JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the learned counsel for the appellants. 2. No one turns up on behalf of the respondents in-spite of repeated calls though notices have validly been served upon the respondents. Hence, this appeal is heard ex-parte. 3. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of reversal dated 12.12.2007 passed by the learned Additional District Judge, FTC-III, Dhanbad in Title Appeal No. 139 of 2005 whereby and where under, the learned first appellate court has set aside the judgment and decree passed by the trial court by which the trial court decreed the suit of the plaintiffs and directed the defendants to handover the vacant possession of the suit property within one month to the plaintiffs and also held that the plaintiffs are entitled to recover a sum of Rs. 3,125/- as arrear rent from the defendants. 4. The case of the plaintiffs-appellants in brief is that the plaintiffs are the owner of the suit premises which were leased to the defendants on monthly rent of Rs. 250/- though the tenancy was initially composite but later on due to differences between the two of the defendants who are also the brothers between themselves, the rental amount was split up between the two and each of the defendants used to pay rent separately at the rate of Rs. 125/- per month. It is further the case of the plaintiffs that the defendant no. 1 paid the rent only up to the month of August, 1993 and thereafter, failed and neglected to pay the rent from September, 1993 onwards and the defendant no. 2 paid rent up to January, 1993 and thereafter failed and neglected to pay the rent from February, 1993 onwards. The defendant no. 1 contested the suit but the defendant no. 2 did not appear. The defendant no. 1 denied that he has defaulted in payment of rent and pleaded that the plaintiffs have received the rent for the month of September and October, 1993 issued rent receipts showing payment for the month of November and April, 1991 instead and it is the case of the defendant no. 1 that the rent for the month of November and April 1991 was already paid and receipts obtained. The tenancy was admitted by the defendants. 5. 1 that the rent for the month of November and April 1991 was already paid and receipts obtained. The tenancy was admitted by the defendants. 5. On the basis of rival pleadings, the learned trial court framed the following eight issues: (1) Is the suit maintainable in its present form? (2) Is there any cause of action for the suit? (3) Is the suit barred by Limitation? (4) Is the suit barred under Bihar Building (L.R.E.) Control Act, 1982? (5) Is the suit bad for misjoinder of cause of action? (6) Whether the tenancy of the defendants are separate or joint? (7) Are the defendants defaulter under Bihar Building (L.R.E.) Control Act? (8) Are the plaintiffs entitled to any relief, if so, to what extent? 6. In support of its case, the plaintiffs examined two witnesses including the plaintiff no. 1 and also proved the documents which were marked Ext. 1 to 5/1. From the side of the defendants on the other hand, three witnesses were examined and they also proved documents which were marked Ext. A to D/80. 7. Learned trial court first took up issue nos. 4, 6 and 7 together and considering the evidence in the record, both oral and documentary came to the conclusion that the defendants never claimed any adjustment of rent already paid. The defendant no. 1 failed to establish the date of payment of rent for the month of November and December, 1993. So even though the adjustment plea for the month for September and October, 1993 is accepted still, the defendant failed to prove that he has not defaulted in payment of rent for November and December, 1993 and went on to hold that the plaintiffs have been successful in proving its case that defendant has not paid the rent after August, 1993 within the meaning of Bihar Building (Lease, Rent and Eviction) Control Act, 1992 and accordingly, decided the issues in favour of the plaintiffs and against the defendant. The learned trial court thereafter took up issue no. 3 and held that the suit is within time. The learned trial court took up issue nos. 2 and 5 together and decided the issues in favour of the plaintiffs and against the defendant. Lastly, the learned trial court took up issue nos. The learned trial court thereafter took up issue no. 3 and held that the suit is within time. The learned trial court took up issue nos. 2 and 5 together and decided the issues in favour of the plaintiffs and against the defendant. Lastly, the learned trial court took up issue nos. 1 and 8 together and held that the suit is maintainable and the plaintiffs are entitled to the relief claimed and decreed the suit. 8. Being aggrieved by the judgment and decree passed by the learned trial court being the court of Additional Munsif 1st Dhanbad dated 05.08.2005 as already indicated above, the defendants filed Title Appeal No. 139 of 2005 in the court of District Judge, Dhanbad and the same was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 9. The learned first appellate court re-appreciated the evidence in the record and held that since the plaintiffs admit that the defendant no. 1 paid the rent twice for the month of April, 1991 and November, 1991 and if the same is adjusted in respect of the rent for the month of September, 1993 and October, 1993, there is no default. The learned first appellate court relied upon the judgment of Hon’ble Supreme Court of India in the case of M/s. Sarwan Kumar Onkar Nath vs. Shri Subhas Kumar Agarwalla, AIR 1987 SC 2302 wherein in the facts of that case where there was understanding between the landlord and the tenant that the amount advanced could be set off against the rent whenever necessary or required but as the appellant failed to pay the rent for two months when the court below accepted the plea of the appellant that he has paid a sum of Rs. 140/- as rent even though the appellant has not requested the respondent to adjust the rent which he had paid in advance towards the rent due for the two months, the Hon’ble Supreme Court of India, in the facts of that case, held that the appellant was not in arrears for two months’ rent and the High Court was in error in holding that the appellant was defaulter and liable to be evicted under Section 11 (1) (d) of Bihar Building (Lease, Rent and Eviction) Control Act, 1947 by observing thus in paragraph nos. 2 which reads as under: “2. 2 which reads as under: “2. It is unfortunate that the High Court has approached the entire case in a technical fashion. It is not disputed that the respondent was not entitled to receive more than one month's rent by way of advance. Yet, the respondent had received in advance the rent for two months. The receipt under which the said advance was received does not state that the amount received was liable to be adjusted towards the arrears of rent only on the appellant informing the respondent orally or in writing that such adjustment is to be made. In the written statement, however, the appellant pleaded that the amount paid by way of advance could be set off by way of rent whenever necessary or required. This is not a case where there was any agreement to the effect that such adjustment could be made only on the tenant asking the landlord to make such adjustment. Nor is this a case where the tenant was liable to the landlord on any other account. The only transaction between them was the lease in question and the amount in question had been paid as rent in advance. There was also no agreement that the amount was liable to be adjusted at the termination of the lease. It was, therefore, open to the respondent to appropriate the said sum towards the arrears even without any option being exercised as regards such adjustment by the appellant. The High Court erred in observing that the appellant had not asserted in its written statement that it may be allowed to adjust the advance amount towards the rent due for the months of September and October, 1972. In substance the plea set out in Para 9 of the written statement amounts to such an assertion. In any case the appellant could not be treated as a defaulter who had failed to pay rent for two months. In substance the plea set out in Para 9 of the written statement amounts to such an assertion. In any case the appellant could not be treated as a defaulter who had failed to pay rent for two months. The High Court was also wrong in coming to the conclusion that the appellant could not rely on the provisions of S. 3 of the Act on the ground that if the parties were in pari delicto the court would not come to the rescue of either.” The learned first appellate court also relied the judgment of Hon’ble Patna High Court in the case of Bibi Amna Khatun and Others vs. Zahir Hussain and Another, AIR 1981 Patna 1 wherein in the facts of that case it was held that where the court has made an order under Section 11A of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 directing the tenant to deposit rent in court but the tenant deposited the same beyond the time limit, the landlord by withdrawing such amount disentitle himself to claim his right to get the defence of the tenant against his ejectment struck-out as thereby he accepts the position that the deposits were within time and in such a case, the trial court commits an apparent error of jurisdiction in striking out the defence of the tenant and held that such excess rent for the month of April, 1991 and November, 1991 was fair and hence, there is no default in payment of the rent and allowed the appeal and dismissed the suit. 10. At the time of Admission of this appeal vide order dated 23.07.2009, the following two substantial questions of law were formulated by this Court: (i) Whether the court of appeal below has committed error of law in reversing the finding recorded by the trial court on the issue of default? (ii) Whether there can be automatic adjustment of any amount held by the landlord towards rent without there being any claim of adjustment by the tenant? 11. Mr. (ii) Whether there can be automatic adjustment of any amount held by the landlord towards rent without there being any claim of adjustment by the tenant? 11. Mr. Jitendra Kumar Pasari, learned counsel for the appellants relying upon the judgment of Hon’ble Supreme Court of India in the case of Bhoja alias Bhoja Ram Gupta vs. Rameshwar Agarwala and Others, AIR 1993 SC 1498 wherein the Hon’ble Supreme Court of India held that the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 does not contain any provision for automatic adjustment of excess rent and a tenant cannot save himself from the consequence of eviction under the act on the ground of default in payment of rent by claiming automatic adjustment of any excess rent paid consequent upon the mutual enhancement of rent, even if illegal unless there is an agreement between the parties for such adjustment and the tenant may also in a given case seek adjustment of excess rent in the hands of the landlords against the arrears by specifically asking the landlord for such an adjustment before filing of the suit or in response to the notice to quit and even in written statement by way of set off within the period of limitation by following the procedure for claiming such set off while registering the claim of eviction on the ground of default in payment of arrears of rent but he cannot claim automatic adjustment, paragraph nos. 13, 20 and 21 of which reads as under: “13. The Act does not contain any provision for automatic adjustment of excess rent. As already noticed, neither in reply to the notice under Section 106 of the Transfer of Property Act nor in the written statement or through any other writing was the adjustment of excess rent towards the arrears claimed by the tenant from the landlord. There also was point no agreement between the parties at any point of time for adjustment of the excess rent illegally paid towards the rent falling due subsequently. 20. There also was point no agreement between the parties at any point of time for adjustment of the excess rent illegally paid towards the rent falling due subsequently. 20. The Madras High Court in Nune Panduranga Rao vs. Divvala Gopala Rao, AIR 1952 Madras 827, while construing a somewhat similar provision contained in Section 7(2) of the Madras Buildings (Lease and Rent) Control Act held: “Under the express provisions of this section if the tenant has not paid or tendered the rent due by him within the time prescribed therein he is liable to be evicted. The section does not compel a landlord to adjust the excess amounts in his hands towards any arrears of rent if the said amounts were not paid by the tenant towards the rent of any particular month. It is true that on the date when a tenant authorities the landlord to adjust the amounts with him towards the rent of any particular month or months the amounts will be deemed to have been paid on that date towards rent. But, till that adjustment is made and the amount is so appropriated, any amounts is excess of the rent due with the landlord will only be payments made in suspense. The fact that such excess came into the hands of the landlord by reason of the Rent Controller's order fixing the fair rent does not really affect the question. I am, therefore, of opinion that the amount not paid towards rent of any particular month and the amount not agreed to be adjusted to towards any rent of a particular month is not payment of rent within the meaning of S. 7(2) of the Act.” (Emphasis supplied) We are in broad agreement with the view of the Full Bench of the Patna High Court and the Madras High Court on the question of ‘automatic adjustment’ and hold that a tenant cannot save himself from the consequences of eviction under the Act on the ground of default in the payment of rent by claiming automatic adjustment of any excess rent paid consequent upon mutual enhancement of rent, even if illegal unless there is an agreement between the parties for such an adjustment. The tenant may also in a given case seek adjustment of the excess rent in the hands of the landlord against the arrears by specifically asking the landlord for such an adjustment before filing of the suit or in response to the notice to quit and even in the written statement by way of set off within the period of limitation and by following the procedure for claiming such a set off, while resisting the claim for eviction on the ground of default in payment of arrears of rent but he cannot claim “automatic adjustment.” 21. Thus, in the facts and circumstances of this case, we find that the 1st Appellate Court was fully justified in holding that the tenant could not get any automatic adjustment of the excess rent paid against the subsequent defaults and since the tenant had been found on admitted facts to be in default in the payment of rent his eviction was well merited. The judgment of the High Court dismissing the second appeal, directed against concurrent findings, in limine, does not call for any interference. This appeal consequently fails and is dismissed but without any order as to costs.” (Emphasis supplied) And submits that the second substantial question of law is no more res-integra; in view of the said principle of law settled by the Hon’ble Supreme Court of India. It is further submitted by Mr. Pasari that otherwise also even assuming for the sake of argument that auto adjustable is permissible still as the Ext. A is the rent receipt for the month of April, 1991 issued by the plaintiffs on 09.07.1991 for Rs. 75/- which has been paid towards the rent for the month of April, 1991 by the defendant no. 1 and Ext.A/4 is the rent receipt for the month of April, 1991 again dated 29.04.1991 by which again another sum of Rs. 75/- has been received by the plaintiffs from the defendants ; thus the combined building of the contents of these 2 exhibits shows that in respect of April, 1991 only Rs. 75/- has been paid in excess has double rent for the said demand and similarly Ext. A/5 is the rent receipt for the month of November, 1991 by which Rs. 75/- has been paid on 14.03.1992 and Ext. A/7 is another rent receipt for the month of November, 1991 issued on 09.02.1992 by which Rs. 75/- has been paid in excess has double rent for the said demand and similarly Ext. A/5 is the rent receipt for the month of November, 1991 by which Rs. 75/- has been paid on 14.03.1992 and Ext. A/7 is another rent receipt for the month of November, 1991 issued on 09.02.1992 by which Rs. 75/- was received by the appellant from the respondent-defendant and the conjoint reading of these 2 exhibits also reveals that for the month of November, 1991 also only a sum of Rs. 75/- has been paid excess amount by way of double payment for the month of November, 1991. It is then submitted that thus this total sum of 150/- is insufficient to cover the amount of 2 months’ rent of Rs. 250/- and at best the same amounts to part payment of the arrear rental dues and certainly cannot be said to be good enough to cover the entire arrear rental dues hence the respondent will be still in default of the payment of the rent amount, and the first appellate court committed grave error of law in overlooking this aspect. Further Mr. Pasari elaborates his argument by submitting that, it is evident from Ext. A/18 that the monthly rent of the tenanted premises was enhanced from Rs. 75/- to Rs. 125/- per month. So, the amount due and payable on August, 1993 onwards was Rs. 125/- per month in respect of each of the tenanted premises that is for the tenanted premises occupied by the defendant no. 1, the rent due for the month of September, 1993 and October, 1993 was in total Rs. 250/- and the rent due for the tenanted premises occupied for the defendant no. 2 was another Rs. 125/- for each month. It is further submitted by Mr. Pasari that so far as the tenanted premises occupied by the defendant no. 2 is concerned, there is absolutely no evidence or pleading by the defendant no. 2 to contest the claim of the plaintiffs that he defaulted in making payment in respect of the said tenanted premises after January, 1993. So, there is no way the first appellate court could have interfered with the judgment of the trial court regarding the tenanted premises occupied by the defendant no. 2 and in this aspect also the first appellate court committed grave error of law. So, there is no way the first appellate court could have interfered with the judgment of the trial court regarding the tenanted premises occupied by the defendant no. 2 and in this aspect also the first appellate court committed grave error of law. So far as the tenanted premises occupied by the defendant no. 1 is concerned, it is submitted by Mr. Pasari that even assuming that excess rent paid by April, 1991 of Rs. 75/- and November, 1991 of Rs. 75/- that is altogether Rs. 150/- the same falls short by Rs. 100/- towards the rent of the tenanted premises for the month of September, 1993 and October, 1993 which at the rate of Rs. 125/- per month in total comes out to Rs. 250/-. So it is submitted by Mr. Pasari that otherwise also, even adjusting the excess rent paid, the amount is still inadequate to cover the rental dues of the tenanted premises occupied by the defendant no. 1 for the month of September, 1993 and October, 1993 taken together and at best, it may amount to part payment of rental dues which also entitles the plaintiffs of a decree for eviction of the defendant no. 1 from the tenanted premises. It is submitted that the learned first appellate court has committed grave error of law in reversing the judgment and decree of the learned trial court on the issue of default, therefore the impugned judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored. 12. 12. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the second substantial question of law as to whether there can be automatic adjustment of any amount held by the landlord towards rent without there being any claim of adjustment by the tenant, is concerned, in view of the principle of law settled by the Hon’ble Supreme Court of India in the case of Bhoja alias Bhoja Ram Gupta vs. Rameshwar Agarwala and Others (supra), this Court is of the considered view that the said substantial question of law is no more res-integra; thus the second substantial question of law is answered in the negative that there cannot be automatic adjustment of any amount held by the landlord towards the rent without there being any plea of adjustment by the tenant. 13. So far as the first substantial question of law as to whether the court of appeal below has committed error of law in reversing the finding recorded by the trial court on the issue of default, is concerned, this Court has no hesitation in holding that the in impugned judgment passed by the first appellate court it committed grave error of law because it failed to take into consideration that unlike the case of Sarwan Kumar Onkar Nath vs. Shri Subhas Kumar Agarwalla (supra), where the amount lying with the landlord was sufficient to cover the rental dues in respect of the tenanted premises for the months of which default of payment of rent was claimed by the landlord but here in the suit, as rightly submitted by Mr. Pasari-the learned counsel for the appellant, that only Rs. 150/- was lying with the landlord against a total amount of rental dues of Rs. 250/- and the learned first appellate court, by applying the ratio of the case of Sarwan Kumar Onkar Nath vs. Shri Subhas Kumar Agarwalla (supra) to the facts of the case, though the facts of the case as already indicated above are entirely different from the facts of that case, and the excess amount paid by the tenant to the landlord was not sufficient to cover the rental dues it could not have been held by the first appellate court that there is no default in payment of the rental dues by the tenant-defendant no. 1. 1. The first appellate Court also committed an error of law by applying the ratio of Sarwan Kumar Onkar Nath vs Shri Subhas Kumar Agarwalla (supra) even though the facts of this case are different from that case as in this case unlike the case of Sarwan Kumar Onkar Nath vs. Shri Subhas Kumar Agarwalla (supra) there was no understanding between the landlord and the tenant that the amount advanced could be set off against the rent whenever necessary or required. Hence, the first substantial question of law is answered in the affirmative that the court of appeal below has committed error of law in reversing the finding recorded by the trial court on the issue of default. The first substantial question of law is answered accordingly. 14. In view of the discussions made above, this Court has no hesitation in holding that the impugned judgment and decree passed by the learned first appellate court is not sustainable in law. Accordingly, the same is set aside and the judgment and decree passed by the Additional Munsif 1st, Dhanbad in Title (Eviction) Suit No. 39 of 1994 dated 05.08.2005 is restored. 15. In the result, this appeal is allowed but in the circumstances without any costs. 16. Let a copy of this Judgment along with the Lower Court Records be sent to learned court concerned forthwith.