Judgment PRABHA SHANKAR MISHRA, J. 1. The petitioner in the civil revision as also in the writ application has questioned the validity of the order of the Additional Munsif, Patna City, by which his defence has been struck off for non-compliance of the order to deposit the arrears of rent and current rent of the premises allegedly occupied by him as a tenant and the validity of S.15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, to the extent it has empowered the Court to order for deposit of rent in arrears of the period prior to the institution of the suit besides the arrears after the institution of the suit and rent month by month at such rate as may be determined and also in that part where it has provided that as a consequence of the striking of the defence against ejectment the Court shall not allow the tenant to cross-examine the landlords witnesses. He has also questioned the validity of S.14 of the Act on the ground that the procedure prescribed therein with respect to the suits for eviction on the expiry of the period of lease or personal necessity is discriminatory and violative of Art.14 of the Constitution of India. 2. Respondent No. 3 in the writ case and the opposite party in the civil revision, who is the plaintiff in the title eviction suit No. 63/85 1/87 pending in the Court of the Sub Divisional Judicial Magistrate-cum-Additional Munsif, Patna City, has filed the suit alleging that the defendant-petitioner is the tenant of holding No. 49 (old), 51 (new) of Municipal Survey Plot No. 79, Sheet No. 240, Ward No. 26 (old), 32 (new) in Circle No. 176, area 29 Karis less than 1 Katha on the monthly rental of Rs. 15 .00 according to the English Calendar. 3. According to the plaintiff-respondent-opposite party the tenant-petitioner had fallen in arrears of rent and on account of default in the payment of rent had become eligible for eviction, but for the reason that the house was urgently needed to meet the personal necessity, he instituted the suit for eviction on the ground specified in Cl.(c) of Sub-sec. (1) of S.11 of the Act. The petitioner, on receiving notice, appeared in the suit and filed written statement denying the relationship of landlord and tenant. (1) of S.11 of the Act. The petitioner, on receiving notice, appeared in the suit and filed written statement denying the relationship of landlord and tenant. His case is that the house in question formerly belonged to the Jalane family of Patna City. His family was inducted into the house in question without any rent. Since it was Belagan before and later under the Jalans who were the landlord, the Municipal Board (as it then was) assessed tax at the rate of Rs. 2.00 per annum which the petitioner paid and later the Corporation assessed the tax at the rate of Rs. 36.00 per annum which he has been paying. He has contested the claim of the plaintiff-respondent-opp. party that the house in question was purchased by him from one Anar Dai Khandelia on 26-5-1984 and alleged that Anar Dai Khandelia had not acquired any title to the suit property. 4. In the suit taken up in accordance with S.14 of the Act, the plaintiff-respondent- opposite party filed a petition under S.14 thereof. The tenant petitioner contested the prayer to deposit the arrears of rent and current rent on various grounds. The learned Additional Munsif, however, ordered that the defendant-petitioner was required to pay the arrears and the current rent at the rate specified in the order. The defendant-petitioner acted in obedience of the said order, but defaulted after December, 1986. The plaintiff-respondent-opposite party then filed a petition on 27-8-87 praying therein to strike off the defence of the defendant-tenant-petitioner. The learned Additional Munsif has allowed the petition of the plaintiff-respondent-opposite party and struck off the defence of the tenant-petitioner against ejectment. 5. Tenants occupying buildings on rent in such cities, towns and urban agglomeration, which were notified as prescribed by law, were protected by the statutory umbrella of a Control Act in the year 1947. The 47 Act was a temporary Act continued by such notifications and amendments which were felt necessary by the legislature of the State until replaced by Bihar Act 16 of 1977. 1977 Act expired and for a short while no Control Order existed. The 47 Act was a temporary Act continued by such notifications and amendments which were felt necessary by the legislature of the State until replaced by Bihar Act 16 of 1977. 1977 Act expired and for a short while no Control Order existed. 1982 Act has since been enforced which is practically a reproduction of the 1977 Act, except the provisions in Ss.13 and 14 of the Act, which lay down a special procedure for eviction of that event at the instance of the landlord on the grounds of personal necessity and on the expiry of the period of the tenancy, in case of a tenant holding on a lease for a specified period falling under Ss.11(1)(c) and 11(1)(e) of the Act respectively. S.11A which held the field until the 1947 Act, remained in force, was reintroduced in S.13 of the 1977 Act. S.15 of the 1982 Act has replaced S.13 of the 1977 Act broadly retaining the principle and the action relating to deposit of rent by tenants in suits for ejectment. 6. While recapitulating the provisions in S.11A of the 1947 Act, S.13 of the 1977 Act and S.15 of the 1982 Act, one may have to encounter the view that for quite some time this Court maintained that S.11A of the 1947 Act; was a special provision which the landlord could invoke to demand deposit of arrears of rent, whether barred by limitation or not and both for the period before the institution of the suit and after the institution of the suit as also the current rent. Any default in depositing within fifteen days of the order the arrears of rent and by the 15th of the month next following, the current rent, the tenant incurred disqualification of striking off his defence qua tenant which disqualification could not be removed by subsequent deposit of the arrears or the current rent. Any default in depositing within fifteen days of the order the arrears of rent and by the 15th of the month next following, the current rent, the tenant incurred disqualification of striking off his defence qua tenant which disqualification could not be removed by subsequent deposit of the arrears or the current rent. The law, however, by and by crystallised with this Court holding that the real purpose of the said provision was to secure payment to the landlord of what was lawfully recoverable and not to enable the landlord to recover such part of the arrears of rent which had become irrecoverable under the Limitation Act and further that the expression arrears of rent should be interpreted to mean arrears of rent falling due during the pendency of the suit and not the arrears of rent relating to the period prior to the institution of the suit. This Courts encounter with the contention, whether striking off the defence of the tenant for default in depositing the arrears of rent and current rent was such that the tenant could not question the genuineness of the claim of the landlord on any ground, was considered and law on the subject was examined in some detail in the case of Nagina Ram V/s. Bishwanath Prasad Khemani, 1964 BLJR 197. 7. In the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, S.11A was the provision having a penal clause saying that on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order of the rent at such rate for any month by 15th day of the next following month, the Court would order the defence against ejectment to be struck out and the tenant to be placed in the same position, as if he had not defended the claim of ejectment. A Division Bench of this Court took the view that where on failure to deposit arrears of rent, as directed by Court, defence is struck off with regard to the claim for ejectment and the suit is fixed for ex parte hearing, the defendant is not entitled to cross-examine any witness who might be produced on behalf of the plaintiff. Thus in Nagina Ram (supra) this Court said: - ".......The language of S.11A of the Act is practically identical with the language of O.11, R.21, of the Code of Civil Procedure. Thus in Nagina Ram (supra) this Court said: - ".......The language of S.11A of the Act is practically identical with the language of O.11, R.21, of the Code of Civil Procedure. It is well established by authorities that the failure on the part of the defendant to comply with an order of discovery of documents under the provisions of, O.11, R.21, Code of Civil Procedure, results in an order of the Court striking off the defence, and the consequence of such an order is that the suit is transferred from the list of defended suits to the list of undefended suits and the plaintiff is entitled to apply to the Court for making axe ex parte decree against the defendant. In the circumstances of the case the trial Court was right in holding that the petitioner was not entitled to cross examine any witness who might be produced on behalf of plaintiff after his defence was struck off." 8. A mark deviation, however, was made as noticed in the case of Chaturbhuj Mistry V/s. Jagan Ram, 1967 BLJR 44. A Division Bench of this Court has said : "The provisions under S.11A are clear, and there is no ambiguity left in regard to what the defendant, in an action for ejectment, will be deprived of on account of his failure to comply with an order for deposit of rent as made under that section. It is true that, in some cases, the defendant may be exposed to some hardship; but, if that was what was intended by the specific provisions as laid down under that section by the Legislature, it cannot be helped. It may be suggested on behalf of the defendants opposite party that a defendant, who has been sued for ejectment the plaintiff asserting that the defendant was a tenant under him, on the ground that the defendant defaulted in paying the rent consecutively for two months, can challenge that no arrears rent was due from him and can also contest the plaintiffs title to the suit house. He will be placed in a great predicament in case his defence is struck out under S.11A, and he still succeeds in proving to the Courts satisfaction that no arrears rent was due from him. We do not think that there will be any hardship to the defendant in such a case at all. He will be placed in a great predicament in case his defence is struck out under S.11A, and he still succeeds in proving to the Courts satisfaction that no arrears rent was due from him. We do not think that there will be any hardship to the defendant in such a case at all. His defence in regard to arrears of rent as claimed by the plaintiff will still be available to him to substantiate during the trial, and, if he does so, the Court will come to the conclusion that no arrears rent was due to the plaintiff. Although the defendants defence about ejectment is struck out, the Court will not necessarily pass a decree for ejectment in all cases. Even where the defence is struck out, the plaintiff will still be required to adduce evidence in support of his claim. If his evidence falls short of it evidence of the defendant in regard to matters other than ejectment leads the Court to the conclusion that none of the grounds mentioned in S.11 for ejectment is present in a particular case, the plaintiff will not succeed in getting a decree for ejectment. It cannot, therefore, be said that the provisions under S.11A are utterly, and always to the disadvantage of the defendant-tenants." 9. In coming to the above conclusion in Chaturbhuj Mistry case (1967 BLJR 44) (supra) the learned Judge made a reference to the case of Lalbihari Tewari V/s. Sheo Shanker Prasad ( AIR 1964 Pat 174 ) (FB) which according to them had taken the said view. Controversy, however, came to an end with the judgment of this Court Mahabir Ram V/s. Shiva Shanker Prasad, 1968 BLJR 447 : ( AIR 1968 Pat 415 ). A closer examination of the law in Mahabir Rams case shows why in a suit for ejectment of a tenant questions qua tenant alone be allowed to be known by the provision for striking off the defence. The plaintiffs in the said case had filed a title suit for recovery of arrears of rent and for evicting the tenant from a house which was allotted to their father in a private family partition and after his death, inherited by his three sons in equal shares. One of his sons had sold his interest to one Gaya Prasad Dubey in an execution case. One of his sons had sold his interest to one Gaya Prasad Dubey in an execution case. Gaya Prasad Dubey had sold his interest to one of the plaintiffs, who was the wife of one of the brothers. There was a tenant in the house who, however, failed to pay rent. The tenant contested alleging that the house belonged to the brothers, whose interest was allegedly sold to Gaya Prasad Dubey, but Dubey was a name lender only. The real purchaser was the tenant-petitioner. During the pendency of the suit the Court ordered for depositing arrears and current rent. The tenant-petitioner failed to comply with the Courts order. His defence was, accordingly, struck off. 10. The plaintiffs in the said case filed the suit for two reliefs- (1) for recovery of arrears of rent and (2) for eviction of the tenant. The defendant petitioner had asserted that he was the owner of the house and he was not a tenant of the plaintiff. This Court noticed the contentions of the parties and proceeded to examine the law in some details taking notice of the main characteristic of S.11A of the 1947 Act. The Court has said- "The emphasis throughout in this section is on the word "tenant" and whatever defences are open to him as a tenant against ejectment have to be struck out, in case of his failure to make the deposit under that provisions. In other words, his defence qua tenant only would be struck out. If a defendant in a suit for his eviction on the grounds mentioned in S.11 of the Buildings Control Act takes a defence that he was not the tenant of the plaintiff landlord and that the plaintiff had no title to the house in question and that he (defendant) was the owner of it, then that defence obviously is not in the capacity of a tenant, inasmuch as there is a clear denial of the relationship of landlord and tenant". Proceeding further the Full Bench has said- "The moment a defendant in such a suit takes the defence that he is not a tenant of the plaintiff landlord and no relationship of landlord and tenant was ever created, the position is that such a defence is taken by him not in the capacity of a tenant. Proceeding further the Full Bench has said- "The moment a defendant in such a suit takes the defence that he is not a tenant of the plaintiff landlord and no relationship of landlord and tenant was ever created, the position is that such a defence is taken by him not in the capacity of a tenant. His defence may be that he himself was the owner of the house or that a third party was the owner, but all the same this defence is not a defence qua tenant of the plaintiff. In such a case even on the striking of his defence against ejectment he cannot be debarred from cross-examining the plaintiffs witnesses on the question of title or adducing his own evidence to prove either his title or that of a third party to the house in question." The Full Bench rejected the contention that it is only on determination of the question as to whether there has been a relationship of a landlord and tenant, that the Court ordered for deposit of arrear and current rent and, therefore any plea that he was the owner of the house or that any third party was the owner of the house was not available. The Full Bench also rejected the plea that once the order to deposit the arrears was not carried out, it was not open to the tenant to plead that he was not in arrear". 11. A suit for ejectment of a tenant from a house may or may not include a prayer for a decree for arrears of rent. A suit for eviction without there being any other prima facie relief asked for may be maintainable and recourse may be taken to the provisions for deposit of arrears and current rent during the pendency of the suit. 12. A suit for eviction without there being any other prima facie relief asked for may be maintainable and recourse may be taken to the provisions for deposit of arrears and current rent during the pendency of the suit. 12. In Mahabir Ram V/s. Shiva Shanker Prasads case ( AIR 1968 Pat 415 ) (supra), this Court, thus, has acknowledged that a determination of the relationship of landlord and tenant for the purpose of S.11A shall not be conclusive to hold that the plaintiff has advanced a bona fide claim for eviction of a tenant on the ground of default, and that any claim of arrears of rent unconnected with the issue of ejectment of the tenant, and any plea of defence on questions except qua tenant will not be inhibited by the order striking off the defence qua tenant. The amended law, however, it appears, has made a departure and introduced in S.15 of the Act words which extend the arrears to a period prior to the institution of the suit. 13. I had the occasion to deal with the impact of S.11A of the Old Act in Sheolal V/s. Anantdeo Mishra, 1986 Pat LJR 1144 and notice the departure by the new provisions in S.15 of the Act in the following words:- "Significance of this amendment can be well realised by appreciating the scope of the words, "the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he has not defended the claim to ejectment." Since the case did not concern the new provision, I only said in my judgment- "..... Since this case concerns an order passed under 1947 Act, the new provision aforesaid shall not inhibit the case...." 14. The issues occur as a consequence of the new provisions. One of them depends on the question, can a Court only on prima facie determination as to whether there is any rent in arrear or not, order for its deposit and if the order is not complied with, strike off the defence, thus, giving to the prima facie determination a finality? One of them depends on the question, can a Court only on prima facie determination as to whether there is any rent in arrear or not, order for its deposit and if the order is not complied with, strike off the defence, thus, giving to the prima facie determination a finality? I have already noticed that this Courts judgments with respect to S. 11A of the Old Act, crystalised the law that rent in arrears and current rent for the purposes of S.11A meant arrear prior to the date of the order, but not beyond the date of the institution of the suit and current rent each month until the disposal of the suit. 15. A suit for eviction on one or more than one of the grounds enumerated in S.11 A of the Act is a suit which may besides the relief of ejectment of the tenant include the relief of arrears of rent. A tenant may in such a suit raise defence against ejectment and also contest the claim of any money decree. A suit for arrears of rent only can not be allowed to include any relief with respect to any claim of arrears prior to the period of limitation. It will always be possible for the plaintiff landlord to apply under S.15 of the Act for deposit of arrears of rent in a suit for eviction of the tenant in which besides the relief of ejectment of the tenant relief of arrears of rent is also asked for unless the words "of before the institution of the suit" in sec. 15 with respect of the arrears of rent are qualified by the words not barred by limitation. Thus before any decree for arrears of rent is granted by the Court the landlord may achieve the object of claiming arrears already barred by limitation. Even with respect to arrears falling within the period of limitation a tenant-defendant may successfully demonstrate that he has no liability, that he can do while contesting the claim of arrears of rent in the suit. It will be unfair, therefore, to grant only Ion a prima facie determination arrears before the institution of the suit to the landlord as the Act has got no provision to get such arrear of rent realised by the landlord u/s. 15 of the Act recovered from the landlord. It will be unfair, therefore, to grant only Ion a prima facie determination arrears before the institution of the suit to the landlord as the Act has got no provision to get such arrear of rent realised by the landlord u/s. 15 of the Act recovered from the landlord. A provision of law which is striken by arbitrariness is hit by Art. 14 of the Constitution of India. The provision in sec. 15 that the Court may order for the deposit of the arrears of rent prior to the instutition of the suit, therefore, is ultra vires. 16. The next that occurs when the provisions in sec. 15 with respect to striking off the defence qua tenant is considered is whether a plea that the tenant is not in arrears of rent or that there has been no relationship of landlord and tenant between the plaintiff and the defendant is a plea qua tenant or not. In Mahabir Rams case ( AIR 1968 Pat 415 ) (FB) this Court has clearly said that the moment a defendant in such a suit takes the defence that he is not a tenant of the plaintiff landlord and no relationship of landlord and tenant was ever created the position is that such a defence is taken by him not in the capacity of a tenant. The law which has intended to regulate the letting of building and the rent of such building and to prevent unreasonable eviction of tenants therefrom cannot contemplate ejectment of a person who may be in a position to demonstrate that there was no relationship of landlord and tenant. True, such a determination is essential before any order u/s. 15 is made, but determination for the purpose of sec. 15 is only a prima facie determination and not the final determination. The words "and further the Court shall not allow the tenant to cross-examine the landlords witnesses" therefore, must always mean that when the defence is qua tenant and not a defence independent of the relationship of landlord and tenant or a defence which unless rejected relationship of landlord and tenant cannot be finally assumed. Striking off the defence against ejectment and not to allow the tenant to cross-examine the landlords witnesses must strictly therefore, be confined to the defence qua tenant only and not with respect to any other defence. Striking off the defence against ejectment and not to allow the tenant to cross-examine the landlords witnesses must strictly therefore, be confined to the defence qua tenant only and not with respect to any other defence. Unless this is the meaning given to the words used in sec. 15 of the Act or any attempt is made to extend it beyond defence, qua tenant, it may run the risk of being ultra vires. 17. Learned counsel for the petitioner has not seriously pursued the contention as to the vires of the sec. 14 of the Act. Without any hesitation it can be said that the two grounds taken up for the purpose of sec. 14 of the Act are the grounds that the landlord has got a personal necessity of the building for his own occupation or for occupation of any person for whose benefit the building is held by the landlord and that the tenant who has been holding on a lease for a specified period has not vacated the premises even after the expiry of the period of tenancy. These are grounds in which normal procedure prescribed under the Code of Civil Procedure may not be equitable and situations obtaining on account of the tenant holding on the building even after the expiry of the period of lease for a fixed term or personal necessity of the landlord may require prompt and quick action to eject the tenant. The primary object of the special procedure for disposal of such cases in sec. 14 of the Act is to shorten the period of litigation involving eviction based on the personal requirement of the landlord or expiry of period of lease for the building. This special procedure will successfully sustain the test of reasonableness. 18. Coming to the facts of this case, I find that the Court below had ordered for deposit of current rent at the rate of Rs. 15/ - per month. For non-compliance of the said order, the defence against ejectment has been struck off. The Court below has committed no error in making the said order. 19. The petitioner has, however, alleged that the plaintiff-respondent had initially instituted the suit for eviction along with recovery of arrears of rent since June, 1985 to February, 1986, but later sought leave to file a separate suit for recovery of the arrears of rent. The Court below has committed no error in making the said order. 19. The petitioner has, however, alleged that the plaintiff-respondent had initially instituted the suit for eviction along with recovery of arrears of rent since June, 1985 to February, 1986, but later sought leave to file a separate suit for recovery of the arrears of rent. According to him the learned Munsif had ordered for deposit of arrears of rent for the said period, that is to say, from a date prior to the institution of the suit. 20. As the records of this Court do not show that the order to strike off the defence has been passed on the ground that such arrears of rent have not been paid, it is not possible to hold that the Court below has committed error of jurisdiction in this behalf. I do not, however, finally dispose of this aspect as in view of the law that we have noticed above, it shall be open to the petitioner to file a petition in the Court below bringing to its notice that its order included deposit of such arrears of rent which were not permissible u/s. 15 of the Act, and in case such a petition is filed and it is found that the order included a direction to deposit arrears of rent prior to the institution of the suit, the Court below may recall the order striking off the defence. 21. To conclude (i) sec. 15 of the Act in so far as it empowers the Court to order for the deposit of the arrears of rent prior to the instution of a suit for ejectment of the tenant is ultra vires (ii) striking off the defence and the defendant not allowed to cross examine the plaintiffs witnesses in the context of the scheme of the Act has to be confined to defence qua tenant only and not with respect to any other defence (iii) sec. 14 of the Act is constitutionally valid. 22. In the result, the Civil Revision application is dismissed and the writ application is allowed to the extent indicated above. There would be no order as to costs. 23. L.P.N. SAHADEO, J. :- I agree. Application dismissed