VELMURUGAN ENGINEERS Vs. A KALIAPPAN

JUDGEMENT

(1.) THE revision petitioner is the respondent/ tenant in R.C.O.P.No.226 of 1986 on the file of the Rent Controller, Coimbatore and the appellant in R.C.A.No.128 of 1989 on the file of the Appellate Authority (Second Additional Sub-Judge), Coimbatore. THE respondent is the landlord/petitioner in the rent control petition. In this judgment, the parties to this revision will hereinafter be referred to as the landlord and the tenant. THEre is an order of eviction passed by the Rent Controller on the ground of owner's occupation in respect of a non-residential building under Sec. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. THE Rent Controller rejected the eviction sought for on the ground of wilful default. THE tenant filed an appeal and the learned appellate Judge held that the requirement of the landlord for owner's occupation falling under Sec.l0(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) is not made out and therefore that finding went in favour of the tenant. However, the appellate authority after going into the finding of the Rent Controller on the ground of wilful default and dis- agreeing with the Rent Controller on that finding, ordered eviction in the appeal against the tenant on that ground. THE correctness of the judgment of the appellate authority as referred to above is questioned in this revision.

(2.) IT appears that the landlord had not filed any appeal at all against the order of the Rent Controller rejecting his request for eviction on the ground of wilful default. However, the question whether in the absence of an appeal by the landlord on that finding, could the appellate authority in the appeal filed by the tenant go into that question and reverse it, is no longer was integra in view of the judgments of this Court reported in (1989)1 L. W. (Summary of Judgments) 46 and (1996)1 M.L.J. 16. Therefore, the appellate authority was legally justified in taking up that question in the absence of an appeal before it.

(3.) NO doubt the learned counsel for the tenant argued that the landlord is in possession of a sum of Rs.6,500 as advance, which is in far excess of two months rent and since the statute prohibits such an excess advance in the hands of the landlord, he should not be allowed to complain that the tenant is guilty of wilful default. For this, the learned counsel relied on the judgment of the Honourble Supreme Court of India. It is no doubt, true, the law is like that. But in this case, there is no pleading at all at the instance of the tenant that the landlord is having an excess advance amount in his hand. If the advance is there, then even without any demand from the tenant to adjust or set off the arrears of rent, the landlord is bound to adjust the same from the excess advance amount. In this context, the learned counsel brought to my notice one statement in the evidence of P.W.I, which is to the following effect: "1 received Rs.6,500." Likewise R.W.1 would state that he paid a sum of Rs.6,500 as advance. Putting these two materials together, the learned counsel for the tenant argued that there is an excess advance amount in the hands of the landlord. It has been held repeatedly that any amount of oral evidence without any pleading to support the same cannot be looked into and on that ground alone, the material evidence of the tenant has to be rejected. Even then, this Court is not in a position to find out from the oral evidence of P.W.I that, though he has a sum of Rs.6,500 with him, yet it is only an advance amount, Therefore, I have no hesitation in holding that the order of the lower appellate authority that the tenant is definitely guilty of wilful default is correct.