landlady, then it is not known as to what prevented the landlady, for such a long time, from sending the notice demanding rent even though such demand of rent may not be mandatory on the part of the landlady, as per law. 18. Here it is apeculiar case in which the landlady in paragraph Nos.4 and 5 of the RCOP would contend that a pre-litigation notice and a telegram were sent, but no copies of the same were filed. Even in the deposition P.W.1 there was no delineation or detailing about such notice as well as the telegram. 19. Taking into consideration the overall circumstances, I am of the view that ‘wilful default’ in payment of rent cannot be presumed as against the tenant. 20. No doubt, the law is well settled that whenever the landlady refuses to receive the rent, the tenant without wasting much time should resort to Section 8(3) of the Act. But, in this case, that was not done so. Straightaway the tenant did choose to send the rent under certificates of posting. No doubt, the tenant also should have taken pains to verify from her bank account as to whether the landlady encashed the cheques or not. But, in this case, that was not done so. Straightaway the tenant did choose to send the rent under certificates of posting. No doubt, the tenant also should have taken pains to verify from her bank account as to whether the landlady encashed the cheques or not. Simply because the landlady is capable of picking holes in the conduct of the tenant, she cannot fasten the tenant with the liability that she committed ‘wilful default’ in paying rent. 21. When there are faults on the side of the landlady as well as the tenant on various aspects, taking into account the object of the Act, the benefit should be given in favour of the tenant and accordingly, if viewed, the concept ‘wilful default’ cannot be pressed into service as against the tenant simply because there is statutory non-compliance with Section 8 of the Act on the part of the tenant in the peculiar facts and circumstances of this case. .22. The learned senior counsel inviting the attention of this Court to the facts that pendente lite there .were delays in payment of rents, would develop his argument that this Court considering all those aspects could hold that the tenant committed ‘wilful default’. 23. I would like to highlight and spotlight the fact that before the landlady could press into service the pendente lite default on the part of the tenant in paying rent, she should establish that as on the date of filing of the RCOP there was ‘wilfu default’ in paying rent. If at all such fact has been established in a particular case, the question of additionally holding that there has been ‘wilful default’, pendente lite, in paying rents by the tenant to the landlady would arise. But in this case, as has already been highlighted by me supra, there is no clear evidence on the side of the landlady that there was ‘wilful default’ on the side of the tenant in paying the rent as on the date of filing of the RCOP. Hence, I am of the considered view that the Courts below were not justified in holding that the tenant committed ‘wilful default’ in paying the rent even as on the date of filing of the RCOP and on that aspect the findings of the Courts below have to be set aside and accordingly, they are set aside. Hence, I am of the considered view that the Courts below were not justified in holding that the tenant committed ‘wilful default’ in paying the rent even as on the date of filing of the RCOP and on that aspect the findings of the Courts below have to be set aside and accordingly, they are set aside. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed. Petition allowed.