JUDGMENT

RANGANATH MISRA, J.:— This is a tenants appeal by special leave against the order of eviction from a commercial premises at Gudur in Andhra Pradesh. The Controller, the Appellate Authority and the High Court have concurrently found that the appellant was a wilful defaulter liable to be evicted.

2. Under document No.1327 of 1969, a thirty-year lease with an annual stipulated rent was granted in favour of one Narayanan, a partner of the Hotel, for a term of 30 years beginning from 9th of Sept. 1961. For the first 15 years rent was stipulated at the rate of Rs. 150 per month and for the second span of 15 years rent was to be escalated to Rs. 200 per month, and the tenant undertook to pay the rent by the 9th of every succeeding month. The lease deed further stipulated :

"Out of the advance of Rs. 6,500, the second party shall deduct every month Rs. 75 from the stipulated rent up to Rs. 1,500 and the balance of Rs. 5,000 shall be paid back to the second party by the first party under valid receipt after the expiry of the lease period."

Thus, by March, 1971 the amount of Rs. 1,500/- had been adjusted and the landlord held Rs. 5,000/- refundable to the tenant.

3. Action for eviction was initiated on the plea that the tenant had failed to pay the rent for a certain subsequent period. Courts below debated the main - perhaps the only - contention as to whether the plea of payment which the tenant advanced had been established. On behalf of the landlord the account books of the Hotel were placed and the benefit of S. 34 of the Evidence Act was claimed. Lot of attention was bestowed in the Courts below on the question as to whether the oral evidence along with the presumption arising under S. 34 of the Evidence Act had not established the position that no payment and as claimed had been made. On the finding that payment had not been established, eviction was ordered.

4. Two contentions have been advanced by Mr. P.P. Rao appearing for the appellant to maintain that the order of eviction was contrary to law and cannot be sustained. Reliance is placed on S. 7 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, (hereafter Act) in support of the stand that the sum of Rs. 5,000/- which lay as advance in the hands of the respondent-landlord was either refundable to the tenant or adjustable against rent and if out of the sum of Rs. 5,000/- the arrears were available to be adjusted, the tenant was not at all in default. It has next been contended that the lease of 1969 was for a term of 30 years certain and eviction has been claimed against a contractual tenant during the subsistence of the lease. Admittedly, the lease does not have a forfeiture clause so as to bring the matter within the ambit of S. 111(g) of the Transfer of Property Act. The application for eviction, a copy of which is available on the record (at p. 10 of the second paper-book), refers to a notice in paragraph 7 in the following terms :

"The petitioners caused a registered notice through their counsel dated 28-10-1973 to the respondent demanding the rent due and also for the eviction from the schedule mentioned premises since the respondent has become a wilful defaulter. The respondent received the notice and has not chosen to give any reply."

It, therefore, follows, appellants counsel has contended, that the lease remained unterminated and the right created under the lease cannot be taken away by filing an application for eviction on the plea of wilful default in the matter of payment of rent.

5. Section 7 of the Act as far as relevant, provides :

"7(2) Where the fair rent of a building has not been so fixed-

(a) the landlord shall not after the commencement of this Act claim, receive or stipulate for the payment of any premium or other like sum in addition to the agreed rent :

Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one months rent by way of advance;

(b) save as provided in clause (a), any sum pa