(1) This revision is directed against the order of the Chief Judge, Small Causes Court, Hyderabad dated 5th March 1962 and made in Rent Appeal No. 11/3 of 1961, whereby the order of the Rent Controller directing the eviction of the tenant has been set aside.
(2) The petitioner landlord instituted proceedings before the Rent Controller, claiming that the tenant who had acquired premises No. 7475, situated at Khanduji Bazaar, Secunderabad at the rate of Rs. 25 per month had failed to pay rents for a period of three months viz., August, September and October 1958 as also a sum of Rs. 9 being the difference of accounts in payment of rents and electricity charges. This was resisted by the tenant alleging that there were earlier proceedings pending before the Rent Controller and that a petition for fixation of fair rent was also on his file. Therefore, the amount was to be paid after the first petition was dismissed and fixation of fair rent ordered. It was also conceded by him that there was default but this was due to the fact that the landlord was not agreeable to receive the amount unless the proceedings had been disposed. The Rent Controller on a consideration of the evidence and facts of the case came to the conclusion that the tenant was a wilful defaulter and in the view directed him to vacate the premises on or before 27th January 1961.
(3) Aggrieved by this order, the tenant went in appeal to the Chief Judge, City Small Causes Court, who as stated above allowed the appeal, reversed the finding of the lower Court mainly on the ground that the 2nd petition during the pendency of the 1st petition was not maintainable relying on the decision in M. Sitaramanjaneyalu v. P. G. Krishnayya, : AIR1952Mad283 . He also held that having regard to the fact that an application for eviction was pending before the Rent Controller and proceedings of fixation of fair rent were also in progI)1lay in payment of rent for one month or so at the time of tendering the rent was excusable.
(4) The learned counsel for the petitioner contends that the order of the lower appellate Court is unsustainable both on the question of fact and law. On the factual side his argument is that there was a delay of seven months in the tendering of rent and not one month as found by the appellate Court. From a perusal of the order of the Rent Controller and the statement of the tenant it appears that the first petition was dismissed on 4-8-59. The present petition was filed on 6-11-1958, claiming default in payment of rent for August, September and October 1958. The actual payment was made by the tenant on 6th May 1959 i.e. after a period of seven months from the date of filing of the petition for eviction. The appellate Court was, therefore, not justified in holding that the delay was only of one month, which was excusable on the ground that the first petition for eviction and fixation of fair rent was pending.
(5) The legal objection to the filing of a second petition is based on the decision in : AIR1952Mad283 which seems to have been overruled by a subsequent Full Bench decision of the Madras High Court in Perumal v. Muthuswami, : AIR1962Mad447 . It has been held therein that a second petition under Section 7 (6) of the Madras Buildings (Lease and Rent Control) Act (25 of 1949) during the pendency of the first petition is maintainable. The observations run as under:
'Even though a tenancy is in force, the landlord can exercise the statutory right given to him under Section 7 (2). It follows that the application for eviction by the landlord during the pendency of a previous application on grounds not available to him at the time of filing of the earlier application is maintainable.'
(6) Section 7 (6) of the Madras Act is analogous to Section 10 (7) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act (XX of 1954). Therefore, the lacuna pointed by the learned Chief Judge, does not appear to I am, therefore, of the opinion that a case of wilful default has been made out against the respondent and he is liable to eviction. The C. R. P. is accordingly allowed, directing the respondent who is unrepresented to vacate the premises within two months from today. No costs.
(7) Petition allowed.