BISHWANATH BALKRISHNA Vs. RAMPEYARI DEVI

JUDGEMENT

(1.) This is an appeal by the defendant. The suit was filed for eviction on the ground of default in payment of rent within the meaning of the Bihar Buildings (Lease, Rent and Eviction) Control, Act, 1947 (hereinafter to be called 'the Act') in the court of the Munsif, 1st Court, Patna which was dismissed. The plaintiffs filed an appeal before the District Judge, Patna and the same was allowed. Hence, this appeal was filed in this Court which was first placed before a learned single Judge but as the appeal involves complicated questions of law, it was referred to a Division Bench.

(2.) According to the plaintiff-respondent, the house in question belonged to them which they purchased from one Parsottamdas Jain by a registered sale deed D/- 12-1-1964 for a valuable consideration. The appellant, a partnership firm was a tenant in the ground floor of the house in question which previously was paying rent at the rate of Rs. 75 per month, but by the order of the Rent Controller, it was reduced to Rs. 20 per month. Since the plaintiff-respondents needed the house bona fide for their own occupation, they served a notice Under Section 106 of the T. P. Act on the 12th March, 1964, determining the tenancy in favour of the appellant. It may be mentioned here that the tenancy was monthly, starting from Badi 1 and ending on Sudi 15th of the same month according to the Hindu Calendar. After determining the tenancy, the respondents filed Title Suit No. 121 of 1964 for eviction of the appellant on the ground of personal necessity. After the aforesaid title suit was filed according to the plaintiff-respondents, the defendant-appellant defaulted in paving rent for a period beginning from Magh Badi 1 Samba 2024 to Chait Sudi 15th Sambat 2025, corresponding to the period beginning from 16-1-1968 to 13-4-1968. On default in payment of rent, the plaintiff-respondents became entitled to a decree for eviction on the ground of non-payment of rent also. They, therefore, filed an application in the suit praying to amend the plaint by adding that the defendant had defaulted in paying rent for the aforesaid period and that a decree for eviction from the premises in question be passed on that account also. The prayer for amendment of plaint was opposed by the appellant which ultimately was disallowed by this Court. The respondents thereafter filed this suit after serving another notice dated 6-2-1969 under Section 106 of the T. P. Act, which was dismissed by the trial court but decreed on appeal by the lower appellate court.

(3.) According to the defendant-appellant, the suit was not maintainable and was barred on account of waiver and estoppel. His case further is that the shop was originally let out on a monthly rental of Rs. 75 but subsequently the Controller under the Act fixed fair rent of the shop at Rs. 20 per month with effect from 3rd May, 1965, which corresponds to Baisakh Sudi 2 Sambat 2022. It is further said that the orders fixing the fair rent with effect from 3-5-1965 were passed on 16-10-1965 and in between these two dates, the appellant continued to pay rent at the rate of Rs. 75 per month till Agrahan Sudi 15th Sambat 2022. It is further his case that thus an excess amount of Rs. 410.67 paise was paid to the plaintiffs towards rent and that he was entitled to refund of this amount. It is further said that even after the order of the House Controller, he went on paying rent at the rate of Rs. 20 per month in the hope that the excess amount will be refunded. But in spite of several requests the plaintiffs did not return back the money and, therefore, the defendant gave a notice to the plaintiffs for the refund of the said amount but that also did not yield any result. In that situation, he claims that ultimately he started making adjustment of Rs. 20 per month towards the rent. In that way, the rent from Magh Badi 1 Sambat 2024 and onwards were being adjusted at the rate of Rupees 20 per month towards Rs. 410.67 p. paid in excess to the plaintiffs. An alternative plea that after termination of tenancy by a notice under Section 106 of the T. P. Act no rent was payable to the plaintiffs was also made and in that context it was said that as no rent was payable by the defendant there could be no default in payment of rent.