S.K.Jha and A.K.Sinha JJ.

1. This is an appeal by the tenant-defendant against the judgment of affirmance. The suit was one for eviction brought by the landlord respondent under Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act) on the ground of default in the payment of rent within the meaning of the Act.

2. The only defence taken was that it should be deemed that the appellant was not in default in payment of arrears of rent as he had already over-paid in excess of the contractual rent before the period of the alleged default. The period of the alleged default was December, 1970 and the months of January and February, 1971.

3. Admittedly sometime in the year 1965 the appellant was inducted as tenant in the premises in question by one N.K.P. Agrawala (or Agrawal) on a rental of Rs. 100/-per month including fixtures and fittings. The appellant claims that the rent for the house in question was only Rs. 30.00 and the additional amount of Rs. 70.00 was by way of rent for additional fixtures and settings, to which the respondent was not legally entitled. Shorn of all details, the appellant went on paying the rent at the rate of Rs. 100.00 per month from the date of the initiation of the tenancy. The house admittedly belonged to the joint family of the aforementioned N.K.P. Agrawal. On or before the 1st February, 1970 there was a partition in the joint family of Agarwala and the house in question was allotted to the share of the present plaintiff landlord (respondent). From the period beginning 1st February, 1970 the appellant began paying rent to the plaintiff at the same rate of rent of Rs. 100.00 with effect from the 1st of February, 1970. For the months of December, 1970 and January and February, 1971 a cheque was issued by the appellant drawn in favour of the respondent by way of 3 months rent at the same rate which, again, was admittedly dishonoured by the bank since the appellant had no credit in his account. Thereafter, on the ground of default the respondent-landlord instituted the present suit for eviction on account of the failure in payment of 2 months rent as envisaged in Section 11(1)(d)of the Act. Both the Courts below have decreed the suit for eviction. There has been some variation made by the lower appellate Court in the operative portion of the judgment with regard to the future rent payable. The trial Court had held that the plain tiff-respondent was entitled to recover the arrears of rent at the rate of Rs. 30.00 for December, 1970 and January, February and March, 1971, but from April, 1971 to June, 1971 he was entitled to recover rent at the rate of Rs. 100.00 per month. This was evidently beyond the scope, of the suit and the lower appellate Court reversed this finding of the trial Court and held that the plaintiff was entitled to a monthly rental of Rs. 30/-.

4. The only question which arises for consideration in this case and on account of which this appeal has been referred to a Division Bench is as to whether the appellant was entitled to claim an adjustment from out of the amounts deposited earlier than December, 1970. It was contended on behalf of the appellant that since the realisation of the amount of Rs. 100/-per month was contrary to law and the money was retained by the respondent the appellant was entitled to take into account the excess payment for adjustment towards future payment which would not make him a defaulter within the meaning of the Act.

5. The argument of Mr. S.C. Ghose, learned Counsel for the appellant is conceived. In the case of Raghunandan Prasad V/s. Deonarain Singh 1975 Bihar Bar Council Journal 494, a single Judge of this Court (namely, S.K. Jha, J.) had held that it would be seen from a plain reading of the two provisions as incorporated in Section 8(2) and (3), that two modes have been prescribed for reimbursing a tenant who has paid any money in excess of the fair rent fixed by the contro