The main legal point established in the judgment is that excess advance is liable to be adjusted in the rent payable by the tenant, and the landlord cannot demand rent for the period covered by the excess advance.

The unsuccessful tenant has filed this revision.

2. The revision is directed against the eviction order by the Rent Controller on the ground of willful default in payment of rent for the months of November and December 2000 and January 2001, as confirmed by the Rent Control Appellate Authority.

3. The respondent filed the Rent Control Petition on the ground of wilful default in payment of rent for the months of November and December 2000 and January 2001, in respect of the petition non-residential premises.

4. The petition was resisted by the tenant that he actually paid the rent for the months of November and December 2000 on 22/1/2001 to the landlord at his shop "Gopal Jewellery, Bharathi Street" in the presence of Prakash, Sakthi Rayappa and one Asban and for the month of January 2001, he paid the rent on 12/2/2001 in the presence of Prakash and Asban. The petitioner did not issue any receipts and assured that the receipt will be issued after the receipt book is printed. Therefore, in the said circumstances, he has not committed wilful default in payment of rent, as claimed by the landlord for the months of November and December 2000 and January 2001.

5. Before the Rent Controller, the landlord examined himself as P.W.1 and one Arumugam as P.W.2 and marked Exs.A.1 to A.3 on the side of the landlord and the tenant examined as R.W.1 and one Prakash was examined as R.W.2 and marked Exs. B.1 to B.7.

6. The learned counsel for the tenant/revision petitioner argued that the tenant actually paid the rent for the months of November and December 2000 on 22/1/2001 and also the rent for the month of January 2001 on 12/2/2001 in the presence of Prakash and Asban and the landlord assured to issue receipt after the receipt book is printed. A lawyer notice was issued under Ex.A.2 dated 13/2/2001, for which the tenant replied under Ex.B.2 on 26/2/2001 and the case of the tenant was not accepted by the Rent Controller. On considering such oral and documetnary evidence, the learned Rent Controller found that the tenant has committed wilful default in paymen tof rent for the months of November and December 2000 and January 2001 and accordingly ordered eviction. The appeal filed by the tenant was dismissed by the learned Rent Control Appellate Authority confirming the eviction order. That judgment is challenged in this Civil Revision Petition by the tenant.

7. The learned counsel further argued that admittedly Rs.4,000/- was paid by way of advance and the rent is being paid Rs.1,000/- p.m. Therefore, since the landlord is entitled to collect only one month rent by way of advance, the excess amount of Rs.3,000/- has to be adjusted towards the rent payable for the months of November and December 2000 and January 2001. In support of the said contention, the learned counsel has relied on the decisions reported in

(1). MODERN HOTEL, GUDUR REP. BY M.N.NARAYANAN Vs.K. RADHAKRISHNAIAH AND OTHERS (AIR 1989 SC - 1510)

(2). MAHALINGAM Vs. PICHAIAMMAL ((2000) II M.L.J - 202)

(3). RAJA MUTHUKONE (D) BY L.Rs. Vs. T.GOPALASAMI AND ANOTHER ((2002) 2 M.L.J. 150 (S.C.).

8. Though the tenant in the reply notice and in the counter has stated that he paid a sum of Rs.20,000/- by way of advance it is not supported by evidence. Further, it is clearly admitted by the landlord in the Rent Control Petition that the tenant paid Rs.4,000/- by way of advance, in which case the landlord is having an excess amount of Rs.3,000/-, in that he is entitled to collect only one month rent as advance and the excess amount of Rs. 3,000/- is to be adjusted towards ernt payable for the months of November and December 2000 and January 2001.

9. In the decision reported in MODERN HOTEL, GUDUR REP. BY M.N.NARAYANAN Vs.K. RADHAKRISHNAIAH AND OTHERS (AIR 1989 SC - 1510), it is held as

"When the landlord had Rs.5,000/- on tenant's account with him as advance amount which he was holding for years without paying interest and against the clear statutory bar there could be no justification