S. DASARADHA RAMA REDDI, J.

( 1 ) THE petitioner who is the tenant has filed this revision petition against the reversing judgment of the appellate Court. The eviction petition was filed on 13-7-1989 on the grounds of material alteration in the building and wilful default in payment of rents for the period from November, 1988 to March, 1989 at the rate of Rs. 190/- per month. The trial Court has rejected the plea regarding the material alteration in the building. Regarding the default, the learned Rent Controller held that since an advance amount of Rs. 1,000/- is lying with the landlord which represents rent for more than five months, the tenant cannot be said to be a wilful defaulter. Against the dismissal of the eviction petition, the landlord carried the matter in appeal. The finding regarding the material alteration of the building arrived at by the learned Rent controller was upheld by the appellate authority. However, regarding the default, the learned Subordinate Judge held that under Scc. 7 (2) of the A. P. Buildings (Lease, Rent and Eviction) Control Act, (for short the Act) the landlord is entitled to keep one month s rent as advance and hence deducting rs. 190/-, Rs. 810/- can be said to be lying in advance in excess and as this is less than Rs. 950/-, the tenant is a defaulter in respect of rent of March, 1989. Accordingly, the appellate Court allowed the appeal and ordered the eviction petition. Aggrieved by this, the tenant has come in this revision.

( 2 ) SRI S. V. Munircddy, learned Counsel for the petitioner contended that admittedly, an amount of Rs. 1,000/- is lying with the landlord as advance which is contrary to Sec. 7 (2) (a) of the Act. The tenant is entitled to appropriate the entire amount towards rental arrears. He relied on Sarwan Kumar Onkar nath vs. Shri Subhas Kumar and Modern Hotel vs. K. Radhakrishnaiah in support of his proposition that the cntireadvance lying, if it is more than the permissible amount, can be adjusted towards rent by the tenant. On the other hand, smt. M. Bhaskara Lakshmi, learned Counsel for the landlord has relied on the decision of this Court in Adapa Santaram vs. Sait Nathmal Chand. She contended that it was never the case of the tenant that she did not pay the rents for the five months in view of the excess advance deposit lying with the landlord. On the other hand, the specific plea of the tenant was that he paid rs. 950/- on 4-12-1988 under Ex. B-1 which plea was rejected by both the Courts below. She further submitted that it was only during the course of arguments that the tenant has raised the plea taking aid of the decision in Modern Hotel case.

( 3 ) THE short point for consideration is whether in a case where more than one month s rent advance is lying with the landlord contrary to Scc. 7 (2) (a) of the Act the tenant is entitled to appropriate the entire advance towards rental arrears or only the excess amount over one month s rent?

( 4 ) THERE is no dispute about the proposition that if more than one month s rent is lying in deposit with the landlord contrary to Scc. 7 (2) (a) of the Act, the tenant is entitled to adjust the excess amount against the rental arrears. This has been authoritatively held by the Supreme Court in Modem Hotel case. There, one of the clauses in the written lease deed provided:"out of the advance Rs. 6,500/-, the second party shall deduct every month Rs. 75/- from the stipulated rent upto Rs. 1,500/- and the balance of Rs. 5,000/- shall be paid back to the second party by the first party under valid receipt after expiry of the lease period. "the rent was Rs. 200/- per month which was enhanced from Rs. 150/- per month in the second span of 15 years lease. The landlord held higher amount as advance than the amount due as on the date of filing the eviction petition. The exact rental arrears are however, not available from the judgment. The question whether the entire amount or the only excess amount over one month s rent has to be adjusted

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