Judgment :- 1. Landlords in R.C.O.P. No. 22 of 1987, on the file of the House Rent Controller (District Munsif), Mayiladuthurai, are the revision petitioners. 2. The petition was filed by the petitioners for eviction of the respondent on the ground that the tenant has committed default in payment of rent for the months of April and May 1987 wilfully and that the building requires immediate demolition and reconstruction. 3. In the counter filed by the respondent, he stated that the first petitioners father used to collect the rent and he has purposely avoided collecting rents for the months of April and May 1987, and, according to him, it is not wilful and he was paying the rent to the petitioners counsel before the Rent Control Court. The claim for eviction on the ground of demolition and reconstruction was also disputed. According to him, the building is in good condition and he has repaired the same. 4. The Rent Control Court, after taking evidence, held that the petitioners are entitled to succeed and consequently ordered eviction on both the grounds. 5. When the matter was taken in appeal as R.C.A. No. 17 of 1990 on the file of the learned Subordinate Judge, Mayiladuthurai, the Rent Control Courts decision was reversed, and the Petition was dismissed. It is against the conflicting decisions, the landlords have come to this Court in Revision. 6. At the time when this Eviction Petition was filed, an earlier petition for eviction, namely, R.C.O.P. No. 45 of 1984 was pending before the Rent Controller. That petition was dismissed for default and restoration petition was pending. There, the ground of eviction was that the building was required for the own use of the landlords. We find that the tenant has deposited rent upto March 1987 in that proceeding. 7. The learned counsel put forward three submissions before this Court (1) The tenant has committed wilful default in not paying the rent for the months of April and May 1987. According to him, he issued notice on 20.4.1987 evidenced by Ex. A-9 demanding vacant possession of the building on the ground of demolition and reconstruction. In that notice, nothing was stated about the arrears of rent. On that date, no amount was due towards arrears of rent. The same was replied by the tenant as evidenced by Ex. B-19 on 8.6.1987. A-9 demanding vacant possession of the building on the ground of demolition and reconstruction. In that notice, nothing was stated about the arrears of rent. On that date, no amount was due towards arrears of rent. The same was replied by the tenant as evidenced by Ex. B-19 on 8.6.1987. By that time, the rent for the months of April and May 1987 became due. But nothing was stated about the rent, nor was the rent sent along with the reply. Even though the tenancy was sought to be terminated by Ex. A-9 notice, to avoid eviction, rent should have been paid. It is further contended that the explanations for not paying the rent for the above months are contradictory. In the pleadings, one explanation is given, while in evidence a different explanation is put forward. Since it is inconsistent, the conclusion of the Rent Controller that the non-payment is wilful has to be restored. (2) The condition of the building is such that it required immediate demolition and reconstruction. According to him, in the earlier proceeding itself, the tenant has admitted that the building is used as a conservancy lane and it is unfit to be used for occupation. In view of the said admission, the eviction on that ground also should have been allowed. (3) In the counter in this case, the tenant has denied title of the landlord, and in view of the decision reported in A.I.R. 1989 S.C. 2187 = 1990-1-L.W. 572 (S.C) ( Majarti Bubba Rao v. P.V.K. Krishna Rao ), eviction should have been allowed on that ground also, without directing the landlords to file another eviction petition. 8. How far the above submissions can be legal, is considered below. 9. Let me first take up the question regarding the ground of denial of title. 10. The learned counsel for the petitioners brought to my notice the defence taken by the tenant in this case. 11. In the counter, in paragraph 6, it is stated:— “This respondent also further submits that the settlement deed appears to be a sham and nominal document to clothe the petitioners with the necessary locus standi to file this application”. It is the above contention which, according to the learned counsel, amounts to denial of title. 12. In this connection, it is better to note Ex. B7 dated 6-10-1978. It is the above contention which, according to the learned counsel, amounts to denial of title. 12. In this connection, it is better to note Ex. B7 dated 6-10-1978. That is a reply notice issued by the present tenant before R.C.O.P. No. 45 of 1984 was filed. In that reply notice also, paragraph 8 contained similar wordings. In spite of the said wording, the landlords did not want eviction on the ground of denial of title. In the earlier petition, they wanted eviction on the ground of bona fide requirement for own use. The same was allowed to be dismissed for default. 13. In this proceeding also, no eviction is sought on the ground that the tenant has denied the title, nor was this ground taken before the Rent Controller during evidence. In appeal also, such a contention was not taken, even though the same was available to the landlords. The conduct also shows that the statement of the tenant is not made intentionally. From 1984 to March 1987, the tenant used to pay the rent in spite of the contention taken, and the landlords were also receiving the rent without any demur. In the Grounds of Revision also, such contention is not taken. In view of the above conduct on the part of the landlords, it has to be held that the landlords are not entitled to get eviction on the ground that the tenant has denied the title. Even if there was such a ground, the landlords have waived the same in view of their conduct. 14. Regarding the claim of eviction on the ground of demolition and reconstruction, the allegation in the petition is that the building is only a Mangalore tiled building and it is more than 75 years and it is damaged. Nowhere in the petition, the petitioners have stated that the physical condition of the building is such that it requires immediate demolition and reconstruction. As against the said contention, the tenant has put forward a defence that the building is in good condition and he has maintained the same properly. He has also said that apart from that building, he has put up additional construction spending more than Rs. 30,000/-. In view of the said contention, it was incumbent on the part of the landlords to prove the physical condition of the building. He has also said that apart from that building, he has put up additional construction spending more than Rs. 30,000/-. In view of the said contention, it was incumbent on the part of the landlords to prove the physical condition of the building. Even if the landlord has got the means to reconstruct and also the plan and licence issued by the Local Authority the physical condition of the building has also to be proved before eviction is ordered. Not even an Engineers Report has been filed in this case to prove the physical condition of the binding. The learned counsel for the petitioner wanted this Court to read Ex-B-7, i.e., the earlier reply notice issued before the earlier proceeding was instituted. Nothing turns on the reply. What the tenant has stated in paragraph 4 of the reply notice is that at the time when the property was leased, a dilapidated house was there. Thereafter, he has spent more than Rs. 30,000/- to improve and decorate it, and he has made use of the same as a hotel that he contends is that the present condition of the building is strong and it does not require demolition and reconstruction. When the tenant has taken such a contention, the landlords should have proved the physical condition of the building by taking out a Commission or by other evidence. The landlords have failed to do so. The Rent Controller merely relied on the oral evidence of the landlords and held that the building required demolition and reconstruction. The said defect in the order was corrected by the Appellate Authority on the ground that the landlord has not proved by legal evidence the condition of the building. I do not find that there is any illegality or irregularity in the judgment of the Appellate Authority in rejecting the petition for eviction on that ground. 15. Finally, we come to the ground of eviction on the basis of default in payment of rent, and whether such default is wilful. 6. Before the institution of the proceeding, the landlords have not issued any notice as contemplated under Proviso to Section 10(2) of the Tamil Nadu Buildings Lease and Rent Control Act. Hence the fiction has no application to the facts of this case. At the time when notice was issued on 20-4-1987, no amount was due towards the rent. 6. Before the institution of the proceeding, the landlords have not issued any notice as contemplated under Proviso to Section 10(2) of the Tamil Nadu Buildings Lease and Rent Control Act. Hence the fiction has no application to the facts of this case. At the time when notice was issued on 20-4-1987, no amount was due towards the rent. Till March 1987, the tenant has already deposited the rent in R.C.O.P. No. 45 of 1984. The rent fell in arrears only by the time reply notice was sent evidenced by Ex. B-19 dated 8-6-1987. The Eviction Petition was filed on 25-6-1987. There is no written agreement produced in this case as to when the rent is payable. The landlords also do not speak as to when the rent is payable. The tenant while he was examined as R.W. 1 has deposed that the rent was usually paid by 20th (sic.) of every month. If that be so, the rent for the month of April was in arrears at the time when the reply notice was sent. As per the statutory definition to section 10(2) of the Rent Control Act, the rent for the month of May 1987 also fell in arrears by the time the Eviction Petition was filed. In the counter, the tenant has stated:— “The first petitioners father came and received the rent for few months and thereafter, for reasons best known to him, did not collect the rent for the month of April and May 1987. The same has also since been received by the petitioners. Thus there is no default, much less wilful default, in the matter of payment of rent”. The non-payment of rent is admitted in the above defence. So, it is for the tenant to prove that there was valid reason for not paying the rent in time, so as to escape from eviction. It is his duty to pay the rent in due time and he along can explain the reasons for the same, which is within his personal knowledge. The explanation given by his while be was examined as R.W. 1 is not convincing. While he was examined, he said that he tendered the rent to the councel for the petitioner before the trial court and he refused to accept the same. The said explanation came for the first time while he was in the box. The explanation given by his while be was examined as R.W. 1 is not convincing. While he was examined, he said that he tendered the rent to the councel for the petitioner before the trial court and he refused to accept the same. The said explanation came for the first time while he was in the box. In the later portion of his deposition, he said that he was not well and hence he could not pay the rent in time. The explanation offered by the tenant being inconsistent with what he has stated in the counter, the same was not accepted by the Rent Controller. In fact, in the counter, he has not given any explanation at all. Once the explanation of tenant is not accepted, law presumes that the default is wilful. The Rent Controller, was, therefore, correct in ordering eviction the ground of wilful default. When the matter was taken in appeal by the tenant, the Appellate Authority reversed the finding and accepted the explanation offered by the tenant. The learned counsel for the petitioner submitted that the finding of the Appellate Authority cannot be supported. The learned counsel for the respondent also did not fully support the finding of the Appellate Authority. 17. According to the learned counsel for the respondent, he can support the judgment of the Appellate Authority for other reasons. According to him the claim for eviction on the ground of wilful default in payment of rent cannot be upheld since the petitioner has received an amount of Rs. 3,000/- as advance and the rent for the month of May 1987 was not in arrears at the time when the eviction petition was filed. According to him, the landlord has no cause of action for filing the petition. When I asked the learned counsel whether he opposed the finding of the Appellate Authority, he simply said that he is also supporting the finding, but did not care to explain how the finding can be supported. 18. The main argument of the learned counsel for the respondent was that since the landlords have in their possession a sum of Rs. 3,000/- they cannot claim eviction since it exceeds one months rent. 18. The main argument of the learned counsel for the respondent was that since the landlords have in their possession a sum of Rs. 3,000/- they cannot claim eviction since it exceeds one months rent. For the said purpose, he relied on the decisions reported in 1994 S.C. 1216 = 1994-2-L.W. 18 ( Kranti Swaroop Machine Pvt. Ltd. v. Kanta Bai Asawa ) and 1993-2 M.L.J. 39 ( Nazimuddhin Ahmed v. Narasimha Rao ) 19. Both the above decisions have no application to the facts of this case. The decision reported in A.I.R. 1993 S.C. 1498 (supra) was not a judgment under the Tamil Nadu Buildings (Lease and Rent Control) Act. 20. In A.I.R. 1993 S.C. 1498 ( Bhoja alias Bhoja Ram Gupta v. Rameshwar Agarwala and others ), the question of adjusting the advance came up for consideration. That was a case under the Bihar Rent Control Act. While considering the said question, their Lordships considered the decision reported in A.I.R. 1952 Madras 827 = 68 L.W. 159 ( Nune Panduranga Rao v. Divyala Gopala Rao ). It was a case under the Madras Buildings (Lease and Rent Control) Act, 1948. In that Act, Section 7 (2) has similar provision as the present Act of 1960. In the decision reported in A.I.R. 1952 Madras 827 65 L.W. 159 (supra), it was held that unless the tenant exercised the option to adjust the arrears from the advance, the landlord is not entitled to adjust the same. According to that decision, there cannot be an automatic adjustment in the advance. The said decision was approved by the Supreme Court in A.I.R. 1993 S.C. 1498 ( supra ) Paragraph 20 of the said judgment is relevant for our purpose, and it reads thus:— “The Madras High Court in Mune Panduranga Rao v. Divvala Gopals Rao AIR 1952 Madras 827 = 65 L.W. 159, while construing a somewhat similar provision contained in section 7(2) of the Madras Buildings (Lease and Rent) Control Act helds: “Under the express provisions of this section if the tenant has not paid or tendered the rent due by him within the time prescribed therein he is liable to be evicted. The section does not compel a landlord to adjust the excess amounts in the hands towards the arrears of rent if the said amounts were not paid by the tenant towards the rent of any particular month . The section does not compel a landlord to adjust the excess amounts in the hands towards the arrears of rent if the said amounts were not paid by the tenant towards the rent of any particular month . It is true that on the date when a tenant authorises the landlord to adjust the amounts with him towards the rent of any particular month or months the amounts will be deemed to have been paid on that date towards rent. “But till that adjustment is made and the amount is so appropriated, any amount in excess of the rent due with the landlord will only be payments made in suspense . The fact that such excess came into the hands of the landlord by reason of the Rent Controllers order fixing the fair rent does not really affect the question. I am, therefore, of opinion that the amount not paid towards rent of any particular month and the amount not agreed to be adjusted to towards any rent of a particular month is not payment of rent within the meaning of S. 7(2) of the Act .” (Emphasis supplied in the original Reports). 21. In 1994-2-M.L.J. 264 = 1995-2-L.W. 732 (reported in this issue) ( S. Sahabudeen represented by his power of attorney S. Mohammed Mansoor v. Muniammal ), a learned judge of this Court has also considered the above point and came to the conclusion that in so far as the Tamil Nadu Buildings (Lease and Rent Control) Act is concerned, there must be an option exercised by the tenant to adjust the advance towards arrears of rent. It was held in paragraph 14 of the said decision (at page 267) thus:— “In so far as this Court is concerned, it has been consistently held that unless the tenant has called upon the landlord to make an adjustment of the advance amount as against the rent, be cannot escape the consequences of wilful default in payment rent. A Division Bench of this Court in Navaneethammal . In re, (1950) 2 M.L.J. 579 = 63 L.W. 1176, held that the tenant who committed wilful default in payment of rent, in order to invoke the provisions of Sub-sec. A Division Bench of this Court in Navaneethammal . In re, (1950) 2 M.L.J. 579 = 63 L.W. 1176, held that the tenant who committed wilful default in payment of rent, in order to invoke the provisions of Sub-sec. (c) of Sec. 6 of the Act, as it stood then, should have exercised the option and called upon the landlord 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 default within the meaning of Sec. 7(2) of the Act. That decision of the Bench has been followed in several cases subsequently in this Court. Suffice it to refer to the following decisions, Panduranga Rao v. D. Gopala Rao (1952) 1 M.L.J. 289 = 65 L.W. 159, Balachandran v. Champlal Jain, (1980) 1 M.L.J. 116 = 95 L.W. 605 and“ enkataraman v. Aravamudhan (1981) 1 M.L.J. 516 . A similar view has been taken by Ratnam, J. in P.S. Venkatarajan v. T.A. Govindarajan, (1990) 1 M.L.J. 508 = 1990-1-L.W. 563. In that case, learned judge has referred to the judgments of the Supreme Court in Modern Hotel, Gudur v. K. Radhakrishnan , A.I.R. 1989 S.C. 1510 = 1990-1-L.W. 560, as well as Nandlal v. Ganesh Prasad , A.I.R. 1988 S.C. 1821 and also the earlier judgments of the this Court. Learned judge reiterated the position that 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”. In the later decision, Srinivasan, J. has considered the prior decisions of this Court and also that of the Supreme Court and has distinguished the same. Since the later decision has considered the entire case-law on the point, I do not consider that it is worthwhile for me to cite the other decisions relied on by the learned counsel for the petitioner. 22. In this case, the tenant has not exercised the option. It is only for the first time at the time of arguments before this Court, he argued that the landlords are bound to adjust the advance towards arrears of rent. In view of the settled law, I do not think the said contention of the tenant can be accepted by this Court. It is only for the first time at the time of arguments before this Court, he argued that the landlords are bound to adjust the advance towards arrears of rent. In view of the settled law, I do not think the said contention of the tenant can be accepted by this Court. According to me, the conduct of the tenant also does not deserve consideration of the said argument. As found earlier, in his defence, he has not given any explanation for not paying the rent for the months of April and May 1987. While he was examined, he gave inconsistent explanation which was not accepted by the Rent Controller. When his attempt to explain has failed, he cannot put forward a new contention in the Revision. The powers of the Revisional Authority under Section 25 of the Rent Control Act are limited. This Court is not sitting in appeal against the finding of the Appellate Authority. Even while the tenant was examined as R.W. 1, he has stated that the advance amount paid is liable to be returned without interest only at the time when the building is surrendered to the landlords. Such being the contract between the parties, the tenant cannot put forward a new contention in Revision. his Court is only to consider whether the finding of the Appellate Authority is in any way illegal, irregular or improper. Once the explanation put forward by the tenant cannot be accepted by his own showing, that finding of the Appellate Authority has to be reversed. 23. The contention of the tenant that the rent for the month of May 1987 was not in arrears cannot be accepted. At the time when the Eviction Petition was filed, rent for that month was also due, and was in arrears. Even if we accept the contention of the tenant in that regard, there cannot be a change in the result, for, the rent for the month of April 1987 was already in arrears. Here, we are not concerned about the period for which the rent was in rears. The Statute only says whether there was any default, and whether that default was willful. Even if it was for one month, the consequence of eviction has to the follow. 24. Here, we are not concerned about the period for which the rent was in rears. The Statute only says whether there was any default, and whether that default was willful. Even if it was for one month, the consequence of eviction has to the follow. 24. For the reasons stated above, I hold that the tenant is liable to be evicted on the ground that he has committed wilful default in paying the rent. 25. In the result, the Revision is allowed in part. I hold that the tenant is liable to be evicted only on the ground of wilful default in paying the rent. The other grounds urged by the landlords are rejected. The landlords are entitled to possessions of the building, and the tenant is given a months time to surrender vacant possession. The landlords are entitled to costs throughout.