Bibi Shab Jehan Begam and Others vs Kapildeo Narain Gupta

H.L. Agrawal, J.—This application in revision by the plaintiffs arises out of an order of the munsif allowing the prayer of the defendant opposite party for adjusting the rent paid in excess to the plaintiffs landlord''s of the fair rent fixed by the House controller.

The relevant facts briefly stated, are as follows. The petitioners instituted a title suit in the Court of the Munsif I at Patna against the opposite party for his eviction for a building bearing holding No. 17 in circle No. 22 of ward No. 12 under the Patna Municipal Corporation. The tenancy had commenced from the 1st of May 1970 under an aggreement to pay the rental at the rate of Rs. 300/- per month. A petition u/s 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as the Act was filed by the petitioners after filing of the written statement by the opposite party for a direction to deposit the arrears of rent as well as current and future rents in terms of Section 11-A of the Act. The claim was made for rent at the rate of Rs. 300/- per month. In the rejoinder filed by the opposite party it was asserted that after the inception of the tenancy, there had been a proceeding for fixation of fair rent and the House controller by his order dated 17th of December, 1975 had determined that fair rent of the premises in question at Rs. 73,33 p. per month. It was accordingly contended that the petitioner was not entitled to claim rent at a rate higher than the fair rent. It was further stated in the rejoinder that the petitioner had realised rent in advance at rate higher than the fair rent and, therefore, he was entitled to claim adjustment of the excess paid towards the claim of the petitioners. Rather, this was the ground which was assigned by him for not remitting the rent. The learned Munsif, however, by his order dated 17th of December, 1970, directed the opposite party to deposit the arrears of rent from February 1973 or November, 1975 at the rate of Rs. 73.33 p. and also to deposit the current and future rents at the same rate. It is thereafter that the opposite party made a fresh application for adjustment of the excess payment made by him. According to the case of the opposite party, he made payment to the petitioners at the rate of Rs. 330/-per month from 27-4-1957 to 30-4-1970 thereafter upto 30th April, 1972 at the rate of Rs. 300/-Thus, according to him the total excess payment was Rs. 14,680.20 p. This claim was contested on behalf of the petitioners on various grounds, one of them being that no such order of adjustment could be allowed u/s 8(2) of the Act, as Section 11-A was independent of any other provision of the Act overruling the objection of the petitioners, the learned Munsif allowed the claim for adjustment of the opposite party. He however, determined the excess amount as Rs. 3440.08 p. only.

Mr. Mojibul Haque, learned Counsel appearing in support of this application also urged a similar ground and contended that once an order u/s 11-A was made, the Court had no jurisdiction to make any order of adjustment. He purported to place reliance on a Full Bench decision of this Court in N.M. Verma Vs. Upendra Narain Singh, . I am afraid, the ratio of the case relied upon by Mr. Haqus has got no bearing on the question raised by him. In that case the only question that fell before the learned judge constituting the full Bench for consideration was as to what should be the correct interpretation of the expression "at a rate at which it was last paid". In view of divergent decision of this Court the matter was referred to the Full Bench consisting of five judges. Overruling the view of this Court in two Division Bench decisions and one full Bench decision, it was held by this Full Bench that in construing the expression" at a rate at which it was last paid". the Court was not authorised to look to any other matter, such as fair rent fixed by the controller, or the like and that the expression must be given a literal interpretation. There is nothing in this decision which deals with the question of adjustment. Mr. Haque also faintly contended that the order passed by the learned Munsif on 17-121975 u/s 11-A of the Act being contrary to the view expressed by the above Full Bench should not prevail. It is difficult to accept the contention as that order between the parties to this suit has become final and cannot be held to be bad on account of the latter pronouncement.

Be that as it may there is an express provision contained in Section 8(2) of the Act dealing with the right of the parties to claim adjustment of rent in terms of the rate determined by the controller, and provides that "when the fair rent of a building has been determined or redetermined any sum in excess or short of such fair rent paid, whether before or after the date appointed by the controller...shall in case of excess, be refunded to the person by whom it was paid or at the option of such person be otherwise adjusted, and, in case of shortage be realised by the landlord as arrears of rent from the tenant". The statute, therefore, expressly gives right to the opposite party to claim adjustment of the excess amount in case he did not choose to claim a refund. Adjustment, manifestly can be claimed from the landlord towards the future rent, and once the parties have taken recourse to a proceeding u/s 11-A of the Act. then the mode of payment of the rent is fixed by the order of the Court, and if the contention of the learned Counsel appearing on behalf of the landlord is accepted that no adjustment is permissible because the rent was being paid in pursuance of the order u/s 11-A, then it would lead to an anomalous position, that is, although the tenant would be obliged to go on depositing the monthly rents in order to avoid the consequence of default, at the same time he will be deprived of his statutory right to claim adjustment. In my view, this should not be proper and harmonious construction of the provisions of the Act, and I do not find any particular reason as to why this right of a tenant to claim adjustment should be denied simply because, instead of making payment out of Court, he is making payment under any order of the Court. No. decision was cited by Mr. Haque in support of his contention, and for the facts and reasons stated I do not find any justification in taking the view that simply because an order of the Court has intervened in the meantime, the right of the tenant would stand suspended or put in abeyance. The law of limitation may also stare in his face if he is not allowed to adjust. There is no reason why he should not be allowed to claim adjustment and instead compelled to institute a suit for enforcing the alternative option provided u/s 8(2) namely for claiming a refund.

Although not directly in point, the tenant''s this right was recognised by a learned single judge of this Court in M. Bhattarcharya v. K.G. Choudhary (1968) B.L.J.R. 39. where it was observed that at the time of passing an order u/s 11-A itself it will be just and equitable that the rent deposited by the tenant in excess of the rate of rent fixed by the controller should be adjusted u/s 8(2). If this could be done, as was also conceded by Mr. Haque at the time of passing the order u/s 11-A itself, I do not see any possible justification why such a relief cannot be given to a tenant thereafter, as the liability to pay monthly rent accrues every month.

For the reasons discussed above I find no merit in this application which is accordingly dismissed with costs. Hearing fee is assessed at Rs. 100/- only.