ORDER
V. Eswaraiah, J.
1. This Civil Revision Petition is filed against the order and decree, dated 7-11 -2002, passed in R.C.C.M.A No. 119 of 1994 in R.C.C. No. 185 of 1998 by the learned Principal Senior Civil Judge, Vijayawada.
2. Petitioner is the tenant and the respondents 1and 2 who are the
husband and wife died and their only son, the 3rd respondent, was brought on record before the Rent Control Appellate Authority, The landlords, Mahankali Pullaiah and Mahankali Kotamma, filed R.C.C.No. 185 of 1998 on the file of he Rent Controller, Vijayawada, under Sections 10(2)(i), 10(2)(ii)(b), 10(2)(iv) and 10(3)(c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for brevity, ‘the Act’), on the grounds of wilful default in payment of rent and for additional accommodation, and the Rent Controller dismissed the same by order dated 26-4-2000 against which the landlords filed R.C.A.No. 119 of 1994 on the file of the Principal Senior Civil Judge, Vijayawada and during the course of appeal both the landlords i.e., the husband and wife, died and their son was brought on record as 3rd appellant: The Appellate Authority ordered eviction only on the ground that there is a specific default in payment of rent from July, 1990 to August, 1991 which constitutes a ground for ordering eviction under Section 10(2)(i) of the Act. Aggrieved thereby, the tenant preferred this Civil Revision Petition.
3. For the purpose 6f convenience, the parties are hereinafter referred to as they are arrayed in the trial Court.
4. It is the case of the landlords that the petition schedule property is the upstairs portion of the building bearing Assessment No. 7116, door No. 11-18-14 situated at Vijayawada Municipal Corporation and the said building consists of two residential portions, ground floor and upstairs, and the upstairs portion is let out to the tenant on a monthly rent of Rs. 340/- per month besides the water and electricity charges under an oral agreement, in 1981 .that the rentto be enhanced by 20% for every two or three years and accordingly the monthly rent was increased to Rs. 400/- in 1983 and to Rs. 480 in 1986. The Rent Appellate Authority granted eviction only on the ground of wilful default under Section 10(2)(i) of he Act and the other grounds which the Rent Controller rejected and the Appellate Authority also did not grant any relief may not be necessary to deal with as the eviction order is ultimately on the ground of wilful default under Section 10(2)(i) of the Act.
5. A perusal of the averments made in the Rent control petition goes to show that the tenant promised to vacate the premises by the 1sl of April, 1988 but he did not do so and on the other hand he has sent Rs. 340/-towards the rent for the month of April, 1988 by way of money order and the rent for the month of May, 1988 was also sent by way of money order and both the money orders were returned and again the tenant sent a money order for the month of June, 1988 and also issued a notice. It is the contention of the landlords that the tenant has sent lesser amount and as such there is wilful default in payment of rent on the part of the tenant and therefore he is liable to be evicted on that ground.
6. A counter has been filed by the tenant stating that the monthly
rent payable is only Rs. 340/- and the rents have been collected regularly up to the end of April, 1988 and when the tenant tendered the rent, as usual, for the month of May, 1988, in person, on 01 -06-1988 along with the increased rent amounting to Rs. 397/-which includes the rent, watercharges and electricity consumption charges the landlords declined to receive the same. It is stated that in spite of several requests made by the tenant the landlords did not change their attitude and therefore the tenant is constrained to send the said rent of Rs. 397/-(Rs. 340/- + Rs. 15/- + Rs. 42/-) by money order at his expenses on 2-6-1988 but the deceased- 1st respondent herein refused to receive the same and again the tenant sent the rent along with the water and electricity charges for the month of June, 1988 by way of money order dated 30-6-1988 but the same was also refused. Before sending the rent for the month of May, 1988 the tenant issued a notice dated 2-6-1988 to the landlords requesting them to receive the rent and to specify the name of the bank with account number so as to enable him to deposit the rent, but the same was returned. It is further stated that the tenant was constrained to file R.C.C. No. 131 of 1988 under Section 8(5) of the Act seeking permission to deposit the rents and the Rent Controller allowed the same by order dated 8-3-1989 permitting the tenant to deposit the rent into the Court.
7. There is no complaint that the tenant failed to deposit the
arrears of rent and also the subsequent rents. However, the Rent
Controller after considering the oral and documentary evidence held
that none of the grounds mentioned have been established and
ultimately dismissed the R.C.C. No. 185 of 1988 by order dated
26-4-1994. With regard to the wilful default in payment of rent it is
stated that the landlords refused to receive the rent, for the month
of April, 1988, sent by the tenant by way of money order and the
contention of the landlords that the rent was enhanced to Rs. 400/-
from Rs. 340/- was also not established and the rents were deposited
into the Court from August, 1990 to July, 1991 and on an application
filed by the landlords under Section 11(4) of the Act in I.A. No.
1258 of 1991 all the challans were deposited into the Court and that
the failure of the landlords to withdraw the same is of no
consequence and therefore, the tenant cannot be termed as a wilful
defaulter. The period of default that was pleaded in the rent control
petition was only for the months of April, May and June, 1988 and as
the Rent Controller allowed the application of the tenant under
Section 8(5) of the Act and as the landlords refused to receive the
same the question of wilful default does not arise and therefore, the
Rent Controller dismissed that petition holding that there is no
wilful default in payment of rents. The Rent Appellate Court while
confirming the other findings of the Rent Controller, rejecting the
eviction petition, ordered eviction only on the ground that the rent
for the months of August, 1990 to July, 1991 was deposited into the
Court only after the landlords filed the petition under Section 11(4)
of the Act and as the challans were not filed into the Court the
landlords were not able to withdraw the same and therefore, the said
subsequent action of the tenant is a wilful default in payment of
rent which constitutes a ground for eviction under Section 10(2)(i)
of the Act. The ground that is available seeking eviction on the
ground of wilful default of payment of rent is under Section 10(2)(i) of the Act.
Section 10(2)(i) of the Act reads as follows:
A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable.
The ground on which the eviction petition was filed is for the wilful default of payment of rent for the months of April, May and June, 1988. Admittedly the rent for the said three months sent by Money order has not been received and therefore, the application under Section 8(5) of the Act has been allowed and the rents have been withdrawn. If that be so, the question of ordering eviction on the subsequent default of payment of rent does not arise. Under Section 11(1) of the Act, no tenant against whom an application for eviction has been made by the landlord under Section 10 of the Act, shall be entitled to contest the application before the Rent Controller unless he pays all the arrears of the rent due in respect of the building upto the date of payment or deposit and continues to pay or deposit the rents which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the Appellate Authority, as the case may be. The mode of payment or deposit of the rents under Section 11 of the Act is the same as under Section 8(5) of the Act. If the tenant fails to deposit the subsequent rents it is open for the landlord to file an application under Section 11(4) of the Act and on filing such application if the tenant fails to show sufficient cause for non-deposit of the rent, then the Rent Controller shall make an order stopping all further proceedings and direct the tenant to put the landlord in possession of the building. Admittedly, in the instant case, no order has been passed under Section 11(4) of the Act in the said application filed by the landlords. Therefore, I am of he opinion that the ground ordering eviction under Section 10(2)(i) of the Act is different and distinct from the order under Section 11(4) of the Act. That is the reason why the Honorable Supreme Court in K.A. Ramesh and Ors. v. Susheela Bai (Smt.) and Ors. observed that if there are no arrears of the rents for the alleged period to the incident the tenant failed to pay the rents and wilfully committed default in payment of rents and if the said rents have been received the eviction petition itself becomes infructuous. A similar contention was raised alleging that the tenant failed to deposit the rent under Section 11 of the Act and therefore, the tenant is liable to be evicted. If no sufficient cause is shown for not depositing the rents under Section 11(4) of the Act, the Supreme Court held as follows:
We fail to appreciate how this contention can be pressed into service on the peculiar facts of this case. As we have seen earlier, the eviction proceedings have themselves become infructuous once the bank draft dated 02-02-1989, for the full amount of arrears was already got encashed by the respondents.
8. Learned counsel appearing for the tenant relied on a judgment of the Apex Court in N.D. Thandani (Dead) by Lrs. v. Arnavaz Rustom Printer and Anr. and contended that unless the default is intentional, deliberate, calculated and conscious the tenant cannot be evicted. In the said case there was an order passed under Section 8(5) of the Act. Even after passing the order under Section 8(5) of the Act the rents were not deposited and the challans were not furnished and therefore, the tenant failed to comply with the provisions of Sections 8(5) of the Act and also failed to comply with the provisions of the right of the landlords to withdraw the rents and therefore, it was inferred that the default was intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. In the said case, the rent pleaded by the tenant was Rs. 80/- but the Court held that the rent was finally adjudged as Rs. 160/-per month and the said rent was not paid and therefore, there was wilful default in payment of the rent. I am of the opinion that the facts of the said case do not apply to the facts of this case as the order passed under Section 8(5) of the Act was not complied with but wheareas in the instant case no order has been passed under Section 11(4) of the Act.
9. Learned counsel appearing for the tenant further relied on an order of a Division Bench of this Court in C.R.P.No. 3178 of 1992 which was referred to the appropriate Bench to decide the following questions.
1. Whether the cause of action in case of wilful default vanishes if the landlord receives rents before filing eviction petition and whether the eviction petition can be maintained in such circumstances?
2. Whether the principle can be extended even to a case where the landlord had received the rents prior to the filing of the eviction petition on protest and without prejudice to his rights?
3. What is the effect of Doctrine of waiver in such
circumstances?
10. Having regard to the facts and circumstances I am of the opinion that all the above questions are not relevant in the instant case as the Appellate Court ordered eviction only for subsequent default of payment of rents under Section 11(4) of the Act. Unfortunately, neither the Rent Controller nor the Appellate Authority passed any orders under Section 11(4) of the Act but the eviction order is passed under Section 10(2)(i) of the Act on the ground that the deposit of rents were made only after filing an application under Section 11(4) of the Act and therefore, it constituted a ground under Section 10(2)(i) of the Act. I am of the opinion that when the ground that was taken for eviction on wilful default in payment of rents for the months of April, May and June, 1988 itself is not in existence as the rents were received long back the Rent Control Case itself becomes infructuous as the rents for the said period were already deposited and withdrawn and therefore without there being passing of any orders under Section 11(4) of the Act the tenant cannot be ordered eviction under Section 10(2)(i) of Act.
11. it is further stated that if there was not compliance of the order under Section 8(5) of the Act, the Rent Controller could have passed the order of eviction for not following the provisions under Section 8(5) of the Act. But the eviction order has not been passed for non-compliance of the provisions of Section 8(5) of the Act and no appeal has been filed by the landlord against the order under Section 8(5) of the Act. For the aforesaid reasons I am of the opinion that the eviction order passed by the Rent Appellate Authority on the ground that the rents for the months of April, May and June, 1988 have been deposited after filing the application under Section 11(1) of the Act and therefore there is a wilfil default in payment of rent under Section 10(2)(i) of the Act, is illegal and unsustainable.
12. Accordingly the Civil Revision Petition is allowed setting aside the order of the Lower Appellate Court and confirming the dismissal in R.C.C.No. 185 of 1998 on the file of the Rent Controller, Vijayawada.