JAGANNATH TEWAR Vs. GOPAL PRASAD

JUDGEMENT

(1.) This is an appeal by the tenant defendant against the judgment of affirmance. The suit was one for eviction brought by the landlord respondent under Section 11 (1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the 'Act') on the ground of default in the payment of rent within the meaning of the Act.

(2.) The only defence taken was that it should be deemed that the appellant was not in default in payment of arrears of rent as he had already overpaid in excess of the contractual rent before the period of the alleged default The period of the alleged default was December, 1970 and the months of January and February, 1971.

(3.) Admittedly sometime in the year 1965 the appellant was inducted as tenant in the premises in question by one N. K. P. Agrawala (or Agrawal) on a rental of Rs. 100/-per month including fixtures and fittings. The appellant claims that the rent for the house in question was only Rs. 30/- and the additional amount of Rs. 70/- was by way of rent for additional fixtures and fittings, to which the respondent was not legally entitled. Shorn of all details, the appellant went on paying the rent at the rate of Rs. 100/- per month from the date of the initiation of the tenancy. The house admittedly belonged to the joint family of the afore-mentioned N. K. P. Agrawala. On or before the 1st of February, 1970 there was a partition in the joint family of Agrawala and the house in question was allotted to the share of the present plaintiff landlord (respondent). From the period beginning 1st Feb., 1970 the appellant began paying rent to the plaintiff at the same rate of rent of Rs. 100/- with effect from the 1st of Feb., 1970. For the months of December, 1970 and January and February, 1971 a cheque was issued by the appellant drawn in favour of the respondent by way of 3 months' rent at the same rate which, again, was admittedly dishonoured by the bank since the appellant had no credit in his account. Thereafter, on the ground of default the respondent landlord instituted the present suit for eviction on account of the failure in payment of 2 months' rent us envisaged in Section 11 (1) (d) of the Act. Both the Courts below have decreed the suit for eviction. There has been some variation made by the lower appellate Court in the operative portion of the judgment with regard to the future rent payable. The trial Court had held that the plaintiff respondent was entitled to recover the arrears of rent at the rate of Rs. 30/- for December, 1970 and January, February and March, 1971, but from April, 1971 to June, 1971 he was entitled to recover rent at the rate of Rupees 100/- per month. This was evidently beyond the scope of the suit and the lower appellate Court reversed this finding of the trial Court and held that the plaintiff was entitled to a monthly rental of Rs. 30/-.