Case Note & Summary
The dispute arose from a petition for eviction filed by the respondent against the appellant for non-payment of rent for September and October 1972. The appellant, a firm, had taken a room on lease and paid two months' rent in advance at the inception of the tenancy. The respondent claimed eviction under Section 11(1)(d) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947, arguing that the appellant had defaulted on rent. The appellant contended that the advance payment should be set off against the rent due, as the landlord was not entitled to receive more than one month's rent in advance under Section 3 of the Act. The trial court dismissed the eviction petition, agreeing with the appellant's defense. However, the High Court reversed this decision, stating that the appellant had not requested the landlord to adjust the advance rent against the arrears. The Supreme Court found that the High Court had approached the case too technically and ruled that the appellant could not be considered a defaulter, as the advance rent could be set off against the arrears. The court emphasized that the landlord's acceptance of excess advance rent did not preclude the tenant's right to claim adjustment. The Supreme Court restored the trial court's decision and allowed the appeal with costs.
Headnote
A) Landlord-Tenant Law - Eviction for Rent Default - Tenant's Right to Set Off Advance Rent - Bihar Building (Lease, Rent and Eviction) Control Act, 1947, Section 11(1)(d) - The court held that the tenant could not be treated as a defaulter for non-payment of rent as the advance rent paid could be set off against the arrears, and the landlord's acceptance of excess advance rent did not negate this right. The High Court's technical approach was criticized, and the appeal was allowed, restoring the trial court's decision (Paras 418-420).
Issue of Consideration
Whether the appellant could be treated as a defaulter for non-payment of rent despite having paid advance rent.
Final Decision
The Supreme Court allowed the appeal, restored the trial court's decision, and ruled that the appellant was not a defaulter under Section 11(1)(d) of the Act.
Law Points
- Eviction
- Rent Default
- Advance Rent
- Set Off
- In Pari Delicto
