Nand Lal Agarwal vs Ganesh Prasad Sah and Others

M.P. Varma, J.—The tenant is the appellant. The appeal arises out of a suit for eviction of the appellant from a building under the Bihar Buildings (Lease, Rent and Eviction) Control Act. The suit for eviction was founded on three grounds namely, bonafide personal requirement for opening a drug shop, default of payment of rent for five months and breach of the condition of tenancy i.e., conversion of the suit premises by starting a grocery shop which was taken by the tenant for residential purposes.

The defence of the tenant appellant in the original court was that the bona fide requirement of the landlord was not available to him since he has a number of houses in the main market and he also holds a shop therein. Besides the suit premises were situated outside market area and in a remote mohalla of Dumka town. As regards breach of the terms of tenancy, the tenant pleaded that he was running the grocery shop in accordance with the term of tenancy and within the knowledge of the landlord. As regards the question of default, the tenant pleaded that since the fair rent of the house was already fixed by the House Controller under the Bihar Buildings (Lease, Rent and Eviction) Control Act and when the same was in occupation of the previous tenant, the rental of 60/- per month later increased to Rs. 70/- per month, was in excess of the fair rent and not legally recoverable. Further pleading was that the tenant bad made a deposit of Rs. 300/- as advance and security which should have been adjusted towards the rent due. He also pleaded that rent in excess of fair rent was also liable to be adjusted.

The trial court decided all the questions raised in favour of the landlord except a few issues i.e. the tenancy being for residential as well as business purpose and enhancement of rent from Rs. 60/- to Rs. 70/- being illegal and regarding the plea of the Defendant that he had made additions and alterations in the premises himself.

In the lower appellate court, the matter was keenly contested and virtually decisions and counter decisions so far available were cited at the Bar for and against the parties.

The lower appellate court having heard the parties in detail came to the conclusion that the appellant had made default in payment of rent for the period covered in the suit and also held that the suit premises were required by the landlord for his personal use, and that the rent of Rs. 60/- per month was lawfully payable and tenant was not entitled to adjustment of excess amount as claimed. The lower appellate Court therefore, dismissed the judgment which is being assailed before me.

The records of this case indicate that substantial questions of law formulated at the time of admission of the appeal are whether the courts below have erred in not taking into consideration the proviso to Section 11(1)(c) of the Act, and that whether the appellant was wrong in law in not allowing the adjustment of excess paid rent, and thus holding the defendant defaulter and decreeing the suit for eviction.

The first question, i.e., the failure of the courts below in not taking into consideration the proviso to Section 11(1)(c) of the Act is the only sheet anchor for the defendant which has been seriously raised before me. This is an issue which is co-related to the finding of the courts below on the question of personal necessity of the landlord and this question is very much relevant and significant if the eviction of the appellant was grounded only on bona fide requirement of the landlord. The support for the proposition that pleadings, or no pleadings the court is obliged to act in compliance with the mandate of the proviso is sought to be had from the ratio decidendi of the case reported in Rehman Jeo Wangnoo Vs. Ram Chand and Others, . followed by a decision of our own Court in case of Arun Kumar Sah Vs. Md. Basir Ahmad and Another, . There is no dispute about this proposition provided it is of some avail in the facts and circumstances of the case where eviction has been ordered on the ground of default in payment of rent as well as finding which, in my opinion, could not be assailed successfully by the appellant before me.

Excess payments in all its perspective have been negatived by lower appellate court and rightly.

The question whether adjustment of excess paid rent can be allowed to a tenant is traceable to provisions contained in Section 8(2) of the Act and the right to seek adjustment is provided therein. This provision makes any amount paid in excess of the fair rent adjustable and refundable by excercise of an option by the tenant and once this option has not been exercised by the tenant, it does not permit him to urge in a suit for eviction that merely because some excess is lying in the hands of landlord he is immune from payment of current rent and future rent. There is a total lack of exercise of such right by the tenant as required by law, and I cannot permit the tenant to avail of this plea here and this question of law raised by the tenant is answered in the negative.

In view of the second question of law having been lost by the tenant, the question of remitting the case to lower appellate court for a decision as required by proviso to Section 11(1)(c) of the Act is not required.

In the result, the appeal fails and is dismissed with costs.