D.C. Oswal v. V.K. Subbiah and Ors.

RANGANATH MISRA, CJ. Special leave granted. Appellant is the tenant of a premises located in Sivakasi within the State of Tamil Nadu to which the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act apply. The rental of the premises is Rs. 275 per month. Respondents initiated action for eviction on the plea that there was "wilful default" in the matter of payment of rent and change of user. It was contended that the lease was residential but it had been used partly for commercial activity. The appellant took the stand that rent was not being collected every month since the respondents resided away from the place where the prop­ erty is situated and every two to three months they used to come and collect rent at landlord's convenience. Two receipts were produ~ed to support this stand. Rent was collected in one case for three months and in the other for two months at a time. Admittedly at the .time of filing of the petition for eviction three months' rent had fallen due. So far as the OSWAL v. SUBBIAH [MISRA, CJ.] 205 change of user was concerned it was denied by pleading that mixed use A was the baSis of the tenancy. The I Qriginal authority dismissed the petition but that has been re­ versed in1appeal and the reversal has been upheld by the High Court. Two contentions were raised before us: (i) there is no case of wilful default particularly when the two receipts showed acceptance of rent for B periods as pleaded by the tenant without demur and (ii) that the premises bad been rented out also for business use and at any rate admittedly from 1973 there has been this change. Counsel for the respondents does not dispute that from 1973 there bas been change of use. The petition for eviction is of 1980. It follows C that for seven years no objection was raised for change of use and for the first time when eviction was sought, conversion was made the second ground. In these circumstances, we are prepared to accept the submission advanced on behalfofthe appellant that the landlords accepted the user to be also other than residential. Both par:ties relied upon a decision of this Court in the case of S. Sundaram Pillai & Ors. etc. v. V.R. Pattabiraman & Ors. etc.; [1985] I sec 591, where default and 'wilful' default were distinctly treated. In the several statutes operating in the different States regulating the law relating to landlord and tenant 'wilful' default bas been made the ground of evic- tion while default is not. We may also refer to a short but suggestive E Order dated March 27, 1991, of this court in Civil Appeal no. 1367 of 1991 [Premchand Banka v. A'. Vasanthrai Khatod & Ors.] to support our conclusion. A situation where the landlord bad consented to collect rent · for two to three months at a time non-payment of rent for three months cannot constitute wilful default. Since in the present case default was of three months at time of filing of ihe case, we are prepared on the basis of p the evidence on record that it was not a case for wilful default. Accord­ ingly the conclusion reached in appeal and upheld by the High Court would not be sustainable. We allow the appeal and reverse the Judgment of the High Court and dismiss the petition for eviction. We would, however, like to.add that judicial notice can be taken of the fact that rental has escalated every­ where and appropriate rent in the present case should be raised to Rs. 400 per month from 1.1.1992. The tenant should have a direction to pay the rent in advance from month to month as stated by him in the Court below and it should be by the end of every month. There will be no order as to costs. V.P.R. Appeal allowed.