HON’BLE SRI JUSTICE N.RAVI SHANKAR CIVIL REVISION PETITION No1954 of 2004 ORAL ORDER: The landlord is the petitioner in this CRP which is filed under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’). He brought the eviction petition R.C.No.11 of 1996 against the tenant on three grounds viz., 1) wilful default in payment of rents; (2) acts of waste; and (3) subletting. The learned III Additional Rent Controller, Hyderabad, by his order dated 16-06-1999 ordered eviction on the ground of wilful default in payment of rent but rejected the other two grounds as not proved. 2. Against the order of the Rent Controller, the tenant filed appeal R.A.No.233 of 1999 challenging the finding on the question of wilful default in payment of rent while the landlord filed appeal R.A.No.265 of 1999 questioning the finding rejecting the other two grounds relating to acts of waste and subletting. The appellate authority i.e., the Additional Chief Judge, City Small Causes Court, Hyderabad by its common order dated 31-07-2003 allowed the tenant’s appeal setting aside the order of eviction and dismissed the landlord’s appeal. Questioning the order of the appellate authority allowing the tenant’s appeal, the landlord filed this CRP. He did not file any CRP against the dismissal of his appeal. Thus the scope of this CRP is confined only to the ground of wilful default in payment of rent falling under Section 10(2)(i) of the Act and this is agreed to by both counsel. 3. The landlord–tenant relationship between the parties is not in dispute. The petition schedule premises is a mulgi i.e., a non- residential one. As on the date of filing of the eviction petition the admitted agreed rent for the said premises was Rs.905/- per month. The landlord’s plea is that since 1990 the tenant was enhancing the rent by 10% in September of every year and paying the rent accordingly and that in September, 1994 the rent was enhanced to 905/- per month and going by the previous enhancements of 10% every year, the tenant has to enhance the rent by 10% i.e., upto Rs.995/- per month in September, 1995. The main plea of the landlord is that the tenant did not enhance the rent by 10% i.e., upto Rs.995/- per month in September, 1995. He then pleaded that the tenant did not pay the rents from October 1994 to July 1995 at the old rate of Rs.905/- per month and also the enhanced rent at the rate of Rs.995/- per month from September 1995 to November 1995 and this is made the ground for wilful default. 4. In the trial before the rent controller one witness i.e. P.W.1 was examined for the landlord and the tenant himself gave evidence as R.W.1 in support of his case and both sides filed their documents and the details of these documents are given in the appendix of evidence given at the foot of the Rent Controller’s judgment. 5. The plea of the tenant is that the landlord was demanding exorbitant rents and did not accept the rents from October 1994 and therefore the landlord was at fault and he cannot be blamed for default and he further pleaded that he cannot be faulted also for not increasing the rent to Rs.995/- per month from September 1995. The tenant specifically pleaded that he has sent the rents even for the alleged default period regularly by money orders and the landlord without any reason refused to accept the same. The above case of the landlord was accepted by the rent controller but it was rejected by the appellate authority. 6. It is not necessary to go into other details but it would be sufficient to note that the appellate authority discussed the issue of default in payment of rent from para-11 of its judgment. It held that the tenant went on remitting the rents i.e., at the agreed rate of Rs.905/- per month from October 1994 for the entire default period by money orders and there was no default muchless wilful default on the part of the tenant and the representatives of the landlord are unjustified in refusing the rent. It relied upon Exs.R.1 to R.77 which were money order receipt coupons filed by the tenant in concluding so. This is a finding of fact arrived at by the appellate court upon consideration of the evidence let in by both sides and the landlord’s counsel was not in a position to show any infirmity or illegality in the said finding calling for interference by this court in a revision. A perusal of the judgment of the appellate authority on this aspect shows that it considered all the matters before it and then concluded that the tenant was not at fault. There is no reason to disagree with this conclusion of the appellate authority. 7. In the course of arguments, at one stage, the learned counsel for the landlord argued that if the rents tendered by the tenants were not accepted the tenant should have approached the concerned Rent Controller under section 8 of the Act and deposited the rents before him and since the tenant did not resort to that provision, he must be held to have committed default. It may be noted that in Mohammad Khaja Vs. Mohammad Shoukat Fahim Ahmed[1] this Court held that Section 8 of the Act is not mandatory and if the tenant has not resorted to that provision he cannot be held to be a wilful defaulter on that ground alone. Even under the Act it is open for the tenant to send the rents by money orders if the landlord is not accepting the same. In the present case, the appellate authority found as mentioned supra that the tenant has been sending the rents by money orders and there was no justification for the landlord to refuse the same. Hence, the above contention of the landlord’s counsel cannot be accepted. 8. That takes me to the contention of the landlord’s counsel that since the tenant was enhancing the rent by 10% in September of every year from 1990, the tenant ought to have enhanced the rent to Rs.995/- per month in September, 1995 and as he did not pay or offer that enhanced rent from September 1995 onwards there was justification for the landlord to refuse the rents from September 1995 and consequently the tenant must be held to have committed wilful default at least from September 1995. In my opinion, this contention also cannot be accepted for the following reasons. 9. It may be noted that admittedly, even according to the landlord’s witness, there was no written agreement between the parties under which the tenant was obliged to enhance the rent by 10% in the month of September every year. It is true that the tenant has admitted in evidence that he enhanced the rent earlier by 10% every year, but if he has done so he must be held to have done it according to his own volition without there being any obligation on him under an agreement or by law. Basing on that attitude of the tenant, the landlord cannot be allowed to claim that the tenant ought to have enhanced the rent to Rs.995/- per month from September 1995 and offer that rent from September 1995 and if he did not offer and pay it he must be held to have committed default. 10. It should be noted here that if the landlord is aggrieved that the rent which is paid by the tenant is low, his remedy lies in filing a petition for fair rent under Section 4 of the Act and get the fair rent fixed according to his contention. However if the tenant voluntarily enhanced the rent, it is of-course open for the landlord to enjoy that enhanced rent. If for any reason the tenant has failed to enhance the rent in any given subsequent year as he did earlier on his own volition, the tenant in the absence of any statutory obligation or an agreement cannot be held a defaulter, if he has not enhanced the rent and paid it as he did earlier. 11. It may be noted here that the Act is intended for the protection of the tenants and therefore in the absence of any statutory obligation to enhance the rent, the tenant cannot be faulted for not having done it in any given subsequent year. The appellate authority considered this aspect and held in favour of the tenant on the above contention of the landlord. In my opinion, this conclusion of the appellate authority cannot be held to be incorrect or illegal calling for interference by this Court in this revision. The learned counsel for the landlord could not place any authority or provision of law which supports his above contention. 12. Accordingly, for the aforesaid reasons, it follows that there are no merits in this CRP and the same is accordingly dismissed. No costs. ________________________ N.RAVI SHANKAR, J 8th February, 2011 VJL [1] 2002(1) ALT 509 (D.B)