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SYED SHAH MOHAMMED QUADRI,J.

This appeal arises from the common order of the High Court of Madras in CRP Nos.1582, 1705/93 and CMP No.13064/96 in CRP No.1705/93 passed on March 27, 1997. The appellant is the tenant and the respondents are the landlords of the cycle shop bearing No.70, Main Road, Eruvadi (hereinafter referred to as 'the premises').

The appellant took the premises on monthly rent of Rs.60/- from one Shahul Hameed, predecessor-in-interest of the respondents, in 1974. On March 6, 1979, the appellant was served with a prohibitory order by the Tax Recovery Officer, Income Tax Department, Tirunelveli, which was followed by another order issued by the same authority under Section 226(3) of the Income Tax Act on January 18, 1988. From the date of service of the prohibitory order the appellant stopped payment of monthly rent to the respondents. But on receiving the notice on January 18, 1988, he paid rent for the entire period to the Tax Recovery Officer.

Dr.A.F.Julian, learned counsel for the appellant, urged that by virtue of the prohibitory order issued by the Income Tax Department on March 6, 1979, the appellant was prevented from paying the rent to the landlord and, therefore, non-payment of rent to the landlord after that date cannot be termed as 'wilful default'. He submitted that after receiving notice under Section 226(3) of the Income Tax Act on January 18, 1988, the appellant paid the rent to the Income Tax Department on February 24, 1988. He next contended that having lost on the plea of bona fide personal requirement under Section 10(3)(a)(iii), the landlord could not have been permitted to make out an entirely new case by way of additional ground under Section 10(3)(c) of the Act and in any event as the High Court did not consider the requirements of the proviso to Section 10(3)(c) of the Act, the order under appeal deserved to be set aside.

Mr.B.Kumar, learned counsel for the respondents, argued that wilful default in payment of rent by the appellant relates to various periods, the prohibitory order of March 6, 1979, is confined to the rent that was due on that date and as it did not require the appellant to pay future monthly rent to the Income Tax Department so nothing prevented him to discharge his obligation of payment of rent to the respondents thereafter. As such the plea of payment of rent to the Income Tax Department on February 24, 1988, long after the rent became due will not relieve him of the consequences of the wilful default in payment of the rent. He has submitted that the High Court considered the application of the proviso and found that great prejudice would be caused to the landlord if their petition was dismissed.

The relevant extract of Ex.B-2 - the prohibitory order of March 6, 1979 - is as follows :

"Prohibitory order, where the property consists of debts not secured by negotiable instruments.
Office of the Tax Recovery Officer, Tirunelveli.
To Sri T.M.Germans Fernandes, Hire Cycle Shop, 70, Main Road, Eravadi.
Whereas Sri S.A.Sahaul Hameed, Eravadi has failed to pay arrears due from him in respect of certificate No.47-026-Py.7428 dated 26.3.1978 forwarded by the Income-tax Officer, Special at Madurai amounting to Rs.81,877/- and the interest payable under Section 220(2) of the Income-tax Act, 1961 for the period commencing immediately after the said date :