(1) The petitioner is the landlord of a house situate within penugonda panchayat. The respondents are his tenants, the rent payable being rs. 15 per month. The petitioner filed an application before the rent controller for eviction of the respondent alleging, among other grounds, that the respondents had committed wilful default of payment of rent from january, 1964, till the date of filing of the petition for eviction. The respondents pleaded that the house had fallen into disrepair and that in pursuance of an agreement between themselves and the landlord they incurred an expenditure of which under the agreement they were entitled to adjust towards the rent payable by them.
(2) The respondents deposited the entire arrears of rent after the filing of the petition for eviction. Subsequent to the filing of the petition for eviction the respondents also filed s. C. No. 113 of 1965 on the file of the district munsiff's court, tanuku for recovery of the amountof rs. 250 claimed tohave been spent by them for repairing the house. The learned small cause judge found that the alleged agreement pleaded by the tenants that they were entitled to repair the buildings and claim reimbursement was not true. He, however, found that under section 70 of the contract act the tenants were entitled to recover compensation for the lawful repairs effected by them which were not intended to be gratuitous and which were effected for the benefit of the landlord. On that basis the learned small cause judge decreed the suit for a sum of rs. 70.
(3) The rent controller also found that the agreement pleaded by the tenants was not true. However, he dismissed the petition for eviction on the ground that there was no wilful default in the circumstances of the case, as the tenants were justified in thinking that under law the rent could be adjusted towards the amount spent by them on repairs. On appeal preferred by the landlord, the learned subordinate judge also found that the agreement pleaded by the tenants was not true. He also held that there was no wilful default because the tenants withheld payment of rent as they thought they were entitled to be reimbursed. The landlord has now filed the present application for revision under section 22 of the andhra pradesh buildings (lease, rent and eviction) control act of 1960.
(4) Sri mangachari, learned counsel for the petitioner contends that both the rent controller and the appellate authority having found that the express agreement pleaded by the tenants was not true, they should have held that there was wilful default and ordered eviction. He points out that the rent control act prescribes the procedure by which a tenant, with the permission of the rent controller, may effect repairs and deduct the cost of repairs from the rent payable by the tenant.
(5) Mr. Mangachari urges that without following the procedure prescribed by the act, in the absence of an agreement between the parties, no tenant is entitled to claim that he will effect repairs and deduct the cost from the rent. He urges that the deliberate non - payment of rent in the absence of an agreement, is wilful default within the meaning of section 10 of the act. The learned counsel for the respondents urges that in the present case the tenants did effect repairs and that if they thought that they were entitled to deduct the cost of repairs from the rent payable by them it could not be said that they had committed wilful default. It is now undisputed that the tenants committed default of payment of rent from january, 1964, onwards till the date of filing the petition for eviction. The question for consideration is whether the tenants have shown that the default was not wilful. Under section 10 (2) (i) of the act a landlord may seek eviction on the ground 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 or in the absence of such agreement by the last day of next month following that for which the rent is payable. This clause straightaway entitles a landlord to an order of eviction on proof of default of payment of rent. There is, however, a proviso to clause (i) which states that in any case falling under clause (i) the controller if he is satisfied that the tenant's default to pay or tender rent was not wilful, may give the tenant a reasonable time not exceeding fifteen days to pay or tender the rent and on such payment or tender dismiss the application for eviction.
(6) It is, therefore, clear that the burden of establishing that he did not commit wilful default is clearly on the tenant. The term " wilful default' has been the subject - matter of several decisions and it appears to be fairly well settled now that it means deliberate or intentional non - payment or non - payment due to gross indifference. The word 'wilful' is used in contra - distinction to the words ' accidental' or ' inadvertent'. It does not imply any element of moral turpitude, but it eliminates an honest error of judgment.
(7) In the present case, the tenants tattempted to prove that they had not committed ' wilful default' by pleading that there was an agreement between them and the landlord that the cost of repairs should be adjusted towards rent payable by them. Both the subordinate tribunals have held that the agreement has not been established. The express agreement which was pleaded to claim the benefit of the proviso not having been established the petitioner was entitled to have his application ordered. But, the subordinate tribunals held that the tenants having in fact expended money for effecting repairs, cannot be said to have committed wilful default if they withheld payment of rent under an erroneous impression that they were entitled to make an adjustment. In the first place it was not the case of the tenants that they acted under any erroneous but bona fide belief. Their case was that they acted deliberately in pursuance of an agreement, which has now been found to be false. In the second place the act makes express provision for the manner in which repairs may be effected by a tenant and the cost may be recovered by him. Under section 19, if a landlord fails to make necessry repairs to the building within a reasonable time after notice is given by the tenant, the controller may direct, on application by the tenant, that such repairs may be made by the tenant and that the cost thereof may be deducted by the tenant from the rent payable for the building.
(8) Even so, it is further provided that the controller may not authorise repairs the cost of which exceeds one month's rent. This provision contemplates, first, that the tenant issue a notice calling upon the landlord to effect necessary repairs, second, that the landlord fails to effect repairs within a reasonable time, third, that an application be made by the tenant to the controller for permission to effect repairs and, fourth, that the controller direct the tenant to make the repairs and deduct the cost of repairs from the rent payable. It is surely not permissible to a tenant to circumvent this elaborate procedure prescribed by the statute and claim that he is entitled to deduct the cost of unauthorised repairs carried out by him from the rent payable by him and that, without being subject to the statutory limit. A tenant who refuses to follow the procedure prescribed by statute but prefers to take the law into his own hands, effects repairs far beyond the limits imposed by statute and claims absolution from payment of rent until the cost of repairs is fully met by the rent payable cannot claim that he has not committed wilful default. A person who refuses to pay rent in such circumstances does so intentionally and not inadvertently. One who does not follow the procedure prescribed by statute but makes a law for himself does not act under any honest error of judgment. The default committed by him is wilful default. In the present case admittedly the tenants gave no notice to the landlord calling upon him to repair the building, the permission of the controller was never obtained and the alleged cost of repairs far exceeded the statutory maximum of one month's rent.
(9) As a result of the foregoing discussion i hold that the tenants committed wilful default of payment of rent and that the petitioner is entitled to an order of eviction.
(10) The orders of the subordinate tribunals are set aside and the civil revision petition is allowed with costs. The respondents are given one month's time to vacate the building. Revision allowed.