Bacha Singh v. Raghunandan Prasad — 1981 DIGILAW 1 (PAT)

Judgment S.K.Choudhuri, J. 1. This second appeal by the tenant-defendant is directedagainst the concurrent judgment and decree in the Courts below. The trial Court decreed the suit ex parte with costs. The lower appellate Court has affirmed the said judgment and decree. 2. The plaintiffs case, in short, is that in execution of a mortgage decree against one B.K. Chatterjee, the house porprty fully described in the schedule of the plaint was sold in Court auction on 24-5-1966 and was purchased by the plaintiff-respondent. The defendant was monthly tenant since the time of Mr. Chatterjee at the rate of Rs. 70.00 per month After purchase the plaintiff obtained symbolical possession on 29-1-1971. Thereafter a notice under Section 106 of the Transfer of Property Act as given to the defendant asking him to pay rent and arrears and to vacate the house. It has been allowed that Mr. Chatterjee and the defendant were colluding and, therefore the defendant was not paying rent to the plaintiff. With these allegations the plaintiff filed the present suit which was numbered as Title suit No 102 of 1971, before the Munsif, Bhagalpur for eviction of the defendant from the suit premises fully described in the plaint on the ground of default in payment of rent from the date of purchase i.e. 24.05.1966 at the rate of Rs. 75.00 per month. 3. The defence, in short, was that Mr. Chatterjee was necessary party and the rights and liabilities qua Chatterjee and the plaintiff is the subject matter in Title Suit No. 49 of 1971, which is pending in the Court of the Subordinate Judge, Bhagalpur. The further defence was that there was no relationship of landlord and tenant between the parties, and that the defendant was paying rent to Mr. Chatterjee and had also given an advance rent of Rs. 5000.00. The suit was filed on 21.07.1971 and after the notice was served upon the defendant, he appeared and filed his written statement contesting the suit Thereafter on 10.02.1972 the plaintiff applied under Sec.11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947) (for brief the Act) with a prayer for issue of a direction upon the defendant to deposit arrears of rent from 25.05.1966 till 31.08.1972 at the rate of Rs. 75.00 per month. 75.00 per month. The Court after hearing the parties by its order dated 6.09.1972 directed the defendant to deposit Rs. 5,643.00 being arrears of rent for the period from 24-5-1966 to 31-8-1972 at the rate of Rs. 75.00 per month. These was non compliance of the aforesaid order and, therefore the defence of the defendant was struck off by the Court below by its order dated 16-5-1973. Attempt was taken to get the said order of sriking off reviewed, but the defendant was unsuccessful. Thereafter on 18-7-1973 the defendant did not take any step in the suit and the Court fixed 10-8-1973 for ex parte hearing on 10-8-1973 also the defendant did not appear but the suit was adjourned for ex parte hearing to 16-8-1973 and ultimately it was decreed ex parte on 18-8-1973. As already stated above, in appeal the aforesaid ex parte judgment and decree have been affirmed by the Second Additional Subordinate Judge, Bhagalpur by his judgment dated 22-11-1975. 4. It appears from the judgment of the lower appellate Court that the argument, which was put forward on behalf of the defendant that the order for deposit of arrears of rent was illegal and without jurisdiction and that the said point can by raised in an appeal from the ex parte decree, was rejected on the ground that the defendant did not choose to prefer a revision before the High Court against the order for deposit under Sec.11A of the Act or the order for striking off the defence. 5. This second appeal was originally heard by a learned single judge of this Court who by his order dated 12-7-1979 has referred the case to a Division Bench and that is how it has been placed before us for hearing. 6. Mr. 5. This second appeal was originally heard by a learned single judge of this Court who by his order dated 12-7-1979 has referred the case to a Division Bench and that is how it has been placed before us for hearing. 6. Mr. Prem Lal learned Coucsel in support of this appeal contended that the order for deposit of arrears of (sic) of rent under Sec.11A of the Act for any period prior the filing of the suit was illegal and without jurisdiction and, therefore, the order for deposit of rent by the Court below as a whole as also the subsequent order passed by the Court below striking off the defence for non-compliance of the order for deposit of rent were illegal and without jurisdiction and the ex parte decree passed by the Court below as also the judgment and decree of the lower appellate Court which have affirmed the said ex parte decree are liable to be set aside. He contended that this point was argued before a single Judge, who has referred the case to a Division Bench. As a similar point was involved in Second Appeal No. 606 of 1975, which was then pending before Full Bench, this case was ordered to await the decision of the Full Bench. Now the aforesaid decision in the second appeal has been given by the Full Bench by its judgment dated 25-9-1980. On a perusal of the said judgment it appears that the submission of Mr. Prem Lal is fully supported by the said Full Bench decision. The facts of the case before the Full Bench was that a suit for eviction was filed on 9-8-1966 on the ground of arrears of rent from November 1964 to July 1966 at the rate of Rs. 38/- per month. The order for deposit was made under Sec.11A of the Act for the period from November 1964 to June 1967, besides direction for deposit of current rent. The Court below passed an order striking off the defence and directing ex parte hearing of the suit. In the suit the defendant wanted to lead evidence in support of his defence, but he was not allowed to do so. Ultimately on the ex parte evidence of the plaintiff the suit was decreed on 20-9-1967. The Court below passed an order striking off the defence and directing ex parte hearing of the suit. In the suit the defendant wanted to lead evidence in support of his defence, but he was not allowed to do so. Ultimately on the ex parte evidence of the plaintiff the suit was decreed on 20-9-1967. The lower appellate Court, however, set aside the judgment of the trial Court and remanded the case for fresh hearing after giving an opportunity to the defendant to cross examine the plaintiffs witnesses. Before the trial Court the defendant cross-examined the plaintiffs witnesses, but he was again not allowed to lead evidence in support of his defence. The suit was again decreed. An appeal by the lower appellate Court having been dismissed, a second appeal was filed in this Court. It was contended before the Full Bench that in view of the decision in Ramnandan Sharma V/s. Maya Devi -- , the Court below had no power to direct the defendant to deposit arrears of rent under Section II-A of the Act for any period prior to the institution of the suit and, therefore, the order in this regard as also the order striking off the defence were entirely without jurisdiction. It was also contended that in view of the aforesaid illegal orders the defendant of that suit was wrongly prevented from leading evidence in support of his defence to the eviction which resulted in serious prejudice to him and, therefore, the appeal should be allowed and the case sent back for fresh trial. This argument was accepted by the Full Bench. It has been held that in view of the Special Bench decision in Ramnandan Sharma case (supra) the Court has no power to order for deposit of arrears of rent under Sec.11A of the Act for a period before the institution of the suit. This argument was accepted by the Full Bench. It has been held that in view of the Special Bench decision in Ramnandan Sharma case (supra) the Court has no power to order for deposit of arrears of rent under Sec.11A of the Act for a period before the institution of the suit. Reference was made at the Bar before the Full Bench to the decision in the case of Bhagwanji Ram V/s. Babu Sagir Ahmad, 1975 0 BLJR 598, but the same has been distinguished in the Full Bench decision by pointing out that in that case the defendant moved the High Court against the order striking off the defence and the same as confirmed by the High Court resulting in the finality of a trial Courts order and, therefore, it was not open for the defendant to challenge the said order again in second appeal. The Full Bench has also held that the striking off the defence for non-compliance of the order for deposit of rent under Sec.11A of the Act is not automatic, but "an act of the Court of course under the command of the law, and if in its performance some illegality is committed, it should be subject to scrutiny by a higher Court having jurisdiction in this regard". After quoting Sec.106 of the Code of Civil Procedure, the Full Bench decision says: The only condition laid down is that the order should affect the decision of the case. By an order striking off the defence under Sec.11A of the Act, the tenant is placed in the same position as if he had not defended the claim to ejectment. He is not permitted to lead evidence in support of his plea and the issue has to be decided ex parte. There cannot be any manner of doubt that such an order must be held to affect the decision. In absence of any further restriction in Sec.105, its application cannot be resisted. Mr. S.C. Ghose learned Counsel appearing on behalf of the plaintiff-respondent, however, strenuously contended that the decision of the Full Bench discussed above is distinguishable and does not apply to the present case as the defendant walked out of the case and did not contest the same. He contended that in such a situation the decision of the Full Bench will not apply. This argument, in my view has ho substance. He contended that in such a situation the decision of the Full Bench will not apply. This argument, in my view has ho substance. Learned Counsel relied upon the ordersheet of the trial Court and pointed out that after striking off the defence the Court itself under orders dated 18-7-1973 and 10-8-1973 fixed the suit for ex parte hearing thereby giving an impression to the defendant that he would not be followed to contest the suit nor cross-examine the plaintiffs witnesses. I have already referred to those two orders above. It is a fact that the suit was fixed for ex parte hearing by the Court below and, therefore, the argument of Mr. Prera Lal that the defendant got an impression from those orders that he would not be allowed to contest the suit appears to have substance. Apart from the aforesaid situation, it is difficult to follow the argument of the learned Counsel for the respondent that a distinction should be made with a case where the defendant wanted to contest the suit inspite of the ex parte order and a case when the defendant did not appear to contest it as the suit was ordered to be taken up for ex parte hearing. The Full Bench has held the order for deposit of arrears of rent under Sec.11A of the Act for any period prior to the institution of the suit as illegal and without jurisdiction and consequently the impugned order passed under Sec.11A of the Act including the order for deposit of arrears of rent from the date of the suit as also the current rent being tagged in the same order would fall through as without jurisdiction. If this is the stituation in law, then the distinction which has been tried to be made by Mr. Ghose has no substance. 7 Mr. Ghose also argued that the suit having been decreed ex parte and the defendant not having appeared and attempted to contest the suit, his only remedy was to challenge the ex parte decree under Order I, Rule 13 of the Code of Civil Procedure praying therein to get the ex parte decree set aside on the grounds mentioned in that Rule and the defendant cannot be permitted to agitate a point on the merits of the case by preferring an appeal. This arguments, in my opinion has no substance. This arguments, in my opinion has no substance. After all, the trial Court, passed a decree, may be ex parte, but appealable and an appeal lay under Sec.104 of the Code of Civil Procedure. In that appeal the defendant undoubtedly had right to raise a point of law and the points which affected the merits of the case. The defendant, in fact, raised the point of law which was negatived, but ultimately a similar argument advanced before the full bench aforesaid has been accepted. 8. In view of the discussion made above, the appeal is allowed and the judgment and the decree of both the Courts below are set aside and the case is remanded to the trial Court. The order for deposit of rent dated 6-9-1972 and the order for striking off the defence dated 16-5-1973 passed in the suit are also illegal and without jurisdiction and are set aside. The trial Court will now dispose of the suit in accordance with law after giving an opportunity to the parties to adduce evidence in the suit. The evidence already recorded on behalf of the plaintiff will, however, remain, but the defendant will be allowed to cross examine the witnesses or witness examined on behalf of the plaintiff. In the circumstances of the case, there will be no order as to costs. M.P.Singh, J. 9 I agree.