While hearing revision petition court cannot entertain additional evidence.

Having failed before both the authorities below under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ‘the Act’) the tenants have preferred this civil revision petition against the concurrent eviction order passed against them on the ground of wilful default in payment of arrears of rent for a period of six months from 11. 1984 to 30.4.1985, in a sum of Rs.4,200 in all, that is at the rate of Rs.700 per month.

2. The only argument made by learned counsel for the petitioners is that the petitioners have given rental advance of Rs.7,000 to the respondent-landlady and if that is taken into account, there is no default at all. The receipt issued by the respondent- landlady for the abovesaid sum of Rs.7,000 is said to be with the Income Tax Recovery Office, Coimbatore-18 and in this connection, the petitioners have also filed in this C.R.P. C.M.P. No. 15892 of 1996 to summon the advance receipt from the said tax recovery office, so that they could prove the said advance. Further, in this regard the said learned counsel relied on K.Narasimha Rao v. T.M. Nasimuddin Ahmed, (1996)2 L.W. 169, which has held that where the landlord has tenant’s money in excess of one month’s rent, as advance, there is a legal obligation of the landlord to immediately refund the excess amount to the tenant and there is an enforceable right in the tenant to recover the said excess amount from the landlord or to have it adjusted for his benefit in case the landlord fails to discharge his obligation of refunding that amount. Therefore, the Supreme Court in that decision negatived the plea of wilful default under the Act. Learned counsel for the petitioners also relied on Babu Syed v. Zubaida Bee, (1991)1 M.L.J. 412, in support of his contention that additional evidence could be permitted to be let in even in a revision under Sec.25 of the Act. No doubt in that decision after pointing out the decisions in Krishnamurthi v. Jagat Textiles, (1981)1 M.L.J. 384 and Arya Vaisya Samajam v. Murugesa Mudaliar, 1990 T.L.N.J. 82 (D.B.), it has been held that the provisions of C.P.C. are applicable to the revision petition filed before this Court under Sec.25 of the Act and that a petition filed under O.41, Rule 27, C.P.C, to receive documents as additional evidence in the revision petition filed under Sec.25 of the Act is maintainable.

3. But, the abovesaid argument of learned counsel for the petitioner had no merit. First of all, it must be pointed out that even according to learned counsel for the petitioners, there is not even a plea in this case that the tenants have given the landlady an advance of Rs.7,000 or any other sum and that landlady is retaining the same. When there is no plea on this crucial aspect, no amount of evidence, even if evidence is there in that regard can be looked into. (Vide: Narubai v. Shama Rao, A.I.R. 1956 S.C. 593: 1956 S.C.J. 655: 1956 S.C.C. 321:1956 S.C.R. 451 and Alangaram v. Ganesan, (1994) 1 M.L.J. 298 at 300 a decision under the Act. Even if there is no such specific plea, at least if it could be said that the said aspect was in contemplation of parties, evidence could be allowed to be let in on that aspect. But, it is clear from the orders of the authorities below that this aspect was not at all in the contemplation of the parties. In fact, none of the evidence recorded in this case shows that there was any such advance given by the petitioners to the respondent or any such advance had been retained by the respondent. There-fore the abovesaid alleged advance receipt which is said to be with the income-tax recovery office, cannot be permitted to be received at all, in this revision petition.

4. Regarding reception of any such additional evidence, Rule 16 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 only provide for the appellate authority taking such additional evidence, when the appeal before it is pending under Sec.23 of the Act. While thus the said Rules pro