T. Ramaprasada Rao, C.J.
1. On two grounds, firstly that there was wilful default and secondly that there was subletting without authority, the petitioner, as landlord filed an application against the principal tenant impleading also the alleged sub-tenant as a party. By the time the application for eviction came up for hearing, it is the common case that the alleged subtenant vacated. The principal tenant took up the position that there was no sub-leasing at all without authority and he also denied that there was ever a wilful default. On the other hand, he pleaded that it was customary for the landlord to receive the rent once in two months and that such rents were sent by money order. The rents for the months of November and December, 1973 and January, 1974, which are subject-matters of the petition in question, were sent by money order in February, 1974 and received by the petitioner landlord on 9th February, 1974. In those circumstances, the principal tenant pleaded that there was no design or a contumacious conduct on his part in having avoided payment of the rent as alleged and, therefore, that the application should be dismissed. The Rent Controller agreed with the landlord and directed eviction on both the grounds. The Appellate Authority, however, on the very same subject, on a re-look by him, held that there was no such wilful default and no subletting as well and dismissed the application. The landlord has come up in revision as against the said order.
2. As regards the first question whether there was wilful default it is seen from Exhibits P. 1 and P. 2 series that it was usual for the tenant to send rents once in two months and the landlord was receiving the same without demur. Though a practice to that effect cannot be pleaded so as to escape a position on the ground of wilful default, yet that particular circumstance in a particular case can certainly be a ground for the tenant to set up a case that there was no wilful or contumacious conduct on his part to avoid the payment of rent. But it was because of the laxity which was available to him by reason of the good sense of the landlord that he was sending the rents once in two months and the rents so sent by him were accepted without a demur or any objection by the landlord. The default should be such that it should be so conspicuous to a reasonable person that the tenant's attitude was nothing but supreme indifference and purposeful evasiveness resulting in his recalcitrance. Such is not the attitude of the tenant in the instant case. The Court, therefore, rightly held that the petition is not sustainable on the ground that there was such wilful default.
3. The second ground of attack was that there was subletting. Mr. Rajagopala Ayyangar fairly concedes that on the date when the application for eviction came up for hearing, the sub-tenant was not there physically. Therefore, the landlord was unable to sustain his ground under Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act. That section provides that a landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf and that the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied that the tenant has after the 23rd October, 1945, without the written consent of the landlord transferred his right under the lease or sublet the entire building or any portion thereof, if the lease does not confer on him any right to do so. The question is whether a past conduct on the part of the lessee when he sublet the building without authority, would still compel him to suffer an order of eviction under the abovesaid section, if in given facts and circumstances of a case there was no such subletting or no subtenant physically in occupation of the demised premises on the date when the petition comes up for hearing. Whatever may be the truth in the pleadings of a particular case, it is essential for the landlord who seeks to secure possession under Section 10(2)(ii)(a) of the Act to show that on the date when he complains of sub-letting there is such sub-letting in praesenti and that it was provable as a physical fact. His suggestion and pleading that about the time when ho came to Court or sometime before he filed the petition there was such sub-letting by the tenant without authority, cannot avail him of the right to seek for eviction under the above section. If be wishes to establish that there was such subletting without authority, he should prove to he first Court, namely, the Rent Controller and thereafter at every stage when the proceeding is in seisin of the statutory authorities pealing with the subject-matter that such physical fact of sub-letting is in fact in existence and the sub-letting is, therefore, at the instance of the tenant and that too without authority. Therefore, a landlord, on the mere fact that there was sub-letting of the premises cannot seek for an order under the above sub-section when he is unable to establish that there is any physical and pragmatic act of sub-letting by the tenant without authority. In the instant case, as I said, Mr. Rajagopala Ayyangar fairly conceded that on the date when the petition was taken up for hearing he was unable to establish that there was such sub-letting. The sub-letting cannot be a matter of surmise but such can only be the result of an actual investigation and adjudication and a resultant finding. I am of the view that no such finding can be rendered in the instant case, as there was no physical sub-letting at site. The petition has to fail on that ground also. The lower Court, therefore, was right in having dismissed the petition. The civil revision petition is, therefore, dismissed. There will be no order as to costs.