Appeal No 721 of 1976
Appeal by Special Leave from the Judgment and Order dated the 27th April 1976 of the Patna High Court in Appeal from Appellate Decree No 6 of 1974
Harbans Singh Marwah for the appellant
KK Sinha SK Sinha and Devi Prasad for respondents
The Judgment of the Court was delivered by GOSWAMI J
This appeal by special leave is directed against the judgment of the Patna High Court in a second appeal arising out of suit for eviction of the tenant
Two rooms being shop Nos 17 and 18 of Modi Building in Commissioner s Compound Ranchi were let out by the plaintiff respondents herein on a monthly rental to the defendant appellant herein
We will describe them as the plaintiff and the defendant
It is common ground that fair rent of Rs 50 per month including water tax was deter mined for the two shops by an order of the Rent Control ler under section 5 of the Bihar Buildings Lease Rent and Eviction Control Act 1947 briefly the Act on May 30 1953
Later on certain furniture such as  five almirahs and six racks were also let out by the plaintiff to the defendant on a monthly rental of Rs 28 
A suit was instituted by the plaintiff on April 18 1966 praying for eviction of the defendant on the ground of non payment of rent of the said two shops and furniture for three months from July to September 1965
986 The Munsiff Ranehi dismissed the suit holding that failure to remit rent for furniture along with rent for the two shops did not amount to default under section 111d of the Act
The Munsiff also held that there was no valid service of notice under section 106 of the Transfer of Property Act
On appeal the Second Additional Subordinate Judge Ranchi reversed the judgment of the trial court and de creed the suit for eviction upholding the ground of default
The Subordinate Judge held that the plaintiff was entitled to realise rent at the rate of Rs 78 per month which included the rent for furniture and hence remittance by the defendant of Rs 50 per month was not a valid dis charge of his rental liability and he was a faulter within the meaning of section 111d if the Act
The Subordinate Judge also held that there was no proper service of the notice of eviction
We are not concerned in this appeal with the question of service of notice
Since the Subordinate Judge was the final court of facts it will be appropriate to note the following findings material for our purpose 1 I therefore decide that the plain tiff was entitled to realise Rs 50 as monthly rent
2 In view of the evidence of the parties and Ext
2 I hold that plaintiff had supplied the furniture detailed in Schedule B of the plaint and rent fixed for the same had been Rs 28 per month
3 The subsequent supply of furniture and that of sufficient value must be construed as a quite independent contract unconnected with the original tenancy  
The defendant s second appeal to the High Court failed The High Court agreed with the first appellate court that the rent for furniture was also lawfully payable under section 111d and hence the ground of default of payment of Rs 78 per month from July to September 1965 was avail able to the plaintiff
The High Court also gave an additional reason for sus taining the eviction decree
There was an order by the Subordinate Judge in the course of the appeal under sec tion 11A of the Act directing the defendant to deposit the rent of the premises at the rate of Rs 50per month in terms of that Section
It appears there was some controver sy before the Subordinate Judge as to whether this order under section 11A was complied with or not by the defendant
The Subordinate Judge however repelled the contention of the plaintiff to strike out the defence of the defendant on the ground of non compliance with the court s order under section 11A in the following terms It was argued on behalf of the appel lant plaintiff that the defendant had not deposited subsequent rent in spite of direc tion by the court and so this court had to 987 strike out the defence against ejectment
The defendant had filed the documents to show subsequent deposit in regular way
So this plea of plaintiff fails
A second attempt and this time successfully was made in the High Court by the plaintiff to
press the ground under section 11A of the Act to strike out the defendant s de fence against ejectment
It is clear from the judgment of the High Court that there was no material without further enquiry to reach a conclusion contrary to that of the first appellate court with regard to non compliance with section 11A of the Act
The High Court therefore allowed parties to produce some documentary evidence and relying upon the same held as follows Learned Advocate appearing for the appellant defendant contended that inasmuch as the delay in depositing the money in the Bank occasioned on account of the default of the officers of the court no penalty should be imposed on the appellant defendant
Learned Advocate however failed to produce any material to
show as to what detracted the appellant defendant to deposit the money himself on 15 3 1974 on the passing of the challan and what caused the 7handing over the money to
the Nazir
In a matter where the first appellate court came to a posi tive finding in favour of the defendant with regard to the non compliance with its order under section 11A we do not consider that the High Court was right in adopting the course
it did in a rather unsatisfactory manner to reach a contrary conclusion for the first time on a vital and clinching fact about handing over the amount of rent to the Nazir in absence of the latter s oral testimony
There is no denial even in the written information furnished by the Nazir that the rent was handed over to him on March 14 1974
The matter would have been different if the High Court in the interest of justice had called for addition al evidence under order 41 rule 28 Civil Procedure Code so that the parties would have proper and adequate opportu nity to establish their respective versions including the procedure of the particular court regarding acceptance of deposit in a given situation
It is true that the High Court could itself permit documentary evidence to be produced before it under order 41 rule 27 but as we have seen this course has resulted in great prejudice to the defend ant
Even the counsel were unable to inform us about the procedure of depositing the money in compliance with the order under section 11A in the court of the Subordinate Judge even after entertaining of additional evidence before the High Court
In view of the fact that the first appellate court held the deposit of the amount sufficient  under the law being within the statutory period Laid down under section 11A we are most reluctant to prefer the contrary conclusion of the High Court on the materials produced before it
This is particularly so since the High Court itself appears to have accepted the position that the amount was handed over to the Nazir on March 14 1974 in  the extract from the judgment quoted 15 206SCI77 988 above
The only objection of the
High Court was that the defendant instead of handing over the amount to
the Nazir should have himself  deposited the amount on March 15 1974
Since the money was deposited by the Nazir on May 28 1974 in absence of a proper enquiry into the matter of delay of deposit at the hands of the Nazir and the reasons for it the High Court was not right in second appeal to penalise the defendant by striking out his defence against ejectment
The second ground relied upon by the High Court for decreeing the plaintiffs eviction suit therefore fails
Further section 11 describes the circumstances under which eviction of tenants can take place
Under that section a tenant shall not be liable to eviction except in execution of a decree passed by the court on one or more of the grounds specified therein
Section 11A which was inserted by amendment by Bihar Act 16 of 1955 reads as follows Deposit of rent by tenants in suits for ejectment
If in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment the landlord may make an application at any stage of the suit for order on the ten ant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent if any and the Court after giving an oppor tunity to the parties to be heard may make an order for deposit of rent at such rate as may he determined month by month and the arrears of rent if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the
rent at such rate for any month by the fifteenth day of the next following month the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment
The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so
The Court may further order recovery of cost of suit and such other com pensation as may be determined by it from the tenant
It is submitted by the defendant that an order under section 11A can be passed only by the trial court
We are however unable to accept this position since appeal is a continuation of the suit
The advantage which is given to the landlord under section 11A for the purpose of realisa tion of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy can be secured by the landlord at any stage of the litiga tion whether in the trial court or in appeals
The penalty of striking out defence for non compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of the Act
The only ground that remains for consideration is wheth er the defendant defaulted m the payment of rent from July to September 1965
If it were merely a finding of fact by the first appellate court 989 there would be nothing wrong for the High Court to dismiss the second appeal
The question however assumes a legal complexion even on the findings of facts of the first appel late court
The first appellate court found that rent for the premises was Rs 50 per month and there was no default of that rent at any time
The first appellate court found that the rent of Rs 28 per month for the furniture was a subject matter of subsequent supply and a quite independ ent contract unconnected with the original tenancy
It however found that since the same was not paid by the defendant during the months in question along with the rental of Rs 50J per month for the premises the defendant was a defaulter within the meaning of section 11 1d of the Act
The High Court has accepted this legal conclusion of the Subordinate Judge
We are however unable to accept the above legal position of the defendant s default in this case on the finding of facts set out above
Rent has been always Rs 50 per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953
The parties having been already before the Rent Controller for fixation of fair rent of the premises the plaintiff could not alter that fixed rent without order of the Rent Controller
Section 4 of the Act provides that notwith standing anything contained in any agreement or law to the contrary it shall not be lawful for any landlord to
in crease or claim any increase in the rent which is payable for the time being in respect of any building except in accordance with the provisions of this Act
The two shops which are building for the purpose of section 2an of the Act were rented out as an unfurnished building
This amount of rent of Rs50 was determined by the Rent Con troller as fair rent under section 5 of the Act
It is the default in the payment of this rent fixed by the Rent Con troller which will furnish a ground for eviction under section 111d of the Act
Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mis chief of section 111d to entitle the landlord to a decree for eviction
On the findings of the first appellate court the furniture rent remains di vorced from the rent of the building under the original demise
Even if the furniture be returned the lease for the building in this case will not be affected
The plaintiff submits that since the definition of build ing includes furniture the rent becomes consolidated and the defendant was liable to pay the total amount of Rs 78 and any default for two months to pay the consolidated rent will attract sections 111d of the Act
The plaintiff further submits that since the furniture rent is the rent agreed between the parties there was no occasion nor legal requirement to approach the Rent Controller for redetermina tion of the rent under section 7 of the Act
We are unable to accept the above submission
Any alteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller
Section 7 inter alia 990 provides that if at
any time after the fair rent of a building has been determined it appears to the Rent Con troller that subsequent to such determination some addition or improvement has been made to the building at the land lord s expense the Controller may redetermine the fair rent of the building
There is no legal impediment if the parties landlord and tenant approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act
Any other course is bound to lead to mal practices and unholy devices deterimental to the interests of the tenants
No enhance ment of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act
Default of payment of any rent in excess of the fair rent fixed if without recourse to the procedure under the Act will not entail a ground for eviction under section 111d of the article The High Court and earlier the Addi tional Subordinate Judge therefore committed an error of law in accepting the ground of default under section 11 1 d on a wrong appreciation of the legal position on the facts found by the first appellate court
There was there fore no basis for granting decree for eviction under sec tion 111d of the Act
In the result the judgment of the High Court is set aside and the judgment and the decree of the Munsiff dis missing the suit stand restored
The appeal is allowed with costs
PBR Appeal allowed


Summary:
Section 11 of the Bihar Buildings Lease Rent and Eviction Control Act
1947 provides that a tenant shall not be liable to eviction except in execution of a decree passed by the Court on one or more of the grounds specified there in
Under section 11A if in a suit for recovery of possession of any building the tenant contests the suit the Court may make an order for deposit of rent and arrears if any and on failure to deposit the arrears within fifteen days of the date of the order the Court shall order the defence against ejectment to be struck out
The plaintiff respondent let out two rooms of his premises to the defendant appellant at a rent fixed by the Rent Controller under section 5 of the Act
Sometime later the plaintiff let out some furniture to the defendant at a mutually agreed rent
The plaintiff s suit for eviction of the defendant on the ground of non payment of rent for three months was dismissed by the trial Court holding that failure to pay the rent of furniture along with the rent of the premises did not amount to a default under section 111d of the Act
On appeal the Subordinate Judge held that non payment of rent of furniture along with the rent of the premises was a default within the meaning of section 111d
The High Court upheld the decision of the Subordinate Judge
On the question of deposit of rent under section 11A the Subor dinate Judge held that the defendant had filed documents to show subsequent deposit in a regular way
On the other hand the High Court came to the conclusion that the defend ant failed to produce any material to show as to what de terred him from depositing the money himself on the passing of the challan and what caused the handing over of the money to the Nazir
 On this ground it allowed the plaintiff s suit
Allowing the appeal HELD The High Court and the Subordinate Judge committed an error of law in accepting the ground of default under section 111d on a wrong appreciation of the legal position on the facts found by the first appellate Court
There was therefore no basis for granting a decree for eviction under section 111d of the Act
990C 1
a It is the default in the payment of rent fixed by the Rent Controller which will furnish a ground for eviction under section 111d
Section 4 of the Act provides that notwithstanding anything contained in any agreement or law to the contrary it shall not be lawful for any landlord to increase or claim any increase in the rent which is pay able for the time being in respect of any building except in accordance with the provisions of the Act
989E F In the instant case the Rent Controller having fixed the rent of the premises the plaintiff could not alter that rent without an order of the Rent Controller
Default of the payment of furniture rent agreed to by the defendant subse quent to the lease of the premises could not be brought within the mischief of section 11 1 d to entitle the landlord to a decree for eviction
The furniture rent remains di vorced from the rent of the building under the original demise
989D P b Any alteration of the fair rent fixed by the Rent Controller will have to receive the imprimatur of the Rent Controller under section 7
There is no legal impediment if the parties approach the Controller and by consent obtain an order from the Controller fixing the revised rent admissible under the Act
No 985 enhancement of fair rent is legally permissible except in accordance with the provisions of the Act
Default of payment of any rent in excess of the fair rent fixed if without recourse to the Procedure under the Act will not entail a ground for eviction under section 111d of the Act
990A B The penalty of striking out the defence for non compli ance of an order under s11A is district from the grounds of eviction permitted under section 11
988H 2
The contention of the defendant that an order under s11A could be passed only by the trial Court is without force because an appeal is a continuation of the suit
The advantage given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite can be secured by him at any stage of the litigation whether in the trial Court or in appeal
988G 3
Where the first appellate court came to a positive finding of fact in favour of the defendant the High Court was wrong in adopting a different course to reach a contrary conclusion for the first time on a vital fact
The matter would have been different if the High Court had called for additional evidence under 041 r 28 CPC
But the course adopted by the High Court has resulted in great prejudice to the defendant
987E F In the instant case the High Court itself had accepted that the amount of rent was handed over to the Nazir but the objection was that the defendant instead of handing over the amount to the Nazir should have himself deposited it
In the absence of a proper enquiry into the matter of delay of deposit by the Nazir the High Court was not right in second appeal to penalise the defendant by striking out his defence against ejectment
988B