JAFARU ALAM ALIAS ZAFAR ALAM Vs. KAILASH DEVI

JUDGEMENT

(1.) This second appeal is at the instance of the tenant assailing that part of the judgment by which he has been held to be a defaulter necessitating his eviction. The substantial question of law framed at the stage of admission is whether the judgment of the appellate court is vitiated by refusal to adjust the excess amount paid by the tenant to the landlord prior to the institution of the suit.

(2.) The lower appellate court has found that the appellant was inducted as a tenant at the rate of Rs. 20/ - per month, but thereafter the rent has been illegally enhanced to Rs. 25/ -against the provision of Sec. 4 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as 'the Act'), and for the period from 1st October, 1970 till before the institution of the suit, the rent was recovered at the higher rate. The appellate court held that there has been an excess realisation by the landlord to the tune of Rs. 405/ -since the landlord was entitled to realise rent only at the rate of Rs. 20/ - per month and not Rs. 25/ - per month. The cause of action for the institution of the suit is default in the payment of rent at the rate of Rs. 25/ - from July, 1979 to May, 1980 amounting to Rs. 275/ -only. Question is whether the tenant can be held to be defaulter even though the landlord had a considerable sum illegally realised from the tenant to which he is not entitled which, if allowed to be adjusted, completely wipes out the default alleged still leaving balance for adjustment for subsequent months.

(3.) Learned counsel for both the parties referred to the decision of Gulab Chand Prasad v/s. Budhwanti and another ( : A.I.R. 1985 Pat 327 -FB : 1985 PLJR 622) in support of their respective stand. Mr. K.N. Keshava learned counsel for the tenant -appellant contends that the tenant is entitled to adjustment since principles of pari delicto adverted to in Gulabchand's case (supra) is wholly inapplicable as there has been no agreement between the tenant and landlord to pay the enhanced rent. On the contrary, the enhanced rent was illegally realised under coercion. Learned counsel for the appellant further submitted that the tenant gave notice to the landlord vide Ext. E, to adjust the excess amount realised prior to the institution of the suit. Therefore, in view of Gulabchand's case (surpa) he is entitled to adjustment of the excess rent realised by the landlord treating the same to be rent paid in advance by the tenant. Mr. Rameshwar Prasad, learned counsel for the respondent on the other hand, contended that even assuming that the landlord had excess amount in his hand which is liable to be adjusted, on the finding recorded by the court below, the tenant never exercised his option of adjustment in view of the finding of the lower appellate court. In that view of the matter, the case of the tenant cannot be accepted in view of the principle laid down in Gulabchand's case (supra).