This proceeding for eviction under the Rent Control Act has had a considerable and protracted history, and, at one stage, it came up to this Court in C.R.P Nos. 710 of 1963 and 507 of 1964 which were dealt with by Ramamurti, J., in January 1965. But, in view of the very restricted compass of this disposal of the matter that I am making, I shall content myself with a statement of the essential situation. The case is also of some interest, for the citation of authority by the learned District Judge, in revision, upon the question of the ingredients of ‘wilful default’ as occurring in the Rent Control Act. There would appear to have been some confusion or misconception in that matter, which appears to merit a certain clarification.

We may take it that relations between the parties, viz., the tenant who is a lady who took the premises on lease in December 1960, and the landlord, deteriorated very considerably after the tenant instituted a police complaint against the landlord for alleged insult and abuse, which ended in an acquittal. The premises were to be used for running a dispensary called Ratna Bai Clinic and the tenant (R.W 1) was not a qualified doctor but was largely relying upon her niece, one Devaki, who was to be placed in charge of the clinic. The tenant did file a complaint against the landlord for assault and trespass, as well as insult, and the record shows that there were very bitter feelings between the parties. The only question is whether the tenant committed ‘wilful default’ in payment of rent, for the premises, for the period December 1960, January 1961 and February 1961. It is pertinent here to note that the premises were demised to the tenant on 1st December 1960, on a monthly rent of Rs. 45. Curiously enough, the landlord claims that an advance of alone was paid while the tenant claims that she paid an advance of Rs. 500.

I am now concerned with the order of the learned District Judge in revision, and the learned District Judge rightly addresses himself to the only question which was before him, and which had to be extricated from the mass of the material concerning the regrettable relationship between the parties which led to Criminal Proceedings etc., that was the question whether the rents for December 1960, January 1961 and February 1961 were actually paid by the tenant, or whether she committed ‘wilful default’ in the payment of these rents.

It is not in dispute that the tenant sent the rent for March 1961 by money order, and also subsequently in June, and that there were two refusals of this money order by the landlord. On 20th June 1961, the landlord sent the letter Ex. P. 1 claiming that no rent had been paid for December 1960 and January and February 1961, and that was the reason for the refusal of the subsequent money orders. Unfortunately, these statements cannot be relied upon, as any index of the truth. By that time, criminal proceedings had been instituted by the tenant, and the feelings of the landlord must have been bitterly adverse to the tenant. That the landlord did not earlier claim that rents for the crucial three months had not been paid, is not without significance. However, that is not conclusive, for the simple reason that the landlord may well have waited, thinking that the rent would be subsequently paid, till some incidents led to a startling deterioration in the relationship between the parties.

With regard to the law on the subject, the following authorities have been referred to by the learned District Judge and I shall confine myself to them: Rangaraju v. Parthasarathi(1) Lakshmiammal v. Gurunatha(2) and Khivraj Ghordia v. Maniklal Bhattad(3). The last was a decision of Ramamurthi, J., and the Judge made two observations, which I am quoting here, as I find myself in entire agreement with them. The first is this:

“The principle that emerges from the several decisions is that for default to be regarded as wilful default, the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rent, or reckless indifference”.

The second observation is to the effect that—

“Certain pleas raised by the tenant, but negatived by the Court on assessment of the evidence adduced by the landlord and the tenant may constitute proof of bona fides on the part of the tenant, as to rule out any theory of wilful default”.

In other words, there is a sharp distinction between “default” and “wilful default”; the legislature, presumably, was very conscious of this distinction, when the Rent Control Act laid it down that mere “default” however prolonged or established, was not a ground for eviction, but that “wilful default” was alone a ground for eviction. As decisions of this Court have earlier stressed, such criteria as “supine indifference” or “callousness” have been considered as significant. Further, it was held in Lakshmiammal v. Gurunathan that the more fact that the tenant put forward false defences at the time of the hearing of the petition, will not be sufficient for the Court to hold that default was “wilful”. But this dictum seems to have somewhat misled the learned District Judge into thinking that where the tenant puts forward a defence, which is found to be false, in respect of the default, this might exclude the inference that the default was ‘wilful’. In order to obviate all confusion upon this relationship between a false defence and the existence of a ‘wilful default’ I think that the following proposition may be enunciated: (1) The fact that the tenant commits default, and puts forward a true explanation thereafter, does not necessarily mean, that the default is not ‘wilful’. “Wilful default” will have to be judged upon the index or basis of a conscious failure of the tenant to pay rent, without any justification which the Court can accept as taking away the element of “wilfulness”. The explanation may be true, therefore, and still the default may be “wilful” for the simple reason that the explanation may not be acceptable, as showing that the default was not “wilful’. (2) Equally, a tenant may put forward an explanation which is false, and still the default may not be “wilful” at all. That would depend entirely on the surrounding circumstances and probabilities. (3) But the fact that the explanation is false, does not imply that the default is not ‘wilful’. A defaulter may both be guilty of ‘wilful default’ and may put forward a false explanation for the failure to pay rent; this is fairly obvious, and this possibility seems to have been missed in the analysis by the learned Judge. (4) It would equally follow that the tenant may put forward a true explanation, and that this may show that the default was not “wilful”. No further explanation will then be called for.

In the present circumstances, after a careful scrutiny of the record, I am convinced that the learned Judge was not incorrect in his conclusion that the default cannot be termed “wilful”. It must be noticed that the premises had just been demised to this lady, and that she had paid an advance. It is difficult to believe that, for the immediate three months succeeding the demise, the lady made no attempt to pay any rent. The claim of the landlord that these rents had not reached him was made only in Ex. B.1, after criminal proceedings between these parties had started. Of course, the moneys actually never reached the landlord, and the default is a fact, it is the finding of the Courts below, at all stages. But, I think that it is possible that the case of R.W 2 may be true that the moneys were given to him for payment to the landlord by the tenant, as it was his original intervention which had brought about the tenancy. In any event, where owing to the subsequent very unpleasant developments, the oral evidence on each side is confused, discrepant and unreliable, I think that the benefit of the doubt should be awarded to the tenant. Very similar observations were made by Ramamurti J. in a passage succeeding the passage I have quoted in Khivraj Ghordia v. Maniklal Bhattad and, while with respect to the learned Judge, I might not be able to agree that the application of the tenant must necessarily have to be rejected “as utterly worthless or wholly false” before the inference could be drawn, nevertheless, I do not think it can be doubted that the burden lies heavily on the landlord, to prove the circumstances which would justify the inference that not merely had a default occurred but that the default was “wilful”. If there is any doubt about it, and the version of the tenant that he or she did make some attempt to send the rents to the landlord may be conceivably true, the Courts should be careful about coming to the opposite conclusion, and thereupon ordering eviction. Therefore, I agree with the learned Judge in the conclusion that the “wilful” character of the default in respect of these premises does not satisfactorily emerge from the probabilities, and the evidence; therefore the tenant ought to be given the benefit of the doubt on that aspect. There was, admittedly, default, but it cannot be said that this default was “wilful” within the meaning of the Act.

It follows, that the revision will have to be dismissed. In the judgment in the civil revision petitions that I have earlier referred to Ramamurti J. has ordered C.R.P 807 of 1964 which apparently was for re-delivery of the premises, since it appears that some other tenant has been inducted into possession, during an intermediate stage of the proceedings. The learned District Judge stated that as C.R.P 807 of 1964 had been allowed “it would of open to the tenant hereafter to take re-delivery of the property as the order of eviction has been set aside”. This seems to be the correct decision, and the further stages will have to be worked out in consonance with the provisions of the Act and in accordance with the principles that parties must be restored to the rights which they possessed, if those rights have been confirmed in those proceedings. No order as to costs.

V.C.S