Patna High Court
Ranchhod Lodha vs Madhabji Kanji on 14 August, 1972
Equivalent citations: AIR1974PAT211, AIR 1974 PATNA 211
ORDER
1. This application has been filed by the tenant-defendant of Title Suit No. 156 of 1967. The application is directed against an order, dated the 23rd December 1970, by which the defence of the defendant has been struck off.
2. The plaintiff-opposite party instituted the suit in question for the eviction of the defendant from a portion of Holding No. 73, Ward No. 15 of Dhanbad Municipality on the ground of default in payment of rent, breach of condition of tenancy and for personal necessity. By order, dated the 10th July 1968 passed under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947), the trial Court passed an order for deposit of arrears of rent for November 1966 to June 1968 and for deposit of rent thereafter. It is stated, that, the arrears were deposited in time and for rent for the months of January to April 1970 a Chalan was passed on the 14th February 1970 for Rs. 120/-. The money was, however, deposited on the 19th February. Then, the suit itself stood dismissed for default by order dated the 10th March 1970. The plaintiff had filed an application for restoring the suit to its original file and on the 29th August 1970 a conditional order of restoration was passed and the actual restoration was made on the 8th September 1970. It appears, that, in the meantime, on the 10th June 1970, the plaintiff had withdrawn the rent for January to April 1970, deposited on the 19th February. Then, the Chalan for rent for the months of May to October, 1970 was passed on the 15th September 1970 but the money was actually deposited on the 18th September. On the 18th November 1970, the plaintiff filed an application before the trial Court, stating, that, the defendant was directed to deposit the current rent by the 15th of the subsequent month and as the defendant has failed to do so. the defence may be struck off. It is on this application that the impugned order was passed on the 23rd December 1970.
3. The learned counsel for the petitioner has submitted, that, when the plaintiff had withdrawn the rent for the months of January to April 1970, his grievance that the rent for these months was not deposited, strictly in terms of the order passed on the 10th July 1968, should not have been allowed to succeed. It is further, contended, that, so far as rent for the months of May to October 1970, deposited on the 18th September 1970, was concerned, no breach of the order dated the 10th July 1968 could have been committed by the defendant and the order for striking off the defence has been passed irregularly. The learned counsel for the plaintiff-opposite party has contended, that, the withdrawal of the rent for the months of January to April 1970, after the suit was dismissed for default, did not affect the plaintiff's right to complain, that, the order dated the 10th July 1968 was not followed with respect to the rent for these months. On the question of rent for the months of May to October 1970, it is argued, that, there has been a contravention of Section 11-A of the Act and, therefore, the defence has been rightly struck off. We would consider the two points raised by the learned counsel for the parties separately.
4. So far as rent for the months of January to April 1970 was concerned, we are of opinion, that, the plaintiff could not have made a greivance of non-compliance of the order, dated the 10th July 1968, after withdrawing the rent for these months. Learned counsel for the opposite party has referred to two decisions, one. in the case of Mahamood Hassan v. Parsutam Pande, reported in 1964 BLJR 24 and another, in the case of Mangilal v. Sugan Chand, reported in AIR 1965 SC 101. Neither of these decisions assists the learned counsel for the plaintiff opposite party in the contention raised on this point. We are not determining the point as to whether the plaintiff's suit should be dismissed or not, as he has accepted the rent for January to April 1970, so that he can be met with the point that there was no arrear for these months and, therefore, the suit based on non-payment of rent for these months cannot proceed. We are now concerned with the order passed by the Court on the 10th July 1968 under Section 11-A. Having accepted the rent for January to April 1970, the plaintiff ought not to be allowed to raise the point, that, the order dated the 10th July 1968 was not strictly followed. The Court must take it that the right accrued to the plaintiff under the order passed under Section 11-A to ask the Court for striking off the defence was waived by the plaintiff, by withdrawing the rent for the months of January to April 1970. So far as rent for the months of May to October 1970 was concerned the position is rather anomalous in the facts and circumstances of this case. If it is taken that the order dated the 10th July 1968 was revived from that date, the anomaly will be that upto the restoration of the title suit, the defendant could not have deposited any rent after the suit stood dismissed for default on the 10th March 1970. If it be taken that the order of restoration revived the order under Section 11-A from that date, then the arrears of rent could be deposited within fifteen days of the date of the order, namely, 8th September. All the anomalies in the case have arisen because of the dismissal of the suit for default. The Court below has not applied its mind at all to all these aspects of the case and the order for striking off the defence has been passed as if the suit remained on the file continuously upto the date when the plaintiff filed his application for striking off the defence. We are of the view, that, the order of the trial Court, to say the least has been passed in an irregular exercise of Its jurisdiction, Therefore, we would set aside the order dated the 23rd December 1970, and the suit would now proceed as if the defence is still on the record.
5. The suit is now a pretty old one and if possible, it should be taken up for expeditious disposal, after the receipt of the record from this Court.
6. In the result, the civil revision is allowed. There will be no order for costs.