# S. SUNDARAM PILLAI, ETC v. V.R. PATTABIRAMAN ETC - **Citation:** [1985] 2 S.C.R. 643 - **Court:** Supreme Court of India - **Decided:** 1985-01-24 - **Case number:** Civil Appeals Nos. 1178 of 1984 - **Bench:** S. MuRTAZA FAZAL Au, A. Varadarajan, SABYASACHI MuKHARJI - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-sundaram-pillai-etc-v-v-r-pattabiraman-etc-8960 - **Pages:** 43 ## Headnote 643 Re1il Control-Tamil Nadu Buildif!CS (Lease and Rent Control) Act 1960, sec. 10(2J(i)-Proviso anJ Explanation-Scope of-Wilful default-Mean· A B c -~ D Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960(for short, the Tamil Nadu Act) deals with the eviction of tenants and postulates that a tenant shaJI not be evicted whether in acquisition of a decree or otherwise except in accordance with the provisions of s.10 or ss. 14-16. Section 10(2)(i) of the Tamil Nadu Act provides for the eviction of a tenant on the ground of non-payment of rent. It lays· down that where the Controller is E satisfied that the tenant has not paid or tendered the rent within 15 days after the expiry of the time fixed in the Agreement of tenancy or in the absence of any such Agreement, by the last date of the month next following that for which the rent is payable, he (tenant) undoubtedly commits a default lhe proviso to sub·s.2 provides that in any case fa!Iing in clause (i), if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything contained in s.IJ, give the tenant a reasonable time, F not exceeding 15 days to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender the application shall be rejected. The Explanation which was added by Act 23 of 1973 to the said proviso stipulates that for the purpose cf sub-s.2 of s IO, default to pay or 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. G In Civil Appeals Nos. 1178 of 1984, 1992 of 1982, 2246 of 1982 and 1659 of 1982, the respondents·landlords issued notices to the appeilants-tenants demanding the amount of rent in arrears and thereafter filed eviction petttions against the appellants.tenants, inter alia, on the ground of 14Wilful default". All the appellants-tenants complied with the notices issued by their respective \~ndlords except the appellant-tenant in Civil Appeal No. 1659 of 1982 where he made part payment only. However in Civil Appeal 3668 of 1982 and 4012 of 1982 the respondents-landlords had filed eviction petitions against the appellantstenants without issuing such notices before filing of eviction petitions. In all the H A B c D E F 644 SUPREME COURT REPORTS [1985) 2 S.C.R. appeals, the Madras High Court passed and/or confirmed, as the case may be, the orders of eviction holding that the ground cf \,"iJful' default mentioned in section 10(2)(i) had been proved against the tenants. Hence these appeals by special leave. The common question of Jaw involved in these appeals was as to what is the interpretation of the term "wilful default" in the Explanation to the Proviso of sub-s.2 of s. 10 of the Tamil Nadu Act. Counsel for the appelants-tenants contender.I (i) that despite the explanation it is open to the court on an appraisement of the circurn~tances of each case to determine whether or not the default was wilful and in doing so it cannot be guided wholly and solely by the Explanation which is merely clarificatory in nature and (ii) that mere non-payment of arrears of rent after issue of two months' notice cannot in all circumstances auton1atically amount to a wilful default if the non-payment does not fulfil the various ingredients of the term 0 wil fut def au 't". On the other hand it was argued by counsel for the respondentslandlords (i) that the very purpose of the Explanation is to bring about uniformity in court decisions by laying down a conclusive yardstick in the shape of the Explanation and once it is proved that after issue of two months' notice if the tenant does not pay the arrears within the stipulated period of two months, he is Hable to be ejected straightaway. On the question of interpretation of the terms 'wilful default' appearing in the proviso to s.10(2) of the Tamil Nadu Act ## Text _Characters 0–39,965 of 108,618. This is a partial read: ask again with offset=39965 for what follows._ .. S. SUNDARAM PILLAI, ETC. v. V.R. PATTABIRAMAN ETC. January 24, 1985 [S. MuRTAZA FAZAL Au, A. VARADARAJAN AND SABYASACHI MuKHARJI, JJ.J 643 Re1il Control-Tamil Nadu Buildif!CS (Lease and Rent Control) Act 1960, sec. 10(2J(i)-Proviso anJ Explanation-Scope of-Wilful default-Mean· A B c -~ D Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960(for short, the Tamil Nadu Act) deals with the eviction of tenants and postulates that a tenant shaJI not be evicted whether in acquisition of a decree or otherwise except in accordance with the provisions of s.10 or ss. 14-16. Section 10(2)(i) of the Tamil Nadu Act provides for the eviction of a tenant on the ground of non-payment of rent. It lays· down that where the Controller is E satisfied that the tenant has not paid or tendered the rent within 15 days after the expiry of the time fixed in the Agreement of tenancy or in the absence of any such Agreement, by the last date of the month next following that for which the rent is payable, he (tenant) undoubtedly commits a default lhe proviso to sub·s.2 provides that in any case fa!Iing in clause (i), if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything contained in s.IJ, give the tenant a reasonable time, F not exceeding 15 days to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender the application shall be rejected. The Explanation which was added by Act 23 of 1973 to the said proviso stipulates that for the purpose cf sub-s.2 of s IO, default to pay or 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. G In Civil Appeals Nos. 1178 of 1984, 1992 of 1982, 2246 of 1982 and 1659 of 1982, the respondents·landlords issued notices to the appeilants-tenants demanding the amount of rent in arrears and thereafter filed eviction petttions against the appellants.tenants, inter alia, on the ground of 14Wilful default". All the appellants-tenants complied with the notices issued by their respective \~ndlords except the appellant-tenant in Civil Appeal No. 1659 of 1982 where he made part payment only. However in Civil Appeal 3668 of 1982 and 4012 of 1982 the respondents-landlords had filed eviction petitions against the appellantstenants without issuing such notices before filing of eviction petitions. In all the H A B c D E F 644 SUPREME COURT REPORTS [1985) 2 S.C.R. appeals, the Madras High Court passed and/or confirmed, as the case may be, the orders of eviction holding that the ground cf \,"iJful' default mentioned in section 10(2)(i) had been proved against the tenants. Hence these appeals by special leave. The common question of Jaw involved in these appeals was as to what is the interpretation of the term "wilful default" in the Explanation to the Proviso of sub-s.2 of s. 10 of the Tamil Nadu Act. Counsel for the appelants-tenants contender.I (i) that despite the explanation it is open to the court on an appraisement of the circurn~tances of each case to determine whether or not the default was wilful and in doing so it cannot be guided wholly and solely by the Explanation which is merely clarificatory in nature and (ii) that mere non-payment of arrears of rent after issue of two months' notice cannot in all circumstances auton1atically amount to a wilful default if the non-payment does not fulfil the various ingredients of the term 0 wil fut def au 't". On the other hand it was argued by counsel for the respondentslandlords (i) that the very purpose of the Explanation is to bring about uniformity in court decisions by laying down a conclusive yardstick in the shape of the Explanation and once it is proved that after issue of two months' notice if the tenant does not pay the arrears within the stipulated period of two months, he is Hable to be ejected straightaway. On the question of interpretation of the terms 'wilful default' appearing in the proviso to s.10(2) of the Tamil Nadu Act coupled with the Explanation, the Court, HELD : Per Fazal Ali and A. Varadarajan JJ. (majority) 1. Though the Court is concerned mainly with the Tamil Nadu Act, yet in order to understand the contextual background of the words 'wilful default' and its proper setting, it wiH be useful to refer to those Acts which contain the term ·wilful default' either in a -negative or in positive form. These Acts are (1) AP. Buildings .E; 664CD; 665H; 666A:cf · F Craie·s .in ~Statute Law' t7th Edri.) Page 218~. odgCrs in 'Construction of Deeas 3.nd Statutes' (Fifth Edel.) 317, 3i8. Sa?athi i·n "Interpietation of Statutes'·.' page 294-2951. refer~ to •. ,', , .. • · .· . · · · , . . · . , - ·' 1-' Local GovernmtnJ. Board v. f south Stoitehiirri Uiiloii [1909) A.C. 57. · /shverlal.Thakorelal Almaulav-1\fotiobhai N;gjlbhal[l966) I SCR 367, Madras and Souihe1n Maha1atta Railway CO. Ltd. v." Bezwada Municipa.fitY. AIR 1944 C11: weSt Derb·.~·v. Me1ropolitd11 Life A.rsu,:ance CO. [1897) AC 647. Rllodda - Urban District Co11nc,il v Taff Vale. Railway Co. (1909) AC 253 and Jeil~ings· and· Another v ·Kelly [1940] AC 2o6 referred to: · · · · ' · ·· · · Com.missiofter of lncO;tle- T~~~ Mys0Te, erC. 'v.", Inda Mercan11Ie'Ba11k' Ltd. \i959) 2 Supp. 'SCR 256,:shah BhoJrO/. Kiiverfi Oil l\fil/s and Ginning Factory v. Subhash Chandra Yograf Sinha; [1962) 2 SCR 159, State of Rajasthan · G H A B c D E F 646 SUPREME COURT REPORTS (1985) 2 S.C.R. v. Leela Jain [1965] l SCR 276, Sales Tax Officer, Circle I, Jabalpur v. Hanuman Prasad [1967] 1 SCR 831, Commissioner of Commercial Taxes and Ors. v. R.S. !haver and Ors. [1968] l SCR 148, Dwarka Prasad v, Dwarka Das Saraf [1976] 1 SCC 128 and Hirata/ Rattan/al etc. v. State of U.P. and Anr. etc. [197311 sec 216 relied upon. 4. The next question is as to what is the impact of the Explanation on the Proviso which deals with the question of wilful default'. It is now well settled that an explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows, it is merely meant to explain_or qualify certain ambiguities which may have crept in the statutory provision. From a conspectus of the authorities, it is manifest that the object of an Explanation to a statutory provision is- (a) to explain the meaning and inte~dment of the Act itself; (b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant objeet which it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful ; (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where gap is left which is relevant for the purpose of the E~planation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpret~ng the true purport and intendment of the enactment ; and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same. [666F·G ; 668G·H; 669A-C] SaratW in Interpretation of Statutes, p. 329 ; Swarnp in Legislation and Interpretation' pages 297-298 and Bindra in 'Interpretation of Statutes' (5th Edn.) page 67. referred to. Burmah Shell Oil Storage and Distributing Co. of lndla Ltd. and Anr. v. Commercial Tax Officer and Ors. (1961] l .SCR 902, Bihta Co:Jperative Development Cane Marketing Ualon Ltd. and Anr. y. The Bnnk of Bihar and Ors. [1967] l SCR 848 and Dattatraya Govind Mahajan and Ors v. State of Maharashira and Anr [1977) 2 SCR 790 relied upon. 5(1). Although almost every State has its own Rent Act, neither the G Explanation nor the statutory clause concerning the term 'wilful default' is mentioned therein. These Acts seem to proceed only on the simple word ·default' and perhaps to buttress their intention they have laid down certain guidelines to indicate the grounds of ejectment wherever a default takes place. Looking generally at such Acts, they seem to ,have first provided statutorily a particular date or time when the tenant on being inducted under the contract of tenancy, is to pay H the rent. Such a provfSion may Qr may not be against the contract of the tenancy ,. S.S. PILLAI v. Y. R. PAITABIRAMAN 641 and if it is to that extent, it overrides the contract, This, therefore, gives suffiA cient notice to any tenant inducted in any premises that r.e must pay the rent according to the yardst ck set out by the Act, failing which he runs the risk of being evicted for default. Some Acts, however, have provided a particuJar number of defaults to enable the Rent Controller or Court to find out whether such a default would entitle the landlord to get an order of eviction. There are some other Acts which have made rather ingenious and, apt provisions for expedi· ting the process of eviction in case of default by providing that wt.enevcr a suit for eviction i~ filed against a tenant on the ground of default, the tenant in order to show his bona fides must first depo5it the entire rent, arrears and cost in the court of the Rent Controller where the action is flied on the very first date of hearing, failing which the court or the authority concerned would be fulJy justi~ fled in striking down the defence and passing an order of eviction then and there. The dominant object of surh a procedure is to put the tenants On their guard. It is true that such provisions are rather harsh but if a tenant goes on defaulting then there can be no other remedy but to make him pay the rent punctua1ly unless some drastic step is taken. These Acts, therefore, strike a just balance between the rights of a landlord and those of a tenant. For deciding the present cases, it is not necessary to go either into the ethics or philosophy of such a provision because the Court is concerned with statutes having different kinds of provisions. The relevent provisions of the A.P., Orissa and Pondichery Acts are almost in pari materia the proviso to Section 10(2) of the Tamil Nadu Act. The only difference between the Tamil Nadu Act and the other Acts is that whereas an Explanation is added to the proviso to s.10(2) of the Tamil Nadu Act, no such Explanation has been added to the provisions of the other three Acts. Hence the Court has to consider the combined effect of the proviso taken in conjunction with the Explanation. From an analysis of the various concomitants of the Explanation, the position seems to be that- (a) there should be a default to pay or tender 1ent; ~4 (b) the default should continue even afler the landlord has issued two months• notice claiming the arrears of rent ; and (c) if, despite notice, the arrears are not paid the tenant is said to have committed a wilful default and consequently liable to be evicted forthwith. [669E-H ; 670A·D, F-G) 5 (ii) The Explanation, does not at all take away the mandatory duty cast on the Controller in the Proviso to decide if a default is wilful or not. Indeed if the landlord chooses to give two months notice to his tenant and he does not pay the rent, then, in the absence of substantial and compeling reasons, the Controller or the court can certainly presume that the default is wilful and order liis eviction straightaway, There is no force in the view that whether two months notice for payment of rent is given or not, it will always be open to the Controlier under the Proviso to determine the question of 'wilful default' because that would render the very object of Explanation otiose and nugatory. (6730-E] 6. Two facto:r:s mentioned in s.10(2)(i) seem to give a clear notice to a tenant as to the mode of payment as also the last date by which he is legally supposed to pay the rent. This, however, does not put the matter beyond controversy because before passing an order of eviction under the proviso, it must also be B c D E F G H A B c D E F 64S SUPREME COURT REPORTS (1985) 2 S.C.R. proved that the defaolt was wilful and if the Controller is of the opinion that the default in the circumstances and facts of the case was not wilful, in the sense that it did not contain any of the qualities or attributes of a wilful default as indicated, he may give the tenant a reasonable time, not exceeding J 5 days, to pay the entire· rent and if this is complied with, the application for eiec!ment would stand rejected. The difficulty, however, is created by !he Explanation which says that once a landlord gives a 'two months' notice to his tenant for paying the arrears of rent but the tenant continues in default even thereafter, then he is liable to be evicted. There. is a good deal of force in this argument which has its own ad van~ tages. In the first place, it protects the court from going into the intricate question as to what is a wilful default and whether or not the conditions of a wilful default have been satisfied which, if permitted would differ from case to ca-e and court to court. But the difficulty is that if uch a blanket ban is put on the court for not examining the question of wilful default once the conditions laid down in the Explanation are satisfied then it would undoubtedly lead to serious injustice to the tenant. -A subsidiary consequence of such an interpretation would be that even though the tenant, after receipt of the notice, ma v be wanting to pay the arrears of rent but is unable to do so because of unforeseen circumstances like, death, accident, robbery, etc. which prevent him from paying the arrears, yet under the Explanation he has to be evicted. Another difficulty in accepting the first view, viz., if two month's notice is not given, the tenant must not be presumed to be a wilful defaulter, is that in such a case each landlord would has to maintain a separate office so that after every default a two months' notice should be give11,and if no notice is given no action can be taken against a tenant. The correct view in the matter is in the following terms. (i) Where no notice is given by the landlord in terms of the Explanation, the Controller, having regard to the four conditions spelt out in this judgment has the undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful, If he feels that any of the conditions mentioned is lacking or that the default was due to son1e unforeseen circumstances, he may give the tenant a chance of locus paenitentia ~by giving a reasonable time, which the statute puts at 15 days, and if within that time the tenant pays the rent, the application for eje·..:tment would have to be rejected. (ii} If the landlord chooses to g;ve two months' notice to th~ tenant to c!e"at up the dues and the tenant does not pay the dues within the stipulated time of the notice then the Controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or circumstances beyond his control in honouring the notice sent by the landlord. [671G-H ; 672A-D; F ; 673F-H ; 674A-B] G N. Pamaswami Reddiar v. S.N. Per;anuuhu Nadar, 1980 LPW Weekly H (vol. 93) p. 577 and Khivaraj Chordia v. G. Manik/al Bhattad AIR 1966 Madras 67 approved, Rajeswari v. Vasurnal Lalchand, AIR 1983 Madras 97, referred to. 7. In the light of the above principles and tests to be applied by courts-in deciding the question of wilful default, the Court allowed Civil Appeals Nos. 1178 of 1984, 1992 of 1982 and 2246 of 1982 and dismissed rest of the appeals. [678B] .. S. S. PILLAi V. V. R; PATTABIRAMAN 649 Per ·Mukharji. J. (dissenting) t (i) Default has been constrlled in various ways depending upon the context. 'Default' would seem to embrace every failure to perform part of one's contract or bargain. It is a purely relative term like negligence. It means nothing more, nothing less, than not doing what is reasonable uncler the circumstances; not doing something which you ought to do, having regard to the transaction. Similarly, default in payment imports something wrongful, the omission to do some act which, as between the parties, ought to have been done by one of them. It simply means non-payment, fa lure or omission to pay_ Default happens in payment of tents under various contingencies and situations. Whether the default is wilful or not is also a question of fact to be proved from evidence, direct and circumstantial drawing inferences from certain conduct. If the Courts are free to decide from varying circumstances whether def alt was wilful or not, then divergence of conclusions are likely to arise 0ne judicial authority coming to the conclusion from certain circumstances that the default was wilful, another judicial authority coming to a contrary conclusion from more or less same circumstances. That creates ar,omalies. In order to obviate such anomalies and bring about a unfform standard that Explanation explains the expression. "wilful" and according to the Explanation added, a default to pay or tender rent "small be construed", as wilful if the default by the tenant nth~ payment of rent continues after issue of twJ months' notice by the landlord claiming the rent. If that is the position, in a case where the landlord has given notice to the tenant claiming the rent and the tenant has not paid the same for two months, then the same must be construed as wilful defau't, whatever may be the cause for non-payment. Whe ... ther in a particular case default is wilful or not, must be considered in accordance with the definit:on provided in the Explanation to Proviso to sub-section (2) of section 10 of the Act. If it wa~ intended that the courts would be free to judg! whether in a particular set up of facts, the default was \\'ilful or not where no notice has been given, then in such a case there was no necessity of adding this Explanation to the Proviso which is a step to the making of the findings under clause (1) of sub-section (2) of section 10 of the Tamil Nadu Act. It is well-settled that Legislature does not act without purpose or in futility. [680E-G; 681Jl.E; 682E-F] Stroud·s Judicial Dictionary Vol. 1. Third Edition. page 757, Prem's Judicial Dictionary. Vol. 11964 page 483. The Dictionary of English law, page 597, Fakir Chander Dat' and Other v. Rarn Kutnar Chauer1i, Indian Appeals. Vol. XXXI. p. 19.'. referred to, t(ii) If a definition is provided of an experssion, then the courts are not free to construe the expression otherwise unless it is so warranted by.the use of the expression such as "except otherwise provided or except if the context otherwise indicates." There is no such expression in the insttant case. There may be in certain circumstances intrinsic evidence indicating otherwise. Here there is none. [682C-D] 2(i)' The expression "shall be construed" would have the effect of provid· ing a definition of wilful default in the proviso to sub-section (2) Of section 10. According to the Explanation; a default to pay or tender rent ''shaH ·be construed", A B c D E F G H A B c D E F G H 6So SUPREME COURT REPORTS tJ98Sl ~ s.c.R.. as wilful if the default by the tenant in the payment of rent continues after issue of two months' notice by the landlord claiming the rent. If that is the position, in a case where the landlord bas given notice to the tenant claiming the rent and the tenant has not paid the same for two month::.s, then the same must be constru· ed as wilful default, whatever may be the cause for non-payment. The Legislature has chosen to use the expression "shall be construed as wilful" if after a notice by the landlord for two months' failure to pay or tender rent on the part of the ten1nt continues, and if it is wilfu! then under sub-section(2) clause (I) read with t'-e provi o as explained by the Explanation, the Controller must be satisfied and give an order for eviction. The Legislature has provided an absolute and clear definition of 'wilful default'. Other circu1nstances cannot be considered as wilful default. It is true that Legislature has not chosen to use language to indicate that in no other cases, the default could be consider.d to be wilful except one default case which has been indicated in the Explanation. But it is not so necessary because Legislature has defined 'wiJful default by the expression that ·default to pay or tender rent shall be construed' meaning thereby that it will mean only this and no other. Therefore, a default wiII be construed as wilful, only where the landlord has Kiven notice and two months have expired without payment of such rent. [682 B-R-C; H ; 681D-F ; 683A] 2(ii)Statutory provisions must be construed, if it is possible, that absuridity and mischief may be avoided. Where the plain and literal interpretation of astatutory provision produces a manifestly ab~urd and unjust result, the court might modify the language used by the Legislature or even c'o some violence to it so as to achieve the obvious intention or the Legislature and produce rational construction and just results. Ironing out the creases is possible but uot re-writing the language to serve a notion of public policy held by the judges. [683C; 684B] 2(iii) Where two constructions are possible, one which avoids anomalies and creates reasonable· results should be preferred but whe1 e the language is clear and where there is a purpose that can be understood and appreciated for construing in one particular manner, that is to say, avoidance of divergence of judicial opinions in construing wilful default and thereby avoiding anomalies for d.fferent tenants, it would not be proper in such a situation to say that this difinition of wilful default was only illustrativeand not exhaustive. The Proviso to sub-section (2) of section 10 cannot be construed as illustrative when the Legislature has chosen to use the expression "shall be construed". [683D-F] In the aforesaid view of the matter, the individual appeals are disposed of accordingly, that is to say, only those appeals of tenants are dismissed where eviction orders were passed after two months' notice had been given and there was continuance of default, and the rest of the appeals are allowed. [685B·C] Seaford Court E.1tates Ltd. v. Asher, [1949] 2 All E.R. 155 at pages 164 (CA), Regina v. Barnet London Borough Council Ex parte Nilish Saah, 1983 (2) Weakly Law Reports p. 16 at p. 30., Carrington and others v. Therm-a-Star Ltd., 1983 (I) Weakly Law Reports p. 138 at p. 142. referred to. .. S. S. PILLAI v . . R. PATIABIRAMAN 651 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1178 of 1984 A From the Judgment and Order dated the 15th July, 1982 of the -"i High Court of Madras in Civil Revision Petition No. 3396 of 1981. - AND Civil Appeal No. 6211 of 1983 From the Judgment and Order dated the 5th November, 1982 of the High Court of Andhra Pradesh in Civil Revision Petition No. 2477 of 1982. · WITH Civil Appeal No. 1992 of 1982 From the Judgment and Order dated the 17th December, 1981 of the H!gh Court of Madras in Civil Revision Petition No. 152 of 1981. WITH Civil Appeal No. 1959 of 1982 From the Judgment and Order dated the 14th December, 1981 of the High Court of Madras in Civil Revision Petition No. 1630 of 1980. WITH Civil Appeal No. 3668 of 1982 From the Judgment and Order dated the 20th October, 1982 of the High Court of Madras in Civil Revision Petition No. 4087 of 1982. WITH Civil Appeal No. 2246 of 1982 Fr~m the Judgment and Order dated the 5th November, 1981 of the High Court of Madras in Civil Revision Petition No. 1397 of 198<'. AND Civil Appeal No. 4012 of 1982 From the Judgment and Order dated the 23rd November 1982 of the High Court of Madras in Civil Revision Petition No. 3983 of 1981. Y. S., Chitale and P. N. Rama/ingam fot the Appellant in Civil Appeal No. 1178 of 1984. B c D E F G H A B c D E 652 SUPREME COuRT REPORTS [1985] 2 s.c.ll. P. G. Nair, K. K. Mani, V. Shekher and P.R. Setharaman for the Respondents in Civil Appeal No. ll 78 of 1984 A.K. Sen and A.T.M. Sampath for the Appellant in Civil Appeal No. 6211of1983. T. V.S. Narasimhachari for the Responcfent K. Ramkumar for the Appellant in Civil Appeal No. 1992 of 1982 A. T. M. Sampath for the Respondent. A. S. Nambiar for the Appellant in Civil Appeal No. 1659 of 1982. K. S. Ramamurthy, and A.T.M. Sampath, for the Appellant in • Civil Appeal No. 3668 of 1982. C. S. Vaidianathan and K. K. Mani for the Respondents. M. G. Ramachandran, and A.V. Rangam for the Appellant in Civil Appeal No. 2246 of 1982. T. S. Krishnamurthy Iyer for the Respondent. T. S. Krishnamurth Iyer. and S. Balakrishna for the Appellant in Civil Appeal No. 4012 of 1984. Padmanbhan and D.N. Gupta for the Respondent in Civil Appeal No. 4012 of 1982. F The following Judgments were delevered G H FAZAL Au, J. These appeals invlove more or less an identical point of law relating to the interpretation of the term 'wilful default' appearing in the proviso to section JO (2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the 'Act') coupled with the Explanation which seeks to explain the intent of the proviso. We have heard counsel for the parties at great length and a large number of authorities have been cited before us in support of both the parties. Before we take up the points of Jaw involved in these appeals we would briefly narrate the bare facts of each of these cases in order to test the correctness of the points argued before us. y- • s. s PILLAI v. v. ll. PATTABIRAMAN (Fazal Ali, J.) 653 In Civil Appeal No. 1178 of 1984, the respondent-landlord let out the suit premises No. 3-B, New No 2· B, Davidson Street, Broadway Madras, to the appellant-tenant on a monthly rent of Rs. 600 for non-residential use. The appellant, despite repeated reminders, did not pay the rent for the period from October 1978 to August 1979. The respondent filed a suit on 2. 12. 79 for evicting the appellant on two grounds:(\) wilful default in payment of rent, and (2) material acts of waste committed in the building. It may be mentioned here that before filing a suit for eviction of the appellant, the respondent on 17.9.79 sent a two months' notice to the appel!,rnt. through his Advocate to clear up the dues. The appellant on receipt of the notice paid up the amount of the arrears, amounting to Rs. 6,600 on 3.10.79, i.e., within the stipulated period of two months. But, the respondent contended that in view of the past conduct of the appellant be was gJi!ty of wilful default within the meaning of proviso to s. I 0 (2) of the Act. So far as this appeal is concerned, as the entire rent had been paid up in pursuance of the notice dated 17 .9. 79 eveu prior to the filing of the suit, it is manifest that on the date of filing of the suit no cause of action in presenti having arisen, the suit shpuld have been dismissed on this short ground alone as being not maintainable. As indicated above, it was not open to the landlord after having received the entire amount of arrears before filing of the suit to have filed a suit for past conduct of the tenant. This appeal, therefore, merits dismissal on this ground alone. In Civil Appeal No. 6211of1983, the respondent-tenants were given the suit premises No. 17/582, Ward B, Old corresponding No. 2, New No. 5/8/582 Abid Road, Hyderabad, on a monthly rent of Rs. 225 which was, by mutual consent, increased to Rs. 275 per month in the year 1964. From l.7.66, the rent was again agreed to be increased to Rs. 300 per month. The appellants-landlord filed a suit under s. 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction Contrell Act, 1960 on 12.ll.71, against the respondents for eviction on three grounds ; (I) wilful default by the tenants in payment of rent for the months of September, October and November 1971 (total amount being Rs. 9bO, (2) the tenants sublet the premises to one Hanumantha, and (3) that the premises were required bona fide for their own use. However, during toe pendency of the matter, the original landlords sold away their interest in the property in favour of the present appellants before us and, therefore, the question of bonafied requirement abated there itself. A B c D E F G H A B c D E F G H 654 SUPREME COURT REPORTS {1985] 2 s.c.R. The Rent Controller upheld both the grounds of wilful default and subletting. Aggrieved by the said decision, the respondents-tenant filed an appeal to the Chief Judge, City Small Causes Court, Hyderabad and the learned Chief Judge by his judgment held that wilful default in payment of rent for the month of September 1971 as also the question of subletting was proved. Against this decision of the Chief Judge, City Small Causes, the respondents filed a revision petition in the High Court. It is not in dispute that the rent from September, 1971 on· wards has not been paid and that by the time the eviction petition was filed, the default was only for the month of September 1971. The High Court agreed with the lower courts with regard to wilful default for the month of September, . 1971 and reversed the finding with reagrd to subletting but on the ground of wilful default ordered eviction of the respondents. In civil Appeal No. 1992 of 1982, the respondent-landlord filed an eviction petition against the appellant-tenant on the grounds of wilful default and the premises needing repairs. However, the second ground was not pressed and the only point which survived for determination was whether there was any wilful default on the part of the appellant. The brief facts are that the appellant became a tenant under the father of the respondent in 1953 at a monthly rent of Rs. 15 which was subsequently mutually agreed to be increased to Rs. 49 per month. The respondent contended in his petition that the appellant became a defaulter in payment oi the rent as he did not pay the rent for the months of June 1977 to January 1978. The respondent also issued a notice on 16.1.78 demanding the dues amounting to Rs. 392. The appellant sent a detailed reply on 30.1. 78 alongwith a Bank Draft for Rs. 392 which was, however, not enaashed by the respondent and returned to the appellant subsequent to the filing of an eviction petition which was filed on 11. 8.1978. The Rent Controller found the tenant to be a wilful defaulter and consequently order his eviction. However, on appeal the Appellate Authority reversed the finding of the Rent Controller and accepted the plea of the tenant· that as he was ill he was not able to pay the rent. Jn revision, the High Court did not agree with the finding of the Appellate Authority and restored the finding of the Rent Controller and ordered the eviction of the appellant, holding that the explanation offered by the tenant could not be accepted as his sons were carrying on the business in the same premises and nothing prevented them from paying the rent to the landlord of the appellant was ill. • ._, - s. s. PILLAI v. v. R. PATTABIRAMAN (Fazal Ali, J.) 655 In Civil Appeal No. 1659 of 1982, the respondent-landlord filed an eviction petition against the appellant-tenant in respect of a nonresidential premises on two grounds : (!) wilful default in payment of rent from l.5.77 to 31.8.77, and (2) bona fide requirement for personal use. The Rent Controller, after an equiry, ordered eviciion of the tenant on both the grounds and the Appellate Authority confirmed the findings of the Rent Controller. The landlord issued a lawyer's notice on 1.9.77 to the tenant to clear up the dues. After receipt of the notice the tenant paid the rent of two months' only and for the remaining two months the tenant could not offer any satisfactory explanation and, therefore, the High Court in revision agreed with the findings of both the courts below in regard to wilful default of payment of arrears of rent and ordered eviction of the tenant on this ground alone. The High Court, however, did not agree with the findings of the courts below with regard to bona fide requirement of the landlord and held that the landlord could not ask for a non-residential portion for residential purposes having leased it out for a non-residential purpose. In Civil Appeal No. 3668 of 1982, the appellant took out the premises from the respondent for non-residential use on a monthly rent of Rs. 350. There was some misunderstanding between the parties over payment of rent and as a result of which it was agreed that the tenant would deposit the rent in the Bank. The respondentlandlord filed an eviction petition on 1.4.1980 in the court of the Rent Controller, after verifying from the Bank, that the tenant had not deposited th' rent for the months of January and February 1980, thereby committing a wilful default. The authorities below found against the arrangement of depositing the rent in the Bank and ordered the eviction of the appellant on the ground of wilful default. The High Court upheld the decision of the courts below and held that the appellant bad wilfully defaulted in the payment of rent and ordered the eviction of the appellant. In Civil Appeal No. 2246 of 1982, the respondent-landladies let out the premises to the tenant-appellant for non-residential use on a monthly rent of Rs. 105. The respondents filed an eviction petition on 2.11.76 against the tenant on the ground of wilful default for non-payment of rent for the period from January 1976 to Septemeber 1976, i.e., for a period of 9 months. But before filing the eviction petition, the respondents on 6.7,1976 issued a notice to the tenant to pay the dues and on 17.7.76 the appellant paid a sum of Rs. 630 which was accepted by the landladies without prejudice. The Rent A B c D E F G H A B c D E F G H 656 SUPREME COURT REPORTS [1985] 2 s.c.R' Controller found that the default in payment of rent was not wilful and therefore dismissed the application of the landladies. On appeal, the Appellate Authority reversed the finding of the Rent Controller and held that the default, was wilful. In revision, the High Court did not agree with the contention of the appellant that be was not wilful defaulter as immediately after filing of the eviction petition be had paid the entire arrears even before the serving of summons. The High Court held that there was no satisfactory explanation by the tenant for nonpayment of rent for the period from January to June 1976 before the issue of notice. Even after the payment of rent the tenant committed further default till the petition for eviction was filed on 2.11.76. The High Court, therefore, upheld the finding of the Appellate Authority and ordered eviction of the tenant on the ground of wilful default. In civil appeal No. 4012 of 1982, the appellant is in occupation of the residential premises bearing No 17 (New No. 59), Burkit Road T. Nagar, Madras on a monthly rent of Rs. 325 payable according to English calendar month. The respondent filed an eviction petition against the appellant on the ground of wilful default and bona fide requirement for her own occupation. It was stated on behalf of the respondent-landlady that the appellant committed wilful default in payment of rent from June 1976 onwards and after repeated demands a sum of Rs. 1000 was paid by him on 1.4.1977. He had paid rent for five months to the Income Tax Department on behalf of the respondent but he did not produce any receipt evidencing payment to the Income Tax Department. Assuming that the appellant had made the said payment, the respondent further contended that from February 1977 to July 1978 the appellant was in arrears, thereby committing a wilful default. The Rent Controller did not agree with the contentions of the respondent and held that the default was not wilful and the requirement for own Occupation of the landlay was not bona fide.