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2006 DIGILAW 928 (PAT)

Bhuvneshwar Pd. Gupta v. Dharmnath Prasad

2006-10-12

SYED MD.MAHFOOZ ALAM

body2006
Judgment Syed Md.Mahfooz Alam, J. 1. This second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 10.4.1990 passed by Sri Eric Mechyari, Additional District Judge, Saran, Chapra in Title Appeal No. 4 of 1987 reversing the judgment and decree dated 31.7.1987 passed by Sri Md. Mustaquim, Munsif Ist, Chapra in Eviction Suit No. 19 of 1985 whereby the learned Munsif had decreed the suit of the plaintiff-appellant for eviction of the defendants from the suit premises. 2. The plaintiff is the appellant in this second appeal. The case of the plaintiff, in brief, is that she is the owner of the suit house by virtue of the registered gift dated 14.12.1956 executed by her father-in-law in her favour. The original defendant Nos. 1 and 2 were tenants in the suit house at a monthly rental of Rs. 75.00 . The tenancy was started according to the English Calendar month. The original defendants 1 and 2 were paying rent to the plaintiffs father-in-law but after execution of the gift deed they were paying rent of the suit house to the plaintiff and in token of payment of rent, the plaintiff was granting Sada rent receipts to the original defendant Nos. 1 and 2. The defendant Nos. 3 and 4, who were contesting the suit and are at present respondent Nos. 1 and 2 in this second appeal, are nephews of defendant Nos. 1 and 2. The original defendant Nos. 1 and 2 after constructing their separate house shifted to their respective houses but at the time of vacating the suit house, they sublet the suit house to defendant Nos. 3 and 4 (respondent Nos. 1 and 2). Further case is that defendant Nos. 3 and 4 are residing in the suit house without making payment of rent to the plaintiff and the plaintiff had also never treated them as tenants as they were sub-lessees from the original defendant Nos. 1 and 2. Further case is that the defendants were not paying rent of the suit house for the last four years from the date of filing of the suit and on demand, they failed to pay rent of the suit house to the plaintiff and hence, the plaintiff filed the suit for eviction of the defendants and also for payment of arrears of rent. 3. 3. It appears that inspite of service of notice, the original defendant Nos. 1 and 2 did not appear to contest the suit. Defendant Nos. 3 and 4 appeared in the suit and filed their written statement and contested the suit. At present the original defendant Nos. 3 and 4 are contesting parties and they have been made respondent Nos. 1 and 2 but before this Court they did not appear at the time of argument in this appeal. However, their case is that the original defendant Nos. 1 and 2 were tenants in the suit house at a monthly rental of Rs. 40.00 only but in the year 1975 and 1977 both the defendants constructed their separate house and as such, both the defendants shifted to their respective house. However, the suit house remained in their occupation upto September, 1983 as both the defendants were using the suit house as their godown. Further case is that in the month of September 1983 the original defendant Nos. 1 and 2 vacated the suit house and then defendant No. 3 approached the plaintiffs husband, namely, Bhuvneshwar Prasad Gupta, who agreed to let out the suit house on rent. The plaintiff also agreed to let out the suit house to defendant Nos. 3 and 4 and thereafter the defendant Nos. 3 and 4 (respondent Nos. 1 and 2) were inducted as tenants in the suit house. Further case is that on account of having been used as godown, the suit house had become unfit for residential purpose without repair and as such, defendant No. 3 arrived at an agreement with the husband of the plaintiff to the effect that the repair work would be done by the defendant No. 3 and the cost of repair would be adjusted towards future rent. The rent of the suit house was fixed at Rs. 75.00 per month. Further case of the defendants-respondents is that the plaintiff started making demand of enhanced rent at the rate of Rs. 125.00 per month from the year 1985 but respondent Nos. 1 and 2 refused to concede the demand of the plaintiff for enhancement of rent which caused annoyance to the plaintiff and thereafter the plaintiff filed the suit. 4. Further case of the defendants-respondents is that the plaintiff started making demand of enhanced rent at the rate of Rs. 125.00 per month from the year 1985 but respondent Nos. 1 and 2 refused to concede the demand of the plaintiff for enhancement of rent which caused annoyance to the plaintiff and thereafter the plaintiff filed the suit. 4. From perusal of the judgment of the trial, court it appears that on the basis of the pleadings of both the parties, the learned trial court framed as many as seven issues for determination. The issues framed by the trial court are as follows : 1. Is the suit as framed maintainable ? 2. Has the plaintiff Rot valid cause of action for the suit ? 3. Is the suit barred by law of limitation ? 4. Are the defendants defaulters in payment of rent ? 5. Is the plaintiff entitled to arrears of rent claimed ? 6. Is the plaintiff entitled to a decree for eviction and recovery of possession in respect of the suit premises ? 7. To what other reliefs or relief, if any, is the plaintiff entitled ? 5. From perusal of the Judgment of the trial court it appears that the trial court disbelieved the case of the plaintiff-appellant that respondent Nos. 1 and 2 are sub-lessees in the suit house. However, the trial court held that respondent Nos. 1 and 2 are tenants under the plaintiff in the suit house from September, 1983 at monthly rental of Rs. 75.00 only. It further transpires from the judgment of the trial court that the trial court disbelieved the defence of respondent Nos. 1 and 2 that at the time of their induction in the suit house as tenants of the plaintiff, the respondent Nos. 1 and 2 had arrived at an agreement with the husband of the plaintiff that respondent Nos. 1 and 2 would get the repairs of the suit house done and the cost of the repairs would be adjusted towards future rent of the suit house. The trial court held that respondent Nos. 1 and 2 had not paid even a single farthing towards rent from the very inception of the tenancy and so, respondent Nos. 1 and 2 are defaulters in the eye of law. The trial court held that respondent Nos. 1 and 2 had not paid even a single farthing towards rent from the very inception of the tenancy and so, respondent Nos. 1 and 2 are defaulters in the eye of law. It further transpires that on the basis of the above findings, the trial court held that the plaintiff is entitled to a decree for eviction as well as for arrears of rent and accordingly, the trial court decreed the suit of the plaintiff-appellant. 6. It appears that against the said finding of the trial court, defendant Nos. 1 and 2 preferred title appeal which was numbered as Title Appeal No. 4 of 1987. The said appeal was heard by Mr. Eric Mechyari, the then Additional District Judge, Saran, Chapra and was disposed of on 10th April, 1990. From perusal of the judgment passed in the appeal, it appears that the learned Additional District Judge allowed the appeal filed by respondent Nos. 1 and 2 and set aside the judgment of the trial court on the ground that as per oral agreement arrived at between the plaintiffs husband and the contesting defendants (respondent Nos. 1 and 2) it was stipulated that respondent Nos. 1 and 2 would get the repair of the suit house done and the cost of the repair would be adjusted towards future rent and accordingly, respondent Nos. 1 and 2 spent huge amount amounting to Rs. 5500.00 on repair of the house which could not be finally adjusted towards future rent till the date of filing of the suit, as such respondent Nos. 1 and 2 were not defaulters in the eye of law. It further transpires that the learned first appellate court also held that the contesting defendants (respondent Nos. 1 and 2 are not sub-lessees rather they are tenants under the plaintiff in the suit house. Against the said judgment of reversal, the plaintiff-appellant has preferred this second appeal. 7. From perusal of the record of this second appeal it appears that at the time of admission of this appeal on 9.12.1997 only one substantial question of law was formulated which is as follows : Whether the lower appellate court was legally justified in holding that there was tenancy between the plaintiff and defendant Nos. 7. From perusal of the record of this second appeal it appears that at the time of admission of this appeal on 9.12.1997 only one substantial question of law was formulated which is as follows : Whether the lower appellate court was legally justified in holding that there was tenancy between the plaintiff and defendant Nos. 3 and 4 and reversing the findings of the trial court in this regard in the light of the plea of the defendants in the written statement? 8. During course of hearing of this appeal it transpired that the substantial question of law, as framed on 9.12.1997, was not formulated on the basis of the pleadings of the parties as well as on the basis of the findings of the two courts below. In such situation, the learned Advocate of the appellant pointed out that there was need to recast the substantial question of law and accordingly, on 11.10.2006 the following substantial questions of law were formulated on recast : (i) Whether the findings of the first appellate court are based on non-consideration and improper appreciation of the material evidence available on record due to which the findings are perverse ? (ii) Whether u/s. 9(2) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, the tenant can lawfully claim adjustment of exorbitant amount towards rent of the tenanted house in the name of expenditure on repair of the building occupied by him ? Thus, before this Court there are two substantial questions of law which will be decided in this appeal. Substantial Question of Law No. (i) 9 From perusal of the judgment of the first appellate court it appears that the first appellate court formulated two questions for determination in the appeal. Those questions are as follows : 1. Whether the appellants defendants 3 and 4 are the sub-lessees of the tenants in the suit premises ? 2. If the appellants defendants 3 and 4 are tenants whether they are in arrears of rent for more than two months and are liable to be evicted ? 10. During course of argument, the learned Advocate of the appellant rightly pointed out that there was absolutely no need to the first appellate court to formulate point No. 1 regarding the sub-letting of the suit house by the original tenants to the contesting defendant Nos. 3 and 4 (now respondent Nos. 1 and 2). 10. During course of argument, the learned Advocate of the appellant rightly pointed out that there was absolutely no need to the first appellate court to formulate point No. 1 regarding the sub-letting of the suit house by the original tenants to the contesting defendant Nos. 3 and 4 (now respondent Nos. 1 and 2). The learned Advocate submitted that initially the plaintiff-appellant has come with the story that the original defendant Nos. 1 and 2, namely, Hira Lall Sah and Moti Lall Sah were inducted as tenants in the suit premises by the plaintiff-appellant and they continued in the suit house as tenants and thereafter they got their separate house constructed and shifted in their respective house but at the time of shifting they did not hand over the vacant possession to the plaintiff rather they sublet the suit house to respondent Nos. 1 and 2. The learned Advocate submitted that both the contesting defendants (respondent Nos. 1 and 2) denied the story of subletting and asserted that they were inducted in the suit premises as tenants of the plaintiff at the instance of the husband of the plaintiff. The learned Advocate of the appellant argued that the trial court in its judgment has elaborately discussed this point and come to the finding that the contesting defendants (respondent No. 1 and 2) were not sub-lessees rather they were tenants of the plaintiff in the suit house. The learned Advocate argued that the plaintiff-appellant did not prefer any cross-appeal against the finding of the trial court meaning thereby that the plaintiff-appellant had accepted the findings of the trial court that the respondent Nos. 1 and 2 are not sub-lessees rather they are tenants in the suit house under the plaintiff and as such there was absolutely no need for the first appellate court to formulate the question for determination regarding the fact that whether respondent Nos. 1 and 2 were sub-lessees in the suit house or tenants. I fully agree with the submission of the learned Advocate of the plaintiff-appellant and I find and hold that when the trial court had already held that the plaintiff has failed to prove that the respondent Nos. 1 and 2 were sub-lessees in the suit house or tenants. I fully agree with the submission of the learned Advocate of the plaintiff-appellant and I find and hold that when the trial court had already held that the plaintiff has failed to prove that the respondent Nos. 1 and 2 were sub-lessees in the suit house and against the said finding, the plaintiff-appellant had not preferred any appeal, there was no need to formulate the question regarding the fact that whether the respondent Nos. 1 and 2 are sub-lessees in the suit house or they are tenants in the suit premises. I am, therefore, of the view that point No. 1 formulated by the first appellate court for determination in the appeal was redundant. 11. Now I would like to see - whether the findings of the first appellate court are based on proper consideration of the material evidence available on record or the same are perverse. It should be kept in mind that this Court sitting in second appeal is not empowered to reappreciate the evidence of the parties in order to take a different view from the view taken by the first appellate court as the same is the final court of fact but under law this Court is entitled to interfere with the judgment of the lower court if this Court finds that the findings of the lower court are perverse i.e. based on no evidence or improper appreciation of the material evidence available on record. 12. At the very outset, I would like to say that in this suit there are some admitted facts. These admitted facts are as follows : (i) It is not disputed that the plaintiff is the owner of the suit house. (ii) It is also not disputed that respondent Nos. 1 and 2 are the tenants in the suit house as specific case of the defendant Nos. 1 and 2 is that in the month of September 1983, the suit house was vacated by the original defendant Nos. 1 and 2 and at that time it was in dilapidated condition and as such, it was agreed between respondent No. 1 on the one hand and the husband of the plaintiff on the other hand that respondent Nos. 1 and 2 is that in the month of September 1983, the suit house was vacated by the original defendant Nos. 1 and 2 and at that time it was in dilapidated condition and as such, it was agreed between respondent No. 1 on the one hand and the husband of the plaintiff on the other hand that respondent Nos. 1 and 2 would Ret the suit house repaired at their own cost and the cost of the repair would be adjusted in future rent and till the entire amount was not adjusted the respondent Nos. 1 and 2 would not pay rent of the suit house and thereafter on the basis of the abovementioned oral agreement, respondent Nos. 1 and 2 were inducted as tenants in the suit house since October, 1983. Thus, from the pleadings of respondent Nos. 1 and 2, it is established that they claimed to be tenants in the suit house from October, 1983. Thus, the relationship of landlord and tenant between the parties is also admitted. (iii) It is also admitted that monthly rent of the suit house is Rs. 75.00 per month and it is also admitted that respondent Nos. 1 and 2 have not paid even a single farthing towards rent of the suit house to the plaintiff. Thus, the only difference between the parties is with respect to the pleadings of respondent Nos. 1 and 2 regarding the claim of adjustment of cost of repair amounting to Rs. 5500.00 towards rent of the suit house. 13. According to the judgment of the trial court, the trial court disbelieved the story of repair of the suit house done by respondent Nos. 1 and 2 and expenditure of huge amount done by them on the said repair. According to the finding of the trial court, D.W.5 Shambhu Prasad, D.W.7 Sheokumar Sah. D.W.8 Ramjee Prasad, D.W.9 Mahabir Sharma and D.W.10 Seshupal Prasad have come to depose on the point of repair of the suit house but the trial court did not find their testimony to be reliable. Likewise, the trial court also held that two receipts (Exts. A and A/1) produced on behalf of the respondent Nos. 1 and 2 in support of their contention that they had met huge expenditure amounting to Rs. Likewise, the trial court also held that two receipts (Exts. A and A/1) produced on behalf of the respondent Nos. 1 and 2 in support of their contention that they had met huge expenditure amounting to Rs. 5500.00 were not genuine documents rather both the receipts were quite new and manufactured by defendant No. 3 but from perusal of the judgment of the first appellate court it appears that the first appellate court has found the evidence of the defendants witnesses on the point of huge expenditure done by the respondent Nos. 1 and 2 over the repair work as reliable. The learned first appellate court at paragraph 14 of the judgment has discussed this point. It appears that the learned first appellate court relying upon the oral evidence of D.W.5 Shambhu Prasad, D.W.7 Sheokumar Sah. D.W.8 Ramjee Prasad, D.W.9 Mahabir Sharma and D.W.10 Seshupal Prasad, besides Exts. A and A/1, held that the defendant No. 3 had incurred expenses of Rs. 5500.00 towards repair of the suit house and as such, under the oral agreement arrived at between the plaintiffs husband and defendant No. 3, the defendants are entitled for adjustment of the said amount. The learned first appellate court also held that from October 1983 to December, 1985 only a sum of Rs. 2025.00 out of total amount of Rs. 5500.00 had been adjusted towards rent and a sum of Rs. 3425.00 still remained to be adjusted and as such, the respondents were not defaulters in the eye of law. According to the argument of the learned Advocate of the appellant, this finding of the first appellate court is perverse and against the settled principle of law. His submission was that the learned trial court has rightly disbelieved the testimony of the abovesaid witnesses on the point of repair of the suit house and huge expenditure done by the respondent Nos. 1 and 2 on such repair. His submission is that respondent Nos. 1 and 2 come from business community which is also established from the deposition of D.W.11 Dharmnath Prasad (respondent No. 1 in this appeal) who has deposed that by profession he is a businessman. The learned Advocate submitted that every businessman maintains his Account book (Bahi Khata) with regard to the daily income and expenditure and that Bahi Khata has been universally accepted as best evidence regarding income and expenditure of a businessman. The learned Advocate submitted that every businessman maintains his Account book (Bahi Khata) with regard to the daily income and expenditure and that Bahi Khata has been universally accepted as best evidence regarding income and expenditure of a businessman. The learned Advocate submitted that non-production of such Bahi Khata by the contesting defendants establishes beyond doubt that the story propounded by the defendants regarding the huge expenditure done by them on the repair of the suit house is a cock and bull story and in absence of the Bahi Khata, the trial court has rightly disbelieved the testimony of the witnesses of the defendants on the point of huge expenditure on repair done by the contesting defendants. 14. It is usual practice that in the ordinary course of business, a businessman always maintains account-book for incorporating the day-to-day income and expenditure. This account-book has been accepted as genuine and admissible piece of evidence under law. Since respondent Nos. 1 and 2 come from business community and as per the evidence of respondent No. 1 Dharmnath Prasad, who has been examined as D.W.11, he is by profession a businessman, hence it is expected from him that in the ordinary course of his business he must have maintained the account-book for daily income and expenditure. In the absence of such account-book I am of the view that the trial court has rightly disbelieved the oral evidence of the abovesaid witnesses and held that Exts. A and A/1, which were definitely fresh prepared documents, were not genuine documents. It appears that while relying upon the oral evidence of the defendants with regard to the expenditure done on repair, the first appellate court did not consider this aspect of the case that the contesting defendants (respondent Nos. 1 and 2) who come from business community must have maintained account-book for daily income and expenditure in the ordinary course of business and non-production of any such account-book from the side of the contesting defendants belies the entire oral evidence as well as documentary evidence (Exts. A and A/1) with regard to the expenditure done by the contesting defendants on repair of the suit house. A and A/1) with regard to the expenditure done by the contesting defendants on repair of the suit house. It appears that the trial court has given cogent and satisfactory explanation for not accepting the oral as well as documentary evidence brought on record from the side of the contesting defendants regarding the expenditure done on the repair of the suit house but the reasoning given by the first appellate court for differing with the view of the trial court is most unsatisfactory and unreasonable. I am also of the view that in absence of any written agreement between the parties regarding the expenditure done on the repair of the suit house, the story propounded by the respondent Nos. 1 and 2 regarding huge expenditure done on the repair work in the suit house was improbable and unbelievable. The first appellate court should have given proper thought to the meaning of "repair" and should have differentiated the case from "alteration and addition". In the year, 1983 a sum of Rs. 5500.00 was a huge amount and from that amount, addition and alteration could have been made in the building instead of minor repairs. Under law, a tenant is permitted to do minor repairs in the tenanted house if the landlord fails to do the necessary repair work but the tenant cannot be allowed to make alteration and addition in the tenanted house which is against law. 15. sec. 9 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as "B.B.C.Act) makes it obligatory for the landlord to carry out the repair work in the tenanted premise, and also defines Repair. According to the Explanation appended to sec. 9 of the B.B.C.Act, "Repair" includes annual white-washing, re-colouring and periodical repairs. In this regard, reliance can be placed upon the decision of this Court given in the case of Deodhari Sah and Anr. petitioners V/s. Commissioner Tirhut Division and Ors., respondents) reported in 1983 PLJR 390 . In the decision referred above, a distinction has been made between the repair and reconstruction in the following manner : The word "repair" always involves renewal; renewal of a part; of a substantial part. Repair is restoration by renewal or replacement of subsidiary parts of a whole. In the decision referred above, a distinction has been made between the repair and reconstruction in the following manner : The word "repair" always involves renewal; renewal of a part; of a substantial part. Repair is restoration by renewal or replacement of subsidiary parts of a whole. Consequently an addition, material alteration or anything which substantially improves a thing in value from the original condition except in so far as it is necessary to carry out such restoration cannot be said to be merely repair of that thing, it will be bringing into existence an altered thing, and improved thing, a new thing for all intents and purposes. Renewal, as distinguished from repair, is reconstruction of the entirety, meaning by the entirety not necessarily the whole but substantially the whole subject matter. The question of repair is in every case one of degree and the rest is whether the act to be done is one which in substance is the renewal or replacement of defective parts, or the renewal or replacement of substantially the whole. Making distinction between the repair and re-construction, the Hon ble Judges held that the re-construction of concrete roof in place of corrugated sheet roof being a definite improvement cannot be regarded as mere "repairs" as the concrete roof would be a new thing for all intents and purposes and the value of the building would also be considerably enhanced by such construction, and as such, the Hon ble Judges held that the House Controller could not ask the petitioner (landlord) to construct concrete roof in place of corrugated sheet roofing in the garb of asking them to carry out repairs under Sub-sec. (4) of Sec. 10 of the Act (Sec. 9(2) of the Amended Act). The Hon ble Judges further held that the order of the House Controller asking the landlord to make repair in the tenanted house was unreasonable as the landlord of a building was fetching monthly rent of Rs. 45.00 only whereas the estimated cost of repair was Rs. 2500.00 meaning thereby that for about 55 months the landlord would not be getting even a single paise. The facts of this-case are very much similar to the facts of the case referred above. Here also if the case of the contesting defendants regarding the expenditure done on repair is accepted the cost of which runs to Rs. 2500.00 meaning thereby that for about 55 months the landlord would not be getting even a single paise. The facts of this-case are very much similar to the facts of the case referred above. Here also if the case of the contesting defendants regarding the expenditure done on repair is accepted the cost of which runs to Rs. 5500.00 then the cost of repair would be equivalent to the rent of about 73 months at the rate of Rs. 75.00 per month and in that case the plaintiff-landlord would not be getting any rent for a period 73 months from the date of induction of the respondent Nos. 1 and 2 as tenants in the suit house. Under law, such unremunerative and disproportionate expenditure on repair is not permissible and the same cannot be allowed to be adjusted with the future rent. This amply proves that the finding of the first appellate court was perverse. Accordingly, I find and hold that the findings of the first appellate court are based on no-consideration and improper appreciation of the material evidence available on record due to which the findings have become perverse. Thus, the substantial question of law No. (i) is decided in favour of the appellant. Substantial Question of Law No. II 16. It has been argued by the learned Advocate of the appellant that under Sec. 9(2) of the B.C.C.Act, if the landlord refuses or neglects to do necessary repair works in the tenanted premises then in that case the tenant with the permission of the House Controller is entitled to do necessary repair work in the tenanted premises but that cannot exceed more than one months rent of the tenanted premises. He submitted that since the respondent Nos. 1 and 2 claimed adjustment of huge amount i.e. Rs. 5500.00 towards the expenditure done by them which is equivalent to 73 months rent, the same is not permissible under Sec. 9(2) of the B.B.C.Act. In order to appreciate the submission of the learned Advocate of the appellant, I would like to quote sec. 9(2) (3) and (4) of the B.B.C. Act. 5500.00 towards the expenditure done by them which is equivalent to 73 months rent, the same is not permissible under Sec. 9(2) of the B.B.C.Act. In order to appreciate the submission of the learned Advocate of the appellant, I would like to quote sec. 9(2) (3) and (4) of the B.B.C. Act. XXX XXX XXX (2) If the landlord fails to carry out annual white-washing, re-colouring and periodical repairs, which he is bound to make, the tenant may by notice require him to carry out the same within one month from the date of service of the notice and, on the landlords failure to do so within the said period, the tenant may himself carry out the same at cost not exceeding one months rent for the building and deduct such cost from the rent. (3) If the landlord neglects to carry out repair, other than those referred to in Sub-sec. (2), which he is bound to make, the Controller shall, on application by the tenant, which shall specify the approximate cost of such repairs, cause a notice to be served on the landlord to appear and show cause, within such time as may be fixed against the application. (4) If the landlord does not appear in obedience to the notice or if he appears but fails to satisfy the Controller as to why he should not be directed to carry out the repairs or such of them as he finds the landlord is bound to make, the Controller shall after making such further inquiry as may be necessary direct him to carry out the same within a time to be fixed, and on the landlords failure to comply with such direction, 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. It shall thereafter 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.... 17. From plain reading of sec. It shall thereafter 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.... 17. From plain reading of sec. 9(2) of the B.B.C.Act it is apparent that the tenant may carry out the repair work himself at a cost not exceeding one months rent for the building and he is also permitted to deduct such cost from the rent. sec. 9(2) of the B.B.C.Act establishes beyond that the tenant is not permitted under law to make exorbitant expenditure on repair of the tenanted house under his occupation and claim adjustment of the cost from future rent. 18. Sub-sec. s (3) and (4) of sec. 9 of the B.B.C.Act show that if the landlord neglects to carry out repair then the proper course for the tenant is to file an application before the House Controller for issuing order to the landlord to make necessary repair work in the tenanted house and if the landlord fails to do so then the tenant will be permitted to do necessary repair work and to adjust the cost from the future rent. The repair cost will be specified by the House Controller in its order. 19. Here, in the instant case, there is nothing on record to come to the conclusion that the respondents have taken permission from the House Controller to do necessary repair work in the suit premises and to adjust the cost of repair amounting to Rs. 5500.00 nor it is the case of the contesting defendants that they had taken permission for huge expenditure on repair work done in the suit house. Thus, I have come to the conclusion that u/s. 9(2) of the B.B.C.Act, expenditure done on repair of the suit house by the respondent Nos. 1 and 2 exceeding one months rent is illegal and as such, under law respondent Nos. 1 and 2 were not entitled to claim adjustment of Rs. 5500.00 as amount spent on repair of the tenanted house. It is the admitted case of the respondent Nos. 1 and 2 exceeding one months rent is illegal and as such, under law respondent Nos. 1 and 2 were not entitled to claim adjustment of Rs. 5500.00 as amount spent on repair of the tenanted house. It is the admitted case of the respondent Nos. 1 and 2 that they had not paid even a single farthing to the plaintiff-appellant towards rent and if the claim of the respondents for adjustment of the amount spent on repair is held to be illegal and not permissible u/s. 9(2) of the B.B.C.Act then I find no difficulty in holding that the contesting defendants i.e. respondent Nos. 1 and 2 were defaulters in the eye of law and, therefore, from this aspect also, the findings of the first appellate court are perverse. Accordingly, the substantial question of law No. (ii) is also decided in favour of the plaintiff-appellant. 20. In the result, I find merit in this appeal and as such, the same is hereby allowed with cost throughout. The judgment and decree of the first appellate court are hereby set aside and the judgment and decree of the trial court are hereby confirmed and restored and the plaintiffs suit for eviction as well as for arrears of rent is hereby decreed. Since respondent Nos. 1 and 2 are residing in the suit premises from October, 1983 and it is admitted position that at that time the rent was fixed at Rs. 75.00 per month but during past two decades the value of the land as well as house had considerably enhanced and consequently, the rent of the suit premises could have also enhanced, as such it would be unjust and improper to decree the suit of the plaintiffs for recovery of the arrears of rent without leveling exorbitant interest on the amount due towards rent. In such view of the matter, it is ordered that the plaintiff-appellant shall be entitled to recover arrears of rent with interest at the rate of 24 per cent per annum. It is further ordered that the executing court will execute the decree without any further delay.