Madras High Court
P.S. Venkatarajan vs T.A. Govindarajan on 9 March, 1990
Equivalent citations: (1990)1MLJ508
ORDER
V. Ratnam J.
1. This Civil Revision Petition, at the instance of the tenant, is directed against the order of eviction passed by the authorities below on an application filed by the respondent-landlord under Sections 10(2)(i) and 10(2)(ii)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as 'the Act'). The premises bearing door No. 136, Cutchery Street, Thirupattur Town, belonging to the respondent herein was let out to the petitioner under a registered tenancy agreement dated 25.7.1978 for a period of five years from 1.8.1978 to 31.7.1985 on a monthly rental of Rs. 100 payable on the 5th of every month. There was also a provision in the rental agreement that major repairs in respect of the premises have to be carried out by the landlord, while minor repairs have to be attended to by the tenant. A sum of Rs. 7,000 was also paid by the petitioner to the respondent as refundable advance without interest on the expiry of the period of tenancy. According to the case of the respondent, the premises in question was let out to the petitioner for the purpose of running a textile shop and that after carrying on business in textiles for some time, the tenant commenced a business in cement and that would constitute a different user of the premises by the petitioner. Besides, the respondent claimed that owing to the carrying on of the business in cement by the petitioner, substantial damage was caused to the building and the petitioner purported to carry out repairs without the permission of the respondent and sought to adjust the rents payable by the petitioner for the period from May, 1984 to March, 1985 and such an adjustment of rents by the petitioner towards the expenses incurred by him for repair, was not valid and binding on the respondent and the petitioner had thus committed wilful default in the payment of rents for the aforesaid period. On the aforesaid grounds the respondent prayed for an order of eviction against the petitioner.
2. In the counter filed by the petitioner, it was contended that owing to the neglect of the respondent in not carrying out the repairs to the premises, despite the issue of a notice by the petitioner, he was obliged to carry out the repairs and towards that, an expenditure of Rs. 1,061-70 had been incurred and deducting that amount from the rents payable for the period from May, 1984 to March, 1985, there was no arrears of rent. The petitioner also disputed that the premises had been used for a purpose other than that for which it was let out.
3. Before the Rent Controller, Tiruppattur, on behalf of the respondent, Exhibits P.1 to P.5 were marked and the respondent gave evidence as P.W.1, while, on behalf of the petitioner, Exhibits R.1 to R.9 was filed and the petitioner was examined as R.W.1. On a consideration of the oral as well as the documentary evidence, the Rent Controller found that the respondent had not established that the premises had been used for a purpose other than that for which it was let out and that under Section 22 of the Act, the petitioner was obliged to seek the permission of the respondent before effecting the repairs and that too for so amount not exceeding a month's rent and not having so done, the petitioner cannot be heard to claim that the rents payable by him for the period between May, 1984 and March, 1985 should be adjusted towards the repairs carried out by him. In accordance with the conclusions so arrived at, the Rent Controller ordered the eviction of the petitioner on the ground that the adjustment of the amount incurred by the petitioner towards repairs from out of the rents payable by him was not in order and that the petitioner had committed wilful default in the payment of rents for the period in question. Aggrieved by this, the petitioner preferred an appeal in R.C.A.No. 62 of 1985 before the Appellate Authority (Sub Court), Tirupattur. On a reconsideration of the entire evidence, the Appellate Authority concurred with the conclusions of the Rent controller and upholding the order of eviction, dismissed the appeal. It is the correctness of this order that is questioned by the tenant in this Civil Revision Petition.
4. Learned Counsel for the petitioner first contended that the view taken by the authorities below that the tenant, without resorting to Section 22 of the Act, could not have proceeded to effect repairs and adjust the amount spent thereon the rents payable, is erroneous, as, in this case, the amount expended by the tenant on repairs far exceeded one-twelfth of rent payable in respent of the buildings for one year. On the other hand, learned Counsel for the respondent submitted relying upon Section 22 of the Act, that the only method by which the tenant can effect repairs to the premises belonging to the landlord is by resorting to that provision and even in a case where that provision is invoked, the adjustment is limited to a month's rent and no amount in excess of that could be the subject-matter of adjustment against the amounts payable by the tenant towards rent. Reliance in this connection was placed upon the decisions reported in Venkataramani v. Aravamuthan and Vasudevan A. v. S. Ramasubramanian (1988) 1 L.W.509.
5. Before proceeding to consider this contention, it would be necessary to refer to the notices exchanged between the petitioner and the respondent. Under Exhibit P.2 dated 14.4.1984, the petitioner had informed the respondent that six rafters and the tiles in the shop had fallen rendering the roof leaky and that though the respondent was so informed earlier, he had not carried out the necessary repairs and that if even thereafter the respondent failed to carry out the repairs, the petitioner would be obliged to carry them out at his expenses and recover the amount from the respondent, besides adjusting the expended amount from out of the rents. To this, under Exhibit P.3 dated 25.4.1984, the respondent had sent a reply to the petitioner to the effect that the damage was caused by the petitioner owing to unauthorised acts in carrying out some alterations to the premises to suit the convenience of the petitioner and that the respondent was not bound to carry out the repairs and also the petitioner was not entitled to either recover the amount or even adjust the same from out of the rents payable by the petitioner. Thereafter, on 10.7.1984, under Exhibit R.1, the petitioner informed the respondent that repairs to the tune of Rs. 1,061-70 had been carried out by him and that amount will be adjusted in the rents for the period from May, 1984 to March, 1985. It is in the context of the above exchange of notices that the applicability of Section 22 of the Act has to be considered. Under Section 22 of the Act before the tenant could carry out the repairs at his expenses, the procedure laid down therein has to be followed by issuing a notice to the landlord to carry out the repairs within a reasonable time and if it is not so done, then the Controller should be moved, who, thereafter, may direct the carrying out of such repairs and permit the deduction of the cost thereof from the rent payable for the building. The preview to Section 22 of the Act imposes a ceiling on the incurring of such expenditure towards repairs to one-twelfth of the rent payable in respect of the building for a year. In this case, no doubt, the petitioner had issued a notice under Exhibit P.2. to the respondent, which was also replied to under Exhibit P.3. and the respondent had clearly repudiated his liability to effect the repairs, as, according to him, such repairs became necessary only on account of the unauthorised acts of the petitioner. In other words, the stand taken by the respondent in Exhibit P.3 has to be construed only as a refusal by the respondent to carry out the repairs. In such a case, the petitioner cannot, without recourse to Section 22 of the Act, proceed to carry out the repairs and mulct the respondent with the expenses of such repairs or even claim an adjustment of such amount towards the rents payable. In Doraipandi Konar v. Sundara Pathar (1970) I M.L.J.62, referring to Ramasubbayya v. District Munisif of Kurnool (1951) 1 II M.L.J. (S.N.53) it was pointed out that Section 22 of the Act is a complete Code by itself in as far as repairs to the tenanted premises are concerned and that if a tenant had resorted to the carrying out of repairs without obtaining the previous permission of the Controller on an application, he cannot sustain a claim for the amounts spent on repairs again the landlord, even to the extent of a month's rent. In Venkataramani v. Aravamuthan , I had occasion to consider the question of adjustment of a sum stated to have been spent on repairs by the tenant and it was laid down that without recourse to Section 22 of the Act. The tenant cannot proceed to carry out the repairs and fasten the liability on the landlord for the expenses of such repairs or even claim an adjustment of such amounts. To similar effect is the decision reported in Vasudevan v. Rama Subramanian (1988) 1 L.W.509 where, after referring to V. Ramamaicakam v. Avilambal Ammal (1980) I M.L.J. S.N.17 and Associated Traders and Engineers Ltd. v. Alamelu Ammal , it was pointed out that in the matter of effecting repairs to the buildings, the Act. provides the procedure as well as restrictions on Section 22 of the Act and it cannot be so interpreted as to nullify its effect. Considering the facts of this case, though the petitioner had issued notice to the respondent calling upon him to effect the repairs and that was repudiated by the respondent in his reply notice, still, the petitioner was not in order in having proceeded to carry out the repairs without obtaining the permission of the Controller in that regard. It follows that the incurring of the expenditure by the petitioner for repairs was not in any manner binding on the respondent and consequently, the purported adjustment of the rents payable by the petitioner to the respondent for the period between May, 1984 and March, 1985 towards the amount spent by the petitioner for repairs was also not in order. It would not make any difference whether the amount spent by the petitioner was limited to a month's rent or was in excess of it. In either event, the tenant cannot be heard to seek an adjustment of the amount spent towards repairs against the rents payable by him, as he did not resort to Section 22 of the Act at all.
6. Realising this, learned Counsel for the petitioner next contended that under the terms of the tenancy agreement, the petitioner had paid an advance of Rs. 7,000 to the respondent and that amount was available in the hands of the respondent towards arrears of rent payable by the petitioner for the period between May, 1984 and March, 1985 and, therefore, the authorities were in error in holding that the petitioner had committed wilful default in the payment of rents for that period. Strong reliance in this connection was also placed upon the decision of the Supreme Court reported in Modern Hotel, Gudur v. V.K. Ramakrishnaiah . On the other hand, learned Counsel for the respondent submitted that this plea was not at all put forward before the authorities below and that in any event, having regard to Section 7(2)(b) of the Act, unless the tenant had exercised his option to seek an adjustment, the landlord was not bound to adjust the advance towards the rents payable by the tenant and, therefore, the Appellate Authority was right in its conclusion that the petitioner had committed wilful default in the payment of rents for the period in question. In this connection, attention was also drawn to several decisions, which will be noticed later in the course of this order.
7. Though learned Counsel for the respondent is right in his submission that this point was not raised by the petitioner before the authorities below, inasmuch on the point now raised does not involve a fresh or further investigation of facts and could be dealt with and disposed of on the terms of the rental agreement under Exhibit P.1, there is no substance in the objection of learned Counsel for the respondent that this point had not been raised earlier and, therefore, ought not to be permitted to be raised at this stage.
8. Under the terms of the tenancy agreement Exhibit P.1 dated 25.7.1978, the petitioner had paid to the respondent an advance of Rs. 7,000 refundable without interest on the expiry of the period of tenancy on 31.7.1985. It is significant that in this tenancy agreement, there is no provision whatever for an adjustment of the advance amount towards the rents payable by the petitioner. Under Section 10(2)(i) of the Act, in order that a tenant may avail himself of the protection against removability on the ground of non-payment of rent, he is obliged to pay or tender the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable. Any failure on the part of the tenant to adhere to this may render him initially a defaulter in the payment of rent and later a wilful defaulter as well. Under the Explanation introduced by Act 23 of 1973, one instance when default shall be construed as wilful is when the tenant commits default in the payment of rent or tender of rent for two months after the issue of a notice by the landlord claiming the rent. It is, therefore, clear from Section 10(2)(i) of the Act as well as the Explanation that irrespective of the amounts that may be held by the landlord in his hand by way of advance, the tenant is under an obligation to pay the rent as, provided under Section 10(2)(i) of the Act or even within a period of two months or contemplated in the Explanation; as otherwise, he may be visited with the consequences of committing wilful default entailing non-availability of protection against the removability. It is in the background of Section 10(2)(i) of the Act and the Explanation referred to earlier that Section 7(2)(a) of the Act, in a case where the fair rent of a building has not been fixed, as in this case, there is a prohibition enacted that the landlord shall not claim, receive or stipulate for the payment of an premium or other like sum in addition to the agreed rent. The proviso to Section 7(2)(a) of the Act permits the receipt by the landlord of a month's rent by way of advance. Though under Section 7(2)(a) of the Act there is prohibition against the claim, receipt or stipulation for the payment of any premium or other sum in addition to the agreed rent, the proviso permits the receipt or a stipulation for the payment by way of advance of an amount not exceeding one month's rent. Section 7(2)(b) of the Act provides for certain remedies to the tenant in a case where any sum in excess of the agreed rent except as provided under Section 7(2)(a) of the Act is paid in consideration of the grant, continuance or renewal for the tenancy of the building. In such a case, two mutually conclusive rights are confirmed on the tenant. One such right is to seek a refund of the amount from the landlord and the other is to ask for an adjustment by the landlord. In other words, refundability of the amount paid in excess of the permissible limit under Section 7(2)(a) read with the proviso would be lost by asking for an adjustment of the amount by the person who paid it and an adjustment of the amount paid in contravention of Section 7(2)(a) of the Act, would not be available, if a refund is asked for by the person by whom it was paid. Section 7(3) of the Act declares that any stipulation in contravention of Sub-section (1) or Sub-section (2) shall be null and void. Section 7(2)(b) of the Act, as noticed earlier, statutorily makes available to the tenant one of two rights, viz., a refund of the amount paid in excess of the permissible limit or the exercise of an option for an adjustment of the amount so paid in excess to the landlord. When statutorily the right to seek a refund or an adjustment on the tenant is conferred under Section 7(2)(b) of the Act, in a case where the amount in excess of the permissible limit is paid, it would appear that the declaration of the void nature of the stipulation contemplated under Section 7(3) of the Act as being in contravention of Sub-section (1) or Sub-section (2) would be preferable to the right to refund or seek an adjustment conferred under Section 7(2)(b) of the Act. In other words, if as a result of any stipulation in a tenancy agreement contrary to even the statutory right of securing a refund or making an adjustment under Section 7(2)(b) of the Act, such right is lost, then, such a stipulation is declared to be void under Section 7(3) of the Act. In this case, under the terms of the tenancy agreement, as noticed earlier, there is no provision for an adjustment of the advance amount towards the arrears or future rents payable by the tenant. Equally, there is also no stipulation running counter to the nights conferred by Section 7(2)(b) of the Act on the tenant to seek a refund or an adjustment as the case may be. Under these circumstances, on the facts of this case, the petitioner could have sought a refund of the advance paid or could have exercised an option for an adjustment by the landlord of the advance towards the rents payable. In this case, the petitioner did not at all ask for the refund of the advance paid; nor did he ask for an adjustment by the exercise of an option as contemplated under Section 7(2)(b) of the Act. It is in this context the question arises whether even without the exercise of an option, there could be no automatic adjustment of the advance in the hands of the landlord towards the rents due by the tenant. It is in this connection that reference may be made to the decisions relied on by learned Counsel for the respondent. In re Naveethammal , the question arose whether an advance of two months, rents in the hands of the landlord could not be adjusted towards arrears of rent under Section 6(e) of Tamil Nadu Act 15 of 1946 so that the tenant could be held not to have committed wilful default to the payment of the rent for that period. Referring to Section 6(c) of Tamil Nadu Act 15 of 1946, the Bench pointed out that to invoke the provisions of Section 6(c), the tenant should exercise the option and call upon the landlord in time to make the adjustment and the mere fact that the landlord had with him an advance rent does not mean that the tenant has not committed wilful default within the meaning of Section 7(2) of that Act. The principle of this decision was applied in Panduranga Rao v. Gopala Rao . Therein, an eviction petition was filed in 1943 on the ground of wilful default in the payment of rent from February, 1948 and a few days prior to the filing of the R.C.O.P., on an application filed by the tenant, fair rent of the building was fixed effective from 11.3.1947 and in the eviction petition it was contended that the excess rent paid already was much more than what was due to the landlord by way of fair rent and accepting this, the Rent Controller as well as the Appellate Authority rejected the application for eviction. However, in revision, Subba Rao, J (as he then was) referred to Section 7(2)(i) of Tamil Nadu Act 25 of 1949 and held that the liability to eviction arises on non-payment of rent within the time prescribed thereunder and that there is no compulsion whatever on the landlord to adjust the excess rents, if the amounts were not paid by the tenant towards the rent of any particular month and when the tenant authorises adjustment towards rents for any particular month or months, the amount shall be deemed to have paid towards rent on that date and that till such an adjustment is made, the excess amount will be in the nature of a payment made in suspense as the amount not paid towards rent for any particular month of months or agreed to be adjusted towards rent within the meaning of Section 7(2)(i) of Tamil Nadu Act 25 of 1949. In Raghunandan Prasad v. Deo Narain Singh A.I.R.1976 Patna 195, a case which arose under Section 8(2) of the Bihar Buildings (Lease and Rent Eviction) Control Act 3 of 1947 (hereinafter referred to the 'the Bihar Act'), the principle of the aforesaid decisions was applied to a case of building in respect of which the fair rent had been determined and it was held that if the option of adjustment under Section 8(2) of the Bihar Act had not been exercised by the tenant, it will be futile for him to urge that merely because some excess to which he is entitled by way of a refund or adjustment, is lying in the hands of the landlord, he will be immunel from payment of the rent and future rent and that a tenant who hazards to traverse such a path will have to thank himself for being a defaulter and the mere fact that the landlord had with him an advance rent does not mean that the tenant has not committed default within the meaning of the Bihar Act. In a case arising under Section 7(2) of the Pondicherry Buildings (Lease and Rent Control) Act, 1959, in Balachandran v. Champalal Jain (1980) 1 M.L.J.116, the then revisional authority took the view that as the landlord had an advance of some amounts with him, the tenant was entitled to an automatic adjustment of the advance against the unpaid rents and that was pointed out by me to be erroneous, as, under the provisions of that Act there is no automatic adjustment of the advance and an option in that regard has to be exercised by the tenant, who must call upon the landlord to make an adjustment and without doing so, no adjustment of the advance towards the rents payable could be either recognised or given effect to. Again, in the Full Bench decision in Gulab Chand Prasad v. Bhuwanti , arising under Section 8 of the Bihar Act, it was laid down that in the absence of any specific provision for automatic adjustment of the excess rent paid against monthly rent itself, no question of such an adjustment against the rent could arise in favour of the defaulter under that Act nor could such a defaulter seek such a relief. Though this decision of the Full Bench was affirmed on appeal by the Supreme Court, in Bhuwanti v. Gulab Chand Prasad , the Supreme Court pointed out that in the view the Court proposed to take, it was unnecessary to consider the question whether the tenants were entitled to adjust the excess rents paid, as the Court felt that the order for eviction passed against the tenants could be sustained on the ground of bona fide requirement for purposes of business. Therefore, the decision in Bhuwanti v. Gulab Chand Prasad does not in any manner assist the respondent. However in Mohammed Salimuddin v. Misri Lal which arose under the provisions of the Bihar Act, the Supreme Court ruled that where, with a view to secure the tenancy, the tenant advanced certain amounts to the landlord in violation of Section 3 of the Bihar Act under an agreement containing a stipulation that the loan amount was to be adjusted against the rent which accrued and the amount so advanced was sufficient to cover the landlord's claim of arrears of rent for the relevant period, it could not be said that the tenant was not entitled to claim adjustment of the loan amount so advanced against the rent which accrued subsequently, simply because the loan advanced was in violation of the prohibition contained in the Rent Act and after the adjustment of the loan amount towards the rent, the tenant was not in arrears and was not liable to be evicted. It is seen from the facts that there was a stipulation in the agreement of tenancy to the effect that the amount advanced was to be adjusted against the rents which accrued and as the landlord and tenant were both parties to the agreement for such adjustment, it was held by the Supreme Court that if the amount was accordingly adjusted under the terms of the agreement of tenancy towards the rent which had accrued due, the tenant was not in arrears. That decision has, therefore, to be rested on the basis of a definite stipulation under the tenancy agreement regarding adjustment and it was, therefore, not open to the landlord to wriggle out of the same and claim that despite the availability of advance, the tenant was still a defaulter in the payment of rents. That decision also cannot have any application on the facts, to the circumstances of his case and the language of Section 7(2)(b) of the Act and the remedies available to a tenant, as noticed earlier. In yet another decision of the Supreme Court reported in Sarwan Kumar Omkar Nath v. Subhas Kumar existing under the provisions of the Bihar Act, the landlord had received two months's rent in advance with an understanding that the amount of advance could be set off against rent whenever necessary or required. In addition, an adjustment was also prayed for, as could be seen from page 2304 of the reports where it had been stated that in the written statement the appellant pleaded that the amount paid as advance could be set off byway of rent and that the High Court was in error in observing that the tenant had not asserted that an adjustment of the advance amount towards rent can be made. It is thus seen that in that case, in the course of the proceedings the tenant had asserted his right to seek an adjustment of the advance and that decision also cannot have any application on the facts of this case. In S.S. Valayutham v. Palanichamy (1988) 1 L.W.249, the principle laid down in the decision in Balachandran v. Champalal Jain was reiterated and it was laid down that under Section 7(2)(b) of the Act, the amount in the hands of the landlord by way of advance could be adjusted only at the option of the tenant and there is no unfettered right in the landlord to make any such adjustment without the exercise of such an option by the tenant. This decision is in conformity with the view consistently taken by this Court. It remains to be considered two other decisions of the Supreme Court, one of which is strongly relied on by learned Counsel for the petitioner. The first of these decisions is Handlal Agarwal v. Ganesh Prasad Sha (1989) 4 S.C.C.215. That case again arose under the provisions of Section 8(2) of the Bihar Act and the application for eviction was based on the ground of non-payment of rent between 1.2.1975 and 30.6.1975 at the rate of Rs. 60 per month. It was found that the tenant had paid for a period of 33 months excess rent at the rate of Rs. 10 per month and the landlord had thus a sum of Rs. 330 in his hands by way of excess payment over and above what could be retained in his hands by way of advance. Considering the question whether the amount so retained by the landlord referable to the excess payment of rents made by the tenant could be adjusted towards arrears of rent as provided under Section 8(2) of the Bihar Act relating to a building in respect of which fair rent has been fixed, the Supreme Court pointed out,, referring to Section 8(2) of the Bihar Act, as follows:
...The sub-section inter alia provides that if any rent has been collected in excess of the fair rent determined for a building, then the tenant is entitled to a refund of the excess amounts paid by him unless he acts for a different course of action viz., the adjustment of the excess payment towards rent, past or future. Though Section 8(2) deals with payment of excess rent for buildings for which the fair rent has been determined or re-determined by the Controller, the same principle, in the absence of a different prescription under the Act, has to govern the buildings for which the rent is payable in accordance with the terms of the contract between the parties. It therefore follows that even if the rent for the building leased out to the appellant had not been determined by the Controller but had been fixed by the parties themselves, the right to seek adjustment for the. excess payments made by the appellant has to be in accordance with the principle set out in Section 8(2). Viewed in that light the logical conclusion will have to be that without the appellant calling upon the respondent to adjust the excess payments towards the arrears of rent, he cannot seek such a right in the suit filed by the respondent by way of defence in the suit for eviction. The High Court has not therefore committed any error in holding that without the appellant exercising his option and calling upon the respondent to adjust the excess payments towards arrears of rent he cannot seek an automatic adjustment of the excess payments made by him and contend that he was not liable to be evicted for non-payment of rent.
It is thus seen that with reference to Section 8(2) of the Bihar Act, the excess of rent paid is either refundable to the person by whom it was paid or, at the option of such person be otherwise adjusted and the Supreme Court pointed out that the tenant must call upon the landlord to adjust the excess payments and without that, the tenant cannot adjust the excess payments or even seek an automatic adjustment of the excess payments and put forward a plea that he was not liable to be evicted for non payment of rent. On the facts of this case and the language of Section 7(2)(b) of the Act, in my view, the aforesaid observations of the Supreme Court would squarely apply and without exercising an option for adjustment, the tenant cannot claim that the advance amount in the hands of the landlord would be more than adequate to cover the arrears of rent, on the basis of which eviction is sought for. It now remains to refer to the decision of the Supreme Court in Modern Hotel, Gudur v. K. Radhakrishaiah relied on by learned Counsel for the petitioners. That case arose under the provisions of Andhra Pradesh Buildings (Lease and Rent Eviction) Control Act, 1960. There also, an advance of Rs. 6,500 was paid by the tenant, out of which, under the terms of the agreement, a sum of Rs. 1.500 was adjusted, leaving a balance of Rs. 5,000 with the landlord. Considering the propriety of the order of eviction passed by the authorities below, the Supreme Court held that the availability sum of Rs. 5,000 in the hands of the landlord, which amount became payable to the tenant immediately, would not enable the landlord to contend by not paying the rent for some months. In so holding, the Supreme Court referred to its two earlier decisions in Mohammed Salimuddin v. Misri Lal and Sarwan Kumar Omkarnath v. Subhas Kumar but there was no reference to the decision in Nandalal Agarwal v. Ganesh Prasad Sha Besides, the question whether the availability in the hands of the landlord of a sum of Rs. 5,000 would by itself tantamount to an automatic adjustment of either the whole or part of it towards arrears of rent due by tenant, does not appear to have been specifically adverted to and considered . On the contrary, the decision of the Supreme Court in Nandlal Agarwal v. Ganesh Prasad Sha is in accordance with Section 7(2) of the Act and also the earlier decisions of this Court, already referred to. Under these circumstances, the decision in Modern Hotel Gudur v. K. Radhakrishnaiah would not, in my view, be of any assistance to the petitioner. Though it may be that the respondent had an advance paid by the petitioner in his hands, in the absence of the exercise of an option by the petitioner seeking an adjustment of that amount towards the rent due for the period between May, 1984 and March, 1985, there cannot be an automatic adjustment of the advance amount towards the rent arrears as to justify the conclusion that the tenant had not committed wilful default in the payment of rent for the period in question. Thus, on a careful consideration of the facts and circumstances of the case as well as several decisions referred to by counsel on both sides, the Appellate Authority was quite right in maintaining the order of eviction passed by the Rent Controller against the petitioner.
9. However, it is seen from paragraph 12 of the counter affidavit filed by respondent in C.M.P. No. 521 of 1990 that he had expressed his willingness to deposit the advance amount of Rs. 7,000 into Court without prejudice to his right to recover amounts from the petitioner for the damage stated to have been caused to the premises by the petitioner. Taking this into account, the respondent is directed to deposit the advance amount of Rs. 7,000 to the credit of R.C.O.P.No. 29 of 1984 within six weeks from today and on such deposit, the order of eviction passed by the authorities below will stand confirmed and become operative and executable as well. If the advance amount is so deposited, it will be open to the Rent Controller to direct payment put of that amount to the petitioner herein, on an application taken out by him in that regard, after notice to the respondent herein subject to the above direction the order of eviction passed by the authorities below is maintained and the Civil Revision Petition is dismissed. There will be, however, no order as to costs.