Judgment

NATARAJAN, J. : - This appeal by special leave is directed against a judgment of the High Court of Patna in Second Appeal No. 96/82 confirming the decree for eviction passed by the lower Courts against the appellant herein. The limited question for consideration in the appeal is whether the Subordinate Courts and the High Court have committed an error of law in holding that the appellant had rendered himself liable for eviction for non-payment of rent for the period 1-2-1975 to 30-6-1975 in spite of the Courts holding that the appellant had paid excess rent of Rs. 10/- per month for a period of 33 months.

2. The facts are not in dispute and are briefly as under. The appellant was running a grocery shop in the leased premises and was paying an agreed rent of Rs. 60/- per month to the respondent. The respondent terminated the tenancy and filed a suit for eviction of the appellant on three grounds, viz. (1) bona fide requirement of the premises, for opening a shop (2) default in payment of rent for five months; and (3) wrongful conversion of the leased premises from a residential house to a grocery shop. The Trial Court and the Appellate Court decreed the suit for eviction on the first two grounds but not on the third ground. The High Court sustained the decree for eviction on the second ground and deemed it unnecessary to go into the merits of the other ground on which eviction was ordered.

3. As regards the non-payment of rent for the period 1-2-1975 to 30-6-1975, the appellant conceded that he paid the rent only on 30-7-1975 but nevertheless contended that he had paid an advance of Rs. 300/- and out of the said advance a balance of Rs. 180/- was available for appropriation towards the rent arrears, and secondly, the respondent had collected a sum of Rs.. 70/- every month towards rent as against the contractual rent of Rs. 60/- for a period of 33 months and the excess collection was in contravention of Sections 4 and 7 of The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (for short the Act) and as such it ought to have been appropriated by the respondent towards the rent arrears. The Trial Court and the Appellate Court concurrently held that there was no proof the appellant had paid an advance of Rs. 300/- and hence the question of appropriating the balance in the advance amount towards arrears of rent did not at all arise. Regarding the second plea pertaining to the excess payment of Rs. 10/- every month for a period of 33 months and the adjustment of the excess payment towards the rent arrears, the Courts held that the increase of the rent from Rs. 60/- to Rs. 70/- per month on the basis of the respondent providing additional amenities was not permissible under the Act but nevertheless, the appellant cannot take advantage of the situation because he had failed to exercise his option to seek adjustment of the excess payment towards the rent arrears. The High Court, as already stated, affirmed this finding of the Courts below and has observed that the appellants prayer for adjustment of the excess payment can be sustained only if he had exercised his right of option under Section 8(2) as the Section lays down that any payment made in excess of the fair rent fixed for a building has to be refunded to the person by whom it was paid or at the option of such person it can be adjusted towards the arrears of rent (emphasis supplied). The view taken by the High Court is assailed by the appellant in this appeal.

4. It was urged by the learned counsel for the appellant that since the Courts have found that the respondent was not entitled to receive excess payment of Rs. 10/- per month towards the amenities provided by him without the approval of the Rent Controller, he was bound to adjust the excess payments towards the arrears of rent and therefore he was not entitled to seek the appellants eviction merely because the appellant had failed to exercise his option under Section 8(2) of the Act for the appropriation of