COMMON ORDER

C.R.P No. 1582 of 1993 has been filed by the tenant J. Jermons against the judgment of the Appellate Authority/Principal Subordinate Judge, Tirunelveli, dated 12-4-1993 in R.C.A No. 43 of 1991, reversing the order of the Rent Controller/District Munsif, Valliyur, dated 30-4-1991 in R.C.O.P No. 2 of 1990. C.R.P No. 1705 of 1993 has been filed by the legal representatives of the original landlord against the judgment of the Appellate Authority/Principal Subordinate Judge, Tirunelveli, in R.C.A No. 43 of 1991 in so far as it is against them. For the sake of convenience, the parties are referred to as landlord and tenant.

2. The landlord S.A Sahul Hameed filed R.C.O.P No. 2 of 1990 for evicting the tenant on the ground of wilful default in payment of rent and for own use and occupation. It is the contention of the landlord that his sons, who are respondents 2 to 4 in C.R.P No. 1582 of 1993, are running a provision store under the name and style of Vasantham Shopping Centre at Tirunelveli and that the business has picked up well and has built up a reputation. Taking into consideration the great potential in the consumer goods market, especially household goods and other items, the landlord's sons have planned and decided to expand their business with Ervadi as their headquarters to cover the last developing market in Valliyur, and other coastal areas. They required the premises for their own use for the purpose of their own business. Their requirement is bona fide. The tenant was a chronic defaulter in the payment of rent. Therefore, the eviction petition was filed by the landlord. The tenant filed a detailed counter inter alia contending that he has not committed wilful default and that the requirement is not bona fide. The Rent Controller rejected the plea of wilful default on the ground that it is only the Income-tax Department which could maintain the petition. The Rent Controller has also rejected the plea of requirement of the premises for own use on the ground that the landlord is already having a non-residential premises and hence the plea of requirement is not bona fide. The landlord preferred an appeal. The Appellate Authority rejected the claim of requirement for personal occupation. However, the Appellate Authority ordered eviction on the ground of wilful default in payment of rent. Aggrieved by the same, both parties have preferred the respective Civil Revision Petitions.

3. I have heard the arguments of Mr. R. Krishnamurthi, learned Senior Counsel for the landlords and Mr. P. Peppin Fernando, learned counsel for the tenant.

4. The landlord filed the eviction petition on two grounds viz., (i) wilful default in payment of rent; and (ii) building is required for own use and occupation. It is not in dispute that the building leased out is a non-residential building. It is also not in dispute that the Income-tax Department has attached the rents in the hands of the tenant. The landlord had admitted that the Income-tax Department which had attached the rent is the agent of the landlord for collecting the rent. In Paragraph 4 of the eviction petition the landlord had admitted that the Income-tax Department received the rent as the nominee of the landlord. It is further averred that the Income-tax Department is only an agent for collection of the rent. Therefore, there is no dispute that the Income-tax Department is the agent of the landlord for collecting the rent.

5. The Income-tax Department attached the rent due to the landlord by the tenant by its order dated 6-3-1979. The order reads thus:

“Prohibitory order, where the property consists of debts not secured by negotiable instruments

Office of the Tax Recover Officer, Tirunelveli 6-3-1979

To Sri T.M Germans Fernandes, Hire Cycle Shop, 70, Main Road, Ervadi.

Whereas Sri S.A Sanul Hameed, Ervadi has failed to pay arrears due from him in respect of Certificate No. 47-026-Py. 7428 dated 29-3-1978 forwarded by the Income-tax Officer, Special at Madurai amounting to Rs. 81,877/- and the interest payable under Sec. 220(2) of the Income-tax Act, 1961 for the period commencing immediately after the said date;

And whereas Sri S.A Sahul Hameed, Eravadi, has failed to pay the arrears due from him in respect of certificate No. 47-026-p9. 7478 dated 29-3-1978 forwarded by the Income-tax Officer, Special at Madurai to the Tax Recovery Officer, Tirunelveli, amounting to Rs. 81,877/- and the interest payable under Sec. 220(2) of the Income-tax Act, 1961, for the period commencing immediately after the said date and whereas the said Tax Recovery Officer has sent the undersigned a certified copy of the said certificate under Sec. 223(2) of the said Act specifying that an amount of Rs. 81,877/- is to recovered from the defaulter.

It is ordered that T.M Germans Fernandes, Hire Cycle Shop, Ervadi, be and is hereby prohibited and resstrained until the further orders of the undersigned, from receiving from you a certain debt alleged now to be due from you to T.M Germans Fernandes, Hire Cycle Shop, Ervadi.

And that you the said T.M Germans Fernandes, Hire Cycle Shop, Ervadi be and you are hereby prohibited and restrained, until the further orders of the undersigned, from making payment of the said debt or any part thereof, to any person whomsoever or otherwise than to the undersigned.

Given under my hand and seal at Tirunelveli this 6th day of March, 1979.

(Sd.) xxxxx Tax Recovery Officer, Tirunelveli;”

6. The notice issued by the Income-tax Officer, Tirunelveli under Sec. 226(3) of the Income-tax Act, 1961 to the tenant in 47-026-PX. 7478, Tirunelveli, dated 18-1-1988, which is marked as EX. R-3, reads thus:

Sri T. Jermons, Sri Thommai Fernando, 70 North Main Road, Ervadi-027103, Nanguneri Taluk.

A sum of Rs. 3,91,067/- is due from Sri S. A. Sahul Hameed of 87, 7th Street, Ervadi on account if Income-tax/Super-tax/Penalty/Interest/Fine. You are hereby required under Sec. 226(3) of the Income-tax Act, 1961, to pay to me forthwith any amount due from you to, or, held by you, for or on account of the said S.A Sahul Hameed of Ervadi upto the amount of arrears shown above, and also request you to pay any money which may subsequently become due from you to him or which you may subsequently hold for on account of him upto the amount of arrears still remaining unpaid, forthwith on the money becoming due, or being held by you as aforesaid as such payment is required to meet the amount due by the tax payer in respect of arrears of Income-tax/Super-tax/Penalty/Interest/Fine. I am to say that any payment made by you in compliance with this Notice is in law deemed to have been made under the authority of the tax-payer and my receipt will constitute a good and sufficient discharge of your liability to the person to the extent of the amount referred to in the receipt.

I am to observe that if you discharge any liability to the tax payer after the receipt of this Notice, you will be personally liable to me as Income-tax Officer I, Tirunelveli, to the extent of the liability discharged, or to the extent of the liability of the tax-payer for tax/penalty/interest/fine referred to in the preceding para, whichever is less.

Further, if you fail to make payment in pursuance of this Notice to me as Income-tax Officer, you shall be deemed to be an assessee in default in respect of the amount specified on the notice and further proceedings may be taken against you for the realisation of the amount as if it were an arrears of tax due from you in the manner provided in Secs. 222 to 225 of the Income-tax Act, 1961, and this notice shall have the same effect as an attachment of a debt by the Tax Recovery Officer in exercise of his powers under Sec. 222 of the said Act.

The necessary challans for depositing the money to the credit of the Central Government may be obtained from me.

A copy of this notice is being sent to Sri S.A Sahul Hameed, 87, 7th Street, Ervadi (tax payer.)

(Sd.) x x x x x 1st Income-tax Officer, Tirunelveli.”

7. The tenant paid Rs. 6,420/- on 24-2-1988, which amount represents 107 months rent. The tenant has also sent a letter along with the challan. The said challan and the letter are marked as Ex. R-4. Thereafter, the tenant has paid the rent once in two months or four months as could be seen from Exs. R-6 to R-17. It is, therefore contended by the learned counsel for the tenant that at the time of the filing of the petition before the Rent Controller on 21-3-1990, there was no arrears of rent and on the oral orders of the Income-tax Department, the tenant was paying the rent once in two months or once in four months. It is submitted by Mr. P. Peppin Fernando, learned counsel for the tenant, that the agent of the landlord viz., the Income-tax Department had been receiving the rent without any protest or murmur and once the agent of the landlord has received the rent without any protest, the tenant cannot be said to have committed wilful default.

8. In support of the above contention Mr. P. Peppin Fernando has cited the rulings reported in Mangalbhai v. Dr. Radhyshyam (1992 (3) S.C.C 448); Swami Ratanbabu v. Wamanrao Shankarrao Deshmukh (1994 Supp.(3) S.C.C 738) and Rashik Lal v. Shah Gokuldas (1989 (1) S.C.C 542) which decisions, according to the learned counsel for the tenant, would clearly show that when the agent of the landlord had received the rent without any protest or murmur, the tenant cannot be said to have committed wilful default. The learned counsel for the tenant has also cited another decision of this Court (by AR. Lakshmanan, J.) reported in Abdul Hameed v. M. Sultan Abdul Kader (1996) (2) L.W 525) wherein this Court has held that when the landlord was collecting the rent through his agent once in four months or six months and when there is no deliberate or calculated or supine indifference in payment of rent, it cannot be said that the tenant had committed wilful default. The decision of the Apex Court reported in V. Krishna Mudaliar v. Lakshmi Ammal. (1996) (2) L.W 467) was also cited for the proposition that if the tenant deposited the rent immediately alter the filing of the eviction petition, there cannot be any wilful default. My judgment in 1996 (2) L.W 525 was also cited in support of the said proposition.

9. It is contended by Mr. P. Peppin Fernando, learned counsel for the tenant, that the tenant has been paying the rent as per the instructions of the agent of the landlord and therefore, the tenant cannot be said to have committed wilful default. The tenant has paid the rent for 107 months to the Income-tax Department only on 24-2-1988 even though the rent in the hands of the tenant was attached by the Department under Ex. R-2 as early as on 6-3-1979. Thereafter, the tenant paid the rent once in two months or once in four months, as the case may be, which has been accepted by the landlord without any protest. Therefore, the learned counsel for the tenant contended that the tenant has not committed any default muchless wilful default and that the landlord has not proved that the tenant has shown supine indifference in paying the rent.

10. Regarding the requirement of the premises for own use and occupation, the landlord had filed the eviction petition under Sec. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act). During the pendency of the revisions, the landlords want to amend the grounds of revisions, by adding grounds under Sec. 10(3)(c) of the Act also. The said petition is numbered as C.M.P No. 13064 of 1996.

11. Opposing the said application, Mr. P. Peppin Fernando contended that if the landlord is permitted to raise the grounds under Sec. 10(3)(c) of the Act, then the relative hardship of the landlord and the tenant will have to be considered. In this case, the landlord has not pleaded the important ingredients contemplated under Sec. 10(3)(c) of the Act. If the same is pleaded, the tenant would have let in evidence and proved that the requirement under Sec. 10(3)(c) of the Act was not satisfied. Moreover, if the landlord had more than one premises vacant during the trial of the case or at the time of the pendency of the appeal, he could have sought for amendment either before the Rent Controller or before the Appellate Authority in respect of the ingredients required under Sec. 10(3)(c) of the Act. In that event, the authorities below would have taken evidence and the tenant would have let in evidence also. Therefore it is submitted that such a plea cannot be allowed to be taken in this revision at this distance of time and if the plea is allowed to be taken, the tenant will be deprived of proving that his hardship would be more than that of the landlord. It is also pointed out by the learned counsel for the tenant that the scope of Sec. 10(3)(c) of the Act is different from Sec. 10(3)(a)(iii) of the Act and that each sub-section will come in to play under different circumstances.

12. Winding up his arguments Mr. P. Peppin Fermando contended that both the Rent Controller and the Appellate Authority have found concurrently that the requirement of the landlord for own use and occupation was not bona fide and as such, the concurrent finding should not be interfered with unless those findings are perverse. For this proposition he sought support from the rulings reported in Sri Raja Lakshmi Dyeing Works v. Rangaswami Chettiar A.I.R 1980 S.C 1253); A. Narasimnan v. N. Janardhanan (1983 II M.L.J 164 = 96 L.W 68 S.N): Chandra Bai v. M.J Kuppuswami Pillai (1991 II M.L.J 19); Rajagopala Iyer v. Top in Town Dry Cleaners (1992 (I) M.L.J 167); Mattulal v. Radhe Lal (A.I.R 1974 S.C 1596) and Dattondant Gopalvarao Devakata v. Vithalrao Marutirao (A.I.R 1975 S.C 1111). It is also pointed out that there is no evidence to show that other tenants have vacated the premises subsequently and therefore it is submitted that there are no merits in the revision filed by the landlords and the same is liable to be dismissed and the revision filed by the tenant may be allowed.

13. Arguing contra, Mr. R. Krishnamoorthi, learned Senior Counsel appearing for the landlords drew my attention to certain provisions of the Income-tax Act, 1961, relevant for the case on hand. He first drew my attention to Sec. 226(3)(i) of the Income-tax Act, which runs as follows:—

“The Assessing Officer or Tax Recovery Officer may, at any time or from time to time, by notice in writing require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for as or account of the assessee, to pay to the Assessing Officer or Tax Recovery Officer either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of the money when it is equal to or less than that amount.”

Sec. 226(3)(x) of the Income-tax Act runs as follows:

“If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Assessing Officer or Tax Recovery Officer, he shall be deemed to be an assessee in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realisation of the amount as if it were an arrear of tax due from him, in the manner provided in Secs. 222 to 225 and the notice shall have the same effect as an attachment of a debt by the Tax Recovery Officer in exercise of his powers under Sec. 22.2” Sec. 226(5) of the Income-tax Act reads as follows:

“The Assessing Officer or Tax Recovery Officer may, if so authorised by the Chief Commissioner or Commissioner by general or special order, recover any arrears of tax due from an assessee by distraint and sale of his movable property in the manner laid down in the Third Schedule.”

14. Sec. 222 of the Income-tax Act, 1961, reads as follows:—

“222. Certificate to Tax Recovery Officer.- (1) When an assessee is in default or is deemed to be in default in making a payment of tax, the Tax Recovery Officer may draw up under his signature a statement in the prescribed form specifying the amount of arrears due from the assessee (such statement being hereafter in this Chapter and in the Second Schedule referred to as ‘certificate’) and shall proceed to recover from such assessee the amount specified in the certificate by one or more of the modes mentioned below, in accordance with the rules laid down in the Second Schedule-

a) attachment and sale of the assessee's movable property;

b) attachment and sale of the assessee's immovable property;

c) arrest of the assessee and his detention in prison;

d) appointing a receiver for the management of the assessee's movable and immovable properties.

Explanation:— for the purposes of this sub-section, the assessee's movable or immovable property shall include any property which has been transferred, directly or indirectly on or after the 1st day of June, 1973, by the assessee to his spouse or minor child, or sons' wife or son's minor child, otherwise than for adequate consideration, and which is held by, or stands in the name of, any of the persons aforesaid; and so far as the movable or immovable property so transferred to his minor child or his son's minor child is concerned, it shall, even after the date of attainment of majority, by such minor child or son's minor child, as the case may be, continues to be included in the assessee's movable or immovable property for recovering any arrears due from the assessee in respect of any period prior to such date.

(2) The Tax Recovery Officer may take action under sub-section (1), notwithstanding that proceedings for recovery of the arrears by any other mode have been taken.”

15. Sec. 221 of the Income-tax Act deals with penalty payable when tax in default. It runs as follows:

“221. Penalty payable when tax in default.- (1) When an assessee is in default or is deemed to be in default in, making a payment of tax, he shall, in addition to the amount of the arrears and the amount of interest payable under sub-section (2) of Sec. 220, be liable, by way of penalty, to pay such amount as the Assessing Officer may direct, and in the case of a continuing default, such further amount or amounts as the Assessing Officer may, from time to time, direct, so, however, that the total amount of penalty does not exceed the amount of tax in arrears:

Provided that before levying any such penalty, the assessee shall be given a reasonable opportunity of being heard:

Provided further that where the assessee proves to the satisfaction of the Assessing Officer that the default was for good and sufficient reasons, no penalty shall be levied under this Section.”

16. In case of delayed payment or non-payment of the rent to the Tax Recovery Officer or Assessing Officer by the tenants of the rentals due to the landlord, the Tax Recovery Officer can proceed against the landlord/assessee under Sec. 222 of the Income-tax Act, 1961. By the said section, the Tax Recovery Officer can attach/sell the assessee's movable and immovable property, arrest the assessee and detain him in prison and also appoint a receiver for managing the movable and immovable properties, thereby causing prejudice to the landlord/assessee.

17. Reliance was placed on a Division Bench Judgment of the Calcutta High Court reported in Dhunseri Tea and Industries Ltd. v. Hanuman Estates Private Limited (A.I.R 1976, Calcutta, 328). In that case, a suit was instituted on the allegation that the tenant had failed and neglected to pay the rent. The tenant filed an application under Sec. 17(2) of the West Bengal Premises Tenancy Act, which was dismissed by the Court on 4-9-1974 and exactly a month thereafter, the opposite party filed an application under Sec. 17(3) of the said Act, out of which the present Rule before the High Court arose. In that case, before the Chief Judge, the tenant-company contended that they were not defaulters in as much as they had discharged their liability in so far as the opposite party's claim is concerned, pursuant to a notice issued by the Income-tax authorities under Sec. 226(3) of the Income-tax Act, 1961. The Chief Judge, on a consideration of the materials placed before him, came to the conclusion that the petitioners were defaulters in as much as they had not deposited the statutory interest due to the landlord in accordance with the provision of the Income-tax Act with the Income-tax authorities and that the petitioners were also defaulters at least in respect of the months of June and July, 1970. The Chief Judge, accordingly, allowed the opposite party's application and struck down the defence of the petitioner/tenant.

18. ??? case, two points were urged before the Court. In the first place, it has been contended that the tenant having been served with a notice under Sec. 226(3) of the Income-tax Act and having paid whatever arrears of rent due from him on account of the assessee/plaintiff, would be deemed to have completely discharged his obligations and therefore, the tenant is relieved of making any further payment to his landlord within the meaning of Sec. 17(1) or (2) of the West Bengal Premises Tenancy Act. Secondly, it is contended that even before the tenant was served with the writ of summons, a learned single judge of the same Court in the case of Hanuman Estates Pvt. Ltd., v. Dhanuka Industries Pvt. Ltd., being suit No. 319 of 1973 of the original side of the said Court, held on 8-11-1973, that such payment to the Income-tax authorities would relieve the tenant of his liability to pay any rent under Sec. 17(1) or (2) of the West Bengal Premises Tenancy Act and accordingly, he cannot any longer be regarded as a defaulter. The said decision was, however, reversed in appeal wherein the learned Judges have held that the notice served by the Income-tax Department under Sec. 226(3) of the Income-tax Act did not have the effect of overriding the provisions of Sec. 17(1) of the West Bengal Premises Tenancy Act. The counsel for the landlord opposed the said two contentions of the tenant. The Division Bench has held as follows:

“An obligation to pay an amount equivalent to rent or to deposit the same in accordance with the provisions of Sec. 17(1) of the Act, in our view, is a statutory obligation, which cannot be regarded as having been superseded or taken away by the introduction of Sec. 226(3) of the Income-tax Act, 1961. These two Acts operate in different fields and there is no apparent conflict or inconsistency in the provisions contained in Sec. 17 of the West Bengal Premises Tenancy Act and those contained in Sec. 226 (3) of the Income-tax Act. Consequently, the principle of implied repeal cannot be called in aid for the purpose of Article 254 (2) of the Constitution nor can it be said to be a case of direct conflict between the provisions of the two statutes. Moreover, if there is an apparent conflict between the two independent provisions of law, one special and one general, the special provision must prevail. Sec. 226 of the Income-tax Act is a general provision applicable to all assessees and in all circumstances enumerated therein but Sec. 17 of the West Bengal Premises Tenancy Act deals with particular classes of tenants, who had made defaults and against whom proceedings for eviction have been initiated. It is also settled law that if there is any inconsistency in the provisions of a general law and a local law, the provisions of local law shall prevail and the general statute must yield to the provisions of the special act applicable to a particular locality….. In these circumstances, Sec. 17 must be regarded as a special provision applicable only to a particular classes of tennants where there is a suit for eviction on grounds enumerated in Sec. 13(1) of the Act and a tenant who fails to comply with the requirement of Sec. 17 would lose the available right, in that, his defence against delivery of possession is liable to be struck out. The general provision enumerated in Sec. 226 of the Income-tax Act does not in any way abrogate the special provisions of Sec. 17 of the West Bengal Premises Tenancy Act. Article 254 of the Constitution cannot, therefore, assist the petitioner in the instant case in any way….. Sec. 226(1) of the Income-tax Act, no doubt, begins with a non-obstante clause but that non-obstante clause relates only to the issue of a certificate to the Tax Recovery Officer under Sec. 222 of the said Act. On the contrary, Sec. 17 has been interpreted by the Supreme Court in the case of Kaluram v. Baidyanath (A.I.R 1965 S.C 1909) (supra) as a complete scheme by itself and the Legislature by its introduction intended that the payment of rent by the tenant to the landlord must be made in the manner prescribed by Sec. 17(1) of the Act, in any suit or proceedings to which the said provisions apply….. The Division Bench decision in the case of Hanuman Estates Pvt. Ltd. v. Dhanuka Industries Pvt. Ltd. (1975) 79 Cal W.N 88) in our view rightly points out that the notice under Sec. 226(3) of the Income-tax Act at the most prohibited the petitioner from making any payment to the opposite party but it did not or could not have the effect overriding the provisions of Sec. 17(1) or (2) of the Act, with the result that the tenant, in order to avail of the protection of Sec. 13, must show that the payment to the Income-tax authorities were strictly in accordance with the provisions of Sec. 17(1) or (2) of the West Bengal Premises Tenancy Act. In this, the petitioner has failed.”

19. The above case squarely applies to the facts and circumstances of the case on hand. In the instant case, the tenant has failed to deposit the rent in accordance with the provisions of the Act, which, in my view, is a statutory obligation, which cannot be regarded as having been superseded or taken away by the introduction of Sec. 226(3) of the Income-tax Act, 1961. In this case, the amount in the hands of the tenant was attached by the Income-tax Department on 6-3-1979 whereas he made the payment only on 24-2-1988, that too, for a period of 107 months. As rightly pointed by the Division Bench of the Calcutta High Court in the above cited case, the notice under Sec. 226(3) of the Income-tax Act, 1961, at the most, prohibits the tenant from making any payment to the opposite party viz., the landlord but it did not or could not have the effect of overriding the provisions of Sec. 10(2)(i) of the Act, with the result, the tenant, in order to avail of the protection of the said Section, must show that the payment to the Income-tax authorities was strictly in accordance with the provisions of Sec. 10(2)(i) of the Act. In this, the tenant has miserably failed. Therefore, the contention put forward by Mr. R. Krishnamoorthi, learned Senior Counsel appearing for the landlords, merit acceptance and the contra contention projected by Mr. P. Peppin Fernando, learned counsel for the the tenant, has to be rejected.

20. The contention of Mr. P. Peppin Fernando is that the Income-tax, Department as the agent of the landlord, had been receiving the rent without any protest and when the agent of the landlord had received the rent without any protest, the tenant cannot be blamed to have committed wilful default. Some of the decisions cited by him have already been referred to in paragraphs supra. In my opinion, those decisions are clearly distinguishable on facts.

21. The explanation of Mr. Peppin Fernando that the agent of the landlord has accepted the payment without any murmur and when the agent has received the rent without any protest or murmur, the tenant cannot be said to have committed wilful default, cannot at all be accepted. Courts have held in a catena of decisions that it is the duty of the tenant to pay the rent regularly every month as enjoined by statute without expecting any demand from the landlord. In this case, the payment was not made for a period of 107 months. So, it is clear that the default was wilful. Even after the payment of rent for 107 months at a stretch, the tenant was not paying the rent regularly every month as could be seen from Exs. R-5 to R-17, which show that the tenant was paying the rent once in two months or once in four months. Non-payment of rent for 107 months, in my opinion, is a clear case of deliberate, intentional and calculated default with the full knowledge of legal consequences. The tenant should have taken care to pay the rent every month as required by law. Having defaulted in payment of rent regularly, the conduct of the tenant amounts to supine indifference and there is no doubt whatever that the default is wilful. Consequently, the order passed by the Appellate Authority ordering eviction on the ground of wilful default has to be upheld.

22. In the decision reported in MranaliniB. Shah v. Bapalal Mohanlal Shah (1980 (4) S.C.C 251 the Supreme Court has held that the provisions of the Rent Control Act, which are mandatory in nature, must be strictly complied with by the tenant. The word “regularly” has a significance of its own, which enjoins a payment or tender charecterised by reasonable punctuality. Therefore, when the rent is payable by the month, the tenant must, if he wants to avail the benefit of the provisions of the Act, tender or pay it every month as it falls due.

23. K.A Thanikkachalam, J., as he then was in (A.P Swamy v. V. Kunjithabadam (1994 (2) L.W 661) has observed that the tenant should not only pay the arrears of rent but also should pay the rent regularly every month during the pendency of the eviction proceedings. I am unable to accept the contention of Mr. B. Peppin Fernando that since the agent of the landlord was silent, the tenant did not pay the rent to the Department. In my opinion, on the mere fact that the agent of the landlord or the landlord is silent, the tenant cannot exploit the situation. Similarly, the contention of the tenant that the landlord had agreed to receive or was in the habit of receiving lump sum rent or in periodical intervals, cannot at all be accepted. In my opinion, such a contention could only a characterised as without good faith. The silence of the landlord cannot at all be exploited by the tenant. The Supreme Court in the decision reported in Sulochana Damodar v. Ratnaprabha v. Toole (1993 (2) S.C.C 256) has observed that even delay in depositing the arrears and also defaults in monthly payments are defaults which will entitle the landlord to seek eviction. The Supreme Court has observed as follows:

“Merely because it is stated that the Court had permitted the tenant to deposit the said amount, it cannot be construed that the Court had condoned the delay in depositing the same. We are not holding that the Court does possess such a power. On this question, we do not wish to express any opinion, though it has been held in Mranalini B. Shah v. Bapalal Mohanlal Shaw (1980) (4) S.C.C 251), that the Court has no such power. Assuming that the Court has the power to condone the delay in depositing not only the arrears but also the consecutive defaults in depositing the monthly amount over a period of more than one year, the fact remains that no order condoning the delay is proved to have been made. Not only this, even for the period subsequent to June, 1976, the tenant has been highly irregular in depositing the amount as would be evident from a reading of the order of the High Court. The learned judge has pointed out that after June, 1976, the tenant made the next deposit of Rs. 143-70 p. on November 15, 1976. The next deposit in a sum of Rs. 71.85 p. was made on January 7, 1977. Rs. 23-94 p. was deposited on February 9, 1977 and different amounts on June 1, 1977 August 1, 1977 and November 3, 1977. Though it is stated that these deposits were also made with the permission of the Court, it is not shown to us that the Court had condoned the delays in depositing these various amounts. In the absence of the orders of the Court, being placed before us, we cannot say that the Court condoned the same either expressly or by necessary implications again assuming (but without so holding) that the Court does possess such a power.”

24. C.M.P No. 13064 of 1996 has been filed by the landlord to raise the following additional grounds;

a) The respondent herein is liable to be evicted from the petition mentioned properly on the ground of additional accommodation in the light of the subsequent event of vacating the adjacent shop by another tenant namely Easwari.

b) The Courts below ought to have considered the case of the landlords on the ground of owners' occupation under Sec. 10(3)(c) along with the grounds already set out in the eviction petition.

c) The Courts below ought to have considered the case on the aspect of relative hardship. Failure to do so would render the same as invalid in law and liable to be interfered with by this Hon'ble Court.

25. A supporting affidavit was filed by the 3rd petitioner in C.R.P No. 1705 of 1993. It is stated in the affidavit that the landlords own a building consisting of a row of shops bearing Door Nos. 69, 70 and 71, Main Road, Ervadi, which were let out for non-residential purposes to different tenants. Door No. 70 was let out to the tenant herein for running a cycle shop in 1974 at the rate of Rs. 60/- per month. The sons of the landlord require the entire building for establishing their own business to carry on wholesale agency of consumer goods. One of the portions bearing Door No. 69 was agreed to be vacated by the tenant after a specified time and accordingly, he vacated the said premises subsequently. Since the tenant herein and another committed wilful default in payment of rent and that the building was required for carrying on their own business, eviction notices were served on the tenant herein and the other tenant under Ex. A-4. Thereafter, two eviction petitions in R.C.O.P Nos. 2 and 3 of 1990 on the file of the Rent Controller, Valliyur, were filed against the tenant herein and another Easwari on the grounds of wilful default and owners' occupation. It is pertinent to notice that during the pendency of the eviction proceedings against the present tenant, the other tenant Easwari, against whom R.C.O.P No. 3 of 1990 has been filed, has vacated the premises and surrendered possession of the same to the landlord. However, the eviction proceedings against the present tenant alone were pursued further, which culminated into the filing of C.R.P No. 1705 of 1993 before this Court. It is submitted that the landlord has not raised the additional grounds for eviction under Sec. 10(3)(c) of the Act in the light of the subsequent events of vacating a portion of the building, which is by inadvertance. It is also stated that the surrender of possession by the other tenant Easwari happened during the pendency of the eviction proceedings against the present tenant which enabled the landlords to seek eviction on the ground of additional accommodation as provided under Sec. 10(3)(c) of the Act. Similarly, the said ground of additional accommodation has not been raised in the revision. It is stated that the failure to raise the ground is neither wilful nor wanton. This Court has repeatedly held that the subsequent event may be taken note of even at the time of revision. Having regard to the aforesaid circumstances, it is stated that it has become just and necessary to permit the landlords to raise the above additional grounds in the revision. No prejudice would be caused to the tenant if the landlords are allowed to raise the above additional grounds.

26. The tenant filed a counter affidavit opposing the said petition and contending that the petition is not maintainable during the revision proceedings. The tenant has denied that the landlords need the premises tor their own use and occupation. Since the tenant in Door No. 71 has also vacated the premises, the landlord can use that premises also for their alleged own use if the requirement is true. The new ground now sought to be raised was not raised before the authorities below. The failure to do so is not by inadvertance. The landlord should have raised these points before the Rent Controller or the Appellate Authority. Having not raised the same, they are not entitled to raise the same at this stage. If the landlords are now permitted to raise these additional grounds, the entire nature and character of the petition will change. The tenant will have to let in fresh evidence if the additional grounds are accepted. Therefore, the landlords cannot be permitted to raise the additional grounds. There are no sufficient grounds for raising the additional grounds now sought to be raised in this revision.

27. I am unable to accept the contention of the tenant. The tenant has not denied that Shop No. 71, which was the subject matter of R.C.O.P No. 3 of 1990, was vacated and possession handed over to the landlords. Shop No. 69 was agreed to be vacated by the tenant after some time and he accordingly vacated the said shop subsequently. This Court (AR. Lakshmanan, J) in S. Balamani… v. V. Periaswami…. (1995 (1) L.W 616) while construing the scope and powers of this Court in taking note of and granting relief in regard to the subsequent events, has observed in paragraphs 11 and 12 as follows:

“It is well settled that any subsequent event can be taken into account before the final adjudication of the matter by this Court. As already stated, the landlady was not in possession of any premises of her own when she filed the eviction petition. According to her, she was occupying a rental premises. Thereupon, she purchased the entire house on 11-1-1983 for her occupation. At that time, there were three tenants occupying three different portions. Therefore, the landlady filed three petitions for eviction of the tenants for her own occupation. During the pendency of the proceedings, two of the tenants have admittedly vacated the premises. Since two of the tenants have vacated, the order of eviction was passed against the present respondent alone by the Rent Controller. The landlady occupied the portions vacated by the two other tenants. Since she intends to occupy the portion now in the possession of the respondent herein also, she filed the present application C.M.P No. 4489 of 1995 for raising additional grounds in view of the subsequent event of her occupation of the two portions vacated by the two tenants in the very same premises. In similar matters, this Court has entertained and allowed such requests. I shall deal with the authority on this point later.

When the landlady filed the petition for owner's occupation under Sec. 10(3)(a)(i) of the Act, the Rent Controller has ordered eviction on the established facts. The subsequent event, therefore, in my opinion, would not disentitle the landlady to get the relief against the present respondent for seeking relief under Sec. 10(3)(c) of the Act. As already seen, the landlady filed three eviction petitions for her own occupation of the entire premises bearing Door No. 8-A, Bharathiar Street, Madurai-10. Now that the two tenants have vacated the premises under their occupation, the landlady has occupied those portions. In my opinion, the landlady is entitled to maintain this application in view of the changed subsequent circumstances. Therefore, I allow C.M.P No. 4489 of 1995 for the reasons to be stated infra.”

28. M.N Chandurkar, C.J, in the decision reported in K. Ganesan v. K. Padmavathi Ammal (100 L.W 381) has observed as follows:

“There can be no doubt that if in the course of proceedings under the Rent Control Act, a landlord comes in occupation of some accommodation, the case of the landlord has to be decided after taking into account the accommodation which has come in the possession of the landlord during the pendency of the litigation….. It would not be correct to say, that merely because the landlady has secured some accommodation during the pendency of the litigation, her claim which was originally determined with reference to the provisions of Sec. 10(3)(a)(i) of the Act, must be thrown out at this stage. It is well established that a Court is entitled to apply the correct provision of law to facts which are established on the record. Provision of law mentioned in the petition does not determine either the nature of the proceeding or the nature of the relief to be granted to a party. It is the duty of the Court to fine out whether on facts established, a party is entitled to any relief or not. Therefore, even though originally the petition for eviction was made under Sec. 10(3)(a)(i) of the Act on the ground that the landlady did not have any accommodation in her own possession and that she was living in the rented premises, the order of eviction cannot be interfered with merely on the ground that subsequently the landlady has come into possession of some accommodation even though that accommodation does not fully meet the need of the landlady. There is no doubt that the petition as framed when it was made was clearly maintainable because at that time the landlady was not in occupation of any premises of her own. The petition does not automatically become non-maintainable because of subsequent events. All that has to be seen is whether the accommodation which she has now subsequent to the order of eviction is sufficient to meet the need of the family and forcing the landlady to have recourse to another proceeding will only mean multiplicity of proceedings.”

29. I am also unable to countenance the contention of Mr P. Peppin Fernando that the existing accommodation itself is more than sufficient for the landlords to carry on their new business as well. Courts have held that the Court cannot go into the sufficiency of the existing accommodation and that the Courts are required to consider only the genuineness of the requirement, which is the only test. In the instant case, it has been clearly established that the landlords have not only a genuine requirement of the premises let out to the tenant but it is necessary for them to do so in order to carry on their own business in order to augment their income and maintain themselves properly. Being the owners of the premises, they cannot be denied eviction and be compelled to occupy a rental building merely to enable the tenant to carry on his own business at the cost of the landlord. This shows that great prejudice will be caused to the landlords if their petition is dismissed.

30. Another decision of the Supreme Court reported in Pasupuleti Venkateswarlu v. The Motor and General Traders (A.I.R 1975 S.C 1409) can also be beneficially looked into and the rulings given by the Supreme Court can be applied to the case on hand. The Supreme Court held as follows:

“For making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases, must take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.”

In this case, a subsequent event has taken place which has a material bearing on the landlords' right to evict the tenant. Therefore, I am of the view, that this Court should take cognizance of the new development, which cannot be said to be illegal or wrong.

31. To sustain the grounds raised regarding the applicability of Sec. 10(3)(c) of the Act to the case on hand, my attention was drawn to the relevant portions of the deposition of P.W 1. In respect of Door No. 71, which is the subject matter of R.C.O.P No. 3 of 1990, it was vacated before 5-3-1991, the date on which P.W 1 deposed before the trial Court. R.C.O.P No. 3 of 1990 itself was dismissed as not pressed on 22-3-1991 as the tenant in respect of the said portion had vacated by that time.

32. Mr. P. Peppin Fernando, learned counsel for the tenant cited some decisions as referred to supra, for the proposition that this Court cannot interfere with the concurrent findings. I am unable to agree with the said contention. As observed by this Court in K.J Sivalingam v. S. Guruswami (96 L.W 114), this Court can interfere with the concurrent findings of the Courts below where it is shown that the orders under challenge are per se perverse. In that decision, this Court has observed as follows:

“It is true that the powers of this Court are limited, but when there is an omission to apply the law to the admitted set of facts, definitely that would be an order per se perverse and would come within the norms of ‘irregularity or incorrectness, illegality or impropriety’ under Sec. 25 of the Act, and definitely, this Court can interfere in revision.”

33. It is also settled law that sufficiency and other conditions are not the concern of the tenant. It is only for the landlord to decide. It has also been held in a number of cases that the tenant cannot dictate the sufficiency of the area sought to be required by way of additional accommodation by the landlords. I am of the view that there is no justification for the authorities below to reject the case of the landlord as prayed for. It is not for the tenant to state that the landlords are comfortable in their demised premises. As held by the Supreme Court in Meenal Eknath Kshirsagar v. Traders & Agencies (JT 1996 (6) S.C 468) the landlord is the best judge of his requirements and if the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient, it is not for the Courts to dictate him to continue to occupy such premises.

34. The Supreme Court in the decision reported in S. Sundarampillai v. V.R Pattabiraman (A.I.R 1985 S.C 582 = 98 L.W 49) has observed as follows:

“A consensus of the meaning of the words ‘wilful default’ appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Tamil Nadu Act or other State Acts which are in pari materia.”

35. The above judgment squarely applies to the facts of the case on hand. In the instant case, the tenant has not only not paid the rent for 107 months but was using that money lawfully due to the landlord by way of rent, for his own purposes. He has committed a further default of not paying the rent regularly to the Income-tax Department even after the receipt of Ex. R-3 notice from the Department. When he is duty bound to pay the rent every month, he has failed to pay the same without any just or lawful course. Such a course of conduct manifestly amounts to wilful default as contemplated under the provisions of the Act.

36. For the foregoing reasons, I am of the view that the landlords are entitled to succeed on all the grounds as prayed for. Consequently, C.R.P No. 1705 of 1993 filed by the landlords is allowed and C.R.P No. 1582 of 1993 filed by the tenant is dismissed. C.M.P No. 13064 of 1996 is ordered. However, there will be no order as to costs.

KA/RR/VCS