IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.4590 of 2007 Between: Bathula Rama Rao (died) and others .. Petitioners AND Chebolu Ramanuja .. Respondent Petition against the order dated 23-08-2007 in R.C.A. No.26 of 2005 on the file of the Appellate Authority under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960- cum-Principal Senior Civil Judge, Rajahmundry. The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri T. Rajendra Prasad, Advocate for petitioners 2 and 3 and of Sri M.V. Suresh, Advocate for the respondent, the Court made the following ORDER: The civil revision petition is directed against the judgment in R.C.A. No.26 of 2005 of the appellate authority under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960- cum-Principal Senior Civil Judge, Rajahmundry, dated 23-08-2007. R.C.C. No.70 of 1997 was filed before the Rent Controller- cum-Principal Junior Civil Judge, Rajahmundry by the respondent herein against the tenant in the petition schedule premises, whose son and wife are the 2nd and 3rd revision petitioners herein. The petition for eviction was based on the wilful default said to have been committed by the original tenant since after March, 1997 in spite of registered notice, dated 18-06-1997. The original tenant was said to have sent a cheque only for Rs.1,000/- along with his reply claiming availability of one month’s advance rent with the respondent herein, though there was no such advance. The original tenant resisted the request for eviction claiming to have tendered the rent for April, 1997 also in the first week of next month, which was not received on the ground that receipt book was not available. The cheque issued by the original tenant was claimed to have been returned without any reason and the original tenant was compelled to file R.C.C. No.76 of 1997 under Section 8 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 for deposit of the rents into Court. Hence, the original tenant desired the eviction petition to be dismissed. Both the eviction petition and the petition for deposit of rents were tried together and the Rent Controller examined P.W.1 and R.Ws.1 to 3 and marked Exs.A.1 to A.5 and B.1 to B.10 during the course of enquiry. The Rent Controller pronounced his order on 24-01-2005 firstly opining that the landlord himself refused to receive the rent and gave a reply to the reply notice denying any advance rent. The Rent Controller also observed that cheques were issued by the original tenant at Rs.500/- each for all the subsequent months, which were refused to be received by the landlord and therefore, no eviction can be ordered on the ground of wilful default. The Rent Controller also noted that the original tenant died, in the place of whom, the present revision petitioners 2 and 3 were brought on record, but none of the family members of the original tenant were continuing to do business in or occupy the petition schedule premises. Consequently, both the rent control petitions were dismissed, while permitting the landlord to withdraw the amounts deposited into Court in R.C.C. No.76 of 1997 without prejudice to his rights. In appeal in R.C.A. No.26 of 2005, the appellate authority concluded in the impugned judgment that the scrutiny of the evidence of P.W.1 and R.W.1 disclosed wilful default in payment of rent by the original tenant. The appellate authority concluded that the landlord’s contentions were corroborated by the documents and it is for the tenant to prove payment of rent within time. The appellate authority opined that issuance of banker’s cheque, dated 23-06-1997 will not erase the wilful default and the tenant did not follow any steps provided by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 for payment or deposit of rents. The appellate authority also observed that any payment of rents up to March, 1997 even regularly will not enure for the benefit of the tenant in respect of the wilful default in respect of the rents for April and May, 1997. Therefore, the appellate authority allowed the appeal with costs and directed the revision petitioners herein to vacate the premises and deliver vacant possession within two months. Pending the civil revision petition, this Court granted interim stay until further orders on 12-10-2007 and 25-07-2008. Heard Sri T. Rajendra Prasad, learned counsel for the revision petitioners and Sri M.V. Suresh, learned counsel for the respondent. The point for consideration is whether the revision petitioners are liable to be evicted ? Point: The learned counsel for both parties referred to certain precedents and though it is true that every default does not constitute wilful default and Courts have to take into consideration the chronology of events and the conduct of the parties in determining such a question as held in Rajendra Kumar v. P.V. Krishnam Raju[1], still if such events and conduct indicate any wilfulness in default, the consequences cannot be avoided. It is also true that in Ganeshlal and another v. Najamunnisa Begum and others[2], it was held that mere non-following the procedure under Section 8 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 cannot be taken as wilful default and though it was similarly stated in G . Surapa Raju v. T. Mohana Rao and others[3] that there should be a deliberate attempt on the part of the tenant to avoid payment of rents to constitute wilful default, it is clear from the precedents that the probabilities arising out of the facts and circumstances of each case will determine the nature of default committed by the tenant. In E . Palanisamy v. Palanisamy (D) by L.RS. And others[4], the Supreme Court held that strict compliance with the conditions contained in Section 8 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 is a must (the provisions of Section 8 of the Tamilnadu Act and A.P. Act are in pari materia). The Apex Court pointed out that the tenant is entitled to file an application under Section 8 only on satisfaction of three conditions mentioned therein and after filing of such a petition also, the tenant has to observe the procedure as prescribed in the Statute strictly. It was pointed out that mere refusal of the landlord to receive the rent straight away cannot justify invocation of Sub-section (5) of Section 8. On the evidence placed before the Rent Controller, the Rent Controller has come to the conclusion on an analysis of the evidence that the rents for April and May, 1997 were not paid by the original tenant within the agreed time, but considered the default to be not wilful on grounds of alleged avoidance or refusal by the landlord to receive such rents when tendered in person and also through cheques. The appellate authority found that the conduct of the original tenant indicated no truth in the claim of duly tendering the rents for April and May, 1997. The appellate authority found that the alleged tender of rents was never specified with the necessary details either in the pleadings or in the cross- examination of P.W.1 and merely because receipt books are exhausted, no landlord would postpone receiving of rents. The appellate authority also observed that the tenant could have taken recourse to proceed under Section 8 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 promptly and the belated sending of banker’s cheques was considered by the appellate authority not to erase the wilfulness in the default committed. The conclusions of the Rent Controller and the appellate authority read together show that the default per se is not in dispute and the alleged avoidance or refusal to receive the rents cannot be considered probablised by the evidence on record. Subsequent issuance of cheques belatedly cannot erase the consequences of wilful default and hence, the appellate authority cannot be considered unreasonable or perverse if it found the landlord to be entitled to seek an order of eviction against the legal representatives of the original tenant. However, Sri M.V. Suresh, learned counsel for the respondent has stated that after the death of the 1st respondent to the rent control petition, the family members including the revision petitioners are not continuing to do business in the premises and are not occupying the said premises, but allowed a sub-lessee to enter into and occupy the premises and do business in the same, due to which the landlord was forced to file R.C.C. No.45 of 2005, which was allowed on 14-11-2008 by the Rent Controller-cum- Principal Junior Civil Judge, Rajahmundry. The learned counsel also stated that the appeal preferred by the sub-lessee in R.C.A. No.2 of 2009 before the appellate authority-cum-Principal Senior Civil Judge, Rajahmundry is pending. His contention is in tune with what has been recorded by the Rent Controller while dismissing R.C.C. No.76 of 1997 that none of the family members of the 1st respondent were continuing to do business in or occupy the petition schedule premises. If so, though the conclusion of the appellate authority about the existence of wilful default on the part of the original tenant cannot be interfered with in this revision for the reasons already stated, the order directing the revision petitioners herein to vacate the premises within two months from the date of the impugned order cannot operate to the prejudice of the parties in R.C.C. No.45 of 2005/R.C.A. No.2 of 2009, as the inter se rights between them have to be adjudicated therein. The impugned order herein being confirmed should be made to operate without prejudice to the rights of the parties in R.C.A. No.2 of 2009. Accordingly, the civil revision petition is dismissed without costs, but the order in R.C.A. No.26 of 2005 of the appellate authority under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960-cum-Principal Senior Civil Judge, Rajahmundry, dated 23-08-2007 is confirmed to be operative without prejudice to the rights of the parties in R.C.A. No.2 of 2009 on the file of the appellate authority-cum-Principal Senior Civil Judge, Rajahmundry. _____________________ G. BHAVANI PRASAD, J Date: 01-07-2010 Svv [1] 2004 (3) ALD (NOC) 232 [2] 1993 (1) ALT 5 (NRC) [3] 1993 (2) ALT 658 [4] 2002 AIR SCW 4578