Excess amount received by landlord as advance is to be adjusted towards rent payable by tenant.

Tenant in R.C.O.P.No.6 of 1991 on the file of Rent Controller/District Munsif, Palani is the revision petitioner. Landlord claimed eviction on the ground that tenant has committed wilful default in paying rent at the rate of Rs.250 per month from August, 1990 till December, 1990 for a period of five months.

2. It could be seen from the facts narrated in the eviction petition that originally rent was only Rs.150 per month. Building was at that time let out by landladys mother. After mothers death, rent was enhanced to Rs.250. It is also seen that there was some misunderstanding between parties and tenant filed a suit as O.S.No.509 of 1990 on the file of District Munsif Court, Palani for a decree of permanent prohibitory injunction. Due to intervention of third parties, matter was settled and a new agreement was entered on 26. 1990. On the date of agreement, tenant paid an advance of Rs.15,000. Even though the agreement is dated 26. 1990, it has to come into effect only from 8. 1990, it has to come into effect only from 8. 1990. Ex.R-1 is the receipt evidencing payment of advance of Rs.15,000.

3. According to landlady, after new agreement was entered, tenant did not pay any rent at the rate of Rs.250 and non-payment is wilful. She also alleged that the building requires immediate demolition and reconstruction.

4. As against the said allegation tenant contended that he has not committed any default and only because landlady did not issue any receipt, he could not prove payment by documentary evidence. He also contended that the building do not require demolition and reconstruction.

5. The question as to whether the building requires demolition and reconstruction do not survive since that claim has been rejected by authorities below and that order has become final. The only point to be considered is whether tenant is liable to be evicted on the ground that he has committed wilful default.

6. As stated earlier, landlady has received Rs.15,000 as advance is admitted. Ex.R-1 also supports receipt of advance. Apart from the same, P.W-1 has said in the chief examination itself that she has received Rs.15,000 as advance. In further portion also she has said that it was in pursuant to panchayat a sum of Rs.15,000 was received as advance.

7. The allegation in the eviction petition is that tenant has defaulted in paying rent from August, 1990 till December, 1990 at the rate of Rs.250 per month. Advance amount of Rs.15,000 is equivalent to 60 months rent.

8. Rent Controller after taking evidence held that tenant has not paid rent in spite of the fact that litigations are pending between parties. Non-payment of rent is taken as wilful. He did not enter a finding as to the consequence of having received excess advance. Eviction was ordered.

9. Tenant preferred appeal in R.C.A.No.52 of 1996 on the file of appellate authority. Before appellate authority this point was urged. Appellate authority held that when tenant did not pay rent even after issuance of demand notice, tenant can only be deemed as wilful defaulter and mere receipt of excess advance will not enable him to contend that he is not wilful defaulter. Order of eviction was confirmed. It is against the concurrent findings this revision petition was filed by tenant.

10. After hearing learned counsel on both sides, I do not think that the findings of authorities below could be sustained for a moment.

11. In N.Narasimha Rao v. T.M.Nasimuddin Ahmed N.Narasimha Rao v. T.M.Nasimuddin Ahmed N.Narasimha Rao v. T.M.Nasimuddin Ahmed , (1996)3 S.C.C. 45 their Lordships considered the effect of receiving excess advance. After extracting Sec.7 of the Tamil Nadu Buildings (Lease and Rent Control) Act, their Lordships in paragraphs 7 and 8 have held thus:

“….The provisions in Sub-secs.(1) and (2) are similar and provide for cases where fair rent has been fixed or not fixed, as the case may be. Sub-sec.(3) declares any stipulation in contravention of Sub-sec.(1) or Sub-sec.(2) to b