Andhra HC (Pre-Telangana)
Nimmagadda Krishna Hari And Anr. vs Manepalli Mangamma on 11 December, 2001
Equivalent citations: 2002(1)ALD512, 2001(6)ALT765
Author: A.R. Lakshmanan
Bench: Ar. Lakshmanan
ORDER A.R. Lakshmanan, C.J.
1. The matter arises under the A.P. Buildings (Lease, Rent and Eviction) Control Ad, 1960 (hereinafter referred to as 'the Act). CR.P No.3592 of 2000 was filed by the unsuccessful tenants in both the Courts below. The husband of the first petitioner was the tenant in the scheduled premises and during the lifetime of the original tenant, certain disputes arose between the landlord and the tenant and the tenant filed O.S. No.422 of 1990 on the file of the Second Additional District Munsif, Vijayawada for injunction against the respondent and the same was decreed on 31.3.1994. The tenant also filed R.C.C. No.98 of 1990 under Section 8(5) of the Act seeking permission to deposit the rent into the Court. The said petition was filed on 6.7.1990 and the same was allowed on 20.6.1991. Subsequent thereto on 5.8.1992, the original tenant died and the first petitioner being the wife and the second petitioner being the daughter were added as the legal representatives in O.S. No.422 of 1990. Inasmuch as the proceedings in R.C.C.N0.98 of 1990 were terminated even by 20.6.1991, R.C.C. No. I of 1993 was filed under Section 8(5) of the Act for deposit of rents and the same was allowed on 10.12.1993. During the period from August, 1992 to December, 1992, the tenants could not deposit the rents since they could not obtain challans from the Rent Controller. After R.C.C.No.l of 1993 was numbered, they had obtained the challans and deposited the rent and have been continuing to deposit the rents in the said R.C.C. The landlord originally filed R.C.C.No.141 of 1992 which was renumbered as R.C.C.No.136 of 1996 on the file of the Rent Controller, Vijayawada on the ground of wilful default during the period from August, 1992 to December, 1992 and the said R.C.C. was allowed on 16.9.1997 and aggrieved by the same, the tenants preferred RC C.M.A. No.88 of 1997 before the Principal Senior Civil Judge, Vijayawada and the same was dismissed on 11.7.2000 confirming the orders passed in R.C.C.No.136 of 1996 and aggrieved by the same, the present C.R.P. was filed by the tenants. The appellate Court while discussing the point for consideration i.e., whether there is default in payment of rent from August, 1992 to December, 1992 at the rate of Rs.200/- per month, if so, that default can be treated as wilful default, confirmed the order of the learned Rent Controller. The appellate authority has mainly arrived at the conclusion that the default will amount to wilful default on non-compliance of the procedure under different Sub-sections of Section 8 of the Act. In view of the conflicting opinions, the learned Judge had already referred to a similar question to be decided by a Division Bench in C.R.P. No.3835 of 2000. The question referred to the Division Bench by P.S.Narayana J., is as follows:
Whether the provisions of Section 8 of the Act are mandatory or directory and if so, whether the non-following of the procedure under Section 8 (2), (3) and (4) of the Act automatically enures to the benefits of the landlord to substantiate the ground of wilful default?
2. P.S.Narayana J., after noticing the divergent decisions - one view holding that the provisions of Section 8 of the Act are only directory and not mandatory and the other view holding that the procedure contemplated by Section 8 was mandatory, observed that he was inclined to refer the matter to a Division Bench by framing the question and directed the Office to place the papers before the Hon'ble Chief Justice for obtaining appropriate orders in this regard. The question referred by the learned Judge reads as follows:
Whether the procedure specified under Section 8 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 is mandatory as held in C.HANUMANTHA RAO V. M.PREM SUDHAKAR RAO or it is only directory as observed in SATYANARAYANA V. NARS1MLOO (1985 (2) ALT 169), M.VENKATESWARA RAO V. SMT. K.V. SUBBAMMA (1978(1) ALT 503) AND KAMALA BA1 V. E.RAJESWARI .
3. That is how the matter is now placed before us for our authoritative pronouncement on the question referred. Since we propose to decide the question referred only, we are not referring to the facts and circumstances of the case on merits.
4. We heard the arguments of Sri K. Ravindra Kumar and Mr.G.Dharma Rao, learned counsel for the parties in CRP 3592 of 2000 and Sri K.Somakonda Reddy, and Sri Jayashankar Reddy, learned counsel for the parties in CRP No.3835 of 2000.
5. The learned counsel appearing for the revision petitioner in CRP No.3835 of 2000 cited the following citations in support of his contention that the procedure prescribed under Section 8 is only directory. They are:
(1) M.VENKATESWARA RAO V. SMT. K.V.SUBBAMMA, 1978 (1) ALT 503.
2) VEMURI SOMISETTI V. VEGICHERLA GURUVIAH, 1976 (35) ALT 42
3) SATYANARAYANA V. NARSIMLOO, 1985 (2) ALT 169
6. The counsel appearing for the landlord in C.R.P, No.3835 of 2000 has also cited the decision KAMALA BAI V. E. RAJESWARI, in addition to the other decisions cited by the learned counsel for the landlord in the connected revision. The learned counsel for the tenant strongly placed reliance on two decisions of this Court in C. HANUMANTHA RAO V. M. PREM SUDHAKAR RAO, , and in SRINIVASA METAL STORES V. CH. JOGESWARA RAO, .
7. Before proceeding to consider the matter under reference and the decision cited by the counsel appearing on either side, it is useful to extract Section 8 of the Act in its entirety and consider its scope as well.
8. Right of tenant paying rent or advance to receipt :--(1) Every tenant who makes a payment on account of rent or advance shall be entitled to obtain a receipt of the amount paid duly signed by the landlord or his authorised agent.
(2) Where a landlord refuses to accept, or evades the receipt of, any rent lawfully payable lo him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord :
Provided that such bank shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village within three miles of the limits thereof.
Explanation:--It shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this subsection.
(3) If the landlord specified a bank aforesaid, the tenant shall deposit the rent in the bank, and shall continue to deposit any rent, which may subsequently become due in respect of the building.
(4) If the landlord does not specify a bank as aforesaid, Ihe tenant shall remit the rent to the landlord by money order, after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or specifies a bank in which the rent shall be deposited in accordance with the provisions of Subsection (2).
(5) If the landlord refuses to receive the rent remitted by money order under subsection (4), the tenant may deposit the rent before such authority and in such manner as may be prescribed, and continue to deposit any rent which may subsequently become due in respect of the building, before the same authority and in the same manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the person held by the Controller, to be entitled to the amount on application made by such person to the Controller in that behalf.
8. Section 8(1) of the Act says that every tenant who makes a payment on account of rent or advance shall be entitled to obtain a receipt for the amount paid duly signed by the landlord or his authorised agent. Sub-section (2) says where a landlord refuses to accept or evades the receipt of any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord. The proviso says that such bank shall be the one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village within three miles of the limits thereof. The explanation specifies that the landlord to specify from time to time by a written notice to the tenant and subject to the proviso in the Sub-section (2), a bank different from the one already specified by him under this Sub-section (2).
9. Sub-section (3) says that if the landlord specified a bank aforesaid, the tenant shall deposit the rent in the bank, and shall continue to deposit any rent, which may subsequently become due in respect of the building.
10. Sub-section (4) lays down the procedure where the landlord does not specify the bank.
11. Sub-section (5) says that if the landlord refuses to receive the rent remitted by money order under Sub-section (4), the tenant may deposit the rent before such authority and in such manner as may be prescribed, and continue to deposit any rent which may subsequently become due in respect of the building, before the same authority and in the same manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the person held by the Controller, to be entitled to the amount on application made by such person to the Controller in that behalf.
12. The teamed counsel for the landlord relied on M.VENKATESWARA RAO V. SMT.K.V.SUBBAMMA (supra) wherein Jeevan Reddy, J., (as he then was) held that when the landlord refuses to receive the rent, it follows that tenant was not unjustified in deducting M.O. commission and sending the rents by M.O. and the procedure prescribed by Section 8 of the Act is not mandatory and that it cannot be said that whenever the procedure stated in Section 8 is not followed, it will be concluded that the tenant is guilty of wilful default. In that case, after refusal of the rent by the landlady, the tenant sent rent by M.O. deducting commission and when that was also refused, the tenant sent full rent by M.O. again. Even before the refusal of the second money order, the tenant issued notice calling upon the landlady to name the bank in which the rent should be deposited, but the landlady refused to name the bank. In the meantime, the second money order was also refused. Thereupon, the tenant filed l.A. in the C.M.A. filed by the landlady against the order of the Rent Controller dismissing the eviction petition filed by her earlier on the grounds of nuisance and personal requirement for permitting him to deposit the rent in that Court. Meanwhile, the landlady instituted eviction petition on the ground of default. Soon after the receipt of notice of summons, the tenant deposited rents in that Court. The Courts below held that in view of refusal to name the bank by the landlady, the tenant ought to have followed further steps contemplated in Section 8 and having not done so, the tenant has to be considered to be in default. This Court held that the procedure prescribed in Section 8 is not mandatory and that the entire circumstances must be viewed before inferring that the tenant has committed wilful default. This case does not help the petitioners since the petitioners in the present case, immediately after refusal of the rent opted for procedure prescribed under Section 8 by issuing notice Ex.B.2 under Section 8(2) of the Act. When the landlord has refused to receive the notice, it is deemed that she has not specified the bank. Then the tenants ought have sent the rent by M.O. after deducting M.O. commission and continue to remit the subsequent rent as per Section 8(4) till the landlady signifies by written notice her willingness to accept the rent or specifies the bank. If the landlady refuses even the rent so remitted under Section 8(4) then the tenant has to deposit the rent Under Section 8(5) of the Act before the Court. Here, the tenants after having issued notice under Section 8(2) did not even wait for the acknowledgement and on the other hand even according to the tenant, sent the rent simultaneously. This procedure is not in accordance with Section 8(4) or Section 8(5) since there was no remittance of rent under Sub-section (4) to constitute refusal by the landlady to justify the tenants to have recourse to Section 8(5).
13. In C.R.P. No.3592 of 2000, the Courts below have mainly held against the tenant on the ground upon the landlord's refusal to name the Bank in reply to the notice, the tenant ought to have deposited'the rent in the Court of the Rent Controller under Section 8 of the Act and not made an application in the C.M.A. then pending between the parties.
14. Jeevan Reddy. J., in M. VENKATESWAR RAO (supra) held:
I am unable to agree that in every case of refusal on the part of the landlord to receive the rent, the tenant is bound to follow the steps mentioned in Section 3 nor can I agree that the order in which the several steps are mentioned in Section 8 are equally mandatory. Whether there is wilful default on the part of the tenant in paying the rent or not, is essentially a question of fact. In such a case, it is not permissible to create presumptions of law, much less irrebutable presumptions of law by judicial interpretation. It may be noticed that Section B carried the heading 'Right of tenant paying rent or advance to receipt'. Sub-section (1) obliges the landlord to issue a receipt for every payment received by him. Sub-section (2) says that where a landlord, refuses to accept, or evades the receipt of rent, the tenant may, by notice in writing, call upon the landlord to specify the bank into which the rent may be deposited. Sub-section (4) then says that if the landlord fails to specify the Bank as required, the tenant shall remit the rent to the landlord by money order after deducting the M.O. commission Subsection (5) finally says that if the landlord refuses the rent with the Rent Controller and continue to deposit the same there. There are no reason to construe the word 'may' occurring in Sub-section (2) and Subsection (5) as 'shall', more particularly in the context of the Act i.e., purpose and object for which the Act was made. While refusing to receive the rent without any reasonable cause, the landlord cannot simultaneously be permitted to insist that the tenant must necessarily follow die steps mentioned in Section 8, one after the other and that if he fails to do so, he must be held to be guilty of wilful default.
15. To the same effect is the decision of A.V.Krishna Rao, J., in VEMURI SOMISETTI V. VEGICHERLA GURUVIAH (supra). The learned Judge further held that on the mere allegation of the landlord, the Court must not draw a presumption in favour of the landlord. Agreeing with the view expressed by A.V. Krishna Rao, J., in VEMURI SOMISETTI (supra), Jeevan Reddy, J., held:
I respectfully agree with the reasoning of A.V. Krishna Rao. J., in the latter decision and accordingly, I hold that the procedure prescribed by or the consecutive steps mentioned in Section 8 of the Act are not mandatory and it cannot be stated as a rule of law that wherever the procedure or the steps mentioned therein are not followed, it must be concluded that the tenant is guilty of wilful default. Even though the procedure under Section 8 is not followed, there may be other circumstances which negative the inference of wilful default.
16. The next decision relied on is SATYANARAYANA V. NARSIMLOO. The learned Judge - Mrs. Amareswari. J., after holding that Section 8 is directory and not mandatory, held that sending of rent by M.O. as contemplated under Section 8(4) arises only in a case where the money order is accepted by the landlord and in the case of rejection or refusal, it is not obligatory on the part of the tenant to continue to send the amount by M.O. and failure to do so does not amount to willful default. The learned Judge held:
Thus, Sub-sections (2) to (5) of Section 8 in my opinion enable the tenant to adopt various steps mentioned therein in case of refusal by the landlord to accept the rent. The word used in Sub-section (2) is 'may'. Similarly, in Sub-section (5) also the expressing 'may' is used. No doubt in Sub-section (3) and (4) the word 'shall' is used. But even then, having regard to the purpose of Section 8, I hold that these Sub-sections are directory and not mandatory. They contemplate a procedure to be followed by the tenant in the case of non-acceptance of the rent by the landlord. The non-observance of the steps does not necessarily lead to the inference of wilful default. It may be best show a default in the sense that the rent is not paid. But the question whether it is wilful is a question of fact and non-observance of Section 8 of the law does not necessarily lead to an inference of wilful default.
17, In KAMALA BAI V. E. RAJESWAR1 (supra), Dasaradha Rama Reddy, J., held that Section 8 of the Act is not mandatory, but only directory and that on refusal to receive the rent by the landlord for any month, the tenant may adopt procedure prescribed under Section 8 by issuing notice to landlord under Section 8(2) to specify a Bank into which rent may be deposited and once he opts for the procedure contemplated by Section 8, he must follow steps stated in Section 8(3) to 8(5). If the Bank is not nominated, tenant has to send rent by M.O. every month deducting M.O. commission and in case of refusal to receive the rent so sent, rent be deposited in Court by filing application under Section 8(5). The learned Judge further observed that mere filing of application without depositing rent every month by due date awaiting for long time for orders of Court does not absolve tenant from wilful default in payment of rent.
18. We shall now consider the decision of Bilal Nazki, J., in C.HANUMANTHA RAO V. M. PREM SUDHAKAR RAO (supra). In this case, the Rent Controller found that there was wilful default in payment of rent and therefore he passed the decree of eviction. The appellate authority agreed with the Rent Controller that there was wilful default. The tenant filed the revision in this Court. According to the tenant, the landlord refused to receive the rent for number of years and he deposited the rent in a Bank account opened by him in his own name. The learned Judge was of the view that the provisions of the A.P. Rent Control Act need to be interpreted in such a way that wherever a right accrues to a landlord for evicting the tenant, the eviction should follow. In that view of the learned Judge, if a tenant fails to deposit rent for number of years in accordance with the provisions of Section 8, he is clearly a wilful defaulter and that if the tenant had deposited the rent in a bank in his own name, there was nothing which could stop the tenant from withdrawing the amount and that it was only a plan created to defeat the rights of the landlord.
Had the tenant been really interested in paying the rents, he would have followed the mandate of Section 8 of the Act. Since Section 8 of the Act has not followed by the petitioner, there is no way out but to hold that the tenant in that case was a wilful defaulter. For these reasons, the learned Judge dismissed the revision filed by the tenant holding that the deposit of rent in a bank in the name of the tenant does not amount to compliance with the mandates of Section 8 of the Act.
19. The other decision relied upon by the tenants is SRINIVASA METAL STORES V. CH. JOGESWARA RAO (supra). B.S.Raikote, J., in this case followed the decision in SATYANARAYANA V. NARSIMLOO (supra) and few other decisions on the subject. The learned Judge was of the view that the procedure provided in Section 8 for depositing rent in Bank to the credit of landlord in case of non acceptance of rent by landlord or evasion to receive rent is only directory and not mandatory and that wilful default cannot be inferred from failure to follow the said procedure which is only one of the modes of tendering rent.
20. In another decision in RAJALINGA CHETTIAR V. NATARAJA MUDALIAR, 1995 (2) MLJ 211, to which one of us (AR.LAKSHMANAN, J., as he then was) was a party, it was held that Section 8 is only an enabling provision and non observance of the procedure prescribed under Section 8(2) does not throw any light upon want of bonafides of the tenant. It was also held that Section 8 is not mandatory. In this case, the Rent Controller by a common judgment held that the ground of wilful default in payment of arrears of rent has been established. On appeal, the appellate authority confirming the findings of the Rent Controller ordered eviction. In the revision filed, the tenants challenged the findings rendered by the appellate authority. In this case, the petitioners sent the rent by M.O. The landlord refused to receive the same. Immediately thereafter, the tenant deposited the rent in Post Office savings bank in his name and called upon the landlord to specify the bank so that the rent could be deposited. The landlord without specifying the bank issued another notice that he was not prepared to receive the rent. According to the tenant, he was regularly depositing the money in the post office savings bank account and when the position being this, the landlord filed eviction petition on the ground of wilful default and on other grounds. In the petition, it was alleged that the tenant has committed wilful default. The Rent Controller passed an order holding that there is wilful default and the appellate authority confirmed the same. It is relevant to reproduce the following:
It has to be seen that the learned Judge distinguished the order of the Division Bench in Durgai Ammal vs. R.T. Mani (1939) I Law Weekly 155, only on the ground that in that case, no order under Section 8(5) of the Act had been passed due to refusal by the landlord of the rents sent by the tenant. The learned Judge has not distinguished the finding rendered by the Division Bench while reversing the decision of Ramanujam. J., in G.K. Jose vs. Ramathal (1979) I MLJ 372 in para 12 of their order. Perhaps, para 12 of the Division Bench judgment would not have been drawn to the attention of the learned Judge. In this case, the landlord has admittedly refused to receive the rent from the tenant under Ex.B.6 which compelled the tenants to open the post office savings bank account in their names. Admittedly, the landlord had also refused to receive the money orders sent by the tenant. In fact, a letter was sent from the tenant on 29.9.1983 which has been referred to in Ex.B.6 asking the landlord to name a Bank. However, on 6.10.1983, a reply was sent by the counsel for the landlord that his client was not prepared to receive the rent. Under such circumstances, the tenants, in my opinion had taken the right step in depositing the money in the post office savings bank account which establishes the bonafides of the tenants, As has been observed by Ramaprasada Rao, J., unless an element of indifference, which is wanton and deliberate besides being designed, is provable and proved in the attitude of the tenant, it cannot be said that all defaults made in the payment of rent are to be automatically characterized as wilful defaults. I am therefore, unable to agree with the findings of the Courts below in which a material irregularity is patent that the petitioner- tenants had committed willful default in the payment of rents. I respectfully agree with the view taken by Ramaprasada Rao.J. in Thaiyalinayagi Ammal vs. Ayyanna Chettiar (1976) I MLJ (SN) 15: 1976 TLNJ 72 followed by the views expressed in A. Soundarapandian Nadar vs. Madasamy Mudaliar (1982) 95 LW 107 (Singaravelu, J.) K.Mohideen Sahib vs. Theodre Samuel (1985) 2 MLJ 354 (K.M.Natarajan, J.) Padmavathi Ammal vs. Gopal (1994) 2 MLJ 622 (Pratap Singh, J.) G.Kannaiah Chetty vs. M.Subramaniam (died) and others (1995) I All India High Court Cases 472, (Pratap Singh, J.) and Abdul Majeeth v. Masiammal, 1981 TLNJ 315, (Sengottuvelan, J.). I am also of the view that in the instant case, the tenants have proved their bonafides by producing documentary evidence to the effect that since the rents sent by money orders were refused by the landlord and the landlord himself was not prepared to receive the rents from the tenants under Ex.B.6 dated 6.10.1983, the tenants had to deposit the same in the post office savings bank account.
With respect, I agree with the view taken by Ramaprasada Rao, J., followed by the other learned Judges referred to supra, that Section 8 is only an enabling provision to prove the bonafides of the tenant and absence of wilfulness on the part of the tenant in the matter of payments of the rents. I am also of the view that the non-adoption of the procedure prescribed under Section 8(2) which could be adopted by the tenants in their discretion, does not throw any light upon want of bonafides of the tenant. In the instant case, I am also of the view that the procedure prescribed under Section 8 of the Act is only optional and not mandatory. This apart, the same view was taken by the Division Bench in Durgai Ammal v. R.T. Mani (1989) I L.W. 155 while reversing the decision of Ramanujam, J., in G.K.Jose vs. Ramathal (1979) I M.L.J. 372. As already indicated Ratnam.J. has distinguished the Division Bench judgments in Durgai Ammal vs. R.T. Mani (1989) I L.W. 155 on the ground that Section 8(5) of the Act had been passed due tn refusal of the landlord in that case. In minor Rajakumari represented by her next friend Mr. Ramakrishnan v. V.Natarajan (1994) I L.W. 340, Ratnam, J., himself has observed that it was open to the tenant to have followed the procedure laid down in the Act with reference to the deposit of rent, but instead, the tenant had opened an account and had been depositing the rents in that account so as to make it available to the landlord whenever required. However, the learned Judge said that though it may be that the tenant was not in order in not having resorted to the provisions of the Act with reference to the payment of rents, inasmuch as the evidence of the tenant that he had deposited the amounts in a bank account, has not been repudiated or rejected as unacceptable, there could not be any wilful default as such in the payment of rents in that case as contended by the landlord. In the instant case also, deposit of rents had been made in the post office savings bank account in the name of the tenants by the tenants without resorting to the provisions of the Act. With reference to the payment of rents the tenants had produced before the Court below the evidence regarding the deposits. In fact, the landlord has withdrawn the amount after obtaining orders from the Rent Controller of the deposits made by the tenant. Therefore, it follows that there could not be any wilful default as such in the payment of rents in the instant case as contended by the learned counsel for the landlord. Though a contrary view was taken by Nainar Sundaram, J., in Marudachala Udayar vs. Dhandapani (1980) I M.L.I. 169, by Ratnam, J., in Kalyani vs. G.V.Subramaniam.J. (1990) 1 M.L.J. 29, by Thangamani, J., in N.Damodaran Naicker vs. Janaki Ammal (1995) I M.L.J. 33, Ratnam, J., in Vasavambal vs. Chenniappa Gounder (1980) 1 M.L.J. 207 by Sivasubramanian, J., in Muktha Bai vs. Adinarayana Chetty (1989) I MLJ 502 and in Umrao Bai vs. Dhanalakshmi Ammal (1989) 2 L.W. (S.N.) 7 and by Padmini Jesudurai, J., in Selvaraj alias Subbarama Reddiar vs. K.Mumtaz Begum 100 L.W. 510, with respect I am unable to agree with the views expressed by them since 1 am bound by the decision of the Division Bench in Durgai Ammal vs. R.T. Mani (1989) T L.W. 155.
21. We are of the opinion that merely because the tenant did not follow the procedure of depositing the rent in Court, he cannot be held to be guilty of wilful default in payment of rent. If he can show that he has tendered the rent and it has been refused by the landlord, it is not obligatory to follow the procedure of depositing the rent under Section 8 of the Act. If however, the tenant chooses to adopt the procedure of depositing the rent under Section 8, he should continue to deposit the rents regularly and within the time as and when the rent falls due. If he is irregular in making the deposits, he may be guilty in payment of rent. This Section could be invoked only when there is jural relationship of landlord and tenant between the parties. There is no duty cast on the tenant to follow the procedure laid down in that Section in all cases where the landlord refuses to receive the rent without reasonable cause. The expression used is 'may' and not 'shall'. The tenant cannot be called to be a wilful defaulter so long as he establishes that he tendered the rents and the landlord refused to receive the same without assigning any reason. It is not open to the landlord who refuses to receive the rent without reasonable cause, to insist on the tenant to adopt the procedure under Section 8 of the Act.
22. To sum up, when the landlord refuses to receive the rent for any month, it is open to the tenant to opt for the procedure under Section 8 (2) of the Act which is not mandatory, but only directory, but having opted for the procedure contemplated under Section 8, the tenant has to follow diligently the steps stated under Sub-sections 8(3) to 8(5).
23. We therefore answer the reference that the provisions of Section 8 of the Act are only directory and not mandatory and not following the procedures stated under Section 8(2), 8(3) and 8(5) of the Act will not automatically enure to the benefit of the landlord to substantiate the ground of wilful default. In this view of the matter, we hold that the decision in C.HANUMANTHA RAO V. M.PREM SUDHAKAR RAO does not lay down a correct proposition of law. With respect to the learned Judge, we hold that the said decision is no longer a good law. It is accordingly, overruled in view of the other decisions referred to by us in the aforementioned paragraphs of this judgment. The CRPs. will now be listed before the concerned Honourable Judge hearing CRPs for his decision on merits.