ORDER
Sivasubramaniam, J.
1. The revision petitioner is the unsuccessful tenant before the appellate authority and the respondents are the landlords. The respondents filed a petition in R.C.O.P. No. 106 of 1982 on the file of the VIII Judge, Court of Small Causes, Madras under Sections 10(2)(i) and 10(2)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 for eviction of the petitioner in respect of a garage for non-residential purpose in the ground floor of premises No. 48, Veerappan Street, Madras-1 on the ground of wilful default in the payment of rents and for using the premises for a purpose other than that for which it was leased.
2. The averments in the petition are as follows : The revision petitioner is a tenant in respect of the said garage on a monthly rent of Rs. 110. One Manicklal was the owner of the entire premises bearing Door No. 48, Veerappan Street, Madras, The petitioner had committed wilful default in the payment of rents from 1.11.1974 to 31.12.1976 and the landlord filed the eviction petition in H.R.C. No. 1539 of 1977. During the pendency of the said proceedings, Manicklal died on 2.7.1978 and the proceedings were terminated, as no steps were taken by the legal representatives of the deceased. The petitioner paid rents up to May, 1978 to late Manicklal and after his death on 2.7.1978, the respondents and their mother Jasoda Bai became the absolute owners of the properties. The petitioner did not pay rents to them from June 1978 although she was aware that the respondents along with their mother are the absolute owners and that they are the only legal representatives of the deceased Manicklal. The other tenants of the building have been paying rent to the respondents, but for the reasons best known to the petitioner, the petitioner deliberately withheld the payment of rent from 1.6.1978 to 31.10.1981 and thereby committed wilful default. The petitioner herein filed a petition in H.R.C. No. 756 of 1981 under Section 9(3) of the Act against Jasoda Bai alone, the widow of the deceased Manicklal and the said Jasoda Bai also died even before the service of notice in the said petition on 23.5.1981. The petitioner filed an application in M.P. No. 910 of 1981 in H.R.C. No. 756 of 1981 and respondents herein were brought on record as her legal representatives. It is claimed by the respondents that the petitioner herein filed R.C. No. 756 of 1981 just to cover up her laches and that too after the lapse of 2-1/2 years. Hence it was contended by the respondents that the petitioner has committed wilful default in the payment of rent from 1.6.1978 to 31.10.1981. Hence the present R.C.O.P No. 106 of 1982 was filed. The eviction petition was filed on another ground also that the petitioner herein had used the garage for a purpose other than that for which it was let out. The petitioner had unauthorisedly converted the same into a shop.
3. The eviction petition was resisted by the petitioner herein on the following grounds : According to her, she had not committed wilful default in the payment of rent from 1.11.1974 to 31.12.1976 during the lifetime of Manicklal and the rent for that period was paid on 10.1.1977. After the receipt of the rents on10.1.1977,Manicklalfiled H.R.C. No. 1539 of 1977 for eviction and he died during the pendency of the said petition. The petition was dismissed for default on 10.1.1979. After the disposal of the petition, nobody came forward to claim the rent as the legal representative of Manicklal. The petitioner was anxious to pay the rent to the legal representatives of Manicklal and hence she sent a notice on 1.8.1980 to Mrs. Manicklal requesting her to inform the names of the legal representatives and also to receive the rents. But no reply was sent by her. Hence the petitioner herein filed H.R.C. No. 756 of 1981 on 2.2.1981 under Section 9(3) of the Act for depositing the rent into court. It was claimed by the petitioner that it was only after she filed H.R.C. No. 756 of 1981 for depositing the rent, the respondents came forward with the petition in R.C.O.P. No. 106 of 1982 for evicting the petitioner herein on the ground of wilful default in the payment of rent. According to the petitioner, she was not aware that the respondents were the absolute owners of the property along with their mother.
4. The learned Rent Controller heard R.C.O.P. No. 106 of 1982 and H.R.C. No. 756 of 1981 and pronounced a common order. He came to the conclusion that the petitioner herein had not committed wilful default and dismissed R.C.O.P No. 106 of 1982, and H.R.C. No. 1756 of 1981 with a direction that the petitioner/tenant should pay the arrears of rent and the subsequent rents to the respondents herein. As against the said order in R.C.O.P. No. 106 of 1982, the respondents/landlord, preferred an appeal in R.C.A. No. 1360 of 1983 before the appellate authority. During the course of the proceedings, the respondents/landlord did not press the ground that the tenant has used the demised premises to a different user. Hence the only question that remained to be decided was whether the petitioner has committed wilful default in the payment of rent from 1.6.1978 to 31.10.1981. The appellate authority considered the entire evidence on record and applying the correct legal principles, allowed the appeal holding that the petitioner/tenant has committed wilful default in the payment of rent. Aggrieved against the said decision, the petitioner herein/tenant has come forward with the present revision petition.
5. A perusal of the proceeding shows that the petitioner had committed default in the payment of rent from 1.11.1974 to 31.12.1976 for which the earlier petition in H.R.C. No. 1539 of 1977 was filed even though the arrears of rent were paid on 10.1.1977. However, the petition; was ultimately dismissed on 10.1.19797 since the matter was not proceeded further by the legal representatives of the deceased Manicklal. In these proceedings, the period of default relates to the period between 1.6.1978 to 31.10.1981. It is not in dispute about the fact that rents were not paid for that period. The only explanation offered by the petitioner herein is that she had attempted to find out the legal representatives of the original owner Manicklal and hence there was delay. According to her, she had not committed wilful default, since nobody came forward to claim rent as the legal representatives of Manicklal. It is also claimed by her that she had issued a notice dated 1.8.1980 to Mrs. Manicklal requiring her to give the names of the legal representatives and also receive the rent. Learned Counsel for the respondents herein contends that the parties are residing in the same premises and that there were other tenants in the same building who had been paying rents to Mrs. Jasoda Bai, the widow of Manicklal. Apart from that, it is stated that the petitioner and the respondents are members of the same Sabha of the community in Madras and belong to Marvadi Community of Rajasthan. According to respondents, it is surprising to note that the petitioner, who has been residing in the same building and in occupation of the garage, had taken such a long time to find out the legal representatives of the deceased Manicklal. No serious attempt was made by the tenant till 2.2.1981 either to pay the amount or deposit the same according to law. Therefore, it is clear that the tenant had not been diligent in paying the rents to the landlords after making necessary enquiries. The plea of the petitioner that the legal representatives of the deceased Manicklal did not come forward to claim rent is not a valid ground for having not paid the rents. The conduct of the petitioner clearly shows that she had no intention of paying the rents regularly. In fact, she filed a petition in H.R.C. No. 756 of 1981 after a lapse of a very long time. As already stated, Manicklal died on 2.7.1978 and the petition for deposit of the rent was filed only on 2.2.1981, i.e., more than 2-1/2 years. This clearly shows that there was absolutely no bona fide attempt on the part of the petitioner to discharge her obligations in the payment of rents. It is the duty of the tenant to pay rents and it is not for the landlord to demand and collect rent.
6. Mr. V. Srinivasan, learned Counsel for the petitioner would contend that whatever might be the conduct of the petitioner/tenant in the payment of rents in the past, the fact that she had filed H.R.C. No. 756 of 1981 and deposited the arrears of rent would deprive of the respondents’ right to file the petition for eviction. According to him, on the date of the filing of the petition, there was no cause of action in prasenti and, therefore the petition ought to have been dismissed. He relies upon a decision of the Supreme Court reported in S. Sundaram v. V.R. Pattabhiraman . In this case, the Supreme Court considered the law relating to the interpretation of the term “wilful default” appearing in the proviso to Section 10(2) of the Act coupled with the Explanation which seeks to explain the intent of the proviso. The facts of the case show that the main question that was raised before the Supreme Court was regarding the effect and scope of the proviso to Section 10(2) of the Act which runs thus:
Provided that in any case falling under Clause (1) if the Controller is satisfied that the tenant’s default to pay or tender rent was not wilful, he may notwithstanding anything contained in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to landlord upto the date of such payment or tender and on such payment or tender the application shall be rejected.
After considering the various concomitants of the Explanation, the Supreme Court came to’ the conclusion that (a) there should be a default to pay or tender rent; (b) the default should continue even after 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. A strong reliance was placed on the observation of the Supreme Court in so far as one of the appeals disposed of by the Supreme Court, which runs as follows:
So far as this appeal is concerned, as the entire rent had been paid up in pursuance of the notice dated 17.9.1979 even prior to the filing of the suit. It is manifest that on the date of filing of the suit, no cause of action in prasenti having arisen, the suit should 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.
Relying on this passage, learned Counsel argues that since the arrears of rent were deposited before the filing of the eviction petition, the cause of action for filing the petition for eviction has vanished and, therefore, the petition is not maintainable. According to him, there must be actual arrears of rent payable by the tenant on the date of the filing of the petition for eviction. I am unable to agree with this extreme contention of the learned Counsel. The Supreme Court on the facts of the said case, came to the conclusion that in view of the conduct of the landlord in accepting the entire rent before the filing of the eviction petition, there was no justification for filing the petition. In paragraph 72 of the Judgment, the Supreme Court made the following observation:
A petition for eviction was filed by them on 2.11.1976 for non-payment of rent by the tenant from January, 1976 to September, 1976, a period of 9 months. But, we might state here that before filing the eviction petition, the respondents had issued a notice on 6.7.1976 asking the tenant to pay the dues, which the tenant paid on 17.7.1976, i.e., within 10 days of the receipt of the notice, which was accepted by the landladies without any prejudice….
Therefore, the basis on which the said decision was rendered is, that a landlord, after having received the entire arrears of rent, is not entitled to file a petition for eviction merely to penalise the tenant for his past conduct. A careful reading of the decision shows that the Supreme Court did not go to the extent of holding that once the payment of arrears of rent had been made, the landlord loses all his rights to evict his tenant. If such a contention of the learned Counsel in this case is to be accepted, it will lead to very serious consequences taking away the entire right of a landlord to evict his tenant. Moreover, that will defeat the very object of the Act. In practice, it will be very easy for a defaulting tenant to defeat the rights of his landlord by rushing to the Court and depositing the amount anticipating the filing of a petition for eviction by the landlord. By this method, even if the tenant is in arrears for years together, he can easily escape the rigor of the law by paying the arrears just a day before the filing of the eviction petition. This certainly is not the intention of the Legislature.
7. The abovesaid decision of the Supreme Court itself considered the various rulings of this Court regarding the law on wilful default and agreed with the views taken by this Court. In this context, it is relevant to refer to some of those cases. In Rasappa v. Jumnadoss (1979) 1 M.L.J. 317, Ramaprasada Rao, C.J., has clearly brought out the circumstances under which the tenant must be construed as having committed wilful default by stating that the default as a ground for eviction should be such that it should be so conspicuous to a reasonable person that the tenant’s attitude was nothing but supine indifference and purposeful evasiveness resulting in his recalcitrance. In a leading case on this subject in Khivraj v. Maniklal I.L.R. , Ramamurthi, J., after referring to the earlier decisions, has clearly stated that wilful default was a state of mind or intention which must be inferred from the totality of circumstances and that mere default by itself would not amount to wilful default and the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rent or reckless indifference. The decision has been referred to and approved in the decision of the Supreme Court above referred to.
8. The Supreme Court itself has considered this position in later cases. It is, seen, that in Kameshwar Singh Srivastava v. Additional District Judge , the Supreme Court has observed as follows:
It does not however follow that the tenant is entitled to disregard the landlord or ignore his demand for payment of rent to him. The provisions of the Act safeguard tenant’s interest but it must be kept in mind that the landlord’s right to receive rent and in the event of the tenant’s being in arrears of rent for a period of more than four months, his right to evict the tenant is preserved. If the tenant makes the deposit in Court without there being any justification for the same or if he refuses to pay the rent even on the service of notice of demand by the landlord, he would be liable to eviction.
In Maiku v. Vilayar Husain , the Supreme Court had occasion to consider the effect of depositing rent into Court. In that case, the appellant was a tenant of the respondent. The tenant did not pay the rent in spite of the verbal demand. Consequently, the landlord served upon the tenant a notice of demand and the tenant failed to comply with the said notice and hence he became a dafaulter. Thereafter, the landlord served another notice under Section 106 of the Transfer of Property Act. The tenant neither vacated the premises nor cleared the arrears of rent. Therefore a suit was filed for eviction. The claim was resisted by the tenant on the ground that he was not a dafaulter inasmach as whatever rent tendered to the landlord he refused to accept the same and therefore he was constrained to deposit the amount into Court under Section 7C of the U.P.(Temporary) Control of Rent and Eviction Act. While considering the effect of depositing rent into Court, the Supreme Court posed a question whether the order granting permission to the tenant to deposit the arrears of rent into Court is sacrosanct and cannot be challenged in a regular suit for eviction and held as follows:
The payment of the respondent subse the tenant must establish before the Court in which the suit for eviction has been filed, the factum of refusal by the landlord when the payment was sought to be made to him. The mere fact that an application under Section 7C for permission to deposit, the arrears of rent has been allowed by the Munsif will not absolve the tenant from establishing before the Court, where the suit for eviction was filed, that the landlord had refused to accept the rent lawfully tendered.
A similar view was taken by this Court by Ratnam, J., in T.R. Govindarajulu v. B. Dhanraj , which is as follows:
The payment by the respondent subsequent to the Initiation of the proceedings for eviction cannot be of any avail as by such payment the wilful default committed earlier by the respondent giving rise to a cause of action to the petitioner to seek an order for eviction against the respondent cannot be wiped out or erased.
9. I find that in the present case even after the filing of the rent control petition in R.C.O.P. No. 106 of 1982 there were arrears of rent which were directed to be paid only in R.C.O.P. No. 756 of 1981. Nothing prevented the tenant from paying the amount to the widow. Moreover, the present petition in R.C.O.P. No. 106 of 1982 was filed on 6.1.1982 and it was only on 3.3.1982 the arrears of rent from June 1978 to October, 1981 has been paid.
10. It is not possible to lay down any hard and fast rule applicable to all cases. But the basic and essential distinction between mere default and wilful default should be borne in mind and the totality and cumulative effect of all the circumstances should be taken into account and not any particular feature of the case in isolation. The facts and circumstances of each case have to be taken note of before coming to the conclusion that a tenant has committed wilful default in the payment of rent. Bearing these principles in mind, if we analyse the facts of the present case, it is amply clear that the petitioner/tenant had committed wilful default for a period of about 2-1/2 years before she chose to file the petition for depositing the rent. This only shows that she was a chronic defaulter having regard to her earlier conduct in committing defaults. The default in this case cannot be characterised either as accidental or bona fide. The explanation offered by the tenant that she was not able to find out the legal representatives of the deceased Manicklal is wholly unacceptable. She had been indifferent and it is a case of supine indifference on her part in the payment of rents. The various decisions of this Court clearly indicate that the wilful default has to be inferred from various circumstances. Considering the facts of the present case, I find that the decision rendered by the appellate authority is perfectly in order and I find no valid grounds to interfere with the same. Hence, this civil revision petition is dismissed. No costs. However, considering the hardships of the petitioner/tenant in finding out an alternative accommodation, four months’ time from this date is granted to the petitioner for putting, the landlords/respondents in possession of the building.