ORDER
S.S. Subramani, J.
1. These revisions are by the landlord who filed eviction petition against the respondent herein as H.R.C.O.P. No. 6 of 1987, on the file of Rent Controller, Tenkasi.
2. The only ground on which the petition for eviction was filed was that there was default in payment of rent.
3. The material averments are as follows:
The respondent is in possession of a non-residential building, agreeing to pay a monthly rent of Rs. 40. It is said that the lease arrangement was for a period of three years. It is averred that the tenant was not regular in paying rents. The petitioner filed H.R.C.O.P. No. 6 of 1987, on the same ground. At that time, the respondent herein also filed H.R.C.O.P. No. 5 of 1979 (sic) depositing the rent in court, under Section 8(5) of the Rent Control Act. The petitioner’s application was dismissed, and the respondent was allowed to deposit rent in court. It is said that the respondent was not regular in paying the rent even though he obtained direction from court for depositing the rent in court. From December, 1978 to February, 1987, respondent has not paid rent, which works out to Rs. 3,760 and the non-payment of rent will amount to wilful default and, therefore, the respondent is liable to be evicted.
4. In his counter-statement, the respondent has stated that there rival proceedings between the parties, and that he has also paid a sum of Rs. 1,200 as advance. It is stated that in October, 1978, rent was tendered, and the landlord accepted it. But thereafter the petitioner refused to issue receipt and, therefore he filed H.R.C.O.P. No. 5 of 1979 for permission to deposit the rent in court, and the landlord filed H.R.C.O.P. No. 6 of 1979, for eviction. As stated earlier, the landlord’s petition was dismissed and the tenant’s petition seeking permission to deposit the rent in court was allowed. He said that he has been depositing the rent regularly in court along with the statement he has also given the particulars of courts in which he has paid the amount. It is said that from December, 1978 to November, 1979. He has deposited the rent in R.C.O.P. No. 5 of 1979. He has also deposited rent from December, 1979 to April, 1983 in R.C.O.P. No. 14 of 1979. The rent from May, 1983 to May, 1984 was deposited in R.C.O.P. No. 22 of 1980 and that rent for the period from June, 1984 to July, 1987 has been deposited in H.R.C.O.P. No. 14 of 1979. He also said that rent for the month of August, 1989 has been paid in the present petition. According to him, he has deposited the entire rent that was due to the landlord and there was no default committed by him. He also said that landlord has disconnected electricity and the present application is liable to be dismissed since it is lacking in good faith.
5. Rent Controller found that at least for one month the tenant must have committed default in paying rent and that since there was no explanation from him as to why the rent was not paid in time, the default is wilful, and therefore, he was liable to be evicted from the building.
6. When the matter was taken in appeal, the lower appellate court also mostly agreed with the finding of the Rent Controller, stating that the tenant might have committed default and that it was wilful, and that no circumstance has been made out by the tenant to explain that it was not wilful. Without entering a finding as to whether there are any actual arrears, and if so, for how many months, the lower appellate court came to the conclusion that even if there was such arrear the same could not be considered as wilful. Consequently, the order of the Rent Controller was set aside, and the appeal was allowed.
7. In this revision, learned Counsel for the petitioner contended that the approach made by the authorities below in considering the ‘default’ is not correct. According to the learned Counsel, a mere reading of the counter statement will be sufficient to come to the conclusion that the tenant is liable to be evicted and that the default committed is wilful.
8. In the rent control petition as well as in the notice issued before initiating proceedings, petitioner has stated that even though the respondent has obtained orders from court, seeking permission to deposit the rent under Section 8(5) of the Act, he was not regular in paying the rent. It is also said that from December, 1978, to February, 1987, the respondent had to pay a sum of Rs. 3,960 as rent. He has deposited only Rs. 3,880. It is said that in H.R.C.O.P. No. 5 of 1979, he has deposited only a sum of Rs. 520 and in H.R.C.O.P. No. 14 of 1979, he has deposited only a sum of Rs. 2,840 and in R.C.A. No. 22 of 1980 he has deposited only Rs. 520. This, according to the learned Counsel for the petitioner, is not sufficient.
9. In this connection, it is also worthwhile to note that the eviction petition was filed on 27.4.1987 counter-statement was filed on 10.9.1987 In paragraph 7 of the counter, the tenant has said that from December, 1978 upto November, 1979, he has deposited the rent in R.C.O.P. No. 5 of 1979. From December, 1979 till April, 1989 (both inclusive), he has deposited the rent in R.C.O.P. No. 14 of 1979. Likewise, from the month of May, 1983 to May, 1994, (both months inclusive), rent was deposited in R.C.A. No. 22 of 1980 From June, 1984 to July, 1987, (both months inclusive) rent has been deposited in R.C.O.P. No. 14 of 1987. In August, 1987, rent has been deposited in this proceeding. This statement is bereft of any details as to the details of the deposit. The amount deposited and the date on which the sums were deposited have not been given. It is for the tenant to substantiate before this Court or before the Rent Controller that the entire amount has been paid by him in time without any default. What we find is only the period in which the amounts were deposited in the respective cases.
10. The Rent Controller took the total amount payable for the entire period and came to the conclusion that rent for the months of January and February, 1987 are in arrears. When the matter was taken on appeal, the appellate authority was of the view that there were arrears from January to March, 1987, but did not enter a finding whether there was any default, and if so, whether it was wilful.
11. Before proceeding further with the case, it is better to consider the decision reported in K. Avinasilingam v. Hamsa (1990) 1 L.W. 591, Ratnam, J., as he then was, has discussed the entire law on the point, and from a reading of the said decision, it is clear that it is for the tenant to (sic) prove that the amount deposited by him in court was in time; i.e., in accordance with the terms of the tenancy. The relevant portion of the said decision reads thus:
…Under Section 10(2)(i) of the Act, protection is given to the tenant against removability from the premises in his occupation, if the tenant pays or tenders 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. Under Section 8(2) of the Act, in a case, where a landlord refuses to accept or evades the receipt, of any rent lawfully payable to him by a tenant in respect of any building, the tenant may, call upon the landlord in writing requiring him to specify a bank into which the rent may be deposited by the tenant to the credit of the landlord, Section 8(3) of the Act permits the tenant to deposit the rent in the bank so specified by the landlord and enables him to continue to deposit the rent which may subsequently become due in respect of the building. On the failure of the landlord to specify a bank under Section 8(4) of the Act the tenant shall remit the rent to the landlord by money order, after deducting the money order commission. It is only when the landlord refuses to receive the rent remitted by money order, under Sub-section (5) of Section 8, the tenant may deposit the rent before the rent controller and continue to deposit any rent which may subsequently become due in respect of the building. It is thus seen that Section 8(5) of the Act, which had been resorted to by the plaintiff in this case in H.R.C. No. 569 of 1981. is intended to protect the tenant from the consequences of nonpayment of rent amounting even to wilful default owing to the refusal by the landlord to receive the rent when tendered. Under Section 9(2) of the Act, the amount deposited under Section 8(5) of the Act may be permitted to be withdrawn by the person held by the Rent Controller to be a entitled to the amount on an application made by such person to the Rent Controller on that behalf. It is thus seen that the obligation of the tenant to pay or tender the rent within fifteen days after the expiry of the time fixed in the agreement of tenancy or in its absence, by the last day of the month next following that for which the rent is payable, is intended to be fulfdled by resort to Section 8(5) of the Act and the deposit of the rents, refused to be received by the landlord when remitted by money order as well as that may subsequently become due, under Section 8(5) of the Act when paid out to the landlord under Section 9(2) of the Act, would ensure the payment of the rent regularly by the tenant as well as the receipt thereof by the landlord on being paid out to him by an order of the controller under Section 9(2) of the Act. It is therefore, obvious that it is not merely for the same of a deposit into court Section 8(5) of the Act is intended but it also serves a very vital and important purpose in that by resorting to a deposit of rents under Section 8(5) of the Act after obtaining the orders of the controller in that regard, the rents refused to be received in the usual course by the landlord are not only paid by the tenant. But also made available to the landlord, so that a ground for eviction under Section 10(2)(i) of the Act does not arise. In the event of the deposit of rents being made without default, thus, on a conjoint consideration of Sections. 10(2)(i), 8(5) and 9(2) of the Act, it is at once evident the order for deposit under Section 8(5) of the Act is primarily intended to confer a protection on the tenant from eviction on the ground of wilful default in the payment of rent….
[Italics supplied]
In paragraph 7 of the same decision the learned Judge said further thus:
…It has to be remembered that it was the petitioner who had invoked the jurisdiction of the Rent controller under Section 8(5) of the Act and invited an order with a view to avert any possible proceedings for eviction on the ground of wilful default being initiated against him by the landlords. In such a situation, the failure of the petitioner to deposit the rents into court for the months referred to above cannot but be characterised to be deliberate and wilful. Having invited an order permitting the deposit of monthly rent into court under Section 8(5) of the Act, the petitioner cannot be heard to say that he need not comply with it or even if he had failed to comply with it, eviction proceedings could not be initiated against him under Section 10(2)(i) of the Act. The object behind Sections. 10(2)(i), 8(5) and 9(2) of the Act has already been noticed and when the tenant commits default in depositing the rents pursuant to an order under Section 8(5) of the Act, as a consequence thereof the rents are not paid and made available to the landlord under Section 9 (2) of the Act and that in turn, would render the tenant liable to be evicted under Section 10(2)(i) of the Act….
[Italics supplied]
It is clear from the above decision that in case there is no specific period within which the rent is to be paid, it is to be paid by the last day of the month next following that for which the rent is payable. He must also prove that rent so paid is also available for the landlord for withdrawal. In this case, the Rent Controller has not taken into consideration any of these facts even though there is specific allegation by the landlord that in spite of Orders obtained under Section 8(5), the respondent was not regular in paying the rent. The Rent Controller has calculated the entire amount payable to the landlord for a total period of 99 months, and after deducting the amount stated in the petition, came to the conclusion that the rent deposited is deficient by two months’ rent. The approach made by the Rent Controller is not in accordance with law declared by this Court. He has to say whether the various deposits made mention of in paragraph 7 of the counter statement were made in time in accordance with law.
12. The appellate authority did not even take pains to consider the correctness of the rent controller’s order. It simply said that the approach of the rent controller was against the landlord mainly for the reason that he initiated earlier proceedings and the tenant was compelled to move the rent controller seeking direction to deposit the rent. After accusing the landlord for his prior conduct, the appellate authority was of the view that even if there is any default, it cannot be wilful. The appellate authority also did not consider the question in the way in which it ought to have been decided, as pointed out by this Court in the decision cited supra.
13. In the order of the rent controller, it is stated that the tenant has deposited only an amount of Rs. 3,210 in R.C.O P. No. 14 of 1979. According to the learned Counsel for the respondent, the amount deposited by him is Rs. 3,160. Learned Counsel for the respondent further submitted that it was due to this mistake, the Rent Controller found that the tenant has committed default in paying rent for one month. We cannot find fault with the rent controller for the reason that no case has been made out by the tenant regarding the amount deposited. The statement was blank regarding the same. Since the findings of the authorities below are not in accordance with law, I have no hesitation in setting aside the same. The rent control petition filed by the petitioner herein is remanded to the rent controller for re-consideration. The Rent Controller, on receipt of a copy of this order, will decide the issue on the basis of the decision reported in K. Avinasilingam v. Hamsa (1990)1 L W. 591 and also on the basis of the observations made above. To substantiate their respective case, the parties will be given reasonable opportunity to adduce fresh evidence. At the same time, the Rent Controller shall also take into consideration the fact that the proceedings were initiated in 1987, and he will make every endeavour to dispose of the same without undue delay. The parties will appear before the Rent Controller on 16.2.1996. C.R.P. No. 2728 of 1989 is allowed and the matter is remanded to the Rent Controller as indicated above. No costs.
14. C.R.P.No. 721 of 1990: The above revision is also one preferred by the landlord. Electricity was disconnected in the portion occupied by the tenant, respondent herein. On the application of the respondent, the same was directed to be restored. It is against that order, C.R.P. No. 721 of 1990 is filed.
15. Even though an interim order was obtained at the time when the matter was admitted, after hearing respondent, the interim order was vacated, and consequently service connection was restored. Therefore, nothing survives for consideration in this civil revision petition. C.R.P. No. 721 of 1990 is accordingly dismissed as infructuous. No costs.