1. Both the lower courts have held that during the pendency of an appeal against an order made by the Rent Controller for eviction as a result of non-payment of rent, the appellate authority has no power to condone the non-payment by acceptance of rent. The proviso added to Section 7, sub-s. (2) of the Madras Buildings (Lease and Rent Control) Act states that when an application for eviction is made on the ground of the tenant's default to pay rent in time, if the Controller is satisfied that the default to pay rent was not wilful, the Controller may give the tenant a reasonable time not exceeding 15 days to pay or tender the rent due by him to the landlord upto the date of such payment or tender. This shows that the Controller has got to explain for the non-payment of rent and thereby condone the temporary default on the part of the tenant. If such condonation is made, then, the application by the landlord will be dismissed.
2. Mr. K. Raman relies upon S. 7(A) introduced by Madras Act, VIII of 1951 for the contention that this power vested in the Controller can be exercised also by the appellate court in an appeal from the order of eviction made by the Controller.
3. Thus, his argument is to the effect that even after an order for eviction has been made by the Controller for non-payment of rent, if the tenant is able to satisfy the appellate court that the non-payment was not due to any wilful neglect on his part, it is open to the appellate Court to condone the default and allow the tenant to pay the rent. For this purpose, he relies upon the decision — ‘Satyanarayana v. Venkatarattamma’, 1951-2-MLJ 477. The facts of this case are somewhat similar to what we have to consider here and the question which was considered by the learned Chief Justice and Somasundaram J. was whether under the circumstances of that case, S. 20 of the Act applied and the learned Judges came to the conclusion that S. 20 applied. If S. 20 applied, it may be said that, during the pendency of the appeal, the order for eviction cannot be deemed to be final. It is common ground that an appeal is a continuation of the proceedings in the court of first instance and I am of opinion that the proviso can be made applicable to the facts of the present case. I therefore set aside the order of the lower Court and direct that the default for non-payment of rent be condoned. There will be no order as to costs.
B/D.R.R
4. Application allowed.