D.C. OSWALversusV.K. SUBBIAH AND ORS.

                                 D.C. OSWAL                                     A
                                      v.
                            V.K.SUBBIAH AND ORS.

                               NOVEMBER 12, 1991

           [RANGANATH MISRA, CJ. AND DR. T.K.THOMMEN, J.]                       B
              Tamil Nadu Buildings (Lease and Rent Control) Act, 1960-Section
        JO-Eviction-Plea ofwilfal default-landlord accepting rent for two to
•       three months at a time-Non-payment of rent for three months-Not wil-
        Jul default.

             Tamil Nadu Buildings (Lease and Rent Control) Act,.1960-Section    c
        10---Eviction-Plea of change of user raised by landlord after seven
        years-Effect.

             Appellant was a tenant under the respondents. Action for evic-
        tion against the appellant was initiated on the pleas that there was
        "wilful default" in the matter of payment of rent and that the lease    D
        was residential but it h!'d been used partly for commercial activity.

             At the time of filing of the petition for eviction three months'
        rent had fallen due. The appellant's case was that rent was not
        being collected every month and every two to three 'months the
        respondents-landlords used to come and collect rent at their con-       E
        venience, and that mixed use of the premises was the basis of the
        tenancy.

             The original authority dismissed the petition. In appeal it was
        reversed. The High Court upheld the reversal holding that there
        was no case of wilful default and that the premisies had been rented    F
.....   out also for busine~s use .

             In the appeal by special leave the tenant-appellant contended
        that there was no case of wilful default and that the premises had
        been rented out also for business use and the change of user was
I       since 1973.                                                             G
             Allowing the appeal of the tenant, this court,

              HELD: 1. In the several statutes operating in the differ~nt
        states regulating the law relating to landlord and tenant 'wilful'
        default has been made the ground of eviction while default is not.
        [205 E]
                                         203
     204                SUPREME COURT REPORTS             [1991) SUPP. 2 S.C.R.

A         2. A situation where the landlord had consented to collect
     rent for two to three months a time, non-payment of rent for three
     months cannot constitute wilful default. [205 F]

          3. It is not disputed that from 1973 there had been change of
    use. The petition for eviction was of 1980. It follows that for seven
B   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 the landlords accepted the user to
    be also other than residential. [205 C-D]       -

         S.Sundaram Pillai & Ors. etc. v. V.R.Pattabiraman & Ors. etc.,
C   [1985] 1 SCC 591; Premchand Banka v. A. Vasanthrai Khatod & Ors.,
    C.A.No. 1367 of 1991, decided on 27.3.1991, referred to.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4447 of
     1991

D        From the Judgment and Order dated 24.4.1991 of the Madras High
    Court in Civil Revision Petition No. 4769of1984.

            E.C.Agarwala for the Appellant.

            Mrs. Jayashree Ahmed for the Respondent.
E
            The Judgment of the Court was delivered by

            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
F   (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.
G          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
H   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 IQriginal 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.
                                                                                   D
        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-
                                                                                   G
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.