- (1.)This is a petition to revise the Order of the District Judge, Krishna dated 2nd August, 1960 made in C.R.P. No. 21 of 1959 on his file. The petitioner is a firm represented by one of its partners, while the respondent is the owner of the premises which was taken on rent by the said firm. A petition was filed before the Rent Controller, Vijayawada, under section 7 of the Madras Buildings (Lease and Rent Control) Act, 1949 (hereinafter called the Act) by the landlord respondent for eviction against the firm on the ground of wilful default in payment of rent from 1st August, 1955 and for sub-letting the premises and committing acts of nuisance. The petitioner (tenant) contested the petition claiming that the rent was only Rs.100 as against Rs. 150 claimed by the landlord (respondent); there was no wilful default and that the premises were in the occupation of the firm and the allegation about the nuisance was entirely unfounded. The Rent Controller on evidence found that the rent payable was only Rs. 150 per month and as it was not paid, it was a case of wilful default. He also held that there was sub-letting without the authority of the landlord. Accordingly, he ordered the eviction of the tenant from the schedule premises by 15th March, 1957. Aggrieved by this order, the tenant preferred an appeal to the appellate authority under the Act, i.e., the Principal Subordinate Judge, Vijawayada, which was registered as Mis. A.S. No. 25 of 1957. Sometime later, i.e., on 14th August, 1958 a petition was filed by the landlord stating as the provisions of section 7 (A) of the Act have not been complied with, the appeal was liable to be dismissed. It was also stated that the possession of the schedule premises has been delivered to the landlord, the appeal was therefore not maintainable. The learned Subordinate Judge by his order dated 25th August, 1958 allowed the petition and dismissed the appeal filed by the tenant. The tenant then went in revision to the District Judge under section 12(b) of the Act contending that the appellate Court was not justified in summarily dismissing the appeal or in holding that the delivery of possession amounted to waiver. The learned District Judge not only considered these objections but went into merits of the case and came to the conclusion that the appeal was rightly rejected and the order of the Controller did not call for interference. In that view, he dismissed the revision petition. It is against this order that a revision petition under section 115, Civil Procedure Code, has been filed.
(2.)The learned counsel for the petitioner contends that the District Judge was not justified in going into the merits of the case when they were not urged before him. Secondly, his interpretation of the section 7 (A) of the Act is liable to modification. The main question for consideration is whether the appellate authority-Subordinate Judge was justified in dismissing the appeal for non-compliance with the provisions of section 7 (A)(1). The section contemplates :
"No tenant against whom an application for eviction has been made by landlord under section 7, shall be entitled to contest the application before the Controller under that section or to prefer an appeal under section 12 against any order made by the Controller on the application unless he has paid or pays to the landlord or deposits in the Controller or the appellate authority, as the case may be, all arrears of rent due in respect of the building upto the date of payment and pays and continues to pav or deposit any rent which may subsequently become due in respect of the building until the ermination of the proceedings before the Controller or the appellate authority as the case may be."

(3.)We are concerned here with the appeal under section 12 of the Act. According to the provisions of this section, the tenant against whom an order of eviction has been made shall not be entitled to prefer an appeal unless he pays to the landlord or deposits with the appellate authority all arrears of rent due in respect of the building upto the date of payment or deposit. The question is when there is a dispute in regard to the quantum of rent, as in the instant case, the arrears of rent due referred to in this section, contemplate payment according to the contention of the tenant or the landlord. Admittedly, in the instant case, the payment has been made according to the contention of the tenant, viz., at the rate of Rs. 100 per month, whereas the landlord was claiming Rs. 150 per month as the agreed rent. When this matter was brought to the notice of the appellate authority, it dismissed the appeal for non-compliance with the provisions of this section. The learned counsel for the petitioner contends that arrears of rent in this section should be interpreted to mean payment of arrears according to the claim of the tenant while the learned counsel on the other side has urged that payment according to the order of the Rent Controller is in consonance with the provisions of this section. I am inclined to agree with the contention of the learned counsel for the respondent as in sub-section (3) of the said section, there is a provision as to the amount of rent to be paid in case of any dispute. It lays down :
"When there is any dispute as to the amount of rent to be paid or deposited under sub-section (1) the Controller shall on application made to him either by the tenant or by the landlord, and after making such enquiry as he deems necessary, determine summarily the rent to be so paid or deposited."