Ishwar Sah vs Smt. Nandini Devi and Others

Gurusharan Sharma, J.—Heard the parties.

The Plaintiff''s suit for eviction under the provisions of Bihar Buildings (Lease, Rent and 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 u/s 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 Agarwal Vs. Ganesh Prasad Sah and Others, , 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.

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 Gulab Chand Prasad Vs. Budhwanti and Another, .

Besides this the Plaintiff also established their requirement of the suit premises reasonably and in good faith. Since on accpunt of default the Defendant was liable to be evicted from whole of the suit premises u/s 11(1)(d) of the Act, sufficiency of partial eviction under proviso to Section 11(1)(c) was not significant.

I find no merit in this Second Appeal. It is, accordingly, dismissed under Order 41, Rule 11 of the Code of Civil Procedure.

Consequently, interim order dated 19.3.1996 of stay of further proceedings in Execution Case No. 2 of 1996 pending in the court of 3rd Subordinate Judge, Deoghar stands vacated.