P.M. PUNNOOSEversusKM. MUNNERUDDIN AND ORS.

A                                 P.M. PUNNOOSE
                                          v.
                         KM. MUNNERUDDIN AND ORS.

                                   JULY 23, 2003

B                     [R.C. LAHOTl AND ASHOK BHAN, JJ.]


          Rent Control and Eviction:

          Tamil Nadu Buildings (lease and Rent Control) Act, 1960; Sections
C   10(2) Proviso and 25:

          Eviction Petition filed by the landlords on ground of default in payment
    of rent-Allowed by the Rent Controller-Reversed by the Appellate Court-
    High Court allowed revision petition in favour of the landlords-Held: Since
D   there was a bonafide dispute as to the payment of quantum of arrears of rent,
    exercising power under proviso to Section I 0(2) of the Act the Rent Controller
    should have directed the tenant to make payment of arrears within a
    reasonable time-Since the tenant has made efforts in tendering rent and any
    delay attributable to him in the payment of rent is bonafide, the tenant
    cannot be held wilfal defaulter-Hence order of eviction set aside.
E
          Section /0(2)(i) and Explanation-Meaning of Proceeding for eviction
    on ground of default in payment of rent initiated by the landlord without
    serving two months' notice-Onus of proving 'wilful default' by tenant is on
    the landlord-In a suit filed after serving such notice, presumption of tenant
    being in wilful default is raised-Onus shifts on tenant to prove that default
F   to pay or tender the rent was not wilful. Section 25-Revisional jurisdiction
    of the High Court-Exercise of-Held: A finding of fact arrived at by the
    appellate authority could not be lightly interfered-Hence the finding offact
    arrived at by the High Court reappreciating the evidence acting like a Court
    of appeal is not justified-Civil Procedure Code, 1908; Section 15.
G         Words and Phrases:

          'wilful default'-Meaning of in the context of Rent Control legislation.

          Respondent-landlords purchased the suit property from the
H   predecessor-in-title. Appellant was a tenant therein on a monthly rent. The
                                         698
                  P.M. PUNNOOSE v. K.M. MUNNERUDDIN                         699
appellant was paying rent to the landlord/respondents by way of money orders        A
up to September, 1988. Thereafter, the respondents did not accept the rent
though appellant continued to remit the monthly rent. Respondents denied it.
Later, Respondents filed an eviction petition on the ground of default in
payment of rent. Rent Controller allowed the eviction petition. Aggrieved, the
tenant filed an appeal which was allowed by the Appellate Court. Revision
Petition preferred by the landlords was allowed by the High Court. Hence the        B
present appeal

      Allowing the appeal, the Court

      HELD: t.t. The counter affidavit filed by the landlords in this Court
shows that the present one is not the case wherein the appellant was sought         C
to be held a 'wilful defaulter' by reference to the Explanation appended to sub-
section (2) of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control)
Act. (705-C)

       t.2. The explanation appended to sub-section (2) of Section 10 of the        D
Act enacts a rule of evidence. After the issuance of two month's notice
claiming the rent, the default by tenant shall be construed as wilful raising a
presumption in that regard and it will be for the tenant to show availability of
sufficient cause or circumstances beyond his control to escape from the
consequence of default. The landlord is not prevented from initiating
proceedings for eviction on the ground of default under Section I 0(2)(i) of        E
the Act, without serving a notice under the Explanation but in that case it will
be for the landlord to make out a case of willful default by tenant failing which
the Controller may exercise his discretion under the proviso giving the tenant
a reasonable time, not exceeding fifteen days for payment or tender the rent.
The present one is not a case of the landlord-respondents having served a           F
notice of demand on the appellant and, therefore, the question of holding the
appellant a wilful defaulter by reference to the Explanation to sub-section (2)
of Section 10 of the Act does not arise. [706-C-F[

      S. Sundaram Pillai and Ors. v. V.R. Pattabiraman and Ors .• [1985( 1
SCC 591; Chordia Automobiles v. S. Moosa and Ors., 1200013 SCC 282 and              G
Raja Muthukone (dead) by Lrs. v. T. Gopalasami and Anr., 1200214 SCC 204,
referred.

      1.3. The principal dispute centered around the payment of rent for the
month of October, 1988. There was a controversy as to whether the rent for
that month was paid or tendered or notand, therefore, the appellant, to be on       H
    700                     SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A   safer side, had tendered a fresh amount of rent in the Court along with the
    written statement. The respondents in their notice had taken a stand that the
    rent remitted in the month of December, 1988 was being appropriated towards
    arrears for the month of October, 1988. However, a perusal of the decisions
    rendered up to the High Court does not show the respondents having adduced
    any evidence in proof of the factum of such appropriation. The statement made
B   in the notice as to appropriation remains an assertion made in the notice but
    not substantiated by evidence. [706-G-H; 707-A-B[

          1.4. The facts found indicate the tenant-appellant remitting the amount
    of rent by money orders before and after and even during the pendency of the
C   proceedings and some of the money orders having been refused by the
    landlord-respondents. The present one is a fit case where the Controller should
    have exercised his power under proviso to sub-section (2) of Section 10 of the
    Act by passing an order thereunder and giving the tenant-appellant a
    reasonable time to pay or tender the rent due by him to the landlord up to the
    date of such payment of rent If such order was complied with by the appellant-
D   tenant, then the application for eviction should have been rejected. The
    Controller has erred in not passing that order. (707-C-E I

           1.5. It is true that the revisional jurisdiction conferred on the High Court
    under Section 25 of the Act is not as narrow as one under Section 115 of the
    Code of Civil Procedure; nevertheless, a finding of fact arrived at by the
E   appellate authority cannot be lightly interfered with by the High Court acting
    like a Court of appeal and reappreciating the evidence. [707-E-F]

          1.6. The High Court proceeded on an erroneous assumption that the
    tenant had admitted his default and there was an admission in the written
F   statement filed by the tenant that he had defaulted in payment of rent and in
    view of such admission, it was for the tenant to prove that the default was
    neither wilful nor wanton nor deliberate. The observation of the High Court
    was a misreading of the written statement. The various averments made in
    the written statement were to be read in their entirety and not in isolation.
    The appellant has nowhere, in the written statement, admitted himself to be
G   in arrears. The totality of the conduct of the tenant-appellant, as inferred from
    the dealings between the parties and the documentary and oral evidence
    adduced, shows that the appellant has always made an effort at paying or
    tendering the rent and the delay or default, if any, attributable to the appellant-
    tenant is bona fide and cannot be said to be wilful in any case. Whether the
H   tenant has committed a wilful default or not would depend on the facts and
         P.M. PUNNOOSE v. K.M. MUNNERUDDIN [R.C. LAHOTI. J.]                70 I
circumstances of a given case, the issue, in the instant matter, being primarily    A
one of fact. 1707-F-H; 708-B; 709-AI

      E. Palanisamy v. Palanisamy (dead) by lrs. and Ors., 120031 I SCC
123, distinguished.

       I. 7. The High Court, in exercise of revisional jurisdiction, was not        B
justified in interfering with and reversing the findings arrived at by the
appellate authority and the reversal recorded by the High Court stands vitiated
by misreading of the written statement. 1709-BI

      1.8. The appellant shall remain liable to clear all the arrears of rent up
to date. If there have been any defaults in between or during the pendency of       C
the proceedings consequent upon which the appellant-tenant has incurred a
fresh liability for eviction, the landlord-respondents shall be free to initiate
proceedings in that regard and such right of theirs is not waived by this
decision. 1709-El

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3121 of2000.
                                                                                    D

      From the Judgment and Order dated 28.1.2000 of the Madras High Court
in C.R.P. Nos. 1189of1996.

      Bhimrao N. Naik and V. Balachandran, for the Appellant.
                                                                                    E
     K.V. Vishwanathan, Kunwan Ajit Singh and K.V. Venkataraman, for the
Respondents.

      The Judgment of the Court was delivered by

      R.C. LAHOTI, J. The landlord-respondents filed an application seeking         F
eviction of the appellant-tenant from the suit premises on the ground alleged
to be available under Clause (I) of sub-Section (2) of Section 10 of the Tamil
Nadu Buildings (lease and Rent Control) Act, 1960 (Act No. 18 of 1960)
(hereinafter referred as 'the Act' for short). The relevant provisions read as
under:
                                                                                    G
      "I 0. Eviction of tenants .

            (2) A landlord who seeks to evict his tenant shall apply to the
        Controller for a direction in that behalf. lfthe Controller, after giving
        the tenant a reasonable opportunity of showing cause against the            H
    702                     SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A          application, is satisfied-

           (i)   that the tenant has not paid or tendered the rent due by him in
                 respect of the building, within fifteen days after the expiry of the
                 time fixed in the agreement of tenancy with his landlord or in the
                 absence of any such agreement, by the last day of the month
B                next following that for which the rent is payable, or
                 xx            xx          xx              xx

    the Controller shall make an order directing the tenant to put the landlord in
    possession of the building and if the Controller is not so satisfied, he shall
C   make an order rejecting the application :

                Provided that in any case falling under clause (i) if the Controller
            is satisfied that the tenant's default to pay or tender rent was not
            willful, he may, notwithstanding anything contained in section II, give
            the tenant a reasonable time, not exceeding fifteen days, to pay or
D           tender th' 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.

            Explanation-For the purpose of this sub-section, default to pay or
            tender rent shall be construed as willful, if the default by the tenant
E           in the payment or tender of rent continued after the issue of two
            month's notice by the landlord claiming the rent.

          The Controller allowed the application and directed the appellant-tenant
    to be evicted recording a finding that the tenant had committed a willful
    default in the payment of rent. The tenant preferred an appeal which was
F   allowed by the Court of Small Causes, being the appellate authority. The
    landlord preferred a revision under section 25 of the Act which has been
    allowed. The High Court has set aside the judgment of the appellate authority
    and restored that of the Controller. Feeling aggrieved, the tenant has filed this
    appeal by special leave.

G          The facts in brief, so far as relevant for the purpose of this appeal, are
    briefly rtated hereinafter. The landlord - respondents, five in number, purchased
    the suit property from the predecessor in title under the sale deed dated
    9.1.1987. On the date of purchase, the appellant was tenant in the suit
    premises holding the same on a monthly rent of Rs. 400 from the predecessor
H   in title of the respondents. On purchase of the property by the respondents
         P.M. PUNNOOSE v. K.M. MUNNERUDDIN (R.C. LAHOTI, J.)                 703

the appellant commenced paying rent to the respondents. The rent for the A
 month of January, 1987 was remitted by the appellant to the five respondents
by way of five money order for Rs. 80 each. Thereafter, the appellant started
remitting the rent to the respondents by money order of Rs. 400 each payable
to the first respondent. There is some controversy as to the exact amount of
the rent paid or tendered but to clearing of such controversy, we will proceed B
to notice only such facts as have been found proved. After remitting the rent
for the month of January, 1987, as stated hereinabove, the appellant-tenant
sent seventeen money orders through which rent up to the month of
September. 1988 was paid by the appellant and received by the respondents.
Thereafter, the dispute erupted.

       From the judgment of the appellate authority, which is the final court
                                                                                    c
of facts, three relevant facts are culled out and reproduced in brief as follows:

       Firstly, even before 1987, when the respondents purchased the suit
property, the predecessor in title of the respondents had initiated several
proceedings against the tenants-appellant seeking eviction of the appellant D
but they were all unsuccessful. Secondly, the owners of the property were
liable to remit the water and sewerage taxes of the suit property which, if not
remitted by them, could be remitted or paid by the tenants themselves which
payments, on being notified to the landlord, cou Id be deducted from out of
the amount of rent because if such taxes were not remitted, the supply of
drinking water to the premises could be stopped. Thirdly, for the periods E
November, December, 1988 and January, February, 1989, for four months, the
appellant had sent the rent by money order to the respondents, relevant
documents in which regard were tendered in evidence and exhibited.

     From the finding recorded by the High Court, it is clear that on 1.3.1989. F
under ext. R-7, an amount of Rs. 400 was remitted by money order which the
respondents refused. Under Ext. R-8 and R-9, each for Rs. 400, the amount
was remitted on 31.3.1989 which too was returned by the respondents.
Admittedly, the appellant did not mention in the money order coupons the
months for which the amount of Rs. 400 each was being remitted by way of
~-                                                                                  G
      The narrow controversy which survived for decision before the Controller
was : What was the period for which the tenant was in arrears? The amount
which was remitted in the month of December, 1988 was claimed by the
appellant to have been tendered on account of arrears for the month of
November, 1988 while, according to the respondents, such tender was without H
    704                     SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A any specific directions and the same was appropriated by the landlords as
    against the rent for the month of October, 1988 which, according to them, was
    due and payable by the appellant.

         The application for eviction before the controller was filed on 17.4.1989.
  In the written statement, the appellant took the plea that vide Exts. R-2, R-
B 3, R-4, R-6, and R-1, respectively dated 2.8.1988, 20.8.1988, 20.9.1988, 25.10.1988
  and 18.12.1988, the amount of Rs. 400 each was remitted. It was submitted that
  by these money orders, rent upto the month of October, 1988 was paid.
  Another money order of Rs. 400 was sent on 31.12.J 988, marked as Ext. R-
  5, whereby, according to the tenant-appellant, rent for the month of December,
C 1988 was paid. As to the month of November, 1988, the submission of the
  tenant-appellant was that though rent for the month of November, 1988 was
  also remitted by money order, but receipts thereof were not traceable and,
  therefore, to be on safer side, the tenant-appellant offered to deposit the same
  in the court. In the eviction application dated 17.4.1989 vide para 6, it is
  alleged that the tenant-appellant did not pay rent from 1.11.1988 to 31.3.1989
D amounting to Rs. 2,000. However, in the same para, it is alleged at the end
  that so far as the liability incurred by the tenant-appellant or willful default
  in payment of rent is concerned, it is for the period between 1.11.1988 and
  28.2.1989 for which he is liable to be evicted.

          On 1.3.1989, the appellant remitted by money orders, ext. R-7, R-8 and
E   R-9, an amount of Rs. 400 each which money orders the landlord-respondents
    refused to accept. On 12.4.1989, under notice, Ext. R-10, the appellant sent a
    Demand Draft dated 10.4.1989 for Rs. 1200/- towards rent for January, 1989 to
    March, 1989. The registered letter·containing the demand draft and bearing
    was received back by the appellant along with an endorsement "not found".
p   On 12.6.1989, the appellant sent another registered letter containing a cheque
    of Rs. 2000 being rent for the months of January to May, 1989 and the same
    was received by the respondents. The cheque was also encashed.

         Prior to the filing of the application for eviction, there was an exchange
  of notices through lawyers between the parties. The contents of notice dated
G 1.2.1989 sent by the respondents' lawyer to the appellant shows that the
  respondents had sent as cheque for Rs. 477.85 ps. by way of reimbursement
  for the amount of water tax paid by the appellant. There was yet another claim
  for Rs. 19 I.I 0 ps. made by the appellant from the respondents on account of
  water tax and sewage tax paid by the appellant for which the respondents
H insisted that the original receipts and not xerox copies thereof be sent to the
        P.M. PUNNOOSE v. K.M. MUNNERUDDIN [R.C. LAHOTL J.]                  705
respondents so as to make the payment. At the end of the letter, the                A
respondents mentioned that the rent sent by the appellant in the month of
December, 1988 and received by the respondents on 31.12.1988 would relate
to the month of October, 1988 and, therefore, the appellant would remain in
default of payment of rent for November, 1988 by a subsequent letter dated
3.10.1989, the respondents disputed their liability for payment of taxes and        B
also made a demand for refund of the amount paid by the respondents to the
appellant on that account.

      The facts as to the payment of taxes and dispute relating thereto have
been only incidentally stated as that controversy is not supposed to be
resolved in this appeal nor dose it arise for decision herein.
                                                                                    c
       A perusal of the counter affidavit filed by the landlords in this Court
shows that present one is not the case wherein the appellant is sought to be
held a 'wilful defaulter' by reference to the Explanation appended to sub-
section (2) of Section I 0 of the Act. The singular question arising for decision
in this appeal is whether the appellant can be held to have wilfully defaulted      D
in payment or tender of rent within the meaning of Section I0(2] of the Act
and, therefore, whether the High Court was justified in reversing the judgment
of the appellate authority.

       The provisions of Section I 0(2] of the Act came up for consideration
before a three Judge Bench of this Court in S. Sundaram Pillai and Ors. v.          E
V.R. Pattabiraman and Ors., [ 1985] 1 SCC 591. On a review of decision this
Court held that wilful default would mean a deliberate and intentional default
knowing full well the legal consequences thereof. The use of the words 'wilful
default' in the provision is suggestive of the legislative intent that default,
in order to be wilful, must be intentional, deliberate, calculated and conscious    F
with full knowledge of legal consequence flowing therefrom. So is the view
taken by this Court in Chordia Automobiles v. S. Moosa and Ors., (2000] 3
SCC 282. Sundaram Pi//ai's case (supra) came up for consideration of this
Court in Raja Mulhukone (dead) by Lrs. v. T. Gopalasami and Anr., (2002]
4 SCC 204. This Court held that on a cumulative reading of the provisions
of Section 10(2) (1), the provisio and the Explanation appended to sub-Section      G
(2), the following consequences follows :

            "(I) Where no notice is given by the landlord in terms of the
        Explanation , the Controller, having regard to the four conditions spelt
        out by us has the undoubted discretion to examine the question as
        to whether or not the default committed by the tenant is willful. If he H
    706                     SUPREME COURT REPORTS (2003) SUPP. I S.C.R.

A           feels that any of the conditions mentioned by us is lacking or that the
            default was due to some unforeseen circumstances, he may give the
            tenant a chance of locus poenitentiae 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 ejectment would have to be rejected.

B               (2) If the lal)dlord chooses to give two months' notice to the
            tenant to clear 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 willful default because such
            a conduct of the tenant would itself be presumed to be willful default
            unless he shows that he was prevented by the sufficient cause or
c           circumstances beyond his control in honouring the notice sent by the
            landlord."

        The explanation appended to sub-Section (2) of section I0 if the Act
  enacts a rule of evidence. After the issuance of two month's notice claiming
D the rent, the default by tenant shall be construed as willful raising a presumption
  in that regard and it will be for the tenant to show availability of sufficient
  cause or circumstances beyond his control to escape from the consequence
  of default. The landlord is not prevented from initiating proceedings for ·
  eviction on the ground of default under Section I 0(2) (I) of the Act, without
  serving a notice under the Explanation but in that case it will be for the
E landlord to make out a case of wilful default by tenant failing which the
  Controller may exercise his discretion under the proviso giving the tenant a
  reasonable time, not exceeding fifteen days for payment or tender.

        As already stated hereinabove, the present one is not a case of the
  landlord-respondents having served a notice of demand on the appellant and,
F therefore, the question of holding the appellant a willful defaulter by reference
  to the Explanation above-said does not arise. It is still open to the landlords,
  though a demand notice did not precede the initiation of the proceedings, to
  plead that the tenant had willfully defaulted in payment of rent.

          The facts and circumstances of the case and the manner in which the
G finding was recorded by the Controller and reversed by the appellate authority
  indicate that the rent was being paid or tendered by money orders soon after
  the purchase of the property by the respondents and therein the month for
  which the payment of rent was being tendered by money order was not being
  stated by the appellant. The principle dispute centered around the payment
H of rent for the months of October, I988. There was a controversy as to
         P.M. PUNNOOSE v. K.M. MUNNERUDDIN [R.C. LAHOTI, .I.]            707

whether the amount for this month was paid or tendered or not and, therefore A
the appellant, to be on safer side, had tendered a fresh amount of Rs. 400 in
the court along with the written statement. Though in the notice dated
1.2.1989, the respondents through their counsel have taken a stand that the
rent remitted in the month of December, 1988, was being appropriated towards
arrears for the month of October, 1988, however, a perusal of the three.
decisions rendered upto the High Court does not show the respondents B
having adduced any evidence in proof of the factum of such appropriation.
The statement made in the notice as to appropriation remains an assertion
made in the notice but not substantiated by evidence.

       There appears to be a bona-fide dispute as to the quantum of arrears,     C
that is, as to what was the exact amount of rent paid by the tenant-appellant
to the landlord-respondents and consequent upon which payment the liability
for how many number of months came to be extinguished. The facts found
indicate the tenant-appellant remitting the amount of rent by money orders
before and after and even during the pendency of the proceedings and some
of the money orders having been refused by the landlord - respondents. The       D
present one is a fit case where the Controller should have exercised his power
under proviso to sub-Section (2) of Section I0 of the Act by passing an order
thereunder and giving the tenants-appellant a reasonable time, not exceeding
15 days, to pay or tender the rent due by him to the landlord upto the date
of such payments of rent. If such order was complied with by the appellant-
tenant, then the application for evittion should have been rejected. The         E
learned Controller has erred in not passing that order.

       It is true that the revisional jurisdiction conferred on the High Court
under section 25 of the Act is not as narrow as one under Section 115 of the
Code of Civil Procedure; nevertheless a finding of fact arrived at by the F
appellate authority cannot be lightly interfered with by the High Court acting
like a court of appeal and re-appreciating the evidence. A perusal of the order
of the High Court show the High Court proceeding on an erroneous assumption
that the tenant had admitted default and there was an admission in the written
statement filed by the tenant that he had defaulted in payment of rent for the
month of November, 1988 and in view of such admission, it was for the tenant G
to prove that the default was neither wilful nor wanton nor deliberate. To say
the least, the above-said observation of the High Court is a misreading of the
written statement. The various averments made in the written statement are
to be read in their entirety and not in isolation. We have carefully perused
the written statement filed by the tenant-appellant before the Controller. The H
    708                     SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A appellant has nowhere admitted himself to be in arrears. What the appellant
  has stated is that in spite of the plea taken in the written statement that the
  rent for the month of November, 1988 was remitted by money order inasmuch
  as the M.O. receipts were not traceable, the amount was being tendered once
  again with the written statement so as to get rid of the alleged default. The
  totality of the conduct of the tenant-appellant, as inferred from the dealings
B between the parties and the documentary and oral evidence adduced, show
  that the appellant has always made an effort at paying or tendering the rent
  and the delay or default, if any, attributable to the appellant-tenant is bonafide
  and cannot be said to be willful in any case.

C        Placing reliance on a recent decision of this Court in E. Palanisamy v.
    Palanisamy (dead) by Lrs. and Ors., (2003] I SCC 123 and various decisions
  of the Madras High Court, the learned counsel for the respondents submitted
  that once the tenant is shown to have been in default, when it is for him to
  prove that the default was not willful. It is submitted by the learned counsel
  for the respondents that in E. Palanisamy 's case (supra), this Court has
D referred to the provisions of Section 8 of the Act and held that where the
  landlord is alleged to have refused or avoided accepting the tender or payment
  of rent, then the appropriate remedy of the tenant is to have recourse to
  Section 8 of the Act and pay or tender the rent in the manner contemplated
  by section 8 of the Act, failing which the deposit of rent before the Controller
  would not ensure for the benefit of the tenant and the effect of default shall
E not be washed out.
           We have carefully perused the judgment relied on by the learned counsel
    and we are of the opinion that the same has no applicability to the facts of
    the present case. In E. Palanisamy' case (supra), the proceedings for eviction
F   were initiated after issuing a default notice to the tenant which was served
    on the tenant and the tenant had responded by denying any default on his
    part in payment of rent. The question whether in the facts and circumstances
    of the case, a tenant could be said to have committed wilful default did not
    arise for consideration of the Court. The submission made by the parties
    centered around Section 8 of the Act only. The appellate authority observed
G   in its decision that even after the petition had been filed by the landlords, the
    tenant did not think of offering the rent to the landlords. In this background,
    the court held that where the applicability of Section 8 is attracted, it has to
    be strictly complied with by the tenant before he can seek benefit under the
    said provision regarding deposit of rent in the court.

H         So far as the several decisions from the High Court cited by the learned
           P.M. PUNNOOSE v. K.M. MUNNERUDDIN [R.C. LAHOTI, J.]            . 709

counsel for the respondents are concerned, without burdening this judgment A
by dealing with individual judgments, suffice it to observe that the law laid
down therein has to be read in the background of the facts of each case.
Whether the tenant has committed a wilful default or not would depend on
the facts and circumstances of a given case, the issue being primarily one of
fact.
                                                                                    B
      In the case at hand, we are of the opinion that the High Court, in
exercise of revisional jurisdiction, was not justified in interfering with and
reversing the findings arrived at by the appellate authority and the reversal
recorded by the High Court stands vitiated by misreading of the written
statement.
                                                                                    c
      The learned counsel for the appellant-tenant stated at the Bar that all
the arrears of rent have been cleared and still if there are found to be any
arrears, the appellant undertakes to clear the same within a period of two
months from today, without raising any other objection to the liability of the
tenant to pay the same. In view of that statement, we do not think that the         D
order of eviction passed by the High Court can be sustained.

       The appeal is allowed. The order of eviction passed by the High Court
is set aside. The appellant shall remain liable to clear all the arrears of rent
up to date, as stated by the learned counsel for the appellant before us. If
there have been any defaults in between or during the pendency of the               E
proceedings consequent upon which the appellant-tenant has incurred a
fresh liability for eviction, the landlord -respondents shall be free to initiate
proceedings in that regard and such right of theirs is not waived by this
decision.

         The costs shall be borne by the parties a incurred throughout.             F
S.K.S.                                                         Appeal allowed.