N.S. Ramalinga Iyer vs Gujuluva Seetharama Iyer

Ramaswami, J.—This is a revision petition filed against the order made by the learned District Judge of Madurai in revision in C.M.P. No.

962 of 1951 setting aside the concurrent orders of eviction made by the Additional Rent Controller, Madurai, in M.B.P. No. 880 of 1951 and

confirmed in C.M.A. No. 72 of 1951 by the Principal Sub Judge, Madurai. The facts are: The landlord filed a petition before the House Rent

Controller for eviction of the tenant (the respondent in this revision petition) alleging that there was default in payment of rent from Chitrai Vikruthi

to the end of Arpisi Vikruthi. The tenant contended that he used to pay rent only periodically once in 3 or 4 months and that accordingly he

tendered the rent to the petitioner landlord on 2nd December 1950 for a period of seven months and that the landlord refused to receive it and that

therefore he had not committed wilful default in payment of rent. Both the Rent Controller and the learned Subordinate Judge held that the tenant

had committed wilful default under S. 7 of the Lease and Rent Control Act, and the learned District Judge held that he had not committed wilful

default. The learned District Judge therefore set aside the eviction order passed by the lower Courts. Hence this revision petition.

The short point for determination is whether in the circumstances set out in this case the tenant was guilty of wilful default under S. 7 of the Act ?

The term ""wilfull default"" has been dealt with by me in Devey v. Subramania Iyer (1958) 2 M.L.J. 625, as follows :

The term ''wilful'' is a legal term evidently used as a description and not as a definition. The idea intended to be conveyed is that the default was

occasioned by the exercise of volition or as a result of the non-exercise of will due to supine indifference, although the defaulter knew or was in a

position to know that loss or harm was likely to result. The word does not necessarily suggest the idea of moral turpitude. The element of accident

or inadvertence or honest error of judgment should also be eliminated. The default must be the result of deliberation or intent or be the

consequence of a reckless omission. Wilful default therefore is indicative of some misconduct in the transaction of business or in the discharge of

duty or omitting to do something either deliberately or by reckless disregard of the fact whether the act or omission was or was not a breach of

duty [Hudson v. Official Liquidator AIR 1929 A11. 826. ].

The term ""wilfull default"" has been the subject matter of several decisions under the Uttar Pradesh Temporary Control of Rent and Eviction Act,

111 of 1947, S. 3 (a). Vide Radhey Mohan v. Harnarain Das 1952 A.L.J. 152, Lala Munshi Lal v. Thakur Balamukund Singh 1952 A.L.J. 176.

In other words, the expression ""wilfull default"" shows that the neglect was on the part of a person who was not only a free agent but who was

conscious of the consequences which are likely to ensue from his act or omission or was recklessly indifferent as to such consequences that if he

had not been so indifferent as to such consequences he would have known what the consequences would be : Japan Trading Co., Ltd., v.

Secretary of State AIR 1926 Sind. 9. See also Ana Sheikh Mohidin Taragan v. Vadivalagiabnathbia Pillai 1914 M.W.N. 92. .

In The Queen v. Senior (1899) 1 Q.B. 283, ""wilfully"" has been defined as meaning that the act is done deliberately and intentionally, not by

accident or inadvertence but so that the mind of the person who does the act goes with it, while neglect is the want of reasonable care.

In the Indian Penal Code though it frequently uses the word ""intentional and is presupposed in every crime, it is not defined. But it, however,

defines its lesser analogue ""voluntarily"". The difference between the two words is one of degree. The definition of this word has been avowedly

borrowed from the definition of ""wilfully"" as prepared by the Commissioners of the Criminal Law of England where they proposed to define it as

follows; A hurt, damage, or other evil consequence of an act shall be deemed to have been caused wilfully where the doer of the act intended such

consequence to result or knew or believed that it was likely to result from his act, or where knowing or apprehending that such consequence would

probably result from his act he wilfully incurred the risk of causing it; see first report, S. 103. This definition ""wilfully"" is now current in England

Roper v. Knott (1898) 1 Q. B. 868. The Quean v. Senior (1899) 1 Q. B. 283. In other words, the term ""wilfully which has not been defined in the

Indian Penal Code is evidently intended to imply a conscious determination as distinguished from ignorant in competency. In S. 477. A of the

Indian Penal Code for instance, it excludes all cases in which the account is ill-kept or incorrect and misleading but in which there is the absence of

an intent to defraud.

In short, to make out wilful default three elements must concur, viz., first of all the doer or abstainer of the act or omission must be a free agent;

secondly, he must be conscious of what he is doing or not doing and the probable result which might arise from his act or omission; and thirdly, this

default may range from a state of mind all the way from supine indifference to conscious violation as a result of deliberation.

Applying these principles to the facts of this case, we find that the respondent before us was a free agent; secondly, he was conscious of the

consequences which were likely to ensue from his act or omission or was recklessly indifferent as to such consequences and that if he had not been

so indifferent he would have known what the consequences would be. The respondent himself has stated in his evidence ""I used to pay it whenever

it was convenient for me to do so."" In other words this irregular payment was not as a result of any express or implied agreement with the landlord.

The fact that the landlord had been compelled in the past to accept irregularly paid rents and avoided going to Court facing all the proverbial law''s

delays and troubles does not mean that there was an agreement under which the rent was payable at irregular intervals. In fact it has been laid

down in Lingambhotla Subbayya Vs. The Subordinate Judge and Another, that though the landlord was accepting the arrears of rent paid at

irregular intervals, the tenant cannot take subterfuge under it as a valid ground for nonpayment of rent regularly, if the landlord chooses to apply for

eviction and if he proves default under S. 7 of the Act. In other words, the tenant knew throughout the risk he was running in not paying the rent

regularly and either he was guilty of conscious violation or displayed supine indifference knowing full well the consequences of such omission.

So the facts of this case do not fall within the ambit of the decision of Rajagopala Aiyangar, J. in C.R.P. No. 549 of 1952 [Raju v. B.V.

Bamaswami Naicker]. Since reported in 67 L. W. 578. The facts of this case are quite distinguishable from the facts of that case. There the

landlord was a roving propagandist and by tacit understanding between him and the tenant who was a baker at Erode, rent was being paid at

periodical intervals Both the Courts below found that the agreement pleaded by the tenant, that this arrangement was necessitated by the fact that

the landlord came to Erode once in four months, was made out. Rajagopala Aiyangar, J. found that the learned District Judge exercising his

powers of revision had no justification for interfering with the concurrent finding of both the Courts below on a question of pure fact as to the

factum of agreement pleaded by the tenant and found to be true. In the instant case no such agreement has been proved because the tenant had

stated that he used to pay the rent as suited his convenience which is only an unilateral act. Therefore, as I have stated, the facts of this case are

clearly distinguishable from the decision of Rajagopala Aiyangar, J.

The further fact that the arrears of rent had been sent by money order by the tenant before the filing of the eviction petition by the landlord

would not make any difference to the landlord''s right to evict under S. 7 (2) of the Act : see 1950 (1) M. L. J. short notes page 21. The net result

of this analysis is that the learned District Judge of Madurai was not entitled to interfere in revision, as pointed out by Rajagopala Aiyangar, J. and

the order of the District Judge is set aside and the order of the House Rent Controller confirmed by the Principal Subordinate judge will stand

restored. This revision petition is allowed but in the circumstances without costs.