This revision petition has been directed against the Judgment in RCA.No.1103 of 2003 on the file of the VII Judge, Court of Small Causes, Chennai, which had arisen out of an order passed in RCOP.No.945 of 2001 on the file of the XIV Judge, Court of Small Causes, Chennai. RCOP.No.945 of 2001 was filed by the landlord under Sections 10(2)(1) and 10(3)(a)(iii) of the Tamil Nadu Building (Lease and Rent Control) Act (hereinafter referred to as 'Act').
2.The brief facts stated in the rent control original petition relevant for the purpose of deciding this Civil Revision Petition runs as follows:-
2(a)The petitioner is the landlord of the premises bearing New Door No.32, (Old Door No.25), Royapettah High Road, Royapettah, Chennai in which the respondent is a tenant of a shop measuring an area of 655 sq.ft. In the name and style of M/s.Gopinath Furnitures and Home Appliances for a monthly rent of Rs.6,000/- inclusive of charges for amenities and exclusive of electricity consumption of charges and the tenancy is according to the English Calendar month and the rent is payable on or before 10th of every succeeding month. The agreement of tenancy was periodically renewed at every 11th month, the last of such renewal was on 1st April 2000 for a period of 11 months which expired on 1st march 2001.
2(b)The petitioner's daughter A.Malika Jain has completed her M.sc. (Bio-chemistry) and is desirous of starting a clinical laboratory in the above said premises. The shop portion adjacent to the respondent's shop measuring an extent of 256 sq.ft is occupied by the petitioner and the one next to that measuring an extent of 100 sq.ft is occupied by another tenant M/s.Justin Foam House. There is an intervening staircase between the petitioner's shop and M/s.Justin Foam House. Hence, the petitioner cannot make use of this portion. A space not less than 600 to 800 sq.ft would be required to set up a clinical laboratory. Hence, he has no other alternative except to combine his shop portion along with the shop portion rented out to the respondent and for this purpose it is necessary for the respondent to vacate and hand over the vacant possession of the shop in his occupation. Starting of the clinical laboratory in the petition scheduled premises would be immensely helpful to the people of the locality and more so as the petitioner's daughter proposes to carry on some research also in the field of Bio-Chemistry and she is further desirous of rendering free service to the deserving poor. The respondent is a chronic defaulter in payment of the monthly rent. The respondent has committed willful default in payment of rent from the month of August 2000 to May 2001. The petitioner has issued notice to the respondent on 16.4.2001 demanding the respondent to vacate and handover vacant possession since he has committed willful default in payment of the rent. Inspite of the said notice, the respondent/tenant is continuing in making default in payment of rent. No receipts were issued for the rent paid by the tenant for the months from August 2000 to May 2001 because the tenant has not paid the rent for six months. The respondent is having three shops buildings in Gowdiya Mutt Road, Royapettah apart from the properties in Madipakkam, Balaji Nagar etc., The respondent is having alternative accommodation to run is business, whereas the petitioner has no other alternative except to vacate the premises in the occupation of the respondent in order to set up the clinical laboratory for his daughter. The respondent has committed willful default in payment of rent for the months from August 2000 to May 2001. The petitioner requires the petition scheduled building for bonafide requirement. The respondent has filed O.S.No.2189 of 2001 before the XIV Assistant Judge, City Civil Court, Chennai, falsely alleging that the petitioner is trying to forcibly evict the respondent from the premises and has obtained an exparte order of ad-interim injunction against the petitioner. The respondent has committed wilful default in payment of rent for the period for 10 months amounting to Rs.60,000/-. Hence, the petition for eviction on the grounds of wilful default and also for owner's occupation.
3.The first respondent has filed a counter contending that the petitioner requires the premises for his daughter for running a bio-clinical laboratory in a non-residential building. The petitioner is in occupation of the adjacent non-residential portion. In the said portion the petitioner is running sweet stall and textile business under the name and style of 'Shakthi Sweets" and "Zain Textiles". The petitioner is in occupation of the entire first floor of the same building for non-residential purpose. Since the petitioner himself is in occupation of a portion of the building, there is no scope for eviction on the ground of owner's occupation. The respondent had deposited a sum of Rs.3 lakhs with the petitioner towards advance and the same has been acknowledged by the petitioner himself in other litigation pending between the petitioner and the respondent. This respondent is unaware of the qualifications of the petitioner's daughter. But according to the information received by the respondent, the petitioner's daughter is still pursuing her studies. As admitted by the petitioner his daughter has no experience in running clinical laboratory. There is no need to acquire 600 to 800 sq.ft property to run a clinical laboratory. Since the petitioner has begun to threaten the respondent with rowdy elements, he was forced to file O.S.No.2185 of 2001 before the XV Assistant Judge, City Civil Court, Chennai, seeking permanent injunction. The petitioner has also willfully cut of the electricity supply to the petition scheduled premises, which necessitated the respondent to file RCOP.No.1406 of 2001 for restoration of amenities. The petitioner had refused to receive the rent sent by the respondent and then cut of the electricity supply to the petition scheduled premises. This respondent has never committed any willful default in payment of rent. Hence, the petition is liable to be dismissed.
4.Before the learned Rent Controller P.W.1 & P.W.2 were examined and Ex.P.1 to Ex.P.8 were marked. On the side of the Respondent R.W.1 was examined and Ex.R.1 to Ex.R.6 were marked. The learned Rent Controller after scaning the evidence has come to a conclusion that the petitioner is not entitled to any relief under the petitioner and dismissed the same. Aggrieved by the findings of the learned Rent Controller, the landlord preferred RCA.No.1103 of 2003 before the Rent Control Appellate Authority, who after taking into consideration the submissions made by the learned counsel on both sides and after meticulousely going through the evidence let in before the learned Rent Controller, has allowed the appeal in part, thereby confirming the findings of the learned Rent Controller on the ground of own use and occupation, but had allowed the appeal in respect of the findings on the ground of willful default after setting aside the same, which necessitated the tenant to approach this Court by way of this Revision.
5.Heard the learned Senior Counsel Mr.B.Kumar for the respondent herein and the learned counsel Mr.P.B.Balaji for the revision petitioner and considered their respective submissions.
6.At the fag end of the argument, the learned Senior Counsel Mr.B.Kumar in respect of the concurrent finding of the Courts below regarding the dismissal on the ground of eviction under section 10(3)(a)(iii) of the Act, relying on 1981 (vol 1) Madras Law Journal 516 (K.Venkataramani Vs. S.Aravamuthan and others) would contend that even though the landlord has not preferred any Revision against the finding of the learned Rent Control Appellate Authority in RCA.No.1103 of 2003 in respect of the concurrent finding regarding Section 10(3)(a)(iii) of the Act / owners occupation, he may also be permitted to argue on the point that whether the petition scheduled premises is required for the landlord / Appellant in RCA.No.1103 of 2003 on the ground of owner's occupation. The relevant observation in the above said dictum relied on by the learned Senior Counsel in support of his above said contention runs as follows:-
"It is now necessary to notice the contention of Mr.S.Govind Swaminathan, the learned counsel for the respondents that the Appellate Authority was in error in holding that the respondents have not made out their bonafide requirement of the premises in the occupation of the petitioner for their own use. On this aspect, the contention of the learned counsel for the petitioner is that the two grounds on which the respondents rested their application under Section 10(3)(a)(i) of the Act have not been made out and, therefore, the refusal by the Appellate Authority to grant an order for eviction is correct. A further point was also raised that it may not be open to the respondents who have succeeded in securing an order for eviction on one ground to challenge the correctness of the conclusion of the Appellate Authority on another ground on which such an order was refused. No doubt, the respondents are persons who have been affected by the finding of the Appellate Authority on the question of bonafide requirement, though the ultimate decision is in their favour. Having secured an order in their favour, it is not open to the respondents to prefer an appeal against the decision of the Appellate Authority on this point alone, as the ultimate order is in their favour. A landlord, who urges before the authorities below several grounds to secure an order for eviction against the tenant and succeeds in establishing one of such grounds and fails in the other and secures ultimately an order in his favour, is nevertheless a person aggrieved with reference to those findings against him, if the ultimate decision of the authorities below is challenged by the opposite party. In addition, the functionaries under the Act are authorities with jurisdiction to enquire into applications for eviction, fixation of fair rent, etc., and though the entire gamut of the procedure applicable to civil courts below be applied to those authorities, yet, rules of justice, equity and good conscience should be invoked to relieve difficulties and assist situations like the present. In the instant case, the respondents were not able to persuade the Appellate Authority on the question of bonafide requirement which they urged successfully before the Rent Controller. The respondents, by the order of the Rent Controller, secured an order for eviction on two grounds and by the order of the Appellate Authority, one of those grounds was taken away, though the ultimate order was in their favour. It may even be stated that the respondents have been relieved of the right to an order of eviction on the ground of bonafide requirement by the Appellate Authority. The respondents, would, therefore, be persons aggrieved in so far as the finding on this aspect went against them before the Appellate Authority. Under those circumstances, is it not open to the respondents to sustain the order of eviction on the other ground as well? I am of the view that they can."
7.So before going into the relevant issue involved in this Revision as to whether the tenant is entitled to the benefit conferred under Section 7(a) of the Act, let us consider whether the petition premises is required by the landlord under Section 10(3)(a)(iii) of the Act [wrongly mentioned in the petition as Section 10(3)(a)(ii)].
8.The case of the landlord is that he is in occupation of 250 sq.ft of area in the ground floor and he requires more area i.e., the petition scheduled property measuring 650 sq.ft to enable his daughter, who is a M.Sc Bio-chemistry graduate to run a clinical laboratory. It is in evidence that the petitioner's daughter was pursuing her higher studies of Doctorate and now before this Court it is admitted that she has become a Doctorate. Both the Courts below have concurrently held that the landlord / petitioner has failed to prove that the petition scheduled property is required for running a clinical laboratory by his daughter. It is admitted by P.W.1 before the learned Rent Controller that on the date of filing of the petition, petitioner's daughter was running a STD booth in the ground floor itself. If the requirement of the landlord is bonafide and genuine one then atleast his daughter would have taken steps to establish a clinical laboratory by acquiring the instruments required for starting a clinical laboratory. If the intention of the petitioner's daughter is to start a clinical laboratory, then there is no need for her to pursue higher studies in order to obtain Doctorate decree and after obtaining Doctorate decree the avenue for her is wide open to become a lecturer or professor or principal of a women's college.
9.The judgments relied on by the learned senior counsel in 1997(2) LW 607 (Thirunavukkarasu Vs. Vasantha Ammal) and 2008(2) CTC 400 (S.Gopal and another Vs. T.V.Paramasivam) have no bearing to the present facts of the case. It is well settled proposition of law that in a concurrent finding of the Courts below, unless it is shown that the findings of the Courts below are perverse in nature and the Courts below have omitted to consider the materials placed before them, this Court while exercising revisional power cannot interfere with the findings of the Court below. There is absolutely no material placed before this Court to interfere with the findings of the learned Rent Control Appellate Authority in RCA.No.1103 of 2003 as far as the findings in respect of "bonefide requirement of the petition scheduled premises by the landlord."
10.Coming to the relevant issue in this Revision ie., whether the tenant / revision petitioner can take shelter under Section 7 of the Act to ask the landlord to adjust the arrears of rent towards the advance amount paid by him at the time of inception of the tenancy. According to the landlord, the tenant had committed default in payment of rent from the month of August 2000 to May 2001 and thereby committed willful default in payment of rent.
11.The learned counsel for the revision petitioner relying on 1996(2) CTC 78 (K.Narasimharao Vs. T.M.Nasimuddin Ahmed) would contend that according to the landlord, the tenant had committed default in payment of rent for 10 months ie, from August 2000 to May 2001, which comes to Rs.60,000/- (admitted rent for the petition scheduled building Rs.6,000/- X 10). But the admitted security deposit paid by the tenant to the landlord comes to Rs.3 lakhs and as per Section 7 of the Act, the landlord is entitled to retain one month rent towards advance only and the excess advance amount available with the landlord comes to RS.2,94,000/- ie., rent for about 49 months and that he is entitled to adjust the said sum of Rs.2,94,000/-, the excess advance for the rent arrears period from August 2000 to May 2001 and also for subsequent period i.e, from June 2001 to April 2004 ie., for 45 months. Even if 45 months rent at the rate of Rs.6,000/- comes to Rs.2,70,000/-. Since the landlord is having Rs.2,94,000/- over and above towards excess advance amount in his hand, after deducting one months rent to which the landlord is eligible to have it as advance, even then the tenant will not be construed as a defaulter much less willful defaulter. In support of this contention reliance was placed by the learned counsel for the revision petitioner, in the above said dictum at para 2 at page 81 which runs as follows:-
"It is clear that this excess amount available with the landlord is only for the benefit of the tenant, the liability to refund the amount to the tenant being immediate unless the tenant exercises the option to get it adjusted otherwise. The character of the excess amount undoubtedly is that it is the tenant's money in the hands of the landlord for return to the tenant or for adjustment towards the dues of the tenant, at the tenant's option. Any other stipulation in contravention to it has no legal effect being null and void.
The provision clearly enacts the course to be adopted in the case of any excess amount being paid by the tenant to the landlord, taking into account the factor that the tenant in certain circumstances may be compelled to make payment as advance or an amount in excess of that required to be paid to the landlord according to law. For that situation the provision imposes the legal obligation on the landlord to immediately refund the excess amount to the tenant unless the tenant exercises the option of requiring the landlord to adjust that amount towards any dues of the tenant or in any other manner indicated by the tenant. This provision has the effect of creating a corresponding enforceable right in the tenant to recover the 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. The provision of adjustment of the excess amount at the option of the tenant clearly visualises its adjustment towards the rent due from the tenant since the jural relationship envisages payment only of rent by the tenant to the landlord towards which it can be adjusted."
12.Per contra, the learned Senior Counsel for the respondent relying on 1988(1)LW 86 (Krishnaraj Vs. M.Karunakaran) would contend that in the absence of any request made by the tenant to the landlord to adjust the rent with the advance, it is not open to the tenant to contend that the arrears of rent is to be adjusted with the advance amount at the hands of the landlord. In the said case RCOP was filed under Section 10(2)(i) and under Section 17(4) and 18 of the Act. The said RCOP was filed by the landlord against the tenant on the ground of willful default in payment of rent, wherein the tenant resisted the application on the ground that the landlord had filed another eviction petition in RCOP.No.6074 of 1981 under Section 10(3)(a)(i) of the Act and an appeal was pending against the order passed by the learned Rent Controller. Therefore, he was under the bonafide impression that the rent payable by him would be adjusted from out of the advance paid by him to the landlord. The tenant has also filed RCOP.No.3078 of 1983 for restoration of amenities. The tenant in that case has committed default in payment of rent from December-1982 to February 1983. It was contended on behalf of the tenant that he was under the bonafide impression that the arrears of rent would be adjusted towards advance paid by him. Only in that context it was observed by the learned Judge of this Court as follows:-
"It is a well established principle that the rents can be adjusted out of advance only at the option exercised by the tenant and the landlord is not entitled to adjust the rent suo motu. In this case, there is no evidence to show that the tenant had ever requested the landlord to adjust the rent out of the advance. There is no other satisfactory explanation by the tenant as to why he had not paid the rents to the landlord for the said period. The present stand taken by him clearly shows that the default is willful. Both the authorities below have concurrently held that the tenant has committed willful default."
13.For the same point the learned senior counsel for the respondent would also rely on a dictum in 1988(1)(LW 249 (V.S.S.Velayutham Vs. K.Palanichamy). The landlord / respondent in the said CRP filed RCOP.No.14 of 1983 for the eviction of the tenant on the ground of willful default in payment of rent for months till the end of January 1983. The tenant resisted the said application contending that he was a tenant from 1970 onwards and at the time of insertion of tenancy he had paid Rs.5,000/- towards advance. It was further contended on behalf of the tenant that the tenant had paid the rent excess in actual rent payable by him and that since the landlord had demanded Rs.200/- pm towards enhanced rent and Rs.5,000/- further advance, he had refused to pay the same. While dismissing the contention of the tenant the learned Judge of this Court held as follows:-
"Moreover, Section 7(2)(d) of the Tamil Nadu Building (Lease and Rent Control) Act, which contains the provisions, stating that a landlord can adjust the rents out of the advance, only at the option of the tenant. The landlord has no unfettered right to make any such adjustment without the option being exercised by the tenant"
Relying on the above said ratio, the learned Senior Counsel would contend that at any point of time, the tenant can ask the landlord to adjust the arrears of rent with the advance amount of Rs.3 lakhs and hence, it is not open for the revision petitioner to take shelter under Section 7 of the Act to contend that if the excess advance amount is adjusted towards the arears of rent then there is no arrears of rent and the default cannot be construed as a willful default.
14.At this juncture it is pertinent to note, the previous litigation filed by the tenant as well as the landlord under the rent control Act. The tenant had filed RCOP.1849 of 2004 under Section 8(5) of the Act seeking the indulgence of the Court to permit him to deposit the rent due for the period from May 2004 to July 2004. The records in RCA.No.1372 of 2005 in RCOP.No.1849 of 2004 were called for from the Courts below. Even in the petition filed under Section 8(5) of the Act in RCOP.No.1849 of 2004 by the tenant / revision petitioner herein as the petitioner, at paragraph 5 of the RCOP.No.1849 of 2004 it has been specifically been pleaded by him in the following lines:-
"Petitioners have also stated that the respondent has not issued receipts for the payment made by them in respect of the monthly rent from August 2000 to January 2001. However, since the payment was denied by the respondent it has become a necessity to adjust the monthly rent payable to the respondent towards advance amount which is available with the respondent.
Even at paragraph 6, the petitioner / revision petitioner herein / Tenant had pleaded that :
"he had sent a notice on 20.06.2004 informing the respondent about the adjustment of the monthly rents from and up to date of the advance amount available with the respondent right from August 2000 onwards. Along with the said notice, the petitioners had enclosed a Pay Order dated 15.06.2004 for a sum of Rs.6,000/- being the rent for the month of May 2004."
The said RCOP.No.1849 of 2004 was allowed by the learned Rent Controller. But the appeal in RCA.No.1372 of 2005 preferred against the order in RCOP.No.1849 of 2004 was allowed restraining the tenant from depositing the arrears into Court under Section 8(5) of the Act.
15.Another RCOP.No.933 of 2005 filed by the tenant under Section 8(5) of the Act was also dismissed, against which no RCA was preferred. But the fact remains that even on the date of filing of RCOP.No.1849 of 2004, RCOP.No.945 of 2001 was pending against which RCA.No.1103 of 2004 was preferred. Even on the date of disposal of RCOP.No.1849 of 2004 on 23.08.2005, RCA.No.1103 of 2003 preferred against the order in RCOP.No.945 of 2001 was pending. Even in RCOP.No.945 of 2001 the tenant in his counter at paragraph 4 has raised a contention that he has deposited a sum of Rs.3 lakhs with the landlord towards advance and at paragraph 7 to the counter the tenant has specifically pleaded that the availability of the sum of Rs.3 lakhs as advance to be adjusted towards arrears of rent. Under such circumstance, the contention of the landlord that the tenant has specifically not pleaded for adjustment of the arrears of rent with the advance amount, he is not entitled to take shelter under Section 7 of the Act, holds no water.
16.In the ratio relied on by the learned counsel for the revision petitioner in 1990(1) LW 560 (Modern Hotel, Gudur rep by M.N.Narayanan Vs. K.Radha Krishnaiah and others), which arose out of section 7 of the Andra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, which is para-materia to Section 7 of the Tamil Nadu Building (Lease and Rent Control) Act. The point that arose for consideration before the Honourable Apex Court was whether the tenant is entitled to adjustment as per the rent deed out of an advance of Rs.6,500/- and the second party shall deduct every month Rs.75/- from the stipulated rent upto Rs.1,500/- and the balance of Rs.5,000/- shall be paid back to the second party by the first party under valid receipt after the expiry of the lease period. The eviction petition was filed for wilful default in payment of rent and it was contended on behalf of the tenant that the tenant has not committed willful default since Rs.5,000/- is with the hands of the landlord towards advance. Negativing the contention of the learned counsel for the tenant it was held by the Honourable Apex Court as follows:-
"Mr.Rao building upon the ratio of these two decisions rightly contended before as that when the landlord had Rs.5,000/- on tenant's account with him which he was holding for years without paying interest and against the clear statutory bar, there could be no justification for granting a decree of eviction on the plea of arrears of rent. In view of the fact that the stipulation that be amount would be refundable at the end of the tenancy is null and void under Section 7(3) of the Act, the amount became payable to the tenant immediately and the landlord with Rs.5,000/- of the tenant with him could not contend that the tenant was in default for a smaller amount by not paying the rent for some months."
The facts of the said case has no bearing to the present facts of the case.
17.The learned counsel for the revision petitioner relied on 2004(3) LW 481 (Michael Mary Vs. Ramesh), wherein the observation made in 1990(1) LW 560 (Modern Hotel, Gudur rep by M.N.Narayanan Vs. K.Radha Krishnaiah and others) has been reiterated.
18.Relying on 2003(6) SCC 595 (Roop Kumar Vs. Mohan Thedani), the learned senior counsel for the respondent would contend that when documentary evidence is available, the Court cannot give much importance to the oral evidence under
Section 91 &
92 of the Evidence Act. There cannot be two opinion with regard to the proposition of law laiddown by the Honourable Apex Court in 2003(6) SCC 595 (Roop Kumar Vs. Mohan Thedani), but the question herein is whether the advance amount of Rs.3 lakhs is to be adjusted towards the arrears of rent, in case if it does exist more than a months rent.
19.The learned senior counsel relied on 2005(5) CTC 473 (R.Murugan Vs. M.O.M.Abubucker) and also a case decided by this Court in 2008(2) CTC 375 (K.Selvaraj Vs. J.Narayanan and another) (My Judgment) and contended that the tenant is not entitled to ask the landlord to adjust the arrears of rent for the advance until the tenant vacates the premises. But in a later order in CRP.NPD.Nos.110, 111 & 185 of 2009 (unreported judgement of this Court) dated 30.01.2009 I have clarified the position and held that under
Section 7(2) of the Act the tenant can take shelter and ask the landlord to adjust the arrears of rent, if the advance amount in the hands of the landlord is over and above one month rent.
20.Yet another limb of argument advanced by the learned senior counsel for the respondent is that in view of the findings in RCA.No.1372 of 2005 of the Rent Control Appellate Authority, the present Revision is barred by resjudicata. In support of this contention the learned senior counsel would rely on AIR 1966 SC 1332 (Sheodan Singh Vs. Daryao Kunwar), wherein it has been held by the Honourable Apex Court that when two suits having common issues are decided by trial Court on merits and there arose two appeals from the common judgment of the trial Court and out of them one was dismissed on the ground of limitation or default, it was held that the other appeal is barred by resjudicata. Relying on the above said dictum the learned senior counsel for the respondent would contend that since the tenant has not preferred any appeal against the order in RCOP.No.933 of 2001 and RCA.No.1372 of 2005, the present Revision preferred against the order in RCA.1103 of 2003 is barred by resjudicata. But the fact remains that RCA.No.1372 of 2005 had arisen out of an order in RCOP.No.1849 of 2004, an application filed under
Section 8(5) of the Act by the tenant seeking the indulgence of the Court to permit him to deposit the arreas of rent. But RCOP.No.945 of 2001 was filed by the landlord under Section 10(2)(1) and
10(3)(a)(iii) of the Act against which RCA.No.1103 of 2003 was preferred. The tenant both in RCOP.NO.1849 of 2004 as well as in the counter filed in RCOP.No.945 of 2001 has clearly stated that he is entitled to adjust the arrears of rent towards excess advance amount at the hands of the landlord. So finding in RCA.No.1372 of 2005 as to the effect that the tenant is not entitled to deposit the arrears of rent into Court and the findings in RCA.No.1103 of 2003 that the tenant is not entitled to adjust the rent towards advance amount in the hands of the landlord, in my view arose under two different issues and hence the present Revision is not barred under Section 11 of CPC.
21.Now the point left out is whether there was any excess of advance amount left with the landlord to be adjusted towards the arrears of rent for 45 months ie., from August 2000 to April 2004. On behalf of the respondent a calculation memo was filed to show that the tenant has committed default to the tune of Rs.2,96,000/- ie., from August 2000 to September 2004. The calculation memo filed by the learned counsel appearing for the revision petitioner reads that under
Section 8(5) of the Act he was depositing the rent due for the month of May 2004 upto till date. So as per the memo of calculation filed on the side of the respondent, the rent due for the month of June 2004 to September 2004 and for the subsequent period have also been deposited by the tenant under
Section 8(5) of the Act in RCOP.No.1849 of 2004.
22.The learned counsel for the Revision Petitioner would contend that RCA.No.1372 of 2005 preferred against the RCOP.No.1849 of 2004 was disposed of only on 12.01.2009 and upto that date he was depositing the rent for the petition scheduled premises to the credit of RCOP.No.1849 of 2004 pending on the file of the X Judge, Court of Small Causes, Chennai. It is not disputed that the tenant is not depositing the future rent to the credit of RCOP.No.1849 of 2004 upto to the disposal of the RCA.No.1372 of 2005 in January 2009. So, even the default period of August 2000 to April 2004 is taken into consideration the rent payable comes to Rs.2,70,000/- only. Since the advance amount of Rs.3, lakhs is with the landlord, under
Section 7(2) of the Act if the arrears of above said rant of Rs.2,70,000/- is adjusted towards the advance / security deposit of Rs.3 lakhs, still the landlord is having Rs.24,000/- (landlord is entitled to have a month rent towards advance). Even on the date of filing of RCOP.No.1849 of 2004 filed by the tenant and on the date of filing of RCOP.No.945 of 2001, there was only an arrears of Rs.60,000/-. Under such circumstances, I am of the view that the judgment in RCA.No.1103 of 2003 requires interference since the tenant is entitled to the benefit under
Section 7(2) of the Act.
23.In fine, the Revision is allowed and the Judgment in RCA.No.1103 of 2003 on the file of the VII Judge, Court of Small Causes, Chennai, is set aside in respect of the finding under Section 10(2)(i) of the Act and confirmed in respect of the finding under
Section 10(3)(a)(iii) of the Act. The calculation memo filed by both parties shall form part of the record. No costs. Connected Miscellaneous Petition is also dismissed.
ssv To
1.The VII Judge, Court of Small Causes, Chennai.
2.The XII Judge, Court of Small Causes, Chennai