1. This is a defendants Second Appeal against a judgment of reversal, the trial Court having dismissed the plaintiffs suit for eviction on the ground of personal necessity and default in payment of rent for the period from Nov., 1974 to September, 1975 and again from Nov, 1975 to Nov., 1976 as also for arrears of rent.

2. There is a double storeyed pucca building bearing Municipal Holding No. 139 (old) 147 (new) situate in Ward No. 8 old, 18 new, Circle No. II, mohalla Chhoti Saraiyaganj, Jawaharlal Road in the town of Muzaffarpur in an area of one katha. This house (hereinafter referred to as demised premises) belonged to one Ram Chandra Sah who, undisputedly, inducted defendant Bharat Roadways as a month to month tenant on a monthly rental of Rs. 200.00 per month. Undisputedly, there was no written contract regarding this tenancy. The defendants were not paying rent to Ram Chandra Sah since Nov., 1974 and as such, the latter had served a notice on the former determining the tenancy on expiry of 31-3-1975. The demised premises was purchased by the plaintiff from Ram Chandra Sah under a registered sale deed dated 30-12-1975 (Exhibit 5) in which the arrears of rent amounting to Rs. 2600.00 was also transferred to the plaintiff, notice of which transfer was duly given by Ram Chandra Sah to the defendants. It is undisputed that the defendants accepted the plaintiff as their landlord in respect of the demised premises after execution of the sale deed. Rent having not been paid to the plaintiff, a minor, for the period abovementioned he instituted the instant suit through his father.

3. The defendants contested the suit disputing the claim of the plaintiff for eviction on both the two grounds abovementioned, alleging, inter alia, that they had all along sent rent by money order to Ram Chandra Sah and subsequently to the plaintiff by money orders which were refused by them except the amount of Rs. 200.00 sent by money order to Ram Chandra Sah as rent for the month of Oct. 1975, which he (Ram Chandra Sah) had accepted.

4. The trial Court dismissed the plaintiffs suit in toto on a finding that there was no default in payment of rent and that the plaintiff did not require the demised premises bona fide in good faith for personal use and occupation.

5. The plaintiff took up the matter in appeal. The lower appellate Court decided the question of personal necessity and default in payment of rent in favour of the plaintiff and holding that the defendants had failed to prove that they had spent a sum of Rs. 5,000.00 over repair and that there was no contract entitling them to set off this amount in rent, he decreed the suit for eviction as also for arrears of rent amounting to Rupees 4,800.00 as claimed by the plaintiff. The defendants have now taken up the matter before this Court in this Second Appeal.

6. The substantial question of law, formulated by this Court, while admiting this Second Appeal, may be found in Order No. 11 dated 19-8-1981 which is as follows :-

"Whether the finding of the Court of appeal below with respect to the default payment of the monthly rent and personal necessity of the landlord is sustainable in the eye of law?"

At the time of hearing of this appeal, Mr. Sudhir Chandra Ghose, learned counsel for the appellants, raised a further substantial question of law for consideration, namely that the decree for eviction passed by the lower appellate Court without consideration of the proviso to Clause (c) of Sec.11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (Bihar Act 4, 1983) hereinafter referred to as the Act, was liable to be set aside. In the facts and circumstances of this case, Sri Ghose was allowed to argue this substantial question of law as well.

7. Coming to the question of default in payment of rent, while the finding of the lower appellate Court on this point was challenged by Sri Ghose, the submission of Sri Shreenath Singh, learned counsel for respondent, was that without co