Rajagopala Ayyangar, J.
1. The tenant is the petitioner in this revision in which he challenges the order of eviction passed by the learned District Judge of Coimbatore on the ground of default by him in the payment of rent.
The petitioner, tenant, had been carrying on his business as a baker at Erode in the premises belonging to the respondent for over 30 years paying a rent of Rs. 7 per month. While so, the respondent landlord filed on 15-6-1949 B. R. C. No. 88 of 1949 before the Revenue Divisional Officer, Erode, who was the Rent Controller for the area, for the eviction of the petitioner from the premises on the allegation that 'he often commits default in the payment of monthly rent and never cares to pay in spite of demands', and that he owed Rs. 28 towards rent for four months from January to April 1949.
The defence of the tenant was that there was an agreement between the landlord and himself, by reason of which, the landlord agreed to take rent from him for four months at a time and that this arrangement was necessitated by the fact that the landlord who was a roving propagandist came to Erode once in about four months. In regard to the rent for January to April 1949, he also pleaded that the landlord's agent refused to receive the rent tendered by him and demanded an enhanced amount. He also stated that at the request of the landlord's agent, one Muthu, he had repaired the house and was, therefore, entitled to set off this amount of expenses which according to him came to Rs. 75 against the rent payable by him.
Along with his statement of objections he filed a series of receipts for rent issued by the landlord which showed consolidated payments of rent for three, or four or even more months at a lime.
2. The Revenue Divisional Officer, Rent Controller, dismissed the landlord's application by his order dated 28-12-1950 as not 'bona fide' holding that the agreement as to the time for the payment of rent pleaded by the tenant had been made out. In regard to the claim to set off the expenses incurred in connection with the repairs to the building against the rent due the Rent Controller found that the repairs had been effected but that the agent of the landlord with whoso consent they were executed had not the requisite authority to bind his principal and that consequently the tenant was not entitled to the set off claimed by him.
3. The landlord took up the matter in appeal, C. M. A. No. 28 of 1951 on the file of the Sub Court, Coimbatore, and the learned Subordinate Judge after referring to the failure of the landlord to give evidence in the case accepted the uncontradicted testimony of the tenant as to the agreement pleaded and found that there had been no default in the payment of rent and dismissed the landlord's appeal. From this decision dated 2G-3-1951 the landlord preferred a revision petition to the District Court under Section 12-B, Madras Buildings (Lease and Rent Control) Act, 1951 and (he learned District Judge accepting the revision, reversed the order of the Rent Controller and the Subordinate Judge and ordered eviction and the present civil revision petition is against this order.
4. When the matter was before the District Judge the law as to the grounds upon which the eviction of a tenant could be ordered, had undergone modification by reason of the enactment of the Madras Act 8 of 1951 and Act 25 of 1951 which amended the original Act of 1949. By reason of Section 20 of the Amending Act 8 of 1951, the substantive changes introduced in Section 7 (2) of the Act were made retrospective and applicable to pending proceedings. In fact it was under the Amending Act that the learned District Judge himself derived jurisdiction to entertain the revision petitions but this aspect of the. matter was not noticed by the learned District Judge, possibly because his attention was not drawn to it.
5. Before dealing with the effect of the amendment made by the Madras Act 8 of 1951 the reasoning of the learned District Judge may be examined
The basis upon which the learned District Judge reversed the order founded upon the concurrent findings upholding the agreement pleaded by the tenant, reached by the Subordinate Judge and the Rent Controller, is somewhat difficult to follow. Just to give an instance, the learned District Judge says
'Even if I accept the story that there was an agreement between the parties the rent should be received once in four months such an agreement does not disentitle the landlord for moving the Rent Controller to evict his tenant.'
If there was an agreement to pay rent at a particular' time it is impossible to see how there can be any default in the payment of it before the stipulated time has arrived.
Again the learned District Judge says 'admittedly this is a month to month tenancy and the rent should therefore be paid before the end of the next month.' This remark obviously betrays a confusion of ideas and mixes up the nature of the tenancy and one of the terms of the tenancy. Proceeding on this line of reasoning the learned District Judge reaches the conclusion that the agreement to pay rent due for any month at a date beyond the succeeding month, is invalid in law but finally winds up by saying that the agreement pleaded by the tenant has not been made out. No reasons have been given by him for the reversal of his findings of fact by the tribunals below him.
It is on the basis of this finding of fact and this proposition of law that the learned District Judge has passed this order of eviction. His order on this basis cannot obviously be supported.
6. Even if the matter had to be decided on the basis of the Jaw contained in the Madras Buildings (Lease and Rent Control) Act of 1949, I am of the view that the order of the learned District Judge is wholly erroneous and that there was no justification for him for interfering with the finding on a question of pure fact as to the factum of the agreement pleaded by the tenant.
7. Apart from this, the order of eviction can-not be sustained, also because under the Amended section there must be a finding not merely of default but of wilful default before a tenant can be evicted under Section 7 (2) of the Act for nonpayment of rent.
8. Mr. T. K. Subramania Pillai, learned counsel for the respondent conceded that the rights of the parties would have to be judged with reference to the Amending Acts but urged that I should remand the petition to the lower Court for determining whether the default in the present case was wilful or not or at least I might call for a rinding in regard to this. This petition for eviction has been pending for over four and a half years and it is essential that it should reach finality at the earliest possible time. If I had to rest my judgment on this ground alone and there was any question of fresh evidence being adduced by the parties on this aspect of the matter I might have acceded to this request by the counsel but as the matter depends wholly on the inference of wilfulness to be drawn from the evidence already on record and the entire evidence is before me I do hot think that it is a case either for remand or calling for a finding in regard to the matter.
9. Whether it was in pursuance of any agreement or not, Ex. D. 1 and D. 2 series show that at the least the landlord had been lax in the collection of rent. It is also noteworthy that the landlord has not filed a single written demand by him for the rent which was in arrear. A debtor can hardly be said to be wilful in repayment when the creditor does not display any anxiety in collecting his dues. However, the tenant sent a money order for Rs. 35-8-0 in June 1949 which was refused by the landlord. Vide Ex. D. 3. In these circumstances I am clearly of opinion that even if the agreement pleaded by him was not made out the tenant did not commit any wilful default in the payment of rent by him.
10. This revision petition is accordingly allowed, the order of the learned District Judge directing the eviction of the tenant is set aside and the application for eviction will stand dismissed with costs here and before the District Judge.