MANMOHAN BHATTACHARYA Vs. KRISHNA GOPAL CHOUDHARY

JUDGEMENT

(1.) 1. This application by the defendant under Section 115 of the Code of Civil Procedure is directed against the order directing him to deposit the arrears of rent and current rent in accordance with the provisions of Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The plaintiff-opposite party instituted Title Suit No. 3 of 1965 against the petitioner for his eviction from a portion of a house on the ground of non-payment of arrears of rent from February, 1963 onwards and also on the ground of personal necessity. The petitioner filed a written statement disputing the claim for evidence. Subsequently, the plaintiff-opposite party filed an application under Section 11-A of the said Act for a direction to the petitioner to deposit the arrears of rent from February, 1963 and current rent. The petitioner alleged that the opposite party had previously filed Title Suit No. 243 of 1960 for eviction and in accordance with the orders of the court passed under Section 11-A of the said Act the petitioner had deposited rent at the rate of Rs. 60/- per month and the opposite party had withdrawn the sum deposited for the period till January, 1963. The case of the petitioner further was that previously the rent was Rs. 60/- per month, but on an application filed by him the House Controller had fixed the fair rent at the rate of Rs. 44.07 paise with effect from the 23rd December, 1960 and at the rate of Rs. 80/-. per month from the 28th September, 1965. In substance, the objection of the petitioner was that the amount deposited by him in excess of the rate fixed by the Controller should be adjusted before he could be asked to make the further deposit under Section 11-A of the said Act. The Munsif overruled this objection and directed the petitioner to deposit a sum of Rs. 1,405.70 paise as arrears of rent at the rate of Rs. 44.07 paise per month for the period commencing from February 1963 and ending on the 27th September, 1965 and Rs. 408/- at the rate of Rs. 80/- per month from the 28th September, 1965 till February, 1966 within fifteen days of his order, failing which the defence of the petitioner against ejectment was to be struck off. He, further, directed the defendant-petitioner to deposit the further rent at the rate of Rs. 80/- per month by the 15th of the following months, Being aggrieved by this order, the defendant has filed this application in revision.

(2.) Learned Counsel for the petitioner has referred to Section 8(2) of the said Act which provides as follows: When the fair rent of a building has been determined or re-determined, any sum on 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. It is not necessary to quote the proviso. Before passing an order under Section 11-A, the Court has to determine the arrears of rent if any. Learned Counsel relied on the decision in Sobrati Rangrez v. Ganga Prasad 1960 B.L.J.R. 661. It was laid down that Sub-section (2) of Section 8 was very comprehensive and did not restrict the right of the tenant for refund or adjustment to any particular time or stage of the litigation. In other words, even when the suit for ejectment was pending and even when the order made under Section 11-A was in operation, the tenant could claim refund of the amount deposited by him in excess of the fair rent fixed by the House Controller or could claim adjustment of the same, In that case, the learned Munsif had ordered the excess payment to be adjusted towards the current rent payable by the tenant, and that order was affirmed by this Court. Relying on this decision, learned Counsel for the petitioner submitted that the amount deposited by the defendant-petitioner in excess of the rate of rent fixed by the house Controller should be adjusted and the Munsif should then determine if there was any arrear still left to be paid by the petitioner to the opposite party.

(3.) Learned Counsel for the opposite party supported the order of the court below and sub-milted that the rent was deposited in the previous Title Suit No. 243 of 1960 and not in the present Title Suit No. 3 of 1965, and, as such, the amount paid in excess could not be adjusted towards the rent in arrear. The learned Munsif, while dealing with this point, observed as follows: Plaintiff in his affidavit has admitted that a Title Suit No. 243/60 was filed by him against this defendant in which under the orders of the court passed under the provisions of Section 11-A defendant had deposited rents at the rate of Rs. 60/- and he has with-drawn the money deposited there till January 1963. It is true that fair rent lias been fixed from 1960, but plaintiff has already received the rent from. defdt. till January, 1963 and the question of refund of those sum will not arise here at this stage and this Court, can-not order for the refund. It is quite clear from these observations that the plaintiff-opposite party has already withdrawn the money deposited by the defendant-petitioner at the rate of Rs. 60/- per month. The Munsif lost sight of the expression "adjusted" appearing in Section 8(2) of the said Act. It is immaterial that the defendant-petitioner had deposited rent in another suit inasmuch as the fact that the plaintiff-opposite party has withdrawn the sums deposited has been admitted by him. It is, therefore, just and equitable that in accordance with the provisions of Section 8(2) read with Section 11-A, the sums deposited by the defendant-petitioner in excess of the rate of rent fixed by the Controller should be adjusted before passing an order under Section 11-A of the said Act.