1. This Civil Revision Petition arises out of an order passed under Section 11 (4) of the Andhra Pradesh (Buildings Lease, Rent and Eviction Control) Act hereinafter referred to as 'the Act' asking the tenant to deliver possession of the building in question to the landlord. Hence this petition by the tenant. The sole respondent herein is the landlord. Admittedly the petitioner is the tenant of the respondent for a building. The respondent filed a petition before the Rent Controller under the provisions of the Act to evict the petitioner on the grounds of wrongful waste to the building, wilful default in payment of rent and putting the building for use other than for which it was let. During the pendency of the eviction, the respondent made an application to the Rent Controller under Section 11 of the Act to direct the petitioner to pt him in possession of the building on the ground that the petitioner failed to pay or deposit the rent during the pendency of the eviction proceedings. It appears that on the ground that the respondent refused to receive the rent when it was tendered, the petitioner was making some deposit into the Government treasury. The petitioner contested the application alleging that he made the deposits within the time prescribed by law there is no written contract between the parties and in any case the court has Power to excuse he delay if really there was any delay. The Rent Controller by coming to the conclusion that the rent has been paid or deposited up to date and that for the purpose of Section 11 of the Act the Court has only to see whether the rent has been paid or not dismissed the application. On appeal to the Subordinate Judge by the respondent the Subordinate Judge holding that in spite of opportunity granted to the petitioner on the undertaking given by his own advocate that he would deposit the rents into Court, the petitioner failed to pay or deposit rent due as on 1-9-1970 for the month of September, 1970 within 15 days from 1-9-1970 or till 20-9-1970, the date on which the learned Subordinate Judge pronounced the order, allowed the appeal and as provided under Section 11 (4) of the Act directed the petitioner to deliver possession of the building to the respondent. It is this order that is assailed in this Civil Revision Petition.
2. It appears from the judgment of the learned Subordinate Judge that when the appeal was taken up for hearing on 18-8-1970 on the representation made by the advocate for the petitioner that his client would deposit into Court all the rents due up to the date of the deposit, the learned Subordinate Judge gave an opportunity to withdraw all the amounts, which the petitioner had already deposited in the Government treasury etc., and to deposit the amounts in his Court and subsequently when the matter was again called on 14-9-1970 the petitioner offered to deposit only a sum of Rs. 1,750;/- which represented the rent due upto the end of August, 1970. Then it was represented on behalf of the respondent that the entire rent due by that date was Rs. 1800/- as rent for September also had to be paid by 1-9-1970, as according to the terms of agreement of lease every month's rent has to be paid in advance on the first of every month, and the petitioner was bound to pay the remaining amount of Rs. 50/- also representing the rent due for the month of September. On the other hand it was contended on behalf of the petitioner that he is not bound to pay every month's rent on he first of the month in advance and therefore what was offered to pay represented the entire amount due by the petitioner by that date.
3. Thereupon the learned Subordinate Judge had to consider the question whether by offering and depositing the amount of Rs. 1750/- on 14-9-1970. the petitioner has deposited all the arrears of rent due by that date. The learned Subordinate Judge after considering the matter came to the conclusion that the petitioner is bound to pay to the respondent he rent in advance on the first of every month. As provided under Section 10 (2) of the Act a tenant 9s bound to pay the rent due by him to the landlord within 15 days after the expiry of the time fixed in the agreement of the 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. On the ground that the petitioner failed to deposit the rent due for the month of September, 1970 even by 28-9-1970 that is within fifteen days from 1-9-1970 the learned Subordinate Judge passed the order in question.
4. Ex. A-1 dated 1-4-1959 is the agreement entered into between the petitioner and the respondent. The tenancy created under Ex. A-1 was only for one year that is, up to 31-3-1960. Thereafter the petitioner continued in possession of the building as a holding over. Therefore the tenancy which was in existence on the date of the eviction petition is that one which was created by the petitioner holding over, as tenancy created under Ex. A-1 having come to an end by efflux of time. There is a term in Ex. A-1 that the petitioner would pay the rent on the fist of every month in advance at the rate of Rs. 50/-. Therefore according to the agreement, ex. A-1 the liability of the petitioner to pay rent was in advance on the first of every month. It is the case of the respondent that where the tenant holds over after the expiration of the term, he impliedly holds subject to all the covenants of the lease.
5. Mr. G. Suryanarayanamurty for Mr. e. Kalyanaram the learned counsel for the petitioner placing reliance on the judgment dated 8-8-1969 of this Court rendered by Mr. Krishna Rao, J. in W. P. No. 1137 of 1967 (Andh Pra) has argued that a lease created by the tenant holding over does not carry all the terms of the old lease but only those terms which are essential or necessary for a transaction of a lease. In that case, which Mr. Krishna Rao, J. decided in the written lease which had expired there was a stipulation that the rent should be paid in kind at the time of harvest after notice to the landlord. After the written lease had expired there was a new tenancy by holding over. The tenant paid the rent in cash instead of paying it in the shape of produce at the time of harvest. There was no plea on behalf of the landlord that the rent paid did not represent the market value of the share of the produce due to him as rent. It was also not disputed that the cash rent as paid before the due to him as rent. It was also not disputed that the cash rent was paid before the due date. Under these circumstances the controversy arisen was whether the tenant incurred default as he failed to pay the rent in kind as stipulated in the expired written lease-deed. In that connection the learned Judge after discussing the case law on the subject in some detail held that:
'Only some and not all the stipulations contained in the lease can be imported when the tenant continues as a tenant holding over. As regards the stipulation for rent, the quantum of rent which represents the consideration for the lease is alone the essential term of the bargain. The mode of payment, namely, whether it is to be in cash or kind, or for instance, by way f cash or by way of a cheque or otherwise. relates to the manner in which the payment is to be made, which is in the nature of a special covenant. The test to determine whether such stipulations are necessary for the formation of a lease is to se whether in the absence of such a stipulation there can be a completed transaction of a leas. The omission or such a clause relating to the mode of payment does not render the lease incomplete. Having regard to the definition of lease, one of the essential terms is the provision for payment of a fixed amount of rent which represents the consideration. I am therefore of the opinion that the special agreement to pay the stipulated rent in kind is not necessarily imported when the tenant holds over after the expiry of the written leas.'
6. With great respect to the learned Judge I entirely agree with the proposition of law as laid down by him. The question for consideration is whether a covenant with regard to time of payment of rent is one of the essential terms of a lease or not. I have no doubt the time of payment is one of the essential and necessary covenants of a lease and it cannot be said to be a special covenant. The mode of payment whether it is in cash or in kind may not be an essential covenant, the essential covenant being only the payment of rent. It may be said that in what from the rent should be paid whether it is by way of cash or by way f kind may not be essential in the sense that it can be either in cash or in kind for the purpose of a lease. But in my opinion the rent of a lease it must be known to the parties when that rent is liable to be paid. I think without a stipulation with regard to the time of payment of rent the lease would be incomplete. I am therefore of the view that the convent in a lease with regard to time of payment is an essential term of a lease. If that is so, the term in the expired lease; Ex. A-1 that the rent of Rs. 50/- per month should be paid on the first of every calendar month in advance was an essential term of the lease and therefore by implication it must be taken as one of the terms of the new lease which was created by holding over after which was crated by holding over after the expiry of the written lease. If that is so the learned Subordinate Judge was right when he came to the conclusion that the petitioner failed to deposit the rent due on 1-9-1970 for the month of September 1970 within 15 days from 1-9-1970.
7. But the question for consideration is whether on that account the learned Subordinate Judge was right when he straight way passed orders directing the petitioner to put back the respondent in possession of the building. It is not a case where the time of payment of rent was not in controversy nor it can be said that it was a matter about which there could not have been any controversy. In the counter filed by the petitioner in the lower Court it has been categorically stated that the question as to when each month's rent has to be paid or deposited is a matter to be determined by the Court. It was asserted that the deposits were made within the time prescribed by law as there is no written contract between the parties in force. Therefore the question as to the date of payment was in controversy between the parties. If that was so the learned Subordinate Judge after deciding first the date on which the monthly payment of rent should be made he would have given time to the petitioner to deposit the rent which was in arrears. But without giving any such time straightway passed orders directing the petitioner to put the respondent in possession of the building. It is not as if even after the controversy between the parties was decided by the Court the petitioner failed to deposit or pay rent in time. Eve as provided under Section 11 (4) of the Act if any tenant fails to pay or deposit the arrears of rent, the Court shall make an order directing to put the landlord in possession of the building only in case the tenant fails to show sufficient cause for not paying or depositing the rent. It is not a case where there was no reason at all for call for the failure of the petitioner to deposit the rent due on Ist September, 1970 in time. He was contending that he was not bound to pay the rent on the 1st of every month in advance as per the terms of the expired lease and it was for the court to decide that matter. Therefore the learned Subordinate Judge ought to have given the petitioner some time to pay the rent of September, 1970 before he could pass the order in question.
8. In the result the Civil Revision Petition is allowed and the order of the learned Subordinate Judge is set aside. No costs. As the eviction petition is pending since a long time, the Rent Controller (Principal District Munsif, Tirupathi) is directed to dispose of the eviction petition as early as possible.
9. Revision petition allowed.