IMPORTANT POINT
Section 7(2) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, creates a legal obligation in the landlord to refund the excess amount to the tenant creating a corresponding right in the tenant to recover that amount from the landlord.

JUDGMENT

J.S. Verma, J.-Leave granted.

2. Respondent is a tenant of the appellant in a premises at Changalpattu in Tamil Nadu. The appellant filed a petition for eviction of the respondent-tenant on the ground of wilful default in payment of rent for the period July 1990 to November 1990 in spite of a notice dated 16.11.1990. The monthly rent is Rs. 150/-. The respondent denied that there was any wilful default. He contended that certain repairs had been made in the premises by him with the consent of the landlord for which Rs. 1000/- was spent by him; that amount had to be adjusted towards the rent due for the said period; on receipt of the notice from the landlord, he sent a demand draft for Rs. 750/- as the rent for five months, which was received by the landlord; and the amount of Rs. 2,850/- paid as excess advance was also available with the landlord for adjustment towards the rent due.

3. The Rent Controller rejected the respondent-tenant s contention and held that there was wilful default committed by the tenant in the payment of rent for that period. An order of eviction was made against the respondent-tenant. The appellate authority rejected the tenant s appeal. The tenant then preferred a Civil Revision Petition in the High Court which has been allowed by the impugned order dated 9.2.1993 taking the view that on these facts there was no wilful default in payment of the rent by the respondent.

4. It was admitted that a sum, of Rs. 3000/- was paid by the respondent to the appellant as advance even though according to Section 7(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (hereinafter referred to as "the Tamil Nadu Act ) the landlord could receive only one month s rent in advance. Accordingly, the excess amount of Rs. 2850/- paid as advance by the tenant to the landlord was required to be refunded by the landlord. The question, therefore, is whether the said excess amount paid by the tenant to the landlord being available with the landlord, the tenant can be held to have committed wilful default in payment of rent even though he had not expressly asked the landlord to adjust that amount towards the arrears of rent.

5. The High Court, on a construction of Section 7(2) of the Tamil Nadu Act, held that the tenant could not be held to have committed wilful default in payment of rent on these facts. The High Court also took the view that Section 7 of the Tamil Nadu Buildings (Lease and Rent Control) Act is in pari materia with Section 7 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. For this reason, it held that the decision on this point of this Court in Modern Hotel Gudur, Represented by M.N. Narayanan v. Radhakrishnaiah and Others1, is applicable to hold that the tenant has not committed any wilful default in payment of the rent. The other decisions under provisions of the corresponding Act in Bihar were distinguished on the different language of the provisions in the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as "the Bihar Act"). Aggrieved by the decision of the High Court allowing the tenant s Civil Revision Petition, this appeal by special leave has been filed by the landlord.

4. It is clear from the narration of facts that the ground of wilful default in payment of rent by the tenant for the period July 1990 to November 1990 @ Rs. 150/- per month amounting to Rs.750/- was non-existent if the excess amount of Rs. 2850/- available with the landlord in the form of excess advance required adjustment towards the arears of rent. The nature of this excess amount of advance and its availability for adjustment towards the arrears of rent without an express request by the tenant to this effect would determine the decision on this point. The language of the relevant provision in the statute is of significance for this purpose.

7. Section 7 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 reads as under:-

"7. Landlord