Advance amount paid to landlord by the tenant neither refunded by landlord and nor adjusted towards arrear rent.

The tenant is the revision petitioner. The Rent Controller passed an order of eviction against the tenant on the petition filed by the landlord and that order has been confirmed by the appellate authority. Against that the tenant has filed this civil revision petition.

2. The landlord filed the eviction petition on the ground that the tenant failed to pay rent at the rate of Rs. 150 per mensem from July, 1990 to November, 1990 and this was inspite of a notice issued by the landlord dated 111. 1990 calling upon the tenant to vacate the premises, and therefore there was wilful default in payment of rent.

3. The tenant denied that there was wilful default. He contended that the landlord consented that the tenant could effect repairs to the premises and the amount spent for that could be adjusted towards the rents from July, 1990, and he (tenant) effected repairs to the premises spending a sum of Rs. 1,000. However on receipt of notice from the landlord he sent a demand draft for Rs.750 as rent for five months along with a reply and the landlord has received the same. Hence it is not correct to say that he committed wilful default in payment of rent.

4. The Rent Controller as well as the appellate authority rejected the contention of the tenant that the landlord consented to effecting repairs by the tenant and deduct the amount spent towards rents from July, 1990. They held that the tenant committed wilful default in payment of rent Hence both the courts below concurrently held that the tenant is liable to be evicted.

5. Against this the tenant has preferred this civil revision petition. In the C.R.P., Mr .T.P.Sankaran, learned counsel appearing for the revision petitioner-tenant has raised a question of law against the order of eviction. The learned counsel submits that there is an advance of Rs.3,000 towards rent paid by the tenant to the landlord, and as per Sec.7(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, the landlord shall not receive an advance exceeding one month’s rent, and if he has received an advance of more than that amount he shall refund the same to the tenant, or at the option of the tenant that amount shall be otherwise adjusted, and the landlord having that money with him which is much more than the alleged arrears for five months he cannot plead that there was wilful default in payment of rent and therefore the orders of eviction passed by the courts below are erroneous.

6. It is not disputed that the Landlord is having a sum of Rs.3,000 with him as advance. It is also not disputed that as per Sec.7(2) the landlord may receive one month’s rent only as advance and not more than that. Therefore, a sum of Rs.2,850 of the tenant’s money is lying with the landlord without any right on the landlord for that. At this stage, to appreciate the contention raised by Mr.Sankaran, it would be better to reproduce here Sec.7(2).

“7(2) Where the fair rent of a building has not been so fixed —

.(a) the landlord shall not claim, receive or stipulate for the payment of, any premium or other like sum in addition to the agreed rent: Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one month’s rent, by way of advance;

.(b) save as provided in clause (a), any sum paid in excess of the agreed rent, whether before or after the date of the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after the date of such commencement, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted by the landlord”.

7. This section makes it very clear that any amount paid by the tenant in excess of the agreed rent and one month advance if stipulated by the landlord shall be refunded by the landlord to the tenant. Thus, there is a mandate of law to the landlord to refund that amount even though the tenant has not asked for that. But an option