Judgment : Tenant in R.C.O.P.No.6 of 1991 on the file of Rent Controller/District Munsif, Palani is the revision petitioner. Landlord claimed eviction on the ground that tenant has committed wilful default in paying rent at the rate of Rs.250 per month from August, 1990 till December, 1990 for a period of five months. 2. It could be seen from the facts narrated in the eviction petition that originally rent was only Rs.150 per month. Building was at that time let out by landladys mother. After mothers death, rent was enhanced to Rs.250. It is also seen that there was some misunderstanding between parties and tenant filed a suit as O.S.No.509 of 1990 on the file of District Munsif Court, Palani for a decree of permanent prohibitory injunction. Due to intervention of third parties, matter was settled and a new agreement was entered on 26. 1990. On the date of agreement, tenant paid an advance of Rs.15,000. Even though the agreement is dated 26. 1990, it has to come into effect only from 8. 1990, it has to come into effect only from 8. 1990. Ex.R-1 is the receipt evidencing payment of advance of Rs.15,000. 3. According to landlady, after new agreement was entered, tenant did not pay any rent at the rate of Rs.250 and non-payment is wilful. She also alleged that the building requires immediate demolition and reconstruction. 4. As against the said allegation tenant contended that he has not committed any default and only because landlady did not issue any receipt, he could not prove payment by documentary evidence. He also contended that the building do not require demolition and reconstruction. 5. The question as to whether the building requires demolition and reconstruction do not survive since that claim has been rejected by authorities below and that order has become final. The only point to be considered is whether tenant is liable to be evicted on the ground that he has committed wilful default. 6. As stated earlier, landlady has received Rs.15,000 as advance is admitted. Ex.R-1 also supports receipt of advance. Apart from the same, P.W-1 has said in the chief examination itself that she has received Rs.15,000 as advance. In further portion also she has said that it was in pursuant to panchayat a sum of Rs.15,000 was received as advance. 7. 6. As stated earlier, landlady has received Rs.15,000 as advance is admitted. Ex.R-1 also supports receipt of advance. Apart from the same, P.W-1 has said in the chief examination itself that she has received Rs.15,000 as advance. In further portion also she has said that it was in pursuant to panchayat a sum of Rs.15,000 was received as advance. 7. The allegation in the eviction petition is that tenant has defaulted in paying rent from August, 1990 till December, 1990 at the rate of Rs.250 per month. Advance amount of Rs.15,000 is equivalent to 60 months rent. 8. Rent Controller after taking evidence held that tenant has not paid rent in spite of the fact that litigations are pending between parties. Non-payment of rent is taken as wilful. He did not enter a finding as to the consequence of having received excess advance. Eviction was ordered. 9. Tenant preferred appeal in R.C.A.No.52 of 1996 on the file of appellate authority. Before appellate authority this point was urged. Appellate authority held that when tenant did not pay rent even after issuance of demand notice, tenant can only be deemed as wilful defaulter and mere receipt of excess advance will not enable him to contend that he is not wilful defaulter. Order of eviction was confirmed. It is against the concurrent findings this revision petition was filed by tenant. 10. After hearing learned counsel on both sides, I do not think that the findings of authorities below could be sustained for a moment. 11. In N.Narasimha Rao v. T.M.Nasimuddin Ahmed N.Narasimha Rao v. T.M.Nasimuddin Ahmed N.Narasimha Rao v. T.M.Nasimuddin Ahmed , (1996)3 S.C.C. 45 their Lordships considered the effect of receiving excess advance. After extracting Sec.7 of the Tamil Nadu Buildings (Lease and Rent Control) Act, their Lordships in paragraphs 7 and 8 have held thus: “….The provisions in Sub-secs.(1) and (2) are similar and provide for cases where fair rent has been fixed or not fixed, as the case may be. Sub-sec.(3) declares any stipulation in contravention of Sub-sec.(1) or Sub-sec.(2) to be null and void. In this case, it is admitted that fair rent of the building had not been fixed and, therefore, Sub-sec.(2) applies. Clause (a) of Sub-sec.(2) enacts that a landlord is entitled to claim and receive only the agreed rent, which was Rs.150 per month in this case. In this case, it is admitted that fair rent of the building had not been fixed and, therefore, Sub-sec.(2) applies. Clause (a) of Sub-sec.(2) enacts that a landlord is entitled to claim and receive only the agreed rent, which was Rs.150 per month in this case. The proviso to clause (a) permits the landlord to receive by way of advance an amount not exceeding one months rent only i.e., Rs.150 in the present case. Clause (b) provides for the situation where any sum is paid by the tenant to the landlord in excess of the agreed rent save as provided in clause (a), i.e., any sum paid in excess of the agreed rent and an amount not exceeding one months rent by way of advance. Clause (b) enacts that the amount in excess of the sum which the landlord is permitted to take under clause (a) shall be refunded by the landlord to the person by whom it was paid, i.e., the tenant, or at the option of the tenant, shall be otherwise adjusted by the landlord. In other words, clause (b) requires that the excess amount paid to the landlord has to be refunded by the landlord to the tenant unless the tenant exercises the option of requiring the landlord to otherwise adjust the excess amount. 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 tenants money in the hands of the landlord for return to the tenant or for adjustment towards the dues of the tenant, at the tenants option. Any other stipulation in contravention to it has no legal effect being null and void. 8. 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. 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 visualise 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.” [Italics supplied] 12. In view of the law declared by the Honourable Supreme Court, it has to be held that landlady has no cause of action to file application for eviction on the ground that tenant has committed default in paying rent. As stated earlier, landlady has taken advance of 60 months rent, though law permits to take advance of only one month rent. Excess advance is liable to be adjusted in the rent payable by tenant as and when becomes due even without any demand from tenant. If that be so, landlord cannot expect payment of rent for the alleged period of default. If landlord cannot demand any rent for that period, notice issued by her intimating default also will be invalid and of no legal consequence. On the date when notice was issued, no rent was due nor payable by tenant. If notice issued is invalid merely because tenant did not pay rent within a period of two months, he also cannot be deemed as defaulter. Appellate authority has not taken into consideration the above legal position while confirming the order of eviction. 13. On the date when notice was issued, no rent was due nor payable by tenant. If notice issued is invalid merely because tenant did not pay rent within a period of two months, he also cannot be deemed as defaulter. Appellate authority has not taken into consideration the above legal position while confirming the order of eviction. 13. In the result, I am constrained to set aside the judgment of authorities below and the order of eviction passed in R.C.O.P.No.6 of 1991 on the file of Rent Controller, Palani and confirmed in R.C.A.No.52 of 1993 on the file of Appellate Authority are set aside. R.C.O.P.No.6 of 1991 is dismissed. The revision petition is allowed. There will be no order as to costs.