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1977 DIGILAW 100 (PAT)

Bandi Sah v. Gangauri Sah

1977-05-19

S.K.CHOUDHURI

body1977
Judgment S. K. Choudhuri, J. 1. This application under section 115 of the Code of civil Procedure by the defendant is directed against the order, dated the 25th June, 1971, passed by the Subordinate Judge in the suit, under section 11-A of the bihar Buildings (Lease, Rent and Eviction)Control Act, 1947 (Bihar Act III, 1947) (hereinafter to be called as the Act) striking out the defence against ejectment. 2. The relevant facts may be stated here. The plaintiff-opposite party filed a suit for eviction on the ground of default in payment of rent from december, 1968 to March, 1969 as also personal necessity. A written statement contesting the suit was filed by the defendant. Thereafter the plaintiff filed an application under section 11a of tho Act praying therein that the defendant be directed to deposit the arrears of rent as well as the current rent at the rate of rs.15 per month. The said application on contest was allowed by the order dated the 27th May, 1970 directing the defendant to deposit Rs.270 towards arrears of rent within fifteen days of that order and tho current rent beginning from June, 1970 by 15th of the next succeeding month. It is not disputed that the arrears of rent was deposited by challan within time granted by the aforesaid order. It is also not disputed that the current rent for the subsequent months was also deposited from time to time in obedience to the aforesaid order, dated 27.5.1970, except for the month of July, 1970 which was deposited out of time. It may be stated here that July rent 1970 was not deposited within time but the same was deposited along with the rent of August, 1970 vide challan dated 1.9.1970. The plaintiff therefore filed two applications on 18.6.1971, one for withdrawal of all the rents deposited under section 11-A of the Act including that of July, 1970, and the other for striking out tho defence on the ground that the rent for the month of July, 1970 was not deposited within time. It appears that the court below passed an order for the withdrawal of all the rents except the rent for two months, namely, July.1970 and August 1970, which were deposited together vide challan, dated 1.9.1970, by the order dated 19th June, 1971. It is not disputed by Mr. It appears that the court below passed an order for the withdrawal of all the rents except the rent for two months, namely, July.1970 and August 1970, which were deposited together vide challan, dated 1.9.1970, by the order dated 19th June, 1971. It is not disputed by Mr. B. P. Gupta appearing on behalf of the plaintiff opposite party that the plaintiff withdrew all the rents except for the two months aforesaid on 24.6.1971. Thereafter an application for striking out the defence was taken up on 25.6.1971 and after hearing the learned counsel for the parties the court below passed the impugned order aforesaid. 3. The only question for determination in this case is as to what would be the effect of withdrawal of current rents from September, 1970 to April, 1971 which were deposited within time but subsequent to July, 1970 for which month admittedly there has been a default in depositing of the rent for that month and which was not allowed to be withdrawn. Mr. Naseem Ahmad, learned counsel appearing in support of the application contended that the withdrawal of the current rent subsequent to the month of July, 1970 would amount to waiver on the facts and in the circumstances of the case. Mr. Gupta on the other hand contended that the rent for July, 1970 which was deposited on 1.9.1970 not having been withdrawn the court below was justified in striking out the defence under section 11-A of the Act on the ground that there was admittedly default in payment of rent for the month of July, 1970. 4. Mr. Gupta on the other hand contended that the rent for July, 1970 which was deposited on 1.9.1970 not having been withdrawn the court below was justified in striking out the defence under section 11-A of the Act on the ground that there was admittedly default in payment of rent for the month of July, 1970. 4. In order to appreciate the arguments of the parties it is necessary to read section 11-A ot the Act which runs thus : - "11-A. Deposit of rent by tenants in suits for ejectment.- If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any, and on failure of the tenant to deposit within fifteen days of the date of the order or the rental such rate for any month by the fifteenth day of the next following month, the court shall order the defence against ejectment to be struck out and tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. The court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant" . Thus from plain reading of the aforesaid section it cannot be doubted that the court would order the defence against ejectment to strike out if there was a failure on the part of the tenant to deposit arrears of rent within fifteen days of the order or the current rent for any month by 15th of the next following month. Thus from plain reading of the aforesaid section it cannot be doubted that the court would order the defence against ejectment to strike out if there was a failure on the part of the tenant to deposit arrears of rent within fifteen days of the order or the current rent for any month by 15th of the next following month. Under this section the landlord has been given a right to withdraw the deposited rent also and the court could order for withdrawal of those deposits if they were valid deposits under the said section. This proposition was not disputed at the Bar. If any authority is needed a Bench decision of this Court, in Ramhhod Lodha V/s. Madhabji Kanel, ( AIR 1974 Pat 211 ) may be referred. Therefore if the plaintiff would have chosen to withdraw all the rents which were validly deposited before july, 1970 leaving aside the rest of the rent for the current months there would have been no difficulty in accepting the argument of the learned counsel for the opposite party As soon as default for not compliance of the order passed under section 11-A of the act occurs the plaintiff acquires a valuable right to get the defence struck out. But it appears in the present case that though there was a default in deposit of arrears of rent for July 1970 (which is not disputed) the plaintiff treated the subsequent deposits for the current month as they fell due to be valid deposits in pursuance of the order passed under section 11-A of the Act and accordingly the plaintiff opposite party made an application to the court below for withdrawal of the rents namely, from September, 1970 to April, 1971 under section 11 of the Act. It appears from the petition filed for withdrawal, that the plaintiff wanted to withdraw even rent for July, 1970 but the court below was pleased to permit by order dated 19.6.1971 to withdraw all the arrears and current rents except for july and August, 1970 which were deposited together. It was for the plaintiff to waive his right to strike out the defence for default in deposit of rent for July, 1970 or to exercise the said right. It was for the plaintiff to waive his right to strike out the defence for default in deposit of rent for July, 1970 or to exercise the said right. In case he would have chosen to exercise the right to strike out the defence for the aforesaid default for one month then he could not have been permitted to treat the deposit of rent for the subsequent months as valid deposits under section 11-A of the Act and file an application for withdrawal of the same and thereby blow hot and cold at the same time. When the plaintiff choses to exercise his right to get the defence struck out under section 11-A of the Act by filing an application and the court strikes out the defence for that default then there is no question of the said order remaining alive and operative for the deposit of rent for the subsequent month. On striking out the defence for default of a particular month, order under section 11-A of the Act comes to an end and therefore the plaintiff could not treat the deposits for the period after the default as valid deposits under section 11-A of the Act and could not invoke the right under that section to withdraw them. In my opinion, therefore, the rent for the months from September, 1970 to April, 1971 having been withdrawn along with the deposit for the period before July, 1970, it must be held that the plaintiff waived his right to get the defence struck out for the admitted default for the aforesaid one month. It was the plaintiffs option to withdraw rents subsequent to the month of July, 1970 treating them as valid deposits under section 11-A of the Act or not to withdraw them at all taking the stand that for default of July, 1970 the court was bound to strike out the defence under section 11-A of the Act and therefore any deposit subsequent to the period of default was not valid deposit under section 11-A of the Act. I am further of the opinion that it becomes immaterial on the facts and in the circumstances of the case as to whether the rent for July, 1970 was withdrawn or not. I am further of the opinion that it becomes immaterial on the facts and in the circumstances of the case as to whether the rent for July, 1970 was withdrawn or not. The argument on behalf of the opposite party that as soon as the default was made for the month of July, 1970 the defence of the petitioner as against ejectment automatically stood strike out does not support the opposite-party in any way, rather this argument goes against the contention of the opposite party and supports the petitioner that subsequent deposit of rent after July, 970 could not be said to be a deposit under section 11-A of the Act. I am aware of the decision in mohammad Hassan V/s. Parsutan Pandey, (1964 BLJR.24) wherein their Lordships interpreted the language of section 11 (1) (d) of the Act. By interpreting the said section their Lordships held that acceptance of subsequent rent would not amount to waiver, but, in my opinion, the principle laid down in the said decision has no application because the present case has to be decided on the language used in section 11-A of the Act. The court below in my opinion was, therefore, on the facts and in the circumstances of the case, not at all justified in striking out the defence against ejectment of the petitioner on the sole ground that admittedly there was default in the deposit of rent for the month of July, 1970. No other point was raised before me. 5 For the reasons aforeasid the application is allowed and the impugned order is set aside. In the circumstances there will be no order as to costs. As the suit has become old the court below is directed to dispose of the suit as early as possible without giving the parties unnecessary adjournments. Application allowed.