ORDER
Ranga Reddy, J.
1. This revision petition is filed by the tenants against the orders of the Subordinate Judge, Rajahmundry in R.C.A. No. 10/88 reversing the order of the Rent Controller in R.C.C. No. 29/81 and directing eviction of the petitioners- tenants on the ground of wilful default.
2. The facts giving rise to the filing of this revision are in brief as follows: For purpose of convenience, I would refer to the parties as they are arrayed in the application for eviction. The petitioner in R.C.C. No. 29/81 is the owner of a non-residential building bearing No. 6/370 New D. No. 9-21-10 situated at Rajahmundry. The respondents took the premises on a monthly rent of Rs. 300/-. Rent was payable on first of every succeeding month. The tenancy commenced on 10-10-1980. The respondents committed wilful default in payment of rent for the months of January and February 1981. It is further contended that the respondents also failed to pay a sum of Rs. 30/- from out of the rent payable from 18-10-1980 to 31-10-1980. Hence, she filed the petition for eviction.
3. The respondents filed a counter stating that the petitioner-landlady had a son by name Padmarao and that the premises under their occupation was owned by them jointly and that they remitted the rents by inadvertence for the months of January and February, 1981 to Padmarao by way of Money Order and that the same was returned as refused. Later on coming to know that the rents should be paid only to the petitioner-landlady they had paid the amount of Rs. 600/- to the petitioner. Thus, according to them the rents were remitted in the name of Padmarao by mistake and that it can never be treated as wilful default. They denied the allegation that any amount, is payable by them towards rent for the period from 18-10-1980 to 31-10-1981. The respondents thus contended that there is no cause of action and that the petition for eviction was filed against them with a mala fide intention. The petitioner and her son were examined in support of the petition for eviction and on the other hand, the first respondent has examined himself as R.W.I and marked Exs.B-1 to B-3. The learned Rent Controller on considering the evidence, came to the conclusion that the tenants have not committed any wilful default. In support of that conclusion he also relied on the fact that the landlady had received an amount of Rs. 4,000/- towards deposit at the time of commencement of tenancy. For that reason also the tenants cannot be said to have committed wilful default. During the pendency of the petition, the tenants failed to pay rents from 1-7-1986 to 31-8-1987 i.e., for a period of 14 months. The petitioner-landlord therefore, filed an application under Section 11(4) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as ‘the Act’) stating that the tenants have committed wilful default in payment of rent for those fourteen months and requested to stop the proceedings. On filing that petition the tenants deposited the amount into Court. So, at the time of arguments it was contended that even this default of payment of rent, that took place subsequently during the pendency of the petition, should be taken into consideration while disposing of the application filed for eviction on the ground of wilful default. But, the learned Rent Controller found that subsequent events cannot be taken into consideration and inasmuch as he had already found that there was no wilful default, he dismissed the petition for eviction.
4. Aggrieved by that order, the landlady filed an appeal before the Subordinate Judge in R.C.A. No. 10/88. During the pendency of the appeal, probably emboldened by the findings of the Rent Controller that default in payment of rent during the pendency of the proceedings for eviction cannot be taken into consideration the tenants again committed default in payment of rent for a period of thirteen months. So, the landlady again filed an application under Section 11(4) of the Act and in that application the landlady contended that the tenants have committed wilful default in payment of rent for a period of thirteen months and stated that a sum of Rs. 4,480/- is due on that account. But, the tenants did not file any counter. But, however, long after filing that application they deposited the amount which the landlady had claimed as arrears in her application. Subsequently the appeal was heard and even the appellate authority found that the non-payment of rents for the months of January, 1981 and February, 1981 cannot be construed as wilful default. But, however, the appellate authority felt that non-payment of rent for fourteen months when the eviction petition was pending before the Rent Controller and subsequently non-payment of rent for another thirteen months during the pendency of the appeal could be taken into consideration in arriving at the conclusion whether there was wilful default or not and held that this conduct on the part of the tenants amounted to wilful default in payment of rent and consequently ordered eviction of the tenants. Aggrieved by that order of the appellate authority the tenants have filed this revision.
5. So, the point that arises for consideration in this revision is whether subsequent default in payment of rent during the pendency of proceedings can be taken into consideration while deciding an application filed for eviction on the ground of wilful default.
6. The learned counsel for the respondents contended that the decision of a case cannot be based on grounds outside the pleadings of the parties, but it should be based only on the grounds pleaded. It was, therefore, argued that the subsequent events should not have been taken into consideration by the appellate court while deciding the application for eviction. On the other hand, the counsel for the landlady contended that normally in any litigation the rights and obligations of the parties are to be adjudicated only upon as they obtained at the commencement of the litigation. But, however, relying on the decision of the Supreme Court reported in Ramesh Kumar v. Kesho Ram, he contended that the same is subject to some exceptions. In that decision it was observed as follows:
“Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of relief occur, the court is not precluded from taking a ‘cautious cognizance’ of the subsequent changes of fact and law to mould the relief.”
In that decision the observations of the Chief Justice, Supreme Court of United States is referred to and it reads as follows:
“We have frequently held that in the exercise of our Appellate Jurisdiction we have power not only to correct error in the judgment under review but to make such deposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.”
In another decision of the Supreme Court in Pasupaleti Venkatesivarlu v. The Motor and General Traders, Justice Krishna Iyer has observed as follows:
“It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure where no specific provision or fair play is violated, with a view to promote substantial justice – subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling report to that course in law or justice.”
From the above observations, it is clear that even subsequent events during the pendency of the litigation can be taken into consideration where it is not in contravention of any specific provision or where there is no violation of fair play.
7. In the instant case, the fact that the tenants committed default in payment of rent for a period of thirteen months when the eviction petition was pending before the Rent Controller and for a further period of fourteen months when the matter was pending before the Appellate authority is not disputed. On the other hand the tenants have remitted those amounts claimed in the application filed under See 11(4) of the Act without any protest. According to the decision of the Supreme Court that subsequent events can be taken into consideration in a pending proceedings, it would appear that the tenants had committed default again when the matter was pending before the Appellate Court. It should be remembered that the application itself was for eviction on the ground of wilful default. While contesting that application stating that he has not committed any wilful default, if the tenants commit wilful default in payment of rent for thirteen months at one time and fourteen months at a later date, it would be too much for the tenants to contend that this could not be taken into consideration.
8. The learned counsel for the tenants contended that if any subsequent default had taken place, it is only open to the landlord to file another application for eviction. For that he relied on a decision of a Division Bench of this court reported in P. Rathnamaiah Chetty v. Yalavaluri Ramalingaiah, 1986(2) APLJ 357. That matter came up before the Division Bench on account of reference made by a Single Judge. There, the question that fell for consideration was whether it is open to the landlord to seek eviction of a tenant for the subsequent default in payment of rent committed by him after availing himself of the benefit of order passed under Section 11(4) of the Act by the Court of Rent Controller in the earlier proceedings for eviction instituted by him. There, the Division Bench held mat such an application for eviction is maintainable. But, it should be remembered that the reference was quite different from the one that has arisen for consideration in these proceedings. It is nowhere stated that subsequent events during the pendency of the proceedings cannot be taken into consideration in the pending proceedings. Even the decision reported in Ch. Satyanarayana v. S. Subba Rao, 1992 (1) ALT 22 (SN) implies that if the landlord wants to get the tenant evicted for non-payment of rent for the period subsequent to the filing of R.C.C. he should have made an application under Section 11 of the Act for striking off the defence of the tenant. In the instant case such applications were made by the landlord before the Rent Controller as well as the Appellate authority. So, under the circumstances, I find that in view of the decisions of the Supreme Court referred to above, it is open to the petitioner to rely on the subsequent defaults committed by the tenants in his application filed for eviction on the ground of wilful default. Further, it could be seen that this proceeding for eviction was instituted in the year 1981 and the same has been pending for nearly ten years. So, having regard to the facts and circumstances of the case, if it were to be held that he can only file another application to evict the tenant, it is quite likely to last for another decade. I feel that it would be quite unjust particularly when the circumstances indicate that the tenants could not have any possible defence to oppose that application. I, therefore, find that the Appellate authority was right in taking into consideration the subsequent defaults and ordering eviction of the tenant.
9. In the result I find that the revision is liable to be dismissed and the same is accordingly dismissed with costs. The tenants are granted four months time to vacate the premises and deliver vacant possession of the same.