S. DASARADHA RAMA REDDI, J.

( 1 ) ). THIS is a revision petition filed by the tenant arising under the A. P. Buildings (Lease, Rent and Eviction) Control Act (for short the Act )- The eviction petition was filed in October, 1986 (i) on the ground that the tenant was a wilful defaulter in the matter of payment of rents from May, 1986 to October, 1986; and (ii) on the ground of bona fide personal requirement. The premises is a non-residential one and regarding the rent while the petitioner s contention is that it is Rs. 400/-, the respondent s contention is that it is Rs. 450/ -. But both the Courts below found that the rent is Rs. 450/- per month. The learned rent Controller allowed the eviction petition on the ground of wilful default and personal requirement. Regarding the acts of waste, however, he did not agree with the plea of the respondent-landlord. While considering the ground regarding wilful default, the learned Rent Controller referred to the admission of the tenant in the evidence that he paid Rs. 6,400/- on 15-7-1988 representing the rental arrears for 16 months at the rate of Rs. 400/- per month which, according to the petitioner is the rent, pursuant to an order under section 11 (4) of the Act. Against the order of the learned Rent Controller, the petitioner has preferred appeal before the Principal Sub-Court, visakhapatnam. The learned Prl. Subordinate Judge upheld the order of the rent Controller on the ground of wilful default, while holding against the land-lord regarding the plea of bona fide requirement. Regarding bona fide personal requirement, the learned appellate Judge held that in view of the death of the landlord during the pendency of the appeal leaving behind his son, the requirement for his business can no longer subsist and that it is not clear for what purpose the son requires the premises. Having lost in both the courts, the tenant has come up with this C. R. P.

( 2 ) MR. V. Ajay Kumar, learned Counsel for the petitioner contended that the orders of both the Courts below cannot stand in view of the decision of the Supreme Court in Modern Hotel vs. K. Radhkrishna, since the landlord is having Rs. 6,000/- with him representing 15 months rent as advance (and more than one year s rent if rent is taken at Rs. 450/- per month) which is contrary to Section 7 (a) (ii) of the Act and hence the tenant cannot be said to be a defaulter. There is no dispute that more than one year s advance rent even at the rate of Rs. 450/- per month was with the landlord and that the tenant is entitled to adjust the amount as against the rent that falls due for the period for which the advance was given. Thus, as per the decision of the Supreme Court (1 supra), merely because the petitioner did not pay the rent from May, 1986 to October, 1986, the petitioner cannot be said to be defaulter. The learned counsel is correct in stating that the petitioner cannot be said to be defaulter as on the date of filing of eviction petition since one year s advance rent was lying with the landlord. But that does not help the tenant since admittedly he fell in arrears for more than a year during the pendency of eviction petition and the tenant paid Rs. 6,400/- on 15-7-1988, which represents rental arrears of 13 months (May 87 to May 88) and rent for June 1988. Mr. Ajay Kumar contended that as the subsequent arrears have been paid pursuant to the order under Section 11 (4) of the Act, it does not come in the way of the petitioner and that it cannot be said that he is a defaulter. In support of this proposition, the learned counsel relied on the decision of Justice D. J. Jagannadha Raju in ch. Satyanarayana vs. S. Subba Rao and Justice B. K. Somasekhara in P. Rajanna vs. K. Lalitha Reddy. In the first (2nd supra) case, eviction petition was filed for non-payment of rent from January to October 1982. The land lord also filed O. S. 857 of 1982 for recovering the arrears of rent. Rents were not deposited in the Civil Court from March, 1982 to

Click Here to Read the rest of this document