Judgment 1. The plaintiff is the appellant in this appeal. The suit in question had been filed on behalf of the plaintiff for eviction of the defendant-respondent from the premises in question on the ground of breach of the condition of the tenancy as well as on the ground of default in the payment of two months rent. 2. According to the plaintiff, the defendant defaulted the payment of rent for the period December, 1969 to August, 1970. He also constructed a cow-shed on the premises in question in breach of the terms of the tenancy making himself liable for eviction. The suit in question was filed on 7.09.1970. It is an admitted position that the defendant was paying a rent at the rate of Rs. 40 (forty) per month and during the period aforesaid no rent has been paid by the defendant. 3. The defence of the defendant, however, is that he constructed a cow-shed and fencing on the premises in question at the cost of Rs. 765.00 with the consent of the plaintiff, and, as such, he was entitled to adjust the said amount for the period aforesaid and once the amount aforesaid is adjusted, there was no question of default or breach of any term of the tenancy making him liable for eviction. 4. The courts below have dismissed the suit of the plaintiff on the finding that the cow-shed and the fencing of the house in question were constructed by the defendant with the consent of the plaintiff and once the constructions were made with his consent, the defendant was entitled to adjust the amount towards the rent payable for the building in his possession. 5. Learned counsel appearing for the plaintiff-appellant submitted that even if it is assumed that the defendant had constructed a cow-shed and fencing as alleged by him and had spent Rs. 765 over the same, still in the facts and circumstances of the instant case it cannot be held that the amount could be adjusted towards the payment of rent in accordance with the requirement of the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act). 765 over the same, still in the facts and circumstances of the instant case it cannot be held that the amount could be adjusted towards the payment of rent in accordance with the requirement of the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act). According to the learned counsel for the appellant no section of the aforesaid Act authorises a tenant to make construction in the building which is in his occupation, except repairs as provided by Sec. 9 of the Act. 6. The different provisions of the Act conceives of different situations and prescribe procedure in matters of eviction, payment of rent, fixation of rent etc. In other words, the provisions of the Act purport to control the relationship of landlord and tenant by statute and have to be strictly construed while judging any controversy between them. Sec. 9 of the Act requires the landlord to carry out repairs of the building in possession of the tenant. Sub-sec. (1) thereof read with its explanation makes it clear that repairs include annual white washing, re-colouring and periodical repairs. Sub-sec. (2) authorises a tenant when the landlord fails to carry out the aforesaid repairs to give notice to the landlord and within one month from the date of the service of the notice, on the landlords failure, to get the repairs done by himself; with a limitation that cost of such repairs should not exceed one months rent. Sub-sec. (3) of Section 9 deals with repairs other than covered by sub-section (1) of that section. But, for such repairs the tenant, on the neglect by the landlord, has to apply to the Controller specifying the approximate cost of such repairs. The Controller has to cause a notice to be served on the landlord to appear and show cause and, thereafter, a direction to the landlord can be given and if he fails to comply with any such direction for repairs, the Controller may permit the tenant to carry out such repairs "at a cost not exceeding such amount as may be specified in the order and to recover such cost from the landlord." Sub-sec. (4) of S.9 further says that it shall be lawful for the tenant to make such repairs and "to deduct the cost thereof from the rent or to recover it otherwise from the landlord as if it were a debt due to him by the landlord." From the aforesaid provisions it is amply clear that under certain conditions a tenant can himself repair the building and deduct the amount incurred over such repairs from the rent payable by him to the landlord. Sub-section (1) prescribes a limit of one months rent whereas sub-sec. (4) requires a specific order of the Controller fixing the amount of the cost which has to be incurred for repairs. 7. In the instant case, there cannot be any dispute that whatever constructions have been made by the defendant, can never be held to be repairs within the meaning of Section 9 of the Act. Construction of a cow-shed or fencing wall amounts to an independent construction and cannot be held to be repairs of the building in possession of the defendant. Learned counsel appearing for the defendant could not contend this so as to bring the case within Section 9 of the Act. Apart from that, there is no order of the Controller as contemplate by sub-section (4) of Section 9. He, however, contended that it was open to the parties to enter into an agreement regarding the construction of the cow-shed and the fencing wall as well as in respect of adjustment of the cost incurred over the same towards the payment of future rent. The finding of the courts below on this question appears to be that the defendant made the construction with the consent of the plaintiff and on that it has been inferred that the cost of such constructions was to be adjusted towards the rent. In my view, even if any construction is made by the tenant with the consent of the landlord, it cannot be inferred as a necessary corollary that the cost thereof has to be adjusted towards the rent. All these questions are subject matter of specific agreement, which has to be pleaded and proved. In my view, even if any construction is made by the tenant with the consent of the landlord, it cannot be inferred as a necessary corollary that the cost thereof has to be adjusted towards the rent. All these questions are subject matter of specific agreement, which has to be pleaded and proved. As such, whatever may be said under the general law, so far as the Act is concerned, it has made no provision authorising a tenant to make constructions in the building which is in his possession and then to claim adjustment in respect of the cost incurred over the same towards the rent payable. 8. Sec. 60 of the Indian Contract Act is as follows: "Whether the debtor has omitted to intimate, and there are no other circumstances indicating to which debt the payment is to be applied the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits." The aforesaid section authorises the creditor to appropriate any amount towards his debt at his discretion. But S.11 (1) (d) of the Act is as follows:- "Whether the amount of two months rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the, time fixed by contract or, in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Sec.13." In view of the aforesaid cl. (d) of sub-sec. (1) of Sec.11, once two months rent lawfully payable by the tenant is due as not having been paid within the time fixed by the contract, or in absence of such contract, by the last day of the month next following that for which the rent is payable, or for not having been validly remitted or deposited in accordance with Sec.13, makes the tenant defaulter. The scope of this clause has been construed in different Bench decisions of this Court and reference in this connection may be made to the case of Madholal V/s. Madan Mohan Agrawalla, ( AIR 1975 Pat 154 ) where it was pointed out that once rent for two months has not been paid or deposited, default takes place. Clause (d) aforesaid speaks of payment within the time fixed by contract. It was pleaded by the defendant that with the consent of the plaintiff he had constructed the cow-shed and fencing wall. That will not amount to fixing a time by contract regarding payment of the rent so as to absolve him from the consequences provided by clause (d) of sub-section (1) of Sec.11 of the Act. The result will be that in the instant case even if it is assumed that the defendant had spent the amount with the consent of the plaintiff this will not be a case where any particular time has been fixed by the contract regarding payment of two months rent lawfully payable. It need not be impressed that any contract pleaded must be alleged and should be established by evidence to take away the case from the purview of the statutory provisions of clause (d) of sub-section (1) of Sec.11 of the Act. Sub-section (1) of Sec.11 has a non obstante clause. It says, notwithstanding anything contained in any contract or law to the contrary, where a tenant is in possession of any building, he shall not be liable for eviction therefrom except in execution of a decree passed by the Court on one or more of the grounds mentioned in Sec.11 (1). As such, any tenant cannot adjust any amount unless it is consistent with the scheme of the Act in question. It need not be repeated that when subsection (2) and sub-section (4) of Section 9 of the Act have placed limit and restrictions over the cost and manner of repairs of the building in possession of the tenant, it cannot be assumed that the framers of the Act have authorised the tenant to make independent constructions and to realise the cost incurred over such constructions from the rent payable to the landlord. In my view, there was a reasonable basis for not authorising the tenant for the same because in many cases tenant in occupation of a building may make constructions and alterations in the building without there being any sanction about the cost which has to be incurred over such constructions and alterations and, thereafter, they may claim adjustment in the future rent. In my opinion, there has been a default in the eye of law on the part of the defendant within the meaning of the Act which makes him a defaulter and liable for eviction. 9 Accordingly, this appeal is allowed, the judgment and decree of the courts below are set aside and the suit of the plaintiff for eviction is decreed. However, in the circumstances of the case, parties shall bear their own costs throughout.