A tenant who fails to pay rent for two consecutive months is a defaulter and is liable to be evicted.

1. This is a plaintiffs second appeal against the judgment of reversal passed by the learned Subordinate Judge, Purnea, in an appeal arising out of a suit for eviction and arrears of rent filed by the plaintiffs-appellants against the respondents. There is a holding bearing No. 11 in Ward No. 5 of the Purnea Municipality. Dr. Purna Chandra Ghosh (since dead) was owner of this holding. Appellants are the heirs of Dr. Purna Chandra Ghosh and they were substituted in his place after his death.

2. The original plaintiff, Dr. Purna Chandra Ghosh, alleged that four or five years back, he had let out the said holding to defendant No. 1 Haicum Singh on a monthly rental of Rs. 60.00. Haicum Singh defaulted in payment of rent for the period from April, 1971 to April, 1972 and, thus, made himself a defaulter. The original plaintiff Dr. Purna Chandra Ghosh, required the suit premises for his own use and occupation. The further allegation in the plaint was that against the terms of tenancy, Haicum Singh sublet this holding to Md. Quasim, defendant second party. On these allegations, the plaintiff prayed for a decree for eviction and for payment of arrears of rent. The two defendants contested the suit challenging the averments made in the plaint. While admitting that the rental was at the late of Rs. 60.00 per month, defendant first party alleged that there was no arrear as he had paid up all the rents, though he was not granted any receipt. On a consideration of the evidence, the trial Court held that defendant first party Haicum Singh was a defaulter and the mischief of Sec.11 (1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act) was attracted. In spite of the original plaintiff, Dr. Purna Chandra Ghosh, having died during the pendency of the suit, the trial Court further found that there was personal necessity too which entitled the plaintiffs to a decree for eviction. The plaintiffs were also held entitled to the arrears of rent as claimed in the plaint though the story of sub-letting set up by them was not found proved. The result was that the trial Court decreed the suit for eviction as also for arrears of rent by judgment dated 30.04.1976.

3. Defendant Ist party took up the matter in appeal, which was filed on 8.06.1976. Although no such plea was taken in the written statement filed by Haicum Singh, at a considerably late stage on 4.07.1978, he filed a petition for amendment of the written statement alleging that initially the rent fixed for the holding was Rs. 50.00 per month, which tenancy was created on 16.0.1962. Subsequently, the plaintiff enhanced this rent illegally to Rs. 60.00 per month and this entitled him to the adjustment of the excess amount towards the arrears of rent, if any. The amendment was opposed by the plaintiffs. But without any reasoned order, the lower appellate Court allowed this amendment on 5-7-1978 without allowing any opportunity to the plaintiffs to lead evidence regarding the same. The lower appellate Court found that defendant 1st party had paid rent to the plaintiffs only up to March, 1971 and, thus, it accepted impliedly the case of the plaintiffs regarding rent not having been paid from April, 1971 to April, 1972. The lower appellate Court, however, found that the rent had illegally been enhanced to Rs. 60.00 per month from Rs. 50.00 per month, and the plaintiffs having realised Rs. 830.00 in excess from Haicum Singh during the period from May, 1964 to March, 1971, the latter was entitled to adjust the same towards the future rent and in that view of the matter, it held that Haicum Singh was not a defaulter. Relying on a decision of the Supreme Court in Smt. Phool Rani V/s. Naubat Rai Ahluwalia, AIR 1973 SC 2110, the lower appellate Court held that after the death of the original plaintiff, the substituted plaintiffs cannot be said to have personal necessity. The story of subletting was also not accepted by the lower appellat