ISHWAR SAH Vs. NANDINI DEVI

JUDGEMENT

(1.) HEARD the parties.

(2.) THE plaintiff's suit for eviction under the provisions of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 against the defendant was dismissed by the trial court. They preferred appeal. The First appellate court found the tenant to have committed default in payment of rent for the period November, 1985 to November, 1988 and hence liable for eviction under Section 11(1)(d) of the said Act. It was also held that the excess rent, if any, paid by the defendant in pursuance of mutually agreed illegal enhancement was not automatically adjusted against subsequent defaults and he was a defaulter in the eye of law. In this regard reference may be made to a decision of the apex court in Nand Lal Agrawal Vs. Ganesh Prasad Sah & others (AIR 1988 S.C. 1821), wherein it was held that without the tenant calling upon landlord to adjust excess payment towards the arrears of rent, he cannot seek such a right in the suit filed by the landlord by way of defence in a suit for eviction.

(3.) IN the present case, I find that the defendant paid at the enhanced rate voluntarily and as such he was not entitled to claim such adjustment or refund from the landlord since the parties would be deemed to be in pari -delicto. In this regard reference may be made to a decision of this court in Gulabchand Prasad Vs. Budhwanti & another (AIR 1985 Patna 327).