IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) FRIDAY, THE ELEVENTH DAY OF MARCH TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION Nos.5712 and 5810 of 2006 BETWEEN: Kada Mehar Baba … PETITIONER(S) And Korukonda Chinna Butchiraju and others … RESPONDENT(S) HON’BLE SRI JUSTICE N.RAVI SHAKAR CIVIL REVISION PETITION Nos.5712 and 5810 of 2006 COMMON ORDER: Petitioner in these two revisions which can be disposed of by this common order are filed under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short Act) is the tenant. The petition schedule premises is a residential one. It originally belonged to the mother of the respondents and after her death they as her sons became the landlords of the premises. There is no dispute about landlord-tenant relationship. 2. To decide the controversy which arises in these revisions the circumstances which led to the filing of the same should be noted and hereafterwards the parties shall be referred to as the landlords and the tenant. The landlords filed eviction petition RCC No.93 of 2000 on the premise that the agreed monthly rent of the premises is Rs.1,000/- and that the tenant committed wilful default in payment of rents from July 1999. The tenant’s defence is that the monthly rent is only Rs.600/- and that he paid the rents up to October 2000 and that though he tendered the rent for the month of November 2000 the landlords did not receive it and subsequently filed this eviction petition only to harass him. 3. It must be now noted here that the eviction petition was filed on 30.11.2000 in the Court of Rent Controller cum Principal Junior Civil Judge, Rajahmundry. Thereafter the tenant filed a petition under Section 8 of the Act for deposit of rents on 17.01.2001 and it was registered as RCC No.1 of 2001 in the same Rent Controller’s Court. The Rent Controller disposed of both the petitions by his common order dated 14.08.2002. 4. The Rent Controller first held that the agreed rent was not Rs.1,000/- per month but it was only Rs.600/- per month and to that extent he upheld the tenant’s case. Then coming to the question of wilful default in payment of rents he held that the landlords were able to establish that the tenant committed wilful default from July 1999 and in that view of the matter he ordered eviction. With regard to the rent deposit petition i.e. RCC No.1 of 2001 of the tenant the Rent Controller held that the tenant did not follow the procedure prescribed under Section 8 of the Act and in that view of the matter he dismissed that petition. 5. Against the order of eviction granted against him in RCC No.93 of 2000 (eviction petition) the tenant filed appeal i.e. RCA No.22 of 2002 and the landlords also filed cross-objections in that appeal with regard to the quantum of rent fixed at Rs.600/- per month. The tenant also filed RCA No.21 of 2002 against the dismissal of his rents deposit petition RCC No.1 of 2001. The appellate authority i.e. the Principal Senior Civil Judge, Rajahmundry disposed of both the appeals separately by his orders dated 14.08.2006. 6. In the appeal of the tenant against the order of eviction and the cross-objections therein filed by the landlord, the appellate authority confirmed the finding of the Rent Controller that the agreed rent was only Rs.600/- per month and dismissed the cross- objections of the landlords. However with regard to the default committed by the tenant, the appellate authority held that the tenant has paid rents from July 1999 to October 2000 and then proceeded to consider the question whether the tenant has committed wilful default from November 2000. The appellate authority then held that the tenant committed wilful default in payment of rents from November 2000 onwards and it further concluded that the filing of RCC No.1 of 2001 i.e. rents deposit petition cannot help the tenant and in that view of the matter it confirmed the order of eviction. Then dealing with the appeal RCA No.21 of 2002 of the tenant which is filed against the dismissal of his eviction petition, the appellate authority agreed with the conclusion of the Rent Controller that it was an after thought and in that view of the matter it dismissed that appeal also by its separate order dated 14.08.2006. 7. At the time of arguments the learned counsel for the landlords was specifically asked whether the landlords filed any revision questioning the finding of the appellate authority that the tenant paid rents upto October 2000 disturbing the finding of the Rent Controller to that extent. His answer was in the negative. Thus the finding of the appellate authority that the tenant paid rents up to October 2000 is a pure finding of fact and it has become final. In the absence of any revision from the landlord questioning that finding which is a finding of fact based on evidence it is not permissible for this Court in this revision of the tenant to examine the correctness or propriety of that finding. Further the finding of the appellate authority that the agreed rent is Rs.600/- per month has also become final. 8. The question that arises now is having found that the tenant has paid rents upto October 2000, whether the conclusion of the appellate authority that the tenant has committed wilful default in payment of rents from November 2000 can be said to be correct. It may now be noted that the eviction petition was filed on 30.11.2000 and this is borne out by the inward seal stamp of the Rent Controller-cum-Principal Junior Civil Judge’s Court. It has now to be seen as to when the rent for the month of Nobember 2000 becomes payable. According to Section 10(2)(i) of the Act to attract the charge of default the tenant must pay the rent within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement the rent for a month becomes payable by the last day of the month next following that for which the rent is payable. 9. In the present case the landlords did not show that there was any agreement between them and the tenant regarding the time fixed for payment of rent. Thus if there is no such agreement it follows that the rent for the month of November 2000 becomes payable by 31st December 2000. Admittedly the eviction petition was filed on 30th November 2000. It can therefore be said that rent was not due by that date in order to hold the tenant guilty of default. Thus to this extent it can be said that the appellate authority went wrong in its conclusion. 10. It may then be noted that the tenant filed the rents deposit petition i.e. RCC No.1 of 2001 on 17.01.2001 offering to deposit the rents. The appellate authority held that filing of the said rents deposit petition was only an after thought by the tenant. This conclusion of the appellate authority cannot also be said to be correct. It may be noted and as already mentioned supra by the date of the filing of the eviction petition the rent for the month of November 2000 was not due and it became due and payable only by 31st December 2000. Similarly the rent for the month of December 2000 became payable by 31st January 2001 for the very same reason aforesaid. 11. It is the case of the tenant that since the landlords refused the rent for November 2000 on one pretext or the other and as he subsequently came to know that they filed the eviction petition he immediately filed RCC No.1 of 2001 under Section 8 of the Act offering to deposit the rents from November 2000. It is true that the tenant should have paid the rent for November 2000 by 31st December 2000 but by that date the eviction petition came to be filed. It is clear that after receiving the notice in it or coming to know of it he filed the rents deposit petition on 17.01.2001. May be there is a delay of 16 days in paying the rent for the month of November 2000 but at the risk of repetition this delay occurred after the filing of the eviction petition. Thus what emerges from the above circumstances is that even the rent for the month of November 2000 became due only after the filing of the eviction petition. 12. In the above situation it is clear that if the landlords can get eviction on the ground that there was default in payment of rents subsequent to the filing of the eviction petition, it is well settled now, that he can get the relief of eviction only under Section 11 of the Act. Section 11(1) of the Act says that a tenant can contest the eviction petition only after depositing the rents due or paying the same to the landlord and if he fails to pay or deposit the same and further fails to show a sufficient cause for not depositing the rents the Rent Controller can stop the proceedings and make an order directing the tenant to put the landlord in possession of the building/premises. In N.KUMARA SWAMY vs. A.INDRASEVA (died) & Ors.[1] relied upon by the tenant’s counsel this Court following a full bench decision of this Court given in VINUKONDA VENKATA RAMANA vs. MOOTHA VENKATESWARA RAO[2] held that in respect of default in payment of rents after the filing of the eviction petition the landlord can get the relief of eviction only by filing an application under Section 11(4) of the Act and that such a default cannot be made a ground for eviction in the eviction petition. In the present case the rent for the month of November 2000 became due by 31st December 2000 and it can therefore be said that it is a default arising after the filing of the eviction petition as it was filed on 30.11.2000. Thus the appellate authority cannot be said to be correct in ordering eviction in the eviction petition on that ground. 13. The learned counsel for the landlords relied upon a decision of the Supreme Court given in DAKAYA ALIAS DAKAIAH vs. ANJANI[3] and decisions of this Court given in MOHAN LAL vs. SMT.SHAJJIA SULTANA[4], POLISETTY VENKATESWARLU vs. ATMAKURI MALLIKARJUNA RAO[5], SINGUMAHANTHI JAGANNADHA RAO vs. PUTCHALA SURYA PRAKASA RAO[6], K. BABU RAO VS. YADAMMA[7] and another decision of Supreme Court given in KRUSHNALAL BUXI vs SUDARSHAN PANI[8]. None of the above decisions cover a situation like this where the law is settled by a full bench decision of this Court given in VINUKONDA VENKATARAMANA VS. M.VENKATESWARA RAO which has been followed in the decision of this Court relied upon by the learned counsel for the tenant. Hence the above decisions cited by the landlords’ counsel cannot advance their case. 14. It may be noted here that after receiving the notices in the eviction petition the tenant should have deposited the rents for November 2000 and subsequently under Section 11(1) of the Act to the credit of the said eviction petition itself. He however chose to file a separate rents deposit petition i.e. RCC No.1 of 2001 on 17.01.2001 offering to deposit the rents and this could be due to various reasons including a wrong advice. What should be seen is the filing of the RCC No.1 of 2001 shows his bona fides in coming forward to pay the rents. The only factor is that there was a delay of 16 days for the payment of the rent of November 2000 and the explanation offered by the tenant that soon after the receipt of the notice in the eviction petition he filed the above rents deposit petition can be accepted as reasonable and in my opinion he cannot be held guilty of wilful default. The Rent Controller taking into account the above circumstances could have ordered the tenant to deposit the rents in the eviction petition. Both the Rent Controller and the appellate authority held that the filing of the said rents deposit petition was an after thought but that conclusion cannot be said to be correct in view of the express finding of the appellate authority that the tenant paid rents upto October 2000 and the above circumstances. 15. Thus the finding of the appellate authority confirming the order of eviction passed in the tenant’s appeal RCA No.22 of 2002 is set aside and the tenant’s CRP No.5712 of 2006 filed against that order is allowed. The landlord can obtain eviction if the circumstances mentioned in Section 11 exist in his favour. 16. So far as the other CRP No.5810 of 2006 preferred against the dismissal of his rents deposit petition is concerned, it may be noted that he ought to have deposited the rents in the eviction petition itself. It is not known whether he was permitted to deposit the rents in the rents deposit petition and if he has deposited, the same shall be in the circumstances of this case and in the interests of justice are ordered to be transferred to the credit of the eviction petition in the Rent Controller’s Court. It is already held supra that it is open for the landlords to apply for the relief of eviction under Section 11 of the Act if the circumstances mentioned therein exist in their favour and the tenant can defend his case in the said proceedings. This CRP is disposed of accordingly. No costs. _____________________ N.RAVI SHANKAR,J 11th March, 2011 Cvrk [1] 2003 (3) L.S. 171 [2] 2001 (5) ALT 479 [3] (1995) 6 SCC 500 [4] 2008 (1) ALT 66 [5] 2005(4) ALT 449 [6] 2002 (1) AnWR 204 (AP) [7] 2001 (6) (ALT) 562 [8] 1995 Supp (4) SCC 238