Satya Brata Sanyal, J.
1. Plaintiff-landlord's appeal is directed against a judgment, by which the lower appellate Court has allowed the tenant-defendant to reside in the suit premises for a period of approximately 12 years in spite of a judgment and decree for eviction. The Court held that till the amount deposited by the tenant under Section 13. Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977, (hereinafter to be referred to as 'the new Act'), is fully adjusted, he has a right to stay in the suit premises.
2. On 11-4-1983, while admitting this second appeal, N. P. Singh, J., framed the following four substantial questions of law :
1. Whether it was open to the court of appeal below after having held that the defendant had defaulted in the payment of rent for more than two months before the institution of the suit to allow the defendant to continue in possession of the building in question till the amount deposited during the pendency of the suit in view of a direction under Section 13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977, is adjusted?
2. Whether the court of appeal below had jurisdiction while dismissing the appeal of the defendant-respondent to direct in the decree that the defendant shall remain in possession till 18-6-1995?
3. Whether the learned Additional District Judge could have ordered that the defendant shall remain in possession of the buildings till the amount deposited by him during the pendency of the suit is adjusted, when there is no such provision under the Act?
4. Whether the judgment and decree passed by the learned Additional District Judge can be held to be perverse? There is also a cross-objection preferred by the tenant-defendant under Order 41, Rule 22, Civil P. C., against the finding of the lower appellate court.
3. After service of notice under Section 106, Transfer of Property Act, the plaintiff instituted the instant suit for eviction on 25-4-1974 for default in the payment of rent for the period Posh 2029 to Chait 2031 (7-12-1972 to 6-4-1974). The rent due amounts to Rupees 1616/-. The non-payment of rent for this period is admitted.
4. The case of the defendant-tenant is that he was inducted, as a tenant in October, 1963 by plaintiff's predecessor on a monthly rental of Rs. 30/-. The plaintiff, on his purchase of the suit premises, in February, 1964, enhanced the rent to Rs. 10/- which was illegal. The defendant committed no default, because the landlord realised enhanced rent at the rate of Rs. 71/- per month from Kartik 2021 Sambat which if treated as advance rent completely takes care of the default alleged.
5. The further ease of the defendant is that, on 19-5-1968, the landlord was paid an advance of Rs. 3000/- expressly on the condition, that whenever the tenant would commit default in the payment of rent, the same would be adjusted out of the said fund. A further sum of Rs. 15/- is also said to have been paid by way of advance on 13-12-1968. It is further said that, on adjustment of this sum of Rs. 3015/-. there would be no default, whatsoever, so as to provide a cause of action for the suit.
6. After the suit was instituted in the year 1974, the defendant filed an application under Section 5, Bihar Buildings (Lease, Rent and Eviction), Control Act 1947, (hereinafter to be referred to as 'the old Act'), on 17-1-1975 for fixing fair rent. Subsequently fair rent was fixed at the rate of Rs. 30/- per month operative from 17-1-1975. It appears that on 6-4-1976, an order under Section 11-A of the old Act was passed by the Court below for requiring the tenant to deposit arrears of rent as well as for payment of future rent at the rate of Rs. 101/- per month. In Civil Revision No. 398 of 1976, this order under Section 11-A was set aside but deposits up to October, 1977 was made by the tenant. On 4-3-1978, when the new Act came into force, the Court below issued a fresh direction under Section 13 of the new Act for deposit of rent at the rate of Rs. 101/- per month and future rent at the said rate. On 29-4-1978, the plaintiff-landlord withdrew a sum of Rs. 4343/- out of the deposits made but, on 18-3-1981, an order of restraint was passed by the Court from plaintiff's withdrawing any further sum from the said deposit. The Court further directed that future deposits would be made by the tenant-defendant after complete adjustment of the excess amount lying in deposit under Sections 11-A and 13 of the old and the new Act. The excess deposit, it may be stated here, was due to Controller's fixing fair rent at the rate of Rs. 30/- effective from 17-1-1975. The sum which was withdrawn by the plaintiff, out of the deposit is in full adjustment of the rent receivable by him at the rate of fair rent fixed by the Controller till the date of the disposal of the suit
7. The lower appellate court found that there has been no illegal enhancement of rent from Rs. 30/- per month to Rs. 101/- per month by the plaintiff-appellant and, therefore, there is no question of advance and/or adjustment of excess amount paid by the defendant towards future rent on this score. It further found that a sum of Rs. 3000/-was paid by the defendant to the plaintiff on 17-5-1968. The defendant went on paying rent regularly up to Aghan 2029 even after the said payment in 1968. It also held that the said sum of Rupees 3015/- was not agreed upon between the parties to be adjusted towards future rent, on the contrary, the said, sum did not relate to rent of the suit premises. In that view of the matter, according to the Court of appeal below, the sum of Rs. 3015/- cannot be adjusted towards the rent account. The defendant, therefore, is a defaulter within the meaning of the Act for having not paid rent from Posh 2029 to Chait 2031.
8. Curiously after having so held the Court of appeal below concluded from the order passed on 18-3-1981 that since the Munsif, while passing the said order under Section 13 of the new Act, directed by the consent of parties that the amount of rent deposited by the defendant in excess of Rs. 30/- since 17-1-1975 would be adjusted in future rent and further deposit of future rent only be made after full adjustment of the excess deposit under Section 11-A/13 of the old and new Act the plaintiff cannot get vacant possession of the disputed premises, in spite of the decree for eviction, until the entire excess amount in deposit is fully adjusted. The lower appellate court, with the aforesaid modification of the trial court judgment and decree, dismissed the appeal and confirmed the judgment and decree of eviction of the court below.
9. Mr. Sudhir Chandra Ghose, learned counsel appearing on behalf of the appellant, assailed that part of the judg-ment of the lower appellate court by which the court of appeal below has deferred the eviction by the period, the entire amount in deposit under Section 11A/13 of the old and new Act is adjusted, as being perverse, illegal and on a complete misconstruction of the order dated 18-3-1981 passed by the learned Munsif in exercise of his power conferred under Section HA/13 of the old and new Act. According to the learned counsel, even though the plaintiff-appellant is entitled to eviction of the tenant on the finding of the two courts below that he is a defaulter and liable to be evicted from the suit premises in execution of the decree obtained by his client, the eviction is deferred by about 12 years not only on an erroneous construction of the order dated 18-3-1981 but by complete misconception of the scope of Section 11A/13 of the old and new Act. It is submitted that if there has been any excess deposit by virtue of the order of fixation of fair rent, under Section 8(2) of the Act, the tenant shall be entitled to the refund, of the excess deposit. His client, the plaintiff, according to him, has not drawn any excess rent from the deposit made under Section 11A/13 of the old and new Act on 29-4-1978 but what has been drawn is in full satisfaction of his clients up to date dues at the rate of the fair rent fixed by the Controller. The main thrust of the argument of the learned counsel for the appellant is that any order passed under Section 11A/13 of the old and new Act would stand automatically superseded by the ultimate decision of the Court under Section 11/12 of the old and new Act and the operation of the order under Section HA/13 of the old and new Act shall stand automatically exhausted on final disposal of the case,
10. Mr. Asghar Hussain, learned counsel appearing on behalf of the defendant-respondent, on the contrary, canvassed the view point of the lower appellate court and urged that the order dated 18-3-1981 is a consent order and as such till the deposit lying therein is fully adjusted the tenant has rightly been allowed to reside in the suit premises. He very strenuously pressed the cross appeal, which is directed against the finding that the defendant-tenant is not entitled to the adjustment of Rs. 3015.00 lying in deposit with the plaintiff-landlord and the finding of the Courts below on this score according to learned counsel, is wholly unwarranted by evidence and is also vitiated in law for non-consideration of material evidence on record. According to him, if this amount is allowed to be adjusted, there remains no dues consequently no default in the payment of rent.
11. Before I consider the respective submissions of the learned counsel, I would like to point out the scheme of the Act relevant for the purpose of this case. The Bihar Buildings (Lease, Rent and, Eviction) Control Act, (3 of 1947) Came to be drastically amended by the Bihar Act 16 of 1955. Prior to the amendment the order of eviction could be made by the Controller en an application made to him in that regard. Under Section 11 (3) proviso of the amended Act of 1947, the Controller was conferred with the jurisdiction to grant a reasonable time ordinarily "not less than three months but not exceeding six months in any case for putting the landlord in possession of the building". By the amending Act of 1955. proceedings for eviction of tenant have got to be initiated by institution of suit in Civil Court and Section 11 of the amended Act did) not confer similar power to the Civil Court, as was obtainable to the Controller for putting the landlord in possession of the building. In this ease we are concerned with the Act as amended in the year 1955 as well as the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977. Sections 5, 6, 7 and 8 of the Act relate to fixation and redetermination of fair rent and matters to be considered in determining the fair rent. Section 8(2) relates to the consequences of determination and re-determination of fair rent. It provides that if the landlord has been paid any sum in excess of the fair rent or short of such fair rent, whether before or after the date appointed by the Controller under Sub-section (3), in respect of occupation for any period after such date shall, in case of excess, be refunded to the person by whom it was paid or at the option of such person be otherwise adjusted and, in case of shortage be realised by the landlord as arrears of rent from the tenant. Section 11 of old Act and Section 12 of new Act relates to eviction of tenant. These sections provide that a tenant cannot be evicted except in execution of a decree passed by the Court on one or more grounds enumerated therein; one of the grounds being "where the amount of two months' rent lawfully payable by the tenant and due from him is in arrears.....". Section 11A of the old Act which is Section 13 of new Act, requires deposit by tenant if in a suit for recovery of possession of any building, the tenant contests the suit, as regards claim for ejectment. This order will be passed on an application made by the landlord at any stage of the suit to deposit monthly rental at a rate at which it was last paid and also the arrears of rent, if any. In the event of the failure of the tenant to carry out the direction made under Sec-tion 11A/13 of the old or new Act, the defence against ejectment to be struck out. The said sub-section specifically provides that the landlord, may also apply for permission to withdraw the deposited rent without prejudice to his right to claim for ejectment and the Court may permit him to do so. This Court in the case of Ram Nandan Sharma v. Maya Devi (AIR 1975 Pat 283) (FB) observed, while interpreting the scope of Section 11A, thus (at p. 286) :
"It would thus be seen that in a suit for ejectment of the tenant either on the ground, of personal necessity, non-payment of rent or any other ground envisaged under Section 11 of the Bihar Act, a provision has been made to compel the tenant to pay all arrears of rent, current and arrears, falling due during the pendency of the suit. Although the main object of the Bihar Act as also of similar statutes in other States is to protect the tenant from unreasonable eviction, provisions have been made in almost all the State statutes in regard to deposit of rent so that a tenant may not go on fighting litigation without payment of rent."
12. In the case of Sk. Md. Rasool v. Sk. A. Rahman (1967 BUR 108), while interpreting Section 11A, this Court held that the word 'Court', referred to in Section 11A, must mean the appeal court also and at any stage of the suit will also include at any stage of the appeal. In short, so long as the tenant is not finally evicted from the suit premises and he fights the litigation, of eviction, the Act requires that he can do so only by making regular payment of rent during the said period. In the case of N. M. Verma v. U. N. Singh (1977 BBCJ (HC) 662) : (AIR 1978 Pat 101) (FB) this Court was required to consider the meaning of last paid rent and Lalit Mohan Sharma, J. speaking for the majority view, held that the words used in Section 11A are unambiguous and upon its plain meaning, a landlord can require deposit of rent at which it was last paid and the court can determine what was the rent last paid. His Lordship further observed as follows (at p. 106) :
"What Section 11A is trying to achieve is to maintain the status quo in regard to the rate under the pains of rejection of the written statement. No substantial rights are being dealt with I, therefore, hold, that the observation of the Full Bench m para 25(b) of the judgment in Mahabir Ram, v. S. S. Prasad (AIR 1968 Pat 415) (FB) to the effect that the order passed under Section 11A of the Act is subject to variation, so as to make it consistent with the fair rent fixed by the Controller, is not correctly made, and the decision of this Court following the above observation including those in Manoranjan Nath Patra v. Kashi Prasad Sah (AIR 1973 Pat 421) and Sashidhar Das v. Harihar Prasad, (1973 BBCJ 401) are also not correct. I agree with the view taken in S. M. Khalil v. Akhauri Sitaram (AIR 1958 Pat 103)."
These cases, in my opinion, lay down in an unequivocal terms the scope of an order under Section 11A/13 of the old or new Act and its duration. The order under the aforesaid sections seeks to achieve an arrangement during the course of litigation. It does not decide any substantial right of the parties in litigation. The operation of the order dissolves with the disposal of the case. The order under Section 11A/13 of the old, or new Act does not operate to confer any advantage to any party. If there is any excess deposit by virtue of any variation in the rent brought about by fixation of fair rent, the parties are at liberty to get the refund or realise the balance. Nothing more and nothing less.
13. In this case merely because the learned. Munstf, in his order dated 18-3-1981, directed the tenant to make further deposit during the pendency of the suit after adjustment of the excess deposit occasioned by virtue of an order of the Controller fixing fair rent, can-not, in my opinion, enure to the benefit of the tenant, so as to allow him to continue in the premises even after the landlord obtains a decree for eviction on the ground of default. This will be against the teeth of Section 11/12 of the old and new Act which lays down the contingencies of eviction and eviction procedure. In the instant case, this order was passed during the pendency of the suit and rightly the plaintiff agreed that as long as the excess deposit is not adjusted the tenant may not be required to make further deposit. The deposits, are to be made during the pendency of the suit and appeal and the adjustment also during the said period and not after the final disposal of the case itself. How, Shri Sushil Kumar Dwivedi, 3rd Additional District Judge, Gaya, could take such a view of the said order, and thus allow the tenant to live in the premises for 12 more years after having found him to be a defaulter and decreeing the suit of the landlord for the eviction of the tenant is beyond my comprehension.
Mr. Asghar Hussain, learned counsel appearing on behalf of the respondent, also could not substantiate the said view of Shri Sushil Kumar Dwivedi, 3rd Additional District Judge, Gaya, beyond only repeating the reasons assigned by him. If the said view expressed by the Courts below is pushed to its logical conclusion it will justify a tenant's continuance in premises, in spite of his eviction, if the tenant happens to deposit any excess sum pursuant to an order under Section 11A/13 of the old and new Act. This will be contrary to the provisions of Section 11/12 of the old and new Act.
14. I, therefore, hold that the order of the court of appeal below that until the entire excess deposit made by the tenant under Section 11A/13 of the old and new Act is fully adjusted (after deducting the arrears of rent for the default period), the tenant is not required to restore possession of the premises to the landlord is erroneous in law and wholly without jurisdiction and, therefore, must be set aside.
15. Mr. Asghar Hussain, however, strenuously presses the cross-objection and contends that if the sum of Rs. 3015/- is allowed to be adjusted, there remains no default, whatsoever, since the rent for the months not paid for, constitutes a sum of Rs. 1616/- only. According to the learned counsel the finding that this amount cannot be adjusted, as it does not relate to rent is vitiated in law for the Court's failure to consider the evidence of D.Ws. 9, 14, 15, 16, 18 and 25 in its proper perspective and the courts losing sight of important aspect of the case. The Courts below, according to the learned lawyer, while referring to the evidence of these witnesses, did not bear in mind the crucial aspect of the case. Learned lawyer relies on the decision of Tahzibunissa v. Azizur Rahman reported in 1979 BBCJ (HC) 584 : (AIR 1980 Pat 89) and of Sonawati v. Sri Ram reported in AIR 1968 SC 466. Mr. Ghose, learned course for the appellant, on the other hand, contended that the finding that there was no agreement between the parties to adjust the sum of Rs. 3015/- towards future rent of the suit premises and the amount did not relate to rent account is a concurrent finding of fact of both the Courts below and, therefore, cannot be interfered with under Section 100, Civil P. C. He relies for the said proposition on the cases of Ramachandra v. Rama-lingam (AIR 1963 SC 302) and E. Mahboob v. N. Safabarayan (AIR 1982 SC 679). On the point that the defendant is not allowed in law to such adjustment, Mr. Ghose refers to the cases of Raghu-nandan Prasad v. Deonarain Singh (1975 BBCJ 494) : (AIR 1976 Pat 195), Ahmad Raza Khan v. Bhola (1979 BBCJ (HC) 235) : (AIR 1979 Pat 222) and Jagannath Tewary v. Gopal Prasad (1983 BBCJ (HC) 1) : (AIR 1.983 Pat 50).
16. The grievance that there has been no consideration of the defence witnesses, referred to above, as highlighted by the learned counsel for the respondent, apparently seems to be misconceived inasmuch as from para. 12 of the trial court judgment, I find that it has considered the oral evidence of the defence witnesses. Ext. 8 is the payment of a sum of Rs. 15/- and Ext. 10 relates to the sum of Rs. 3,000/-. The trial court rejects the oral evidence mainly on the ground that had these sums were agreed upon to be adjusted towards future rent it must have been mentioned in the said exhibits. The trial court further observed as follows :
"In absence of this, it is difficult to believe that the defendant had paid these amounts towards future rent. In addition the defendant has himself admitted that in spite of payment of these amounts the defendant continued paying rent till Aghan 2029 Sambat. This payment by defendant also clearly shows that no amount was paid by defendent to the plaintiff which was to be adjusted towards future rent."
In para 19, the lower appellate court after having referred to the evidence of the defendant's witnesses, came to the same conclusion.
17. Continuous payment of rent for about four years month by month, in spite of the said deposit, in my opinion, negatives the theory that the said sum was lying in deposit for four years to be adjusted towards future rent. I may mention here that, according to the plaintiff's case, sometime in February, 1968, defendant had borrowed this sum for business purposes from the plaintiff. Ext. 10 is the refund receipt of the said money. This is also the evidence of P.W. 14 and P.W. 17. Be that as it may, in absence of any agreement of adjustment and exercise of option as found by the Courts below, as well as the sum held by the landlord did not relate to rent, the tenant is disentitled to the claim of adjustment. Mr. Asghar Hussain has filed typed copies of the evidence of the witnesses and wanted to demonstrate that the findings of fact arrived at by the Court below in this regard is not correct. I am afraid, I cannot do so, in view of the decision of the Supreme Court in the case of Ramchandra v. Ramalingam (AIR 1963 SC 302) wherein their Lordships held as follows (at p. 306) :
"Even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure."
The Supreme Court has reiterated the same view again in the case of E. Mahboob v. N. Sabbarayan (AIR 1982 SC 679) wherein their Lordships stated as follows (at p. 681) :
"It is not open to the High Court to reappreciate evidence and substitute its own conclusions in place of those entered by the lower courts while exercising jurisdiction conferred by Section 100 C P. C."
It is true that if the Court below would have ignored important evidence on record, the case of interference even in second appeal in certain circumstances may be permissible as held in AIR 1968 SC 466 (Sonawati v. Sri Ram) (supra) but it is not the case here nor do I find that the Court lost sight of any important aspect of the case while considering the said evidence or that the consideration of the evidence was mechanical, without bearing in mind the crucial aspect of the case. On the contrary, the Courts below were quite aware of the crucial question while considering the evidence, both oral and documentary, in this regard. The reason assigned by the Courts below that regular payment of rent month by month for quite some time negatives the contention of an agreement of adjustment is quite reasonable. In a similar circumstance, this Court in the case of Bishwanath Bal-krishna v. Smt. Rampeyari Devi (1979 BLJR 235) : (AIR 1979 Pat 159) held that regular payment of rent by the tenant even after the deposit of the money is a circumstance against the tenant. The Court observed, while considering the said question, as follows (at p. 163) :
"But, that intention had either to be communicated to the respondents or had to be capable of being inferred from the surrounding circumstances before he had become a defaulter within the meaning of Section 11 of the Act. It was not open to the appellant not to pay rent for more than two months (as he had already become defaulter) and then claim adjustment for the first time in the written statement when the suit was filed for eviction on that ground."
This Court in the case of Raghunandan Prasad v. Deonarain Singh (AIR 1976 Pat 195) (supra) as well as in the case of Jaganath Tewary v. Gopal Prasad (AIR 1983 Pat 50) (supra), while considering the provisions of Section 8 of the Act, held as follows (at p. 52) :
"If the option of adjustment has not been exercised by the tenant, it will be futile for him to urge that merely because some excess to which he is entitled, either for a refund or adjustment, is lying in the hands of the landlord, he is immune from payment of the rent and future rent."
The case of Ranjit Singh v. Shanti Devi (Second Appeal No. 257 of 1977) decided on 16-8-1979 strongly relied upon by Mr. Asghar Hussain is of no help to him. That was a case where the tenant was coerced to pay higher rent than the rent originally fixed in violation of Section 4(2) of the Act. The enhancement of rent having been found to be illegal, the Court held that money having been paid under specified head and there being no other relationship between the parties other than that of landlord and tenant, the excess illegal rent realised and lying in the hand of the landlord should be treated as payment of advance rent and is liable to adjustment towards future rent in order to adjudicate whether there has been any default in the payment of two months' rent lawfully payable. I, therefore, think that there is no merit in the cross-objection and the same fails for the reasons indicated above.
18. Mr. Asghar Hussain lastly argued that the Court in a suit for eviction has jurisdiction to grant time to tenant to vacate the premises. Learned counsel tried to justify the stay of the tenant till the year 1995, in spite of judgment and decree for eviction, by relying on the cases of Shantimony Das v. Indu Bhushan De reported in AIR 1981 SC 521, B. Venkatesham v. Lakshmi Narasiah reported in AIR 1977 SC 1504 and M. Dey v. B. K. Pal, reported in 1977 UJ (SC) 291 : (AIR 1977 SC 2025). In all these cases, it appears, the Supreme Court granted some time varying from nine months to one year for vacating the suit premises by the tenant.
19. I will presently show that these cases are of no help to the learned counsel. Prior to the amendment of the 1947 Ad in the year 1955, Section 11 (3) (b) I proviso conferred power upon the Controller to grant reasonable time ordinarily not less than three months but not exceeding six months in any case for putting the landlord in possession of the building but after the amendment of 1955 the said power has been completely taken away. In none of the subsequent enactments such a provision has been made. Acts of 1947, 1977 and 1982 are so related with each other as to form a system having the same purpose or object and therefore, it can safely be presumed that the legislative policy was not in favour of conferring such power on the Court after the amendment of 1955. In the case of Shantimoy Das v. Indu Bhushan De (AIR 1981 SC 521) (Supra), the indulgence was shown to the tenant as the tenant agreed to clear all arrears of rent which was due to the landlord as well as gave an undertaking to restore possession. This saved the landlord from further litigation for realisation of arrears of rent and pursuing an execution proceeding. In the case of B. Venkatesham v. Lakshmi Narasiah (AIR 1977 SC 1504) (Supra), which was a case from Andhra Pradesh, Supreme Court, on a consideration of rival necessities and on an undertaking given by the tenant to give vacant possession to the landlord, some time was allowed to the tenant to restore possession to the landlord. This favour in my opinion, was shown as the landlord, was saved from the execution procedure to obtain possession of the suit premises. Similar was the situation in Manoranjan Dey's case (AIR 1977 SC 2025) (supra). I cannot persuade myself to hold that the said decision of the Supreme Court confers any blanket power on the Court to allow the tenant to stay in the disputed premises in spite of the judgment and decree of eviction. The said power under the Bihar Act has been expressly taken away after the amendment of 1955 and not thereafter conferred upon the Court. It is altogether different if the parties for some mutual benefits agree to defer the operation and implementation of the decree, and not otherwise. In the instant case, there was termination of the tenancy by issuing notice under Section 106 before the institution of the suit and that was a clear intention of the landlord to resume possession of the suit premises. Thereafter the suit was instituted in the year 1974, and it took eight years for the case to be disposed of. The submission that the tenant must have even now sufficient notice to vacate does not appeal to me. The Act does not vest the Court with such power.
20. I find that the decision of the lower appellate Court allowing the defendant to continue in possession of the building in question till the amount deposited during the pendency of the suit under Section 11-A/13 of the Act is fully adjusted, is perverse and wholly without jurisdiction. I also hold that the Courts under the Bihar Buildings (Lease, Rent and Eviction) Control Act have no jurisdiction while decreeing a suit for eviction to direct that the tenant-defendant shall remain in possession for a specified period unless the concerned parties give an undertaking to the Court to vacate the suit premises by a particular date to which the landlord has no objection. In absence of such an under-taking and consent of landlord law will take its own course.
21. In the result, the appeal is allowed with costs and the cross-objection is dismissed. The plaintiff would be entitled to execute the decree for eviction as and when he likes.