Deposit made not in accordance with statutory provision is not valid tender.

Landlord in R.C.O.P.No.8 of 1985 on the file of Rent Controller, Madurai are the revision petitioners.

2. According to landlord, tenants are liable to be evicted on the ground that they have committed in payment of rent from July, 1983 to November, 1984 i.e., for the period of 17 months and have committed wilful default in paying the rent. Rent arrears comes to Rs.6,800 as on November, 1984. It is also said that they have already moved an application for fixation of fair rent and Rent Controller has fixed the same at Rs.1,290. The appeal filed by tenant was dismissed and it is said that C.R.P. taken against that order also was dismissed by confirming the decision of appellate authority on 4. 1987. But in this case, we are not concerned about the fixation of fair rent. Eviction petition is filed only on the ground that the tenant has defaulted in paying rent at the rate of Rs.400 per month, which is agreed rent.

.3. Material averments in the eviction petition also will have to be considered before further proceeding into the matter. There had been earlier proceedings between parties. Landlord filed an application for eviction as R.C.O.P.No.160 of 1979 on the ground that tenant has defaulted in paying rent. That application was dismissed. Even though the matter was taken in appeal, the same was also dismissed. There was also another proceedings in R.C.O.P.No.736 of 1981 which also do not meet with any success to landlord. It is also now admitted that tenant has moved an application under Sec.8(5) of the Act seeking permission to deposit the rent in court. That was filed after initiation of the present proceedings. It has also come out in evidence that landlord also filed R.C.O.P.No.598 of 1973 on the ground that the tenant is making use of the building for the purpose other than for which the building was let out and the same also did not succeed.

4. It is the case of landlord that from July, 1983 to November, 1984 tenant has not paid rent at the rate of Rs.400 and on enquiry it was found that the amount was being deposited in R.C.O.P.No.160 of 1979 and in C.M.A.No.248 of 1981, which have already ended years back. According to landlord, deposit before the Rent Controller after termination of litigations is not proper tender and the same will not amount to valid tender of rent. It is further averred that even though landlord has received the amount from court, that will not take away his rights to contend that tenant has defaulted in paying rent.

5. As against the said contention, respondents have narrated the history of various litigations and said that from 1973 onwards they have been depositing rent in one proceedings or the other. Even if landlord has withdrawn the amount without prejudice to their rights, fact remained that the rent deposited by them has been withdrawn. In that view of the matter, there is no default in payment of rent much less it will amount to wilful default.

6. In para 8 of the counter-statement tenants have further said that in R.C.O.P.No.160 of 1979 they have deposited the amount from June, 1983 to December, 1983 at the rate of Rs.400 and in R.C.O.P.No.736 of 1981 they have deposited rent for the period from January, 1984 till September, 1984. They further alleged that the rent for the months of October and November, they deposited rent in C.M.A.No.248 of 1981 and the same was deposited with will knowledge of landlord’s counsel.

7. It is therefore alleged that they have no intention not to pay rent. It is also said that whenever amount is deposited intimation has been given to counsel for landlord then and there and only thereafter landlord used to withdraw the same from court. It is her case that once parties have adopted a particular procedure in payment of rent i.e., depositing rent in court and withdrawal of rent from court by landlord that practice will have to be taken into consideration as valid payment. It is their case that they are entitled to deposit rent as per the provision