Chaudhary Sia Saran Sinha, J.
1. This is a plaintiff’s second appeal against the judgment of reversal passed by the learned Subordinate Judge, Purnea, in an appeal arising out of a suit for eviction and arrears of rent filed by the plaintiffs-appellants against the respondents. There is a holding bearing No. 11 in Ward No. 5 of the Purnea Municipality. Dr. Puma Chandra Ghosh (since dead) was owner of this holding. Appellants are the heirs of Dr. Purna Chandra Ghosh and they were substituted in his place after his death.
2. The original plaintiff, Dr. Purna Chandra Ghosh, alleged that four or five years back, he had let out the said holding to defendant No. 1 Haicum Singh on a monthly rental of Rs. 60/-. Haicum Singh defaulted in payment of rent for the period from April, 1971 to April, 1972, and, thus, made himself a defaulter. The original plaintiff Dr. Puma Chandra Ghosh, required the suit premises ‘for his own use and occupation’. The further allegation in the plaint was that against the terms of tenancy, Haicum Singh sublet this holding to Md. Quasim, defendant second party. On these allegations, the plaintiff prayed for a decree for eviction and for payment of arrears of rent. The two defendants contested the suit challenging the averments made in the
plaint. While admitting that the rental was at the rate of Rs. 60/- per month, defendant first party alleged that there was no arrear as he had paid up all the rents, though he was not granted any receipt. On a consideration of the evidence, the trial Court held that defendant first party Haicum Singh was a defaulter and the mischief of Section 11 (1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as ‘the Act’) was attracted. In spite of the original plaintiff, Dr. Purna Chandra Ghosh, having died during the pendency of the suit, the trial Court further found that there was personal necessity too which entitled the plaintiffs to a decree for eviction. The plaintiffs were also held entitled to the arrears of rent as claimed in the plaint though the story of subletting set up by them was not found proved. The result was that the trial Court decreed the suit for eviction as also for arrears of rent by judgment dated 30-4-1976.
3. Defendant 1st party took up the matter in appeal, which was filed on 8-6-1976. Although no such plea was taken in the written statement filed by Haicum Singh, at a considerably late stage on 4-7-1978, he filed a petition for amendment of the written statement alleging that initially the rent fixed for the holding was Rs. 50/- per month, which tenancy was created on 16-5-1962. Subsequently, the plaintiff enhanced this rent illegally to Rs. 60/- per month and this entitled him to the adjustment of the excess amount ‘towards the arrears of rent, if any’. The amendment was opposed by the plaintiffs. But without any reasoned order, the lower appellate Court allowed this amendment on 5-7-1978 without allowing any opportunity to the plaintiffs to lead evidence regarding the same. The lower appellate Court found that defendant 1st party had paid rent to the plaintiffs only up to March, 1971 and, thus, it accepted impliedly the case of the plaintiffs regarding rent not having been paid from April, 1971 to April, 1972. The lower appellate Court, however, found that the rent had illegally been enhanced to Rs. 60/- per month from Rs. 50/- per month, and the plaintiffs having realised Rs. 830/- in excess from Haicum Singh during the period from May, 1964 to March, 1971, the latter was entitled to adjust the same towards the future rent and in that view of the matter, it held that Haicum Singh was not a defaulter. Relying on a decision of the Supreme Court in Smt Phool Rani v. Naubat Rai Ahluwalia (AIR 1973 SC 2110), the lower appellate Court
held that after the death of the original plaintiff, the substituted plaintiffs cannot be said to have personal necessity. The story of subletting was also not accepted by the lower appellate Court. On these findings, the lower appellate Court set aside the judgment of the trial Court and dismissed the plaintiff’s suit, and this is how the plaintiffs have taken up this matter to this Court in the instant second appeal.
4. Relying on two decisions of this Court, one a single Bench and the other a Division Bench reported in Raghunandan Prasad v. Deonarain Singh (1975 BBCJ 494) : (AIR 1976 Pat 195) and Bishwanath Balkrishna v. Smt. Rampeyari Devi (AIR 1979 Pat 159), respectively, the submission of the learned counsel for the appellants was that the lower appellate Court wrongly held that Haicum Singh was not a defaulter. In the case of Raghunandan Prasad (supra), it was held that if the option of adjustment has not been exercised by the tenant, it will be futile for him to urge that merely because some excess to which he is entitled either for a refund or adjustment, is lying in the hands of the landlord, he will be immune from payment of the rent and future rent. In this case, the defence taken in the written statement itself was that although the tenant was paying rent at the rate of Rs. 20/- per month, rent legally payable was Rs. 14/- and odd, which was the rent as fixed by the House Controller and, therefore, the payment made in excess of the fair rent fixed up to the relevant month was adjustable to the rent payable in future, and, as such, he was not a defaulter. This plea was negatived by his Lordship. In the case of Bishwanath Balkrishna v. Smt. Rampeyari Devi (supra), the tenant communicated his intention to the landlord to adjust the excess rent paid in case the same was not refunded to him but went on paying the rent in spite of service of notice. It was held that the tenant would be deemed to have waived his right of adjustment of the rent paid in excess and consequently, when he stopped paying rent after having paid it for some months after communicating his intention for payment of rent, he could not raise the plea, without anything more on his part, of adjustment of rent as a defence to the suit. Their Lordships of the Division Bench held that the tenant had a right till the last moment to have the rent for future months adjusted subject, of course, to the law of limitation. But, the intention to adjust had either to be communicated to the landlord or had to be capable of being inferred by
the landlord by the surrounding circumstances before he had become a defaulter within the meaning of Section 11 of the Act. Learned counsel submitted that the decision in the case of Raghunandan Prasad v. Deonarain Singh (supra) did not lay down correct proposition of law. But, no cogent reasoning has been advanced in support of this contention. I, therefore, do not find any merit in the same.
5. Section 8 (2) of the Act states, inter alia, that when the fair rent of a building has been determined or re-determined, any sum in excess or short of such fair rent paid, whether before or after the date appointed by the Controller under Sub-section (3), in respect of occupation for any period after such date 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. In the instant case, the plaintiff cams with a cut and dried case that Haicum Singh was inducted as a tenant in the demised premises on a monthly rental of Rs. 60/-. This assertion in para 3 of the plaint was admitted by Haicum Singh in para 8 of the written statement. It was not at all averred in the written statement that the initial rent was Rs. 50/- and that it had been illegally enhanced to Rs. 60/- per month. There was also no averment in the written statement as filed initially about the intention of defendant for adjustment of the excess rent paid. The parties fought this case on this clear-cut stand, the definite case of Haicum Singh further being that the rent had been paid at the rate of Rs. 60/- per month and that there was no arrears. It was only on 4-7-1978 before the lower appellate Court that Haicum Singh came with a prayer for amendment of the written statement wherein he claimed to be entitled to an adjustment of excess rent paid towards arrears of rent, if any, the further averment set out in the amendment petition being that the excess of Rs. 10/- per month was to be calculated on the rental for the period from 16-5-1962 to May, 1964. This amendment, as stated above, was allowed by the lower appellate Court.
6. Section 8 (2) of the Act deals with fair rent fixed by the Controller. In the instant case, I am not concerned with the fair rent fixed by the Controller but with the contractual rent negotiated by the parties. This sub-section speaks of refund or adjustment in case of excess payment. The plaintiff alleged in the suit acceptance of agreement as to the mode of payment of
rent. If, therefore, the defendant Haicum Singh wanted discharge of his obligation in the way other than that agreed upon, he was duty-bound to intimate his intention to the plaintiff and to demand from him refund or adjustment. Haicum Singh did not do so till be made himself liable as a defaulter. He did not do so till the filing of the written statement or even till the conclusion of the suit in the trial Court. He slept over the matter for long even in the lower appellate Court and came forward with the amendment only on 4-7-1978 when the plaintiff had no opportunity to meet the new case set up by the defendant. The lower appellate Court, therefore, acted quite illegally in allowing the amendment and in holding that Haicum Singh was not a defaulter.
7. Rent for the period from April, 1971 to April, 1972 being due from Haicum Singh, he is held to be a defaulter so as to attract the mischief of Section 11 (1) (d) of the Act. This will itself entitle the plaintiff to a decree for eviction.
8. Coming to the question of personal necessity, the submission of the learned counsel for the appellant was that the decision in Phool Rani v. Naubat Rai Ahluwalia (AIR 1973 SC 2110) (supra), stands overruled by another subsequent decision reported in the case of Shantilal Thakordas v. Chimanlal Mangallal Telwala (AIR 1976 SC 2358). In view of my findings on the question of default, I do not consider it necessary to decide in the instant case as to whether in spite of the death of Dr. Puma Chandra Ghosh, the plaintiff could claim eviction on the ground of personal necessity. No other contention was raised before this Court.
9. The result is that the appeal succeeds, the judgment and decree of the lower appellate Court are set aside. The plaintiff’s suit for eviction is decreed. Defendant No. 1 is directed to deliver possession of the suit premises to the plaintiff within a period of six months from the date of this order, failing which the plaintiffs shall be entitled to take possession in accordance with law. The plaintiffs are also held entitled to a decree for rent at the rate of Rs. 60/- per month from April, 1971 to April, 1972 from Haicum Singh, the defendant No. 1 with the modification, as stated above, the judgment and decree of the trial Court is affirmed. In the facts and circumstances of this case, there shall be no order for costs either of the first appeal or this second appeal.