J M REDDY Vs. P B MYTHILI

JUDGEMENT

(1.) THIS revision petition has been directed against the order passed in R.C.A.No.656 of 2005 on the file of the learned Rent Control Appellate Authority/VIII Judge, Court of Small Causes, Chennai. The tenant in R.C.O.P.No.861 of 2004 on the file of XI Judge, Court of Small Causes, Chennai/Rent Controller who had lost his defence before the Courts below is the revision petitioner herein.

(2.) R.C.O.P.No.861 of 2004 was filed by the landlord under Sections 10(2)(i),10(2)(ii)(a), 10(2)(v) and 10(3)(a)(iii) of the Tamil Nadu Buildings(Lease and Rent Control) Act (Hereinafter referred to "the Act"). The learned Rent Controller/XI Judge, Small Causes Court, Chennai, has allowed the petition on two grounds. Aggrieved by the findings of the learned Rent Controller, the tenant has preferred an appeal in R.C.A.NO.656 of 2005 before the learned Rent Control Appellate Authority/VIII Judge, Small Causes Court, Chennai who had confirmed the findings of the learned Rent Controller in respect of an order of eviction under Section 10(2) (i) of the Act alone and allowed the appeal thereby setting aside the findings of the learned Rent Controller under Sections 10(2)(ii)(a), 10(2)(v), 10(3)(a)(iii). Aggrieved by the findings of the learned Rent Control Appellate Authority, the tenant has approached before this Court by way of this revision petition.

(3.) THE learned counsel appearing for the revision petitioner relying on a decision reported in Rajappa-v- Johny D.Couto(2006-2.L.W.916) and also R.Murugan-v- M.O.M.Abubucker (2005(5)CTC 473) and contended that the tenant cannot ask the landlord to adjust the arrears of rent towards the advance amount. THE facts in Rajappa-v- Johny D.Couto(2006-2.L.W.916)are that the tenant if committing wilful default in payment of rent claimed that he had paid Rs.5000/- to the landlord towards advance and hence the arrears of rent to be adjusted towards the advance amount of Rs.5000/- in the hands of the landlord. But there is absolutely no evidence in that case to show that the tenant had paid Rs5000/- towards advance with the landlord. Only under such circumstances, this Court has held that even if there is any advance in the hands of the landlord, the rental arrears due from the tenant cannot be adjusted with the advance amount. THE observation relevant for the purpose of this case in the said ratio runs as follows: