IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.2972 of 2007 BETWEEN Vaddiparthi Suraparaju. ... PETITIONER AND Yelugubantla Venkata Ramana Murthy (died) per LR’s. ...RESPONDENTS Counsel for the Petitioner : MR. KOWTURU VINAY KUMAR Counsel for the Respondents: MR. N.V. ANANTHA KRISHNA The Court made the following: ORDER: Petitioner, who is the landlord in ATC.No.58 of 2000 before the Special Officer under Andhra Pradesh Tenancy Act, Kakinada, sought eviction of the respondent/tenant on the ground that the tenant has committed default in complying with the terms of the lease. 2. The specific averment of the petitioner is that under Ex.A1 dated 28.02.1972 a lease was executed by the respondent in favour of the petitioner’s predecessor in title. As per the specific terms of the said lease, the respondent/tenant had to deliver maktha of 120 bags of paddy besides two carts load of hay to the landlord at his house. However, it is alleged that in contravention to the aforesaid clause in the lease deed, the respondent/tenant has been remitting the value of 120 bags by way of demand draft to the landlord and that such remittances are accepted by the landlord under protest and without prejudice to his rights. He filed ATC, referred to above, on the ground of default committed by the tenant in not adhering to the stipulations under the lease deed, referred to above. It was tried to be justified by the tenant before the primary authority that the lease deed is of the year 1972 whereas the present ATC was filed in the year 2000 and that the conduct of the landlord shows that there is no default committed. 3. The Special Officer, found on point No.1, that there is a clear default committed by the tenant in fulfilling the specific clause under the lease deed – Ex.A1 and he had to comply with the condition of the lease by delivering the maktha stipulated and not in the form in which the tenant was paying the maktha. The Special Officer, therefore, ordered eviction on finding that the tenant has committed default. The lower appellate Court has, however, reversed the same only on the ground that in the evidence the petitioner/landlord has accepted that the tenant has been paying maktha in cash and not in terms of Ex.A1 since 1980 onwards but the present proceedings for eviction are instituted only in the year 2000. The lower appellate Court, therefore, felt that the conduct of the landlord disentitles him from seeking eviction. Hence, this revision. 4. Heard the learned counsel for the petitioner, who submits that there is no concept of waiver under the Andhra Pradesh Tenancy Act and secondly, that the modified manner in which the maktha was paid by the tenant was accepted by the landlord under protest and without prejudice and as such, the landlord’s right to claim eviction is not lost merely because over the years the tenant has paid and landlord has accepted the demand drafts instead of maktha in kind payable under the lease deed. 5. I find if difficult to accept the contention of the learned counsel for the petitioner, particularly, keeping in view the averments in ATC.No.58 of 200. The cause of action mentioned therein is only with regard to the year 2000 and secondly, there is no explanation whatsoever as to why the petitioner/landlord continued to accept the payment of maktha in different form than what is envisaged under the lease deed, that too for considerable period of about 20 years prior to filing of ATC. In my view, therefore, even if the landlord accepts the maktha in cash as against kind, under protest and without prejudice, he cannot keep alive the cause of action for 20 years and then seek eviction. If the principle of waiver is not applied, it would amount to permitting the landlord to seek eviction of the tenant for the default committed 20 years ago and the same being clearly inequitable and impermissible under law, it is to be held that the landlord has waived his right to seek eviction on the ground of default committed by the tenant. The lower appellate Court was, therefore, right in setting aside the order of eviction. The impugned order, therefore, warrants no interference. The civil revision petition is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 7, 2011 DSK