SUBBA RAO, J.

(1) THE petitioner is the landlord, and the first respondent is the tenant. The petitioner filed R. C. P. No. 56 of 1949 for evicting his tenant under Section 7 (4) of Madras Act XXV of 1949. The application for eviction was based upon two grounds: (1) that the tenant was committing nuisance, and (2) that he made a default in payment of rent from February 1948. The tenant filed an application a few days prior to the application filed by the petitioner, for fixing the fair rent. The Rent Controller fixed the fair rent and also held that the said rate should come into force from 11-3-1947. As the excess rent paid by the tenant on the basis of the pre-existing rate of rent fixed by the Rent Controller would be much more than the rent actually due to him, the Rent Controller dismissed the application for eviction. In appeal the Subordinate Judge also took the same view and dismissed the appeal.

(2) MR. Subramanyam, the learned counsel for the petitioner, contended that the rent Controller could not take into consideration the unadjusted amounts in the possession of the landlord, and that as a default to pay rent was committed within the meaning of Section 7 (2) of the Act, he had no jurisdiction to refuse eviction. Section 7 (2) (i) reads:

"a landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied-- (2) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application. "

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 his hands towards any 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 amount 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 amounts 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 towards any rent of a particular month is not payment of rent within the meaning of Section 7 (2) (1) of the Act. A Bench of this Court consisting of Rajamannar C. J. and Balakrishna Aiyar J. held in -- navaneethammal in re, 63 Mad L. W 1176 that in the case of amounts paid in advance, in the hands of a landlord, such amounts could not be treated as payments made towards rent due for any particular month. The learned judges observe at page 1176:"the learned advocate for the petitioner also urged upon us another point not dealt with by the learned Judge, namely, that the landlord had with him two months rent in advance and he could adjust it towards arrears of rent under Section 6 (c). But to invoke the provisions of that Sub-section of Section 6 the tenant should exercise the option and call upon the landlord in time to make the adjustment. There is no evidence in this case of the exercise of such choice. "

In the present case also the amount paid in excess was not authorised by the tenant in time to be adjusted towards the rent due for any particular month; but this will not dispose of the application before me. Learned counsel for the respondent contended that his case was that he tendered the rent due to the landlord every month and he refused to accept the same. He further, argued that the learned Judge accepted his case and found on the evidence that he made the tender every month and that therefore he was not liable to be evicted. It is true that a perusal of the Judgment discloses that such an argument was advanced; but I cannot say that the learned Judge has given any definite finding on the said contention. The learned Subordinate Judge will have to decide on the evidence on record whether the respondent tendered the rent due till the application for eviction was taken out against him.

(3) THE order of the lower court is quashed, and it is directed to dispose of the appeal in accordance with law. The petitioner will have his costs, advocates fee rs. 50.