Patna High Court
Ranjit Singh vs Dr. Sarda Ranjan Prasad Sinha on 21 May, 1980
Equivalent citations: AIR1981PAT102, 1981(29)BLJR367, AIR 1981 (NOC) 102 (PAT), (1981) BLJ 254, (1981) PAT LJR 192, 1981 BLJR 351, 1981 BLJR 367, (1980) BLJ 586
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Lalit Mohan Sharma, J.
1. This revision application by the defendant in a suit for his eviction from a building is directed against the order dated 6-2-1980 passed by the court below.
2. On 13-1-1978, the trial Court passed an order under Section 13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (hereinafter referred to as 'the Act') directing the defendant to deposit arrears of rent. As this was not done, the written statement was struck off by order dated 6-2-79. On 26-3-79, the suit was dismissed for default and was later restored on 18-4-1979. The petitioner then claimed before the Court below that the order rejecting the defence must be held not to have revived on the restoration of the suit and he is now entitled to rely upon his written statement. The plea has been rejected by the Court below.
3. Mr. Surya Bhushan Prasad Singh, appearing for the petitioner contended that in view of the decision in Gopi Halwai v. Zainab Khatoon, (AIR 1975 Pat 42) it must be held that all interlocutory orders passed in the suit earlier than its dismissal for default did not and could not revive on the restoration of the suit. I do not agree with the learned counsel.
4. It is well settled that on the restoration of a suit dismissed for default, all ancillary orders passed therein also revive. Reference may be made to the Division Bench decision of our Court in Bankim Chandra v. Chandi Prasad, (AIR 1956 Pat 271) where several decisions of other High Courts were considered. The question, therefore, is as to whether the order striking out the defence, passed in the present case, before the suit was dismissed for default, is meant to aid and supplement the ultimate decision in the suit and is, therefore, ancillary in nature. I do not entertain any doubt that an order whereby a defendant is deprived of relying upon his written statement and defend the suit on its basis is vital to the main decision and must, therefore, revive with the restoration of the suit. The decision cited on behalf of the petitioner is clearly distinguishable. There an order under Section 11A of the old Act corresponding to Section 13 of the new Act was passed. The written statement, however, had not been struck off, as the defendant was depositing rents regularly. At that stage, the suit was dismissed for default and was later restored. Thereafter, the Court directed that all the arrears should be deposited within one week of the order. The defendant challenged the order in this Court on the ground that the direction regarding deposit of arrears of rent was not an ancil-
lary order and it could not be revived on mere restoration of the suit. This decision has no application to the present, case inasmuch as the plaintiff is not attempting to get the order under Section 13 dated 13-1-1978 revived. Mr. C. B. Sahay appearing for the opposite party has rightly contended that what the plaintiff wants is that the order dated 6-2-1979 rejecting the written statement should be held to have revived. The order in regard to striking off the defence is vitally different from the order directing the arrears of rent to be deposited. I, therefore, hold that in the present case, the order dated 6-2-1979 revived automatically on the restoration of the suit and the view taken by the court below is correct.
5. The revision application is, therefore, dismissed, but without costs. Let the lower Court records be sent down immediately.