Judgement

VENKATARAMIAH, J.: - The appellant is a firm carrying on business at Jharia. It took on lease a room bearing No. 1in a building belonging to the respondent on a monthly rent of Rs. 70/- on 7-11-1960 and paid in advance two months rent, i.e., Rs, 140/-. The appellant paid rents regularly but did not pay the rent for the months of September and October, 1972. Taking advantage of the non-payment of the rent in respect of the said two months the respondent filed a petition for eviction against the appellant contending that the appellant had become liable to be evicted from the premises in question under clause (d) of sub-section (1) of section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as the Act) which provided that on failure to pay two months rent a tenant was liable to be evicted from the premises taken on lease. The appellant pleaded inter alia in his written statement that at the time of the inception of the tenancy it had paid the respondent a sum of Rs. 140/- as advance rent with an understanding that the amount of advance could be set off against the rent whenever necessary or required and that since under S. 3 of the Act it was not lawful for a landlord to claim or receive, in consideration of the grant, renewal or continuance of a tenancy of any building, the payment of any premium, salami, fine or any other like sum in addition to the rent or payment of any sum exceeding one months rent of such building as rent, in advance, the appellant could not be considered as a defaulter in payment of rent for purposes of clause (d) of S. 11(1) of the Act as at least one months rent which had been paid in excess of what was permitted under S. 3 of the Act was liable to be adjusted towards the arrears. The appellant, therefore, contended that in any view of the matter it could not be treated as a defaulter liable to be ejected from the premises. Agreeing with the pleas of the appellant the trial court dismissed the suit and the appeal filed by the respondent before the Additional Subordinate Judge, Dhanbad against the judgment of the trial Court was also dismissed. The respondent filed a second appeal before the High Court against the judgment of the Additional Subordinate Judge. The High Court found that the rent for the appellant had failed to pay the rent for the months of September and October, 1972 although it accepted the plea of the appellant that he had paid the sum of Rs. 140/- as rent in advance on the ground that the appellant had not requested the respondent to adjust the rent which he had paid in advance towards the rent due for the months of September and October, 1972. The relevant part of the judgment of the High Court reads thus :

"6. In paragraph 9 of the written statement, the respondent stated that Rs. 140/- was advanced to the appellant, with an understanding that it could be set off against the rent whenever necessary or required. It will, therefore, appear that the respondent was entitled to claim adjustment if it was necessary or required. The respondent neither orally nor in writing informed that it was exercising its option under the agreement for adjusting the amount paid in advance towards the rent of September and October, 1972. Accordingly to the respondents own showing, it remitted the rent for these two months also along with rent of November and December, 1972 in January, 1973. If it had exercised its option under the agreement, there was no necessity for it to remit the rent for the months of September and October because that amount was not due as it had been paid by adjustment. Mr. Sinha submitted that the pleading should not be construed in a pedantic manner. There is no question of construing the pleadings in this case in a pedantic manner because according to its own case, the respondent was entitled to adjust the amount if necessary or required and for that it was necessary for it to intimate the appellant that it was exercising his