Judgment Ram Nandan Prasad, J. 1. The defendant has filed this second appeal against the judgment and decree dated 20.8.1987 passed in Tide Appeal No. 145 of. 1980 affirming the judgment and decree of the trial court dated 26.7.1980 passed in Title Suit No. 157 of 1978. 2. The case of the plaintiff was that the defendant was inducted as a tenant on a monthly rental of Rs. 40.00 according to the English Calendar in the month of April, 1973. It was agreed that the rent would be payable in the first week of the next following month. The defendant paid rent upto September, 1976 under receipt. The defendant thereafter stopped payment of rent from the month of October, 1976. She is also in bona fide personal need of the suit premises. 3. The case of the defendant was that rent of the suit premises was Rs. 30.00 only. The plaintiff also agreed to receive the rent at the convenience of the parties and also accepted the rent for 5/6 months at a time, the enhancement of the rent from Rs. 30.00 to Rs. 40.00 from April, 1973 was illegal and excess rent of Rs. 10.00 is liable to be adjusted towards rent. He is not defaulter and is willing to pay rent to the plaintiff. 4. The trial court decreed the suit and held that the plaintiff is not entitled to receive the rent at the enhanced rate of Rs. 40.00 and is entitled to arrears of rent at the rate of Rs. 30.00 per month. The defendant is also not entitled for adjustment of excess payment of Rs. 10.00 per month towards arrears of rent, the trial court, however, did not accept the plea of the plaintiff of personal necessity of the suit premises. The appeal against the judgment and decree of die trial court was also dismissed. 5. learned Counsel for the appellant contended that since the courts below have held that the plaintiff is not entitled to receive rent at the enhanced ratio rather he is entitled to receive rent at the rate of Rs. 30.00 per month and the appellant admittedly has paid rent at the enhanced rate of Rs. 40.00 from the month of April, 1973 to September, 1976; the excess payment of Rs. 10.00 per month must be adjusted towards appears of rent. 30.00 per month and the appellant admittedly has paid rent at the enhanced rate of Rs. 40.00 from the month of April, 1973 to September, 1976; the excess payment of Rs. 10.00 per month must be adjusted towards appears of rent. It was further contended that s.o. long the excess payment is not adjusted towards arrears of rent, the respondent is not entitled for decree of eviction. In support of his submission learned Counsel relied upon a decision in the case of Sarwan Kumar Onkar Nath V/s. Shri Subhash Kumar Agarwalla reported in -- in the aforesaid case the plea of the tenant that a sum of Rs. 140.00 paid as advance rent for two months should have been adjusted towards the rent for the month of September and October, 1972 was accepted and it was held that since a sum of Rs. 140.00 had been admittedly given by way of advance rent for two months, the landlord should have adjusted the amount towards arrears even in absence of specific request by the tenant to adjust the same towards arrears of rent. 6. Sarwan Kumar Onkar Maths case (supra) has been considered by the Supreme Court in the case of Nand Lal Agarwal V/s. Ganesh Prasad Sah and Ors. reported in -- . The court while considering the question as to whether the adjustment of excess payment towards arrears of rent is automatic or the tenant has to call upon the landlord for adjustment of the excess payment towards arrears of rent, has taken into consideration the provision contained in Subs-section (2) of Sec. 8 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (hereinafter referred to as The Act) and has held that though Sec. 8 (2) of the Act deals with the payment of excess rent for buildings for which the fair rent has been determined or re-determined by the Controller, the same principle, in absence of different prescription under the Act, has to govern the buildings for which the rent is payable in accordance with the terms of the contract between the parties. The right to seek adjustment of the excess payment made by the appellant has to be in accordance with the principle set out in Sec. 8 (2) of the Act. The right to seek adjustment of the excess payment made by the appellant has to be in accordance with the principle set out in Sec. 8 (2) of the Act. The tenant without calling upon the respondent to adjust the excess payment towards arrears of rent, cannot seek such right in the suit filed by the landlord for eviction. The tenant has to exercise his option and call upon the landlord to adjust the excess payment towards arrears of rent and the adjustment of the excess payment is not automatic. In the aforesaid decision it has also been held that Sarwan Kumar Onkar Naths case (supra) was confined to the facts of the case and does not lay down any general principle that in whatever circumstance the excess payment had been made and whatever be the period of default the landlord was bound to adjust the excess payment towards arrears of rent and exonerate the tenant of the default committed by him in payment of rent. 7. In the case in hand the appellant did not pay the rent from the month of October, 1976. He also did not exercise his option for adjustment of the excess payment towards arrears of rent and is claiming adjustment of the excess payment towards arrears of rent. The Supreme Court in similar situation in the above mentioned case of Nand Lal Agrawal (supra) has held that the adjustment is not automatic. The tenant has to exercise his option for adjustment of the excess payment made towards the arrears of rent. Thus, in my view, on consideration of the entire facts and circumstances of the case, the appellant is not entitled for adjustment in view of the provisions of Sec. 8 (2) of the Act. 8. In the result the appeal fails and is, accordingly, dismissed. There will, however, be no order as to costs.