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1995 Supreme(AP) 551

Andhra Pradesh High Court
Judges : B.S.RAIKOTE
Adapa Santharam - Appellant
Versus
Sait Nathmal Manik Chand - Respondent
C.R.P. No. 520/92 etc.
Decided On : 09-11-95
Advocates Appeared :
Mr. C. Poornaiah, Mr. M.S.K. Sastry

Headnote:A.P.BUILDINGS (Lease, Rent and eviction) CONTROL ACT, 1960 Sections 7,8(5),10 (2) (i) and 10(2)(v) Wilful default - Eviction petition filed by landlord on ground of wilful default in payment of rent by tenant and later acquiring alternative building Dismissal of defective petition filed under Section 8(5) by tenant seeking permission of court to deposit arrears No evidence adduced by tenant to show tender of rent to landlord by money order or any refusal of landlord to receive arrears of rent - Advance rent received by landlord for 3 months not adjusted towards arrears of rent which exceeded advance rent - landlord is entitled to eviction of tenant on ground of wilful default.

       HELD: By filling an application seeking permission of the court to deposit the arrears of rent, the tenant cannot plead that there was no default on his part. Section 8 of the Act is only directory and not mandatory. That the tenant may resort to Section 8 and may not resort to Section 8. After the arrears of rent have fallen due, without following the mandatory provisions of that section, if he invokes section 8(5), such application cannot come to the aid of the tenant to show his bonfides in not paying the rent in time. In this case even after filing of that petition on 30-12-1982, actually the rent was not deposited till 30th March, 1983. From these circumstances, It is clear that the tenant was wilful defaulter right from the month of September, 1982 till March, 1983.

       Since under Section 7(1) and (2) of the Act, the landlord was prohibited from receiving any amount in excess of one month s rent as advance, he must give automatic adjustment of arrears of rent out of the amount in deposit, in excess of the one months rent, whether the tenant claimed to the effect or not, and after such adjustment, if the tenant still would be in arrears of rent, then he would be considered as defaulter for the purpose of Section 10(2) (i) of the Act. Legal position is that once the tenant acquires an alternative accommodation, that is a ground for eviction under Section 10(2) (v) of the Act. It is not in dispute that new premises was acquired only in the year 1982 and eviction petition was filed in the month of August, 1983. The tenant has not pleaded nor placed any evidence on record to show that the landlord had the knowledge of the said acquisition of the new properties by the tenant. The tenant has not intimated such acquisition to the landlord in anyone mode known to the law. Having regard to these circumstances only, the moment the landlord came to know such acquisition he has sought the eviction of the premises in question under section 10(2) (v) of the Act by amending his petition.

B. S. RAIKOTE, J.

( 1 ) IN all these three Revision Petitions common question of facts and law arises and hence, 1 am disposing of the same by this common judgment. I refer to the ranking of the parties as arrayed in the trial Court.

( 2 ) THE proceedings arise under the A. P. Building (Lease, Rent and Eviction) Control Act, 1960. (Hereinafter referred to as the Act ). The petitioners in C. R. P. No. 520 of 1992 are the original tenants. They have challenged the order of eviction passed against them on the ground of default in paying arrears of rent in R. C. C. No. 80 of 1983 on the file of the Rent Controller (Principal District Munsiff), Rajahmundry, dated 15/10/1990; before the lower appellate authority i. e. , sub-Judge, Rajahmundry in R. C. A. No. 20 of 1990. To this R. C. A. No. 20 of 1990, the landlord had filed cross-objections challenging the order of the Rent Controller in refusing eviction on the ground of alternative accommodation secured by the tenants. The lower appellate Court dismissed R. C. A. No. 20 of 1990 and allowed the cross-objections and thereby ordered eviction of the tenants not only on the ground of default in paying arrears of rent, but also on the ground that the tenants secured alternative accommodation. Being aggrieved by the same, the tenants filed the petition in C. R. P. No. 520 of 1992.

( 3 ) C. R. P. No. 521 of 1992 is also filed by the tenant. The tenant had filed R. C. C. No. 10 of 1983 before the Rent Controller under Section 8 (5) of the Rent Control Act seeking permission of the Court to deposit the arrears of rent into Court and the said application was rejected. Being aggrieved by the same, the tenant had preferred an appeal before the lower appellate authority in R. C. A. No. 19 of 1990. The lower appellate Court dismissed the same. Hence, the tenant has preferred this C. R. P. No. 521 of 1992 before this Court.

( 4 ) C. R. P. No. 1886 of 1992 is filed by the land-lord. The land-lord had filed a petition before the Rent Controller pleading subsequent default on the part of the tenant in paying the arrears of rent after filing the eviction petition and seeking eviction on that ground also in R. C. C. No. 11 of 1984. The Rent Controller allowed it. Being aggrieved by the same, the tenant preferred an appeal before the lower appellate authority in R. C. A. No. 18 of 1990. The lower appellate authority allowed the appeal by setting aside the order of the Rent Controller passed on R. C. C. No. 11 of 1984 and hence, the landlord has preferred this revision petition in C. R. P. No. 1886 of 1992.

( 5 ) FIRST let me consider C. R. P. Nos. 520 of 1992 and 521 of 1992. These two C. R. Ps. filed by the tenant go together.

( 6 ) THE respondent-landlord filed an eviction petition against the present petitioner-tenant on three grounds namely, the land-lord required the suit premises for bona fide occupation (under Section 3 (a) (iv) (b) of the Act ). (2) That the tenant defaulted in paying the rent to the land-lord (under Section 2 (i) of the Act) and (3) Tenant has secured alternative building (under Section 10 (2) (5) of the Act ). The Rent Controller dismissed the eviction petition of the land-lord regarding bona fide requirement and alternative accommodation. But, allowed the eviction petition on the ground of default in paying arrears of rent falling due both prior to the filing of the eviction petition and also subsequent to the filing of the eviction petition. Being aggrieved by the said order of eviction, the tenant had preferred R. C. A. No. 20 of 1990 before the lower appellate authority. For that, the land-lord had also preferred cross-objections contending that he was entitled for eviction even on the ground that the tenant had acquired alternative accommodation. The lower appellate authority dismissed the appeal filed by the tenant and allowed the cross-objections. As a result, there is an order of eviction against the tenant only on two grounds i. e. , on the ground the tenant was in a












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