ORDER
M.N. Chandurkar, C.J.
1. This civil revision petition filed by the tenant is directed against the concurrent finding of both the Courts below that the tenant has committed wilful default in the payment of rent for the period from July, 1979 till the institution of the proceedings for eviction against him. Though initially the petition for eviction was filed on several grounds, we are only concerned with the case with the ground of wilful default.
2. The cases of the tenant was that for the premises in the occupation of the tenant which were originally let out by the original owner at the rate of Rs. 40 per month, the rent came to be increased to Rs. 80 per month in 1974 from Rs. 50 per month which was the rent paid in 1966. The application for eviction was filed some time in 1980 and the allegation was that for a period of one year, the tenant had not paid rent. The tenant’s case was that the rent payable was only Rs. 40 per month and he has paid the rent without any default. He claimed that the landlord issued receipts only in 1968 and thereafter the landlord stopped issuing receipts. Rent was paid upto April, 1980, according to the tenant.
3. The Rent Controller accepted the case of the landlord which was proved by the original petitioner No. 3 and who examined himself as P.W.2 that in 1968 the rent was fixed as Rs. 50 and it came to be increased from time to time till 1974 when it was fixed at Rs. 80. The fact that rent was not fixed at Rs. 40 was supported by counterfoils of receipts which were issued in 1966, Exhibits A1 to A3, out of which Exhibit A1 contained the signature of the tenant. The Rent Controller rejected the two documents Ex.B1 and B2 produced by the tenant which purported to be receipts dated 7.10.1967 and 12-11-1968 and which purported to be signed by deceased Kaliappan, father of petitioner No. 3. These documents were rejected on the ground that they were not put into P.W.2 when he was in the witness box. Having rejected the story that the rent was payable only at Rs. 40 per month, the Rent Controller accepted the story of the landlord that rent was payable at Rs. 80. The oral evidence of the landlord having been accepted, it was held that the tenant was a wilful defaulter. This finding had been confirmed by the Appellate Authority who also rejected the story of the rent being Rs. 40 as untrue. Arrears were found due for the period July, 1979 to June, 1980. The order of eviction was thus confirmed.
4. This civil revision application was filed by the tenant During the pendency of the civil revision petition, the landlords have transferred the house property in question to two persons, namely, M.S. Sikkandar and S. Mohamed Jaffar who have now filed an application for being joined as respondents 5 and 6. It is important to point out that the purchasers did not want to be substituted in the place of the original landlords as sole respondents, but that they want to be joined as additional respondents. This application was not seriously opposed in view of the sale deed and the application will therefore stand ordered.
5. It is vehemently contended by the learned Counsel for the petitioner that the subsequent event of the house property having been transferred to the newly added respondents as well as the fact that the tenant had not attorned himself to the new purchasers, and that there was no relationship of tenant and landlords between the purchasers and the tenant should be taken into account with the result that the revision petition should be allowed and the eviction petition should be dismissed. In any case, according to the learned Counsel, so far as the purchasers are concerned, it could not be said that the tenant was in arrears of rent and therefore there could not be any default by the tenant and consequently no order for eviction could be made against the tenant on the ground of wilful default in favour of the purchasers. The argument in substance is that having regard to the subsequent event of the sale of the property to the newly added respondents, the order for eviction must be set aside.
6. Now it is difficult to see how any question of attornment or the question of the tenant not being in arrears in so far as the purchasers are concerned can arise in the instant case. There is no dispute that there is a sale deed executed by the original owners in respect of the suit property. The sale deed is dated 28.5.1984. There is already an order of eviction against the tenant. It is not the case of the tenant that at any time after the sale deed the tenant had paid rent to the original landlords or that the original landlords had at any time demanded any rent from the tenant. The fact that tenant has not attorned to the purchasers when really a question of attornment does not arise as an order for eviction has already been passed, does not affect the validity of the order for eviction. The question of arrears vis-a-vis the present owners does not arise because the present purchasers are not claiming any fresh right on the basis of any arrears due after the date of the sale deed or after the date of the order of eviction. The purchasers had purchased the property after there was an order of eviction against the tenants. The landlords could have well executed that order. But on account of an order of stay made by this Court, that order could not be executed. The tenant’s possession is merely because of the order of stay. The mere fact that the tenant had not been evicted in pursuance of the order of eviction does not mean that any infirmity is created in the right of the original landlords to execute the said order for possession if the order of stay is vacated or if the revision petition was dismissed. This right to execute the order for possession now stands vested in the new purchasers and the tenant will have no right to continue to occupy the premises if the order of eviction is upheld. All that the new landlords are attempting to do is to defend the order of eviction passed against the tenant and in favour of their predecessor-in-title. It is also important to note that the original landlords have not disappeared from the scene. They continue to be respondents and the present landlords who have purchased the suit property are trying to support the right of eviction which had vested in the original landlords and which they are now entitled to exercise that right by virtue of purchase of the property. Indeed the original respondents and the newly added respondents are represented by the same counsel. Therefore the contention that by virtue of the subsequent event of sale in favour of the purchasers, the order of eviction must be automatically set aside is liable to be rejected.
7. So far as the merits are concerned, the findings which are sought to be challenged are really findings of fact. Both the Courts below had before them the evidence of petitioner No. 3 and the tenant. The tenant’s case that rent was Rs. 40 only has been rejected on the ground that there is no proof that the rent was only Rs. 40. As a matter of fact, it is difficult to see how even receipts Exhibits B-1 and B-2 which are dated 7-10-1967 and 12-11-1968 could have been admitted in evidence. Those receipts purport to have been executed by the original owner of the property. Undoubtedly, the said original owner is now dead, but his son was put in the witness box. The son examined himself as P.W.2. While he was in the witness box, it was for the tenant to put the receipts to him and have the receipts proved by identifying the signature of the person who was alleged to have issued those receipts. As long as those signatures on the two receipts are not proved, the mere production of the receipts by the tenant does not establish the fact that the tenant had paid rent only at the rate of Rs. 40 per month and the landlord had accepted the rent at that rate. Ex.B-1 and B-2 are therefore to be ignored. The position before the Rent Control authorities therefore was that the tenant had failed to prove that the rent was Rs. 40. The only other case put forward before the Rent Control authorities was that the rent, originally fixed, was increased from time to time. Some support was drawn for the fact that the rent was increased to Rs. 80 from the basis on which the property tax was levied. The enhanced assessment showed that rent was increased though it does not show the extent of the increase. Now admittedly Ex. A-1 is the counterfoil of a receipt dated 6-6-1966 which shows that rent was paid by the tenant at Rs. 50 per month. The counterfoil of the receipt with the landlord is signed by the tenant. Therefore, unless the tenant establishes that the recitals in the counterfoil are incorrect, the correctness of the statement made in the receipt cannot be doubted. Exs.A-1 to A-3 which are dated 6-6-1966, 13-4-1966 and 12-5-1966 respectively are all counterfoils. The minimum that the tenant could have done was to produce his part of the receipt dated 6-6-1966. If there was any disparity between the counter-foil dated 6-6-1966 and the other part of the receipt in the possession of the tenant, all the three receipts Exs.A-1 to A-3 could have been rejected. The tenant, however, has not chosen to produce his part of the receipt dated 6-6-1966. This receipt shows that Rs. 50 was the rent which again falsifies the tenant’s version that rent was Rs. 40 in 1968.
8. Some reference was made to the decision of the Supreme Court in Idandas v. Anant Ramachandran 95 L.W. 137 (S.N.) : A.I.R. 1982 S.C. 127. The Supreme Court in that case on the facts of that case has taken the view that where on the basis of the entries in the counterfoils of receipts the landlord tried to make out a case of monthly tenancy, the entry in the counter-foil being an admission in his own favour, such a contention could not be upheld because the entry in the counter foil being admission in his own favour was not admissible against the tenant. Now in the instant case, the tenant has signed the receipt which only shows that he has also accepted the position that for the month for which the receipt dated 6-6-1966 is issued the rent was Rs. 50 per month. In the Supreme Court case, the tenant had not signed the counterfoil and that made all the difference in that case.
9. Some reference was made to the decision of the Supreme Court in Sundaram Pillai v. Pattabiraman in support of the proposition that before a tenant is evicted for default, it must be shown that the tenant was a wilful defaulter. In that decision undoubtedly it was pointed out that default in order to be wilful must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. The burden to show that the default is not intentional or deliberate is on the tenant. The effect of that decision will only be that a mere proof of default may not necessarily lead to an inference of wilful default. But whether a defaulter or not is a conclusion to be arrived at on the facts and circumstances of each case. If there was a continuous default which is unexplained, a court will be well justified in coming to the conclusion that the default is wilful and deliberate. In that instant case, the Courts below have chosen to accept the evidence of P.W.2 that rent has been increased from time to time and that rent has not been paid from July, 1969 onwards.
10. Some reference was made to the evidence of P.W.2 in which he has stated that the tenant had paid rent till June, 1979 and he has absolutely stated that the tenant has not paid rent from 1968 to 1973. The apparent discrepancy in this statement which was pointed out was that the statement that rent was not paid from 1968 to 1973 is inconsistent with the statement that rent was paid till June, 1979. Now the evidence of the witnesses have to be read as a whole and what was stated was that rent was not paid for the period from 1968 to 1973 and alter on rent was paid till 1979. There is no inconsistency which creats any infirmity in the conclusion reached by the Rent Control authorities. After having heard the learned Counsel for the petitioner at considerable length, I am not satisfied that their is any infirmity in the finding recorded by both the Rent Control authorities. This civil revision petition fails and it is accordingly dismissed. However, there will be no order as to costs in this petition.
