Ashwini Kumar Sinha, J.

1. This application by the defendant is directed against the order dated 1st October, 1981, passed by the Munsif, Frst Court, Bhagalpur, in Title Suit No. 59 of 1979 directing the defendant-petitioner to deposit the arrears of rent from the date of institution of the suit and current rental the rate of Rs. 110-00 per month under Sec.13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (hereinafter referred to as the Act).

2. The plaintiff opposite party filed Title Suit No. 59 of 1979 in the Court of Munsif I, Bhagalpur, against the defendant-petitioner fer a decree for eviction of the defendant from the suit premises with fixtures and furniture and also for a decree of Rs. 927 as arrears of rent with interest for the period January, 1978, to January, 1979 and also for Rs. 771-70 as rent with interest for the furniture and fixtures for the said period.

3. The relationship of landlord and tenant between the parties is admitted. On 10.2.1981, the plaintiff opposite party filed a petition under Sec.13 of the Act and prayed to the Court for a direction to the defendant-petitioner to pay the arrears of rent at the rate of Rs 110-00 per month (Rs. 60-00 as rent for the premises and Rs. 50-00 as rent for the fixtures and furniture) from the month of January, 1978, and also directing the defendant to go on paying the current rent at that rate. The defendant-petitioner filed a rejoinder thereto on 26.3.1981 stating therein that the rent of the premises was only Rs. 60-00 per month and so the prayer for deposit of rent at the rate of Rs. 110-00 could not be allowed in law as it would be contrary to the provisions of the Act. In the rejoinder the defendant-petitioner himself stated that the plaintiff has been realising Rs. 50-00 in excess of the monthly rental since January, 1974 up to October 1978 According to the defendant, he has been paying rent at the rate of Rs. 110-00 under an assurance that the excess of Rs. 50-00 was to remain in advance deposit with the plaintiff by way of security. The case of the defendant was that no furniture or fixtures, whatsoever, of any kind was ever supplied to the suit premises or to the defendant-petitioner and hence the realisation of Rs. 50-00 per month in excess of the monthly rental was wholly illegal According to the defendant, if the amount which is said to be in excess payment is adjusted, there would be no arrears.

4. The learned Munsif by the impugned order has held as follows:

Heard both the sides. The learned lawyer on behalf of the defendant filed two rent receipts which clearly goes to show that the defendant is paying Rs. 60 as rent and Rs. 50 as rent for fixtures and furniture. It is clearly mentioned in W.S. vide para 7 that the defendant was paying a total sum of Rs. 110 in good faith. On consideration of the petition, rejoinder and W.S. filed on behalf of defendant I order defendant to pay the arrears of rent from the date of institution of the suit and current rent at Rs. 110.00 i.e. Rs. 60.00 rent and Rs. 50.00 rent for fixture and furniture per month, within 15 days from today failing which his defence will be struck off and current rent will be payable by the 15th of each following month.

5. Learned Counsel appearing for the defendant-petitioner has argued that according to the plaintiffs own case, the rent for the suit premises was only Rs. 60 and Rs. 50 was the rental for fixtures and furniture and, therefore, in law the Court below has gone wrong in directing the petitioner to deposit rent at the rate of Rs. 110 per month. Admittedly the defendant has been paying rent at the rate ofRs. 110 per month, but his contention is that Rs. 50 out of that Rs. 110 is rent for fixtures and furniture, Therefore this cannot be included in the word "rent" for the building, and in that view of the matter, on the admitted case of the plaintiff, the order passed by the Court below is wholly illegal.

6. Sec.13 of the Act reads as follows:

If in