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Judgment
P.L. Narasimha Sarma, J.—The tenant is the petitioner in this revision. The revision is filed against the order of the learned Principal Subordinate Judge, Chittoor in CM A. No. 6/89 dt: 12-11-90 affirming the order of the Principal District Munsif-cum-Rent Controller, Chittoor , in IA. No. 65/87 in RCC. No. 24/86. The relevant facts are as follows :-
The respondent-temple filed eviction petition RCC. No. 24/86 for evicting the revision petitioner from the petition schedule premises on certain grounds which are not necessary to mention for the disposal of this revision. The said R.C.C. was resisted by the tenant. Pending the main petition for eviction IA. No. 65/87 was filed by the respondent-landlord u/s 11 (4) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as "the Act") for a direction to the tenant to deposit the arrears of fair rent of amount of Rs. 175/- per month with effect from 1-12-78 till the date of filing of the application. The allegations made in support of the application were that the tenant was continuing in the premises by sufferance at the rate of rent of Rs. 175/- per month and the tenant has to pay rent at that rate and he committed default of payment of rent with effect from 1-12-78 and therefore sought for a direction to the tenant to pay Rs. 175/- per month from 1-12-78 and continue to pay and in default he should be directed to vacate the petition schedule premises.
The tenant-petitioner herein resisted the application on the ground that originally the landlord filed O.A. No. 38/79 before the Commissioner of Endowments, Kurnool against him foe-eviction, and he deposited rents from 1-12-78 to the credit of O.A. No. 38/79 and also obtained receipts, to that effect. His contention was that the agreed rate of rent is Rs. 70/- per month and not Rs. 175/- per month. He also contended than a sun was filed by the landlord in O.S. No. 1080/80 on the file of the Principal District Munsif''s Court, Chittoor for damage:, on the ground that the tenant refused to vacate the premises in spite of quit notice and the said suit was decreed on merits wherein 1he learned Judge fixed Rs. 175/-p.m. as the reasonable amount of damages for use and occupation and therefore the said rate cannot be treated as agreed rent which can only be directed to be deposited u/s 11 (4) of the Act and therefore the application for deposit of Rs. 175/- p.m. as the agreed rent is unsustainable. The tenant also raised several other pleas which need not be referred to for the purpose of disposal of this revision petition. All such pleas as well as the pleas of the landlord will be decided by the rent controller while disposing of the R.C.C. on merits in accordance.
The Rent Controller allowed the application IA. No. 65/37 fixing the rule of rent at Rs. 175/- per month for which he relied upon the decree of the Civil Court in O.S. No. 1080/80 and as a result the Rent Controller directed the tenant to deposit arrears of rent at that rate of Rs. 175/-p.m. with effect from 1-12-78 and also gave deduction of the amount which was already deposited by the tenant before the Deputy Commissioner of Endowments, Kurnool on 29-2-1984.
Questioning the said order of the Rent Controller the tenant carried the matter in CM A. No. 6/89 to the court of the Principal Subordinate Judge, Chittoor. The learned Subordinate Judge referred to the proceedings before the Civil Court in O.S. No. 1080/88 and stated that though the landlord claimed at the rate of Rs. 250/- p.m. by way of damages for use and occupation the Civil Court found that a sum of Rs. 175/-per month is reasonable and therefore granted a decree for Rs. 175/- per month and that particular figure of Rs. 175/- was taken as fair rent by the learned Subordinate Judge in confirming the order of the Rent Controller. Accordingly, the learned Subordinate Judge confirmed the order of the Rent Controller and directed the tenant to deposit at the rate of Rs. 175/-per month with effect from 1-12-78. Questioning the said order the tenant filed this revision petition.
Sri S.V. Ramana Reddy, the learned counsel for the petitioner-tenant, mainly contended that the agreed rent between the parties was fixed at Rs. 70/- p.m. initially and thereafter there was no enhancement and no amount was fixed as rent between the parties and the fixation of Rs. 175/-p.m. by the Civil Court as damages for use and occupation cannot be treated as agreed rent. In this connection, the learned counsel referred to Section 11 of the Act and contended that so long as fair rent of a building is not fixed the agreed rent alone viz., Rs. 175/- can be the basis for deposit under Sub-section (4) of Section 11 of the Act.
In this connection it is necessary to refer to the language of Section 11 for appreciating the contention raised by the learned counsel for the petitioner.
"11. Payment of deposit of rent during the pendency of proceedings for eviction :-
(1) No tenant against whom an application for eviction has been made by a landlord u/s 10 shall be entitled to contest the application before the Controller under that section, or to prefer any appeal u/s 20 against any order made by the Controller on the application, unless he has paid to the landlord, or deposits with the Controller or the appellate authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the appellate authority, as the case may be.
(2) The deposit or rent under Sub-section (1) shall be made within the time and in the manner prescribed.
(3) Where there is any dispute as to the amount of rent to be paid or deposited under Sub-section (1), the controller or the appellate authority, as the case may be, shall on application made to him either by the tenant or by the landlord, and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited.
(4) If any tenant fails to pay or to deposit the rents as aforesaid, the Controller or the appellate authority, as the case may be, shall unless the tenant shows sufficient cause 1o the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the buildings."
It is clear from the above provision that it speaks of only rent due and it does not use the words "fair rent". Obviously it is the agreed rent that is contemplated u/s 11 of the Act. In case there is a dispute as to the amount of rent it is open to the Rent Controller exercising jurisdiction u/s 11 (3) of the Act to fix the rent to be so paid or deposited. In this case, it is true, that the rent agreed to between the parties originally was Rs. 70/- per month. There is no dispute with regard to that. But, in the proceedings before the Civil Court the tenant made a statement expressing his willingness to pay "rent" (baduga) at Rs. 150/-p.m. on 14-11-80. The same was referred to by the appellate court in para 15 of its judgment. Therefore, even if Rs. 175/- p.m. fixed by the courts below as the rent per month to be deposited is not the agreed rent still the willingness to pay rent at Rs. 150/- p.m. by the tenant and which is accepted by the landlord can be taken as agreed rent between the parties with effect from 14-11-80 on which date the willingness to pay Rs. 150/- was expressed and submitted to the court by the tenant.
In my opinion, he cannot be allowed to go back from his statement which was made solemnly before a competent civil court. Alternatively it can be taken as rent fixed by the Rent Controller under Sub-section (3) of Section 11 of the Act where there is a dispute between the parties. In either case the tenant cannot get away the rate at. Rs. 150/- which he has to deposit u/s 11(4) with effect from 14-11-80. The observations and findings made by me are only tentative for the purpose of disposal of application filed u/s 11(4) of the Act. While disposing of the main eviction petition the authorities are free to decide as to what is the agreed rent and whether there is any wilful default in payment of rent without being influenced by any of the observations made in these proceedings either by the Rent Controller or by the appellate court or by me in this judgment.
Therefore, in view of the foregoing, in modification of the orders of the courts below, I direct the tenant-revision petitioner to deposit at the rate of Rs. 70/- upto 13-11-80 and at the rate of 150/- with effect from 14-11-80.
The learned counsel for the petitioner drew my attention to the memo of calculation furnished by the landlord before the appellate court which accepted that the tenant made three deposits towards the arrears of rent both before the Deputy Commissioner and the amount paid in EP No, 192/87 in the Civil Court and the amount deposited before the Rent Controller totaling to Rs. 14,288-50 ps. This amount shall be given credit to while calculating the deposit to be made pursuant to the order of this court.
It is brought to my notice that an appeal AS. No. 52/85 on the file of the Addl. District Judge, Chittoor is pending against the judgment and decree in O S. No. 1080/80 and a number of questions raised are pending adjudication by the appellate court. Therefore, none of the observations made in these proceedings, as already observed, shall influence the learned Addl. District Judge, Chittoor in disposing of the said appeal and he is free to dispose of the matter on the basis of evidence on record.
The revision petition is partly allowed and the orders of the courts below are modified to the extent indicated above. Two months time is granted for the tenant-petitioner for complying with this order for depositing the amounts pursuant to this order towards the arrears of rent and continue to pay every month at the rate of Rs. 150/- till the disposal of the main R.C.C. The monthly payment shall be made on or before 10th of every succeeding month commencing from February, 1991 viz., the rent for the month of February, 1991 is payable on or before 10th March, 1991. No costs.