BIBI SHAB JEHAN BEGAM Vs. KAPILDEO NARAIN GUPTA

JUDGEMENT

(1.) This application in revision by the plaintiffs arises out of an order of the munsif allowing the prayer of the defendant opposite party for adjusting the rent paid in excess to the plaintiffs landlord's of the fair rent fixed by the House controller.

(2.) The relevant facts briefly stated, are as follows. The petitioners instituted a title suit in the Court of the Munsif I at Patna against the opposite party for his eviction for a building bearing holding No. 17 in circle No. 22 of ward No. 12 under the Patna Municipal Corporation. The tenancy had commenced from the 1st of May 1970 under an aggreement to pay the rental at the rate of Rs. 300.00 per month. A petition under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as the Act was filed by the petitioners after filing of the written statement by the opposite party for a direction to deposit the arrears of rent as well as current and future rents in terms of Section 11-A of the Act. The claim was made for rent at the rate of Rs. 300.00 per month. In the rejoinder filed by the opposite party it was asserted that after the inception of the tenancy, there had been a proceeding for fixation of fair rent and the House controller by his order dated 17th of December, 1975 had determined that fair rent of the premises in question at Rs. 73,33 p. per month. It was accordingly contended that the petitioner was not entitled to claim rent at a rate higher than the fair rent. It was further stated in the rejoinder that the petitioner had realised rent in advance at rate higher than the fair rent and, therefore, he was entitled to claim adjustment of the excess paid towards the claim of the petitioners. Rather, this was the ground which was assigned by him for not remitting the rent. The learned Munsif, however, by his order dated 17th of December, 1970, directed the opposite party to deposit the arrears of rent from February 1973 or November, 1975 at the rate of Rs. 73.33 p. and also to deposit the current and future rents at the same rate. It is thereafter that the opposite party made a fresh application for adjustment of the excess payment made by him. According to the case of the opposite party, he made payment to the petitioners at the rate of Rs. 330.00per month from 27-4-1957 to 30-4-1970 thereafter upto 30th April, 1972 at the rate of Rs. 300.00Thus, according to him the total excess payment was Rs. 14,680.20 p. This claim was contested on behalf of the petitioners on various grounds, one of them being that no such order of adjustment could be allowed under Section 8(2) of the Act, as Section 11-A was independent of any other provision of the Act overruling the objection of the petitioners, the learned Munsif allowed the claim for adjustment of the opposite party. He however, determined the excess amount as Rs. 3440.08 p. only.

(3.) Mr. Mojibul Haque, learned Counsel appearing in support of this application also urged a similar ground and contended that once an order under Section 11-A was made, the Court had no jurisdiction to make any order of adjustment. He purported to place reliance on a Full Bench decision of this Court in N.M. Verma v. Upendra Narain Singh . I am afraid, the ratio of the case relied upon by Mr. Haqus has got no bearing on the question raised by him. In that case the only question that fell before the learned judge constituting the full Bench for consideration was as to what should be the correct interpretation of the expression "at a rate at which it was last paid". In view of divergent decision of this Court the matter was referred to the Full Bench consisting of five judges. Overruling the view of this Court in two Division Bench decisions and one full Bench decision, it was held by this Full Bench that in construing the expression" at a rate at which it was last paid". the Court was not authorised to look to any other matter, such as fair rent fixed by the controller, or the like and that the expression must be given a literal interpretation. There is nothing in this decision which deals with the question of adjustment. Mr. Haque also faintly contended that the order passed by the learned Munsif on 17-121975 under Section 11-A of the Act being contrary to the view expressed by the above Full Bench should not prevail. It is difficult to accept the contention as that order between the parties to this suit has become final and cannot be held to be bad on account of the latter pronouncement.