THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.4316 of 2011 Date of Order: 25-11-2011 Between: Aavala Samrajyam ..Petitioner and Puvvada Chandrasekhar ..Respondent The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.4316 of 2011 order: Petitioner/tenant filed this revision against the decretal order passed by the Principal Senior Civil Judge-cum-Appellate Authority under A.P.Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short “the Act”), Vijayawada in RCCMA No.85 of 2009, dated 30-08-2011 whereunder the appeal filed by the tenant against the eviction order passed by the Rent Controller-cum-IV Additional Junior Civil Judge, Vijayawada in RCC No.129 of 2006, dated 05-11-2009 has been confirmed. Respondent/landlord filed the above RCC under Section 10(2)(i) of the Act seeking eviction of the petitioner/tenant alleging that tenant, who is in occupation of the non- residential premises on a monthly rent of Rs.1,500/- payable at the end of every tenancy month corresponding to English calendar month, did not pay the rents since from 01-10-2005 to 31-03-2006. Therefore, notice under Ex.B1, dated 21-03-2006 was issued to the tenant demanding to vacate the premises to which reply dated 12-04- 2006 was sent by the tenant with false allegations. Therefore, the tenant has committed wilful default in payment of rents from 01-10-2005 to 31-03-2006 for a period of six months. Petitioner/tenant resisted the claim of the landlord contending that there is no default much less wilful default on the part of the tenant. As per usual custom, the landlord will collect the rents as and when it is convenient to him. Immediately after receipt of Ex.B1—notice monthly rents were sent by the tenant by way of demand draft and the same were received by the landlord and since then he is regularly paying the rent through demand draft. Therefore, there is no wilful default in payment of rents. To substantiate the respective pleas, the landlord himself was examined as P.W.1 and got marked Exs.A1 and A2. The tenant herself was examined as R.W.1 and marked Exs.B1 to B6. The learned Rent Controller after considering the material available on record held that the tenant committed wilful default and liable to be evicted and accordingly ordered for eviction. Questioning the same the petitioner/tenant carried the matter in appeal. The learned appellate authority dismissed the appeal holding that except self-styled testimony of R.W.1, there is no other material to show that the landlord used to collect the rents whenever he finds time and such practice was in existence. The tenant in her reply notice marked as Ex.B2 admitted about non-payment of rents from October, 2005 to February, 2006. In the reply notice—Ex.B2 the tenant (R.W.1) did not state that she tendered the rent for the alleged period i.e. from October,2005 to February, 2006 and the same was refused by the landlord. Only for the first time in the cross-examination R.W.1 deposed that she tendered the rent to the landlord for the period commencing from October, 2005 to February, 2006 but the same was refused, which amounts to wilful default as held by the Full Bench of this Court in PALLAPOTHU NARASIMHA RAO v. K.R.K.ACHARYULU and confirmed the eviction order. Hence, the revision. Smt.G.Jhansi, learned counsel for the petitioner/tenant strenuously contends that once the tenant paid the rents on receipt of demand notice and there are no arrears as on the date of filling the RCC the eviction order passed by the Rent Controller on the ground of wilful default cannot be sustained. In support of her submission strong reliance is placed on the judgments in DAKAYA v. ANJANI and VINUKONDA VENKTA RAMANA v. M.VENKATESWARA RAO. Per contra, Sri V.S.R.Anjaneyulu, learned counsel for the respondent/landlord while supporting the eviction order contended that mere payment of rents after issuing notice will not wipe out default. After issuing Ex.B1 notice, dated 21-03-2006 eviction petition was filed on 21-05-2006. Mere receiving the rents after filing RCC will not amount to waiving the right of the landlord seeking eviction. Therefore, eviction order needs no interference. Full Bench of this Court in PALLAPOTHU NARASIMHA RAO v. K.R.K.ACHARYULU (1 supra) while interpreting Section 10(2)(i) of the Act and after considering the various grounds available to the land lord for eviction under Section 10 of the Act held it would follow that the mere fact that the rent which has not been paid or tendered within fifteen days after the expiry of the time fixed in the agreement or in the absence of such agreement before the last day of the month next following that for which rent is payable was tendered prior to the petition would not be an answer to an eviction under Section 10(2)(i). After discussing various judgments on the point in para-13 it was concluded that in view of the decisions of the Supreme Court in MANGILAL v. SUGEN CHAND (AIR 1965 SC 101) and GAJANAN v. S.H.PATEL (AIR 1975 SC 2156), we are of the view that it cannot be contended that the eviction petition was not maintainable merely because the landlord received the rent prior to the eviction petition and on this aspect the decision in A.ABBAYI v. R.CHOULTRY (AIR 1974 AP 139) and PARU BAI v. SITHARAMJI BAJAJ (1974 (1) APLJ 148) were not correctly decided. The Supreme Court in DAKAYA v. ANJANI (2 supra) after referring to its earlier decision in S.SUNDARAM PILLAI v. V.R.PATTABIRAMAN (AIR 1985 SC 582) wherein the provisions of Section 10 of the Tamil Nadu buildings (Lease and Rent Control) Act, 1960 and proviso to sub-section (2) of Section 10 of the Tamil Nadu Act which provides that for the purpose of sub-section (2) of Section 10 of the Tamil Nadu Act, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months notice by the landlord claiming the rent held that default per se cannot be construed as wilful and keeping in mind the beneficial purpose of the Rent Act to protect the eviction of the tenant. If the payment has been made before the institution of the suit, the cause of action for instituting of the suit will vanish. Referring to the facts it was held when the tenant tendered rent on issuing of notice by the landlady by way of money order thereafter by way of bank draft which was received by the landlady before filing the suit for eviction but the said draft has not been encashed and the same has been deposited in the eviction proceedings which covers the entire default and there was no default. As the tenant had already sent the bank draft covering the entire default, there was also no occasion for the Rent Controller to direct deposit of arrears within the stipulated period. In our view, the Rent Controller, the first appellate Court, and the High Court have failed to appreciate the incidents of tendering the entire amount under default before the institution of the suit. As a result, the Courts below have erroneously proceeded on the footing that there had been a wilful default for which the landlady was entitled to a decree for eviction. Another Full Bench of this court in VINUKONDA VENKTA RAMANA v. M.VENKATESWARA R A O (3 supra) held that the Full Bench decision of this court in PALLAPOTHU NARASIMHA RAO v. K.R.K.ACHARYULU (1 supra) is no longer a good law having regard to the judgment of the Apex Court in DAKAYA v. ANJANI (2 supra), and what constitutes a wilful default as held by this Court in T.THAMASAMMA v. GOVT. OF A.P. (1992 (2) ALT 53); D.L.SATHYANARAYANA v. K.RADHAKRISHNAIAH (1994 (1) ALT 526; P.VENKATESWARLU v. MOTOR AND GENERAL TRADERS (AIR 1975 SC 1409). Therefore, it has to be seen whether the tenant committed wilful default in payment of rents or not. It is not in dispute on landlord issuing notice under Ex.B1, dated 21-03-2006 the tenant sent a reply under Ex.B2 dated 12-04-2006 along with demand draft towards the rent from 01-10-2005 to 31-03-2006, which was received by the landlord under Ex.B3, but returned the demand draft along with notice Ex.B5. On receipt of notice under Ex.B5 the petitioner/tenant issued notice dated 30-04-2006 through advocate along with demand draft for Rs.1,500/- towards rent for the month of April under Ex.B6 and also enclosed earlier demand draft towards the rent from October, 2005 to March, 2006, which was admitted to have been encashed subsequent to the filing of eviction petition on 21-05-2006 which fact has been admitted by the landlord in the cross-examination that the demand draft sent by the tenant is encashed. If that be the case it cannot amount to wilful default in payment of rents. When the said demand draft towards the rent from October, 2005 to March, 2006 was received by the landlord before filing the eviction petition, mere encashing the same after filing the petition is inconsequential. Both the Courts below on hyper technical view held that the landlord not encashed the demand draft within 15 days from the date of its receipt, but encashed after eviction petition is filed. Therefore, eviction order as such passed by the Courts below cannot be sustained and the same is accordingly set aside. R.C.C.No.129 of 2006 filed by the landlord stands dismissed. The C.R.P. is accordingly allowed. No costs. _________________ A.GOPAL REDDY, J. 25-11-2011 Murthy