Md. Hafizullaha v. Balkishun Agarwalla — 1980 DIGILAW 231 (PAT)

Judgment 1. This second appeal by Md. Hafizullah the defendant-tenant arises out of a suit for his eviction from certain premises situate in the town of Dhanbad. The suit was filed on 28.07.1966, on the ground of default in payment of rent. The suit was decreed by both the courts below in favour of the plaintiff-respondents and a decree for eviction of the appellant was passed. It appears that during the pendency of the suit the munsif 1st court, who tried the suit, by his order dated 31.07.1967, u/s. 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act (briefly, the Act) directed the defendant-appellant to deposit arrears of rent from March 1963 to July, 1963. The defendant did not comply with the order. As a result of non-compliance of that order the defence as against ejectment was struck out. However, the suit proceeded and was decreed as mentioned above. 2. At the time of admission of this appeal a point of law was raised by the defendant-appellant that the trial court had no power to direct the defendant-tenant u/s. 11A of the Act to deposit any arrears of rent prior to the institution of the suit and hence the order in this regard dated 31.07.1967 was illegal and without jurisdiction and that the defence of the appellant could not be legally struck out. Accordingly, a substantial question of law formulated by this court by Order No. 8 dated 20.12.1978, to the following effect: "Whether the order striking off the defence so far as it related to eviction was erroneous in law inasmuch as the order u/s. 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act was to deposit rent with effect from March 1963, when the suit itself was filed some time in the year 1966?" At the time of hearing of this second appeal the same point has been urged by the appellant. In my opinion, there is substance in this point. In Ram Nandan Sharma V/s. Maya Debi, AIR 1975 Pat 283 , it was held that the trial Court had no power to order u/s. 11A of the Act for deposit of the arrears of rent for the period prior to the date of institution of the suit. This position of law has not been challenged by the respondent in this Court. This position of law has not been challenged by the respondent in this Court. It is therefore, clear that in the instant case the trial Court had no jurisdiction to pass an order on the defendant-tenant directing him to deposit the arrears of rent from March, 1963 up to 27.07.1966 (the suit having been filed on 28th July 1966). It follows that the defence of the defendant-tenant could not legally be struck out for non-deposit of the arrears of rent as mentioned in the order of the trial Court dated 31.07.1967. 3 The next question is as to what would be the effect of the illegality of that order on the decrees under appeal. This point was considered in an unreported Full Bench case of Ganesh Ram V/s. Smt. Ram Lakhan Devi, S.A. No. 606 of 1975 disposed of on 25.09.1980: Since reported in AIR 1981 Pat 36 . In that case it was observed that by an order striking off the defence u/s. 11A of the Act, the tenant is placed in the same position as if he had not defended the claim of ejectment and that he is not permitted to lead evidence in support of his plea and the issue has to be decided ex parte and that such an order does affect the decision in the case. It was also held that if the trial Court had no authority to pass an order for deposit of rent for the period prior to the institution of the suit, the order in this regard must be held to be without jurisdiction. After making the aforesaid observation the concluded opinion expressed was that since the written statement of the defendant was illegally struck off which robbed him of the right to lead and establish his case, the decree of eviction passed by the Courts below must go and he should get a fair chance to plead and prove his case. 4. In view of this unreported Full Bench decision S.A. 606 of 1975 disposed of on 25.09.1980 since reported in AIR 1981 Pat 36 it must be held that the decrees under appeal are not sustainable in law. 5. Mr. 4. In view of this unreported Full Bench decision S.A. 606 of 1975 disposed of on 25.09.1980 since reported in AIR 1981 Pat 36 it must be held that the decrees under appeal are not sustainable in law. 5. Mr. Tara Kant Jha appearing for the plaintiff respondents strenuously contended that in this case both parties adduced evidence on the point of default in payment of rent and the two courts below, after rejecting the plea of the defendant that he had spent Rs. 450.00 for repair of the premises, came to the conclusion that the defendant had not paid rent from March 1963 and was a defaulter within the meaning of law and hence this Court should not interfere with such a finding. In my opinion, the point has no force. Although the defendant had the right to cross-examine the witnesses of the plaintiffs for the purpose of demolishing their case, it was not open to the defendant to establish his case as against ejectment and in law he could not be permitted to lead evidence in support of his plea. By illegal striking out of the defence the defendant was thus certainly prejudiced. After that he had no right to lead evidence and establish his case. The contention, therefore, must be repelled. 6. In the result the contention raised by Shri S.C. Ghose for the appellant is accepted as valid. The appeal is allowed, the decrees of the two Courts below are set aside and the case is remanded to the trial Court for further trial of the suit from the stage when the defence was struck out. The defendant-tenant shall be given opportunity to lead evidence and to establish his case. The plaintiffs can also adduce further evidence. The evidence which is already on the record shall remain on record and shall be considered along with the further evidence, if adduced by the parties. In case the plaintiffs press their application u/s. 11A of the Act again it will be open to the learned trial court to pass a valid order u/s. 11A of the Act. It is needless to say that if defendant does not comply with that order the defence can again be struck out. Parties shall bear their own costs of this second appeal.