HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3652 OF 2009 DATE: 27-08-2011 BETWEEN Chillanki Meera …Petitioner AND Jogi Mahalakshmamma and 2 others …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3652 OF 2009 ORDER: Unsuccessful tenant before the Courts below filed this revision under Section 22 of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for brevity ‘Act’) aggrieved by the dismissal of C.M.A.No.6 of 2008, dated 15.7.2009 by the Senior Civil Judge, Machilipatnam, whereby he confirmed the order of eviction passed by the Rent Controller-cum-Principal Junior Civil Judge, Machilipatnam in R.C.C.No.1 of 2007, dated 30.7.2008. Landlords-respondents herein filed the above R.C.C. seeking eviction of the petitioner-tenant from the terraced building Door No.24/594 of Ramanaidupet, Valluri Rajavari Centre, Machilipatnam stating inter alia that they are the owners of the premises, that they let out the said portion to the petitioner-tenant on the monthly rent payable at Rs.300/- as on the date of filing of the R.C.C., who is a Dhobi by profession and running a laundry in the said premises. Third respondent herein used to collect the rents from the petitioner-tenant and deliver the receipts. While so, the petitioner-tenant fell due of arrears of rents from October 1998 onwards in spite of demands made by the landlords-respondents herein. By way of notice dated 12.3.1999 the landlords- respondents demanded the petitioner-tenant to pay arrears of rents, for which, the petitioner-tenant issued a reply notice dated 27.3.1999 with false allegations contending that monthly rent is only Rs.60/- and that he paid rents upto February 1999. Then the landlords-respondents filed R.C.C.No.7 of 1999 for eviction of the petitioner-tenant. As a counterblast to the said R.C.C., the petitioner-tenant filed R.C.C.No.12 of 1999 seeking permission of the Rent Controller to deposit rents into the Court. The Rent Controller, Machilipatnam allowed R.C.C.No.12 of 1999 and dismissed R.C.C.No.7 of 1999. In R.C.C.No.12 of 1999 the petitioner-tenant was directed to deposit the agreed rents apart from the arrears of rent within 15 days without prejudice to the rights of the parties therein. Later the petitioner-tenant deposited a sum of Rs.1860/- on 30.9.2001. According to the respondents- landlords, the petitioner-tenant is supposed to deposit the monthly rents regularly, but he did not do so but he used to deposit Rs.180/- for every three months, that he has to pay an amount of Rs.5,580/- at Rs.60/- per month, but whereas, he deposited an amount of Rs.5,160/- only and therefore, he committed willful default in payment of agreed rent as per the order passed in R.C.C.No.12 of 1999. Contesting the R.C.C., petitioner-tenant filed a counter disputing the monthly rent at Rs.300/- but according to him, it is only Rs.60/- per month. The appeal in C.M.A.No.5 of 2002 filed by the respondents-landlords against the orders in R.C.C.No.12 of 1999 was also dismissed. In pursuance of the orders passed in R.C.C.No.12 of 1999, he deposited the rents at Rs.1860/- on 30.9.2001 and he continued to deposit the rents at Rs.180/- for three months and his committing default has been denied. He has given the details of payments of rents made in advance and contended that he has been depositing the rents in advance to the credit of the R.C.C. and therefore, he has not committed any default. It is stated that when the petitioner-tenant applied for the acknowledgement of deposit of rents, on one or two occasions, there was delay in issuing the challans by the Court due to vacations. He denied about his depositing of Rs.5500/- for the period for March, 1999 to November, 2006 and the deposits made from 8.1.2001 onwards clearly shows that for every quarter he has paid the rents in advance up to March, 2004 and thereafter he was paying the rents in advance and there is no willful default on his part in depositing the rents. On the above pleadings, the Rent Controller framed the following point for consideration: “Whether the respondent committed default in payment of rents and if so whether the same is willful and whether the respondent is liable to be evicted from schedule property or not?” To substantiate the plea, the respondents-landlords examined P.W.1 and marked Exs.A.1 to A.3. Whereas the tenant himself examined as R.W.1, but no documents were marked. The learned Rent Controller after evaluating the entire evidence, ordered eviction of the petitioner-tenant on the ground that the petitioner-tenant has not complied with Rule 5(4) read with Rule 16 of A.P. Buildings (Lease, Rent & Eviction) Control Rules, 1961 (for short ‘Rules’) namely, depositing the rents and informing the landlords about such deposit and in the process the landlords were prevented from receiving the rents. On appeal being filed, the lower appellate Court gave a finding that from the beginning the petitioner-tenant never informed the landlords about his depositing the rents into the Court and that P.W.1 came to know about the same just six months from the date of his cross-examination i.e. 5.3.2008, but whereas, R.W.1 (tenant) conceded the case of the landlords that he did not give notice to the landlords informing the deposit of rents into the Court, which clearly amounts to violation of mandatory provisions of Rule 5(4) and 16 of the Rules and accordingly dismissed the appeal. Sri V.S.R. Anjaneyulu, learned counsel appearing for the petitioner contends that the present R.C.C. was filed seeking eviction of the petitioner on 21.12.2006 and in the list of documents, it is mentioned about the order passed in R.C.C.No.12 of 1999 and also the Court ledger for deposit of rents to the credit of R.C.C.No.12 of 1999 from 2001 to 31st June, 2006, but the petitioner has not obtained the ledger for deposit of rents up to the date of filing of the R.C.C. which is evident that all the arrears of rents were deposited to the credit of R.C.C. It is admitted case that the rents were paid in advance and all the challans were deposited with the office of Rent Controller. The respondents- landlords having knowledge about the deposit of the rents by the date of the order of eviction wontedly suppressed by filing the ledger up to 31st June, 2006. As on the date of filing of R.C.C., there was no arrears of rent and the entire arrears were deposited into the Court and therefore, there was no willful default on the part of the petitioner-tenant in depositing the rents. The Rent Controller has not followed the procedure prescribed under Section 10(2)(i) proviso namely, giving the petitioner-tenant a reasonable time to pay or tender the rents due by him to the landlords notwithstanding anything contained in Section 11 of the Act directing the petitioner- tenant to pay the rent due by him to the landlords up to the date of such payment and on such payment he can reject the application for eviction. Had any notice issued by the Rent Controller, the petitioner-tenant would have brought it to its notice that the entire arrears of rents were deposited to the credit of R.C.C.No.12 of 1999. To substantiate the submissions, reliance is placed on Dakaya alias Dakaiah v. Anjani[1]; Rakapalli Raja Rama Gopala Rao v. Naraani Govinda Sehararao and another[2]; State of Orissa and others v. Md. Illiyas[3]; Sheo Narain v. Sher Singh[4]; Rafiq and another v. Munshilal and another[5]; and Duli Chand v. Moman Chand (died) by L.rs.[6]. Per contra, Sri V.V.L.N.Sharma, learned counsel appearing for the respondents-landlords contends that though the petitioner- tenant deposited the rents into the Rent Controller he has not informed the same to the respondents-landlords about the said fact till P.W.1 was cross-examined and that the petitioner-tenant has also admitted about non-issuance of notice about depositing the rents and therefore, the said conduct on the part of the petitioner-tenant would amount to willful default as the respondents-landlords could not avail the benefit of receiving the rents for the period of such deposit of rents. It is stated that the premises was let out on a monthly rent of Rs.60/-, which was enhanced from time to time and the present rent is Rs.300/- per month, but the same has been denied by the petitioner-tenant which resulted in filing R.C.C.No.12 of 1999 under Section 8 of the Act by the petitioner-tenant and R.C.C.No.7 of 1999 under Section 10 of the Act by the respondents-landlords for eviction of the petitioner-tenant. On allowing R.C.C.No.12 of 1999, the petitioner- tenant deposited the arrears of rent of Rs.1860/- on 30.9.2010 and he used to deposit the rents at a time for three months i.e. Rs.180/-. Even if it is accepted that the rent is only Rs.60/- per month, the petitioner-tenant has committed default and the petitioner-tenant has to pay the rents from March, 1999 to November, 2006 which comes to Rs.5,580/-, but whereas, the petitioner-tenant has deposited only Rs.5160/- and last deposit was made on 28.2.2006 and therefore, he committed default in payment of rents. Admittedly, in the present case R.C.C.No.12 of 1999 filed by the petitioner-tenant was allowed on 4.09.2001. The respondents- landlords were represented by an advocate N.Subramanyam, wherein the Rent Controller directed as under: “Heard the counsel for both parties. Petition allowed, without prejudice to the right of either party. Petitioner is directed to deposit the agreed rentals along with all arrears, if any, within 15 days from today, without prejudice to the rights and contention of either party and to continue to deposit the same subject to the result of R.C.C.No.7 of 1999.” Section 10(2)(i) of the Act, eviction of a tenant can be ordered. It reads thus: "10. Eviction of tenants: 1.xxx 2. A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied- (i) that the tenant not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable; or (ii) that the tenant has, in the Andhra area, after the 23rd October, 1945, and in the Telangana area after the commencement of the Hyderabad House Rent Controller Order of 1353 Fasli, without the written consent of the landlord,-- (a) transferred his right under the lease or sublet, the entire building or any portion thereof if the lease does not confer on him any right to do so; or (b) used the building for a purpose other than that for which it was leased; or (iii) that the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building; or (iv) that the tenant has been guilty of such acts and conduct which are a nuisance to the occupiers of other portions in the same building or buildings in the neighbourhood; or (v) that the tenant has secured alternative building or ceased to occupy the building for a continuous period of four months without reasonable cause; or (vi) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide. The Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application: Provided that in any case falling under clause (i), if the Controller is satisfied that the tenant's default to pay or tender the rent was not wilful, he may, notwithstanding anything in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected". From a combined reading of Clause (i) of Sub-section (2) of Section 10 the proviso and the Explanation. It is manifest that it is only when the Rent Controller is satisfied that a tenant's default to pay or tender the rent is willful, he can order eviction of the tenant. The question of willful default to pay or tender rent to a landlord by a tenant is a mixed question of law and fact. Sub-rules (3) to (6) of Rule 5 of the Rules are relevant for deciding the point in issue. They read- "(3) One copy of the challan for the deposit of rent returned by the State Bank of Hyderabad Controller's Office or treasury, as the case may be after endorsing thereon the receipt of the amount deposited, shall be delivered in the Office of the Controller or the appellate authority as the case may be. (4) On delivering one copy of the challan the Controller or the appellate authority, as the case may be shall acknowledge its receipt on the back of the challan retained by the tenant and take necessary action for the service of the notice of deposit on the person or persons concerned within seven days of the delivery thereof. The notice of deposit shall be served on the person or persons concerned in one or other of the modes specified in Rule 16. (5) Every Controller and every appellate authority shall cause proper accounts to be maintained in their offices for the rents deposited under Sub- section (5) of Section 8 or Section 9 or Section 11. (6) A tenant against whom an application for eviction has been made before the Controller shall deposit all the arrears of rent due by him, if any, in respect of the building within such reasonable time, not exceeding 15 days, may be specified by the Controller.” Rule 16 of the Rules contemplates the following modes of service: "(a) personally by delivering or tendering to him the notice or order; or (b) if such' person is not found, by leaving the notice or order at his last known place of abode or business or by giving or tendering the same to some adult member of his family; or (c) if such person does not reside in the area within the jurisdiction of the Controller or the appellate authority, by sending the same to him by registered post, acknowledgment due; or (d) if none of the means aforesaid is practicable, by affixing the same in some conspicuous part of his last known place of abode or business.” Now, I would like to refer to the decisions relied on by the learned counsel for the petitioner. In Munnalal (died) per L.Rs. v. Englarg Pershad[7], a Division Bench of this Court held as under: “The tenant who deposits money into Bank, as per the order of the Court u/ss.8,9 and 11 of said Act is under an obligation to file the challans evidencing deposit of money in Bank, into the court as per Rule 5(3) of A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961. Rule 5(4) of said Rules contemplates notice of deposit being given to the person(s) concerned within seven days of delivery of the challan by the tenant. If the tenant himself gives a notice to the landlord, or if the landlord is appearing through a counsel to the counsel for the landlord, there is no further need for the Rent Controller to serve notice of deposit on the landlord. If no such notice was given, the tenant has to deposit process fee in the Court to serve the notice of deposit on the person(s) concerned. If process fee is not deposited, the court cannot serve notice of deposit on the landlod.” It was further observed as under: “When a tenant takes recourse to section 8 of said Act for deposit of rents into the court, he has to follow the procedure prescribed therein. If he ails to deposit challans into the court and give notice of deposit or fails to deposit process fee to enable the court to cause service of notice of deposit on landlord for a considerable long time, it cannot, but, be held that he becomes willful defaulter, thereby creating a right in the landlord seeking his eviction from the demised premises on the ground of willful default.” The learned Rent Controller observed that the tenant filed the challans after deposit of the rents but failed to give notice of deposit to the respondents-landlords or their advocate and further failed to deposit process fee, enabling the Court to cause service of notice of deposit on the landlords. In Dakaya alias Dakaiah (1 supra), an eviction order was passed by the Rent Controller on the ground of willful default, which was confirmed by the appellate Court as well as High Court in revision. When the tenant carried the matter in further appeal, the Apex Court after referring to the proviso to Section 10(2)(i) and after referring to its earlier judgment in S.Sundaram Pillai etc. v. V.R. Pattabiraman[8] held that the default order per se cannot be construed as willful 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. As the tenant has sent the bank draft covering the entire period of default on receipt of the demand notice for payment of rents, there was no occasion for the Rent Controller to direct deposit of arrears within the stipulated period, which fact has missed the attention of the Controller, first appellate Court and the High Court and considering the same, the appeal was allowed by the Supreme Court setting aside the order of eviction directing the tenant to pay the rents for the premises within the stipulated time. In Rakapalli Raja Rama Gopala Rao (2 supra) the Supreme Court considered the proviso to sub-section (2) to Section 10 of the Act. In the said decision, the Supreme Court referred to the findings of its earlier judgment in S.Sundaram Pillai (8 supra), which reads thus: “Thus, a consensus of the meaning of the words ‘willful default’ appears to indicate that default in order to be willful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom.” Keeping in view of the same, it was held that the proviso with which we are concerned is couched in negative form the tenant can prevent the decree by satisfying the Controller that his omission to pay or tender the rent was not willful. If the Controller is so satisfied he must give an opportunity to the tenant to make good the arrears within a reasonable time and if the tenant does so within a reasonable time prescribed, he must reject the landlord’s application for eviction. Considering the facts that the tenant was under the bona fide belief that he was entitled to purchase the property under the oral agreement and also paid a sum of Rs.5000/- by way of earnest amount, though the suit for specific performance of oral agreement was dismissed, against which, the tenant filed appeal, it was held that in order to secure eviction for non-payment of rent, it must be shown that the default was intentional, deliberate, calculated and conscious with full knowledge of its consequences. Since it was not the case of a tenant who has failed to pay the rent without any rhyme or reason, it was held that the tenant was not averse to paying the rent but he genuinely believed that he was under no obligation to do so as he had a prior right to purchase the property and in view of the same, the Controller should have invoked the proviso and called upon the tenant to pay the arrears from December 1977 to May 1978 within a certain time. Failure to do so has resulted in miscarriage of justice and holding so, allowed the appeal setting aside the eviction decree and remitted the matter to the Controller to give benefit of the proviso to the tenant in accordance with law. In Md. Illiyas (3 supra) the Supreme Court interpreted the word ‘wilful’ as under: “The expression ‘Willful’ excludes casual, accidental, bona fide or unintentional acts or genuine inability. It is to be noted that a willful act does not encompass accidental, involuntary, or negligence.” In Duli Chand (6 supra) the Apex Court held at para 9 and 10 as under: “9. ………….Here, before us, the rent for the months of February, March and April, 1964 was deposited by the tenant to the credit of the landlord in the very court of the Rent Controller in which the landlord subsequently filed the eviction petition. The deposit lying in the treasure was in the legal custody and control of the court of the Rent Controller, and at the first hearing, if not earlier, the landlord was informed that he was entitled to withdraw that deposit. Thus, even if the tenant had obtained the order of the Rent Controller for making the deposit, by referring to Sec. 31 of the Relief Act, the fact remained that the money was in the custodial legis and could be ordered to be paid to the landlord there and then by the Court at the first hearing. It might have been different if the deposit had been made in some other Court. 10. Mr. Andley drew our attention to the order made by the Rent Controller on the application of the tenant, whereby he had sought permission to deposit the rent for the months of February and March, 1964. In his order on that application, the Rent Controller has said that the tenant could make the deposit at his own responsibility. Even so, it does not alter the facts that the money was in the custody and control of the Rent Controller and was available for payment, to the landlord at the first hearing. The whole object of the proviso to Sec. 13(2)(i) is to give the defaulting tenant a final opportunity to stave off his eviction on the ground of non-payment of rent, by paying of tendering on the first date of hearing of the eviction petition the arrears of rent together with interest and costs. The tenant by making the deposit of the arrears of rent and interest and costs and informing the landlord at the first hearing that he could receive the same from the Court, had substantially complied with the requirement of the said proviso.” In Sheo Narain (4 supra) the Supreme Court considered the analogous prevision i.e. Section 13(2)(i) of East Punjab Urban Rent Restriction Act (3 of 1949). It was observed as under: “The decision of the case mainly turns upon the interpretation of the proviso to S.13, which requires three essential conditions: (1) that there must be an application for ejectment before the Court, (2) that even after due service the tenant does not pay or tender the arrears of rent and interest at 6 per cent per annum together with costs assessed by the Controller, (3) that if the payment as required by the aforesaid two conditions is made then the tenant shall be deemed to have paid rent within the time required by law. The last para of S.13 enjoins that where the conditions of the proviso are not fulfilled the Controller shall make an order directing the tenant to put the landlord in possession and where he is satisfied that the rent has been paid, the application of the landlord must be rejected.” Observing so, the Apex Court proceeded to decide the issue whether the deposit made by the appellant therein (tenant) was legally valid. After referring to its earlier decision in Duli Chand (6 supra) and following the said observations, it was held that as the appellant (tenant) has fulfilled all the conditions of the proviso and had deposited the rent, arrears, costs and interest on the