D.C. OSWAL versus V.K. SUBBIAH AND ORS.

Citation: [1991] SUPP. 2 S.C.R. 203 · Decided: 12-11-1991 · Supreme Court of India · Bench: RANGANATH MISRA · Disposal: Appeal(s) allowed

Judgment (excerpt)

• 
..... 
I 
D.C. OSWAL 
v. 
V.K.SUBBIAH AND ORS. 
NOVEMBER 12, 1991 
[RANGANATH MISRA, CJ. AND DR. T.K.THOMMEN, J.] 
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960-Section 
JO-Eviction-Plea ofwilfal default-landlord accepting rent for two to 
three months at a time-Non-payment of rent for three months-Not wil-
Jul default. 
Tamil Nadu Buildings (Lease and Rent Control) Act,.1960-Section 
10---Eviction-Plea of change of user raised by landlord after seven 
years-Effect. 
Appellant was a tenant under the respondents. Action for evic-
tion against the appellant was initiated on the pleas that there was 
"wilful default" in the matter of payment of rent and that the lease 
was residential but it h!'d been used partly for commercial activity. 
At the time of filing of the petition for eviction three months' 
rent had fallen due. The appellant's case was that rent was not 
being collected every month and every two to three 'months the 
respondents-landlords used to come and collect rent at their con-
venience, and that mixed use of the premises was the basis of the 
tenancy. 
The original authority dismissed the petition. In appeal it was 
reversed. The High Court upheld the reversal holding that there 
was no case of wilful default and that the premisies had been rented 
out also for busine~s use . 
In the appeal by special leave the tenant-appellant contended 
that there was no case of wilful default and that the premises had 
been rented out also for business use and the change of user was 
since 1973. 
Allowing the appeal of the tenant, this court, 
HELD: 1. In the several statutes operating in the differ~nt 
states regulating the law relating to landlord and tenant 'wilful' 
default has been made the ground of eviction while default is not. 
[205 E] 
203 
A 
B 
c 
D 
E 
F 
G 
204 
SUPREME COURT REPORTS 
[1991) SUPP. 2 S.C.R. 
A 
2. A situation where the landlord had consented to collect 
rent for two to three months a time, non-payment of rent for three 
months cannot constitute wilful default. [205 F] 
3. It is not disputed that from 1973 there had been change of 
use. The petition for eviction was of 1980. It follows that for seven 
B 
years no objection was raised for change of use and for the first 
time when eviction was sought, conversion was made the second 
ground. In these circumstances the landlords accepted the user to 
be also other than residential. [205 C-D] 
-
S.Sundaram Pillai & Ors. etc. v. V.R.Pattabiraman & Ors. etc., 
C 
[1985] 1 SCC 591; Premchand Banka v. A. Vasanthrai Khatod & Ors., 
C.A.No. 1367 of 1991, decided on 27.3.1991, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4447 of 
1991 
D 
From the Judgment and Order dated 24.4.1991 of the Madras High 
E 
F 
G 
H 
Court in Civil Revision Petition No. 4769of1984. 
E.C.Agarwala for the Appellant. 
Mrs. Jayashree Ahmed for the Respondent. 
The Judgment of the Court was delivered by 
RANGANATH MISRA, CJ. Special leave granted. 
Appellant is the tenant of a premises located in Sivakasi within the 
State of Tamil Nadu to which the provisions of the Tamil Nadu Buildings 
(Lease and Rent Control) Act apply. The rental of the premises is Rs. 275 
per month. Respondents initiated action for eviction on the plea that there 
was "wilful default" in the matter of payment of rent and change of user. 
It was contended that the lease was residential but it had been used partly 
for commercial activity. 
The appellant took the stand that rent was not being collected every 
month since the respondents resided away from the place where the prop-
erty is situated and every two to three months they used to come and 
collect rent at landlord's convenience. Two receipts were produ~ed to 
support this stand. Rent was collected in one case for three months and in 
the other for two months at a time. Admittedly at the .time of filing of the 
petition for eviction three months' rent had fallen due. So far as the 
OSWAL v. SUBBIAH [MISRA, CJ.] 
205 
change of user was concerned it was denied by pleading that mixed use 
A 
was the baSis of the tenancy. 
The I Qriginal authority dismissed the petition but that has been re-
versed in1appeal and the reversal has been upheld by the High Court. 
Two contentions were raised before us: (i) there is no case of wilful 
default particularly when the two receipts showed acceptance of rent for 
B 
periods as pleaded by the tenant without demur and (ii) that the premises 
bad been rented out also for business u

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