GANESH PRASAD SAH KESARI Vs. LAKSHMI NARAYAN GUPTA

JUDGEMENT

(1.) Where a plaintiff in a suit bitterly complains that the defendant would be getting unfair advantage of his own lapse, if we were to interfere with the judgment rendered by the High court, we put ourselves on caution whether such be the outcome of our setting aside the order under appeal. Unwittingly, this Court should not be a party to the conferment of an undeserved advantage of a party to a proceeding guilty of a lapse though remediable and even unintentional. Deeper probing into the facts reveals that the boot is on the other foot in that the respondent-plaintiff is wholly to be blamed for the delay.

(2.) The facts first. The respondent-plaintiff filed a suit for eviction against the appellant defendant on the only ground that the tenant committed default in payment of rent for the period May, 1969 to December, 1971. The defendant contested the suit inter alia contending that he was not in default. There followed an application by the respondent-landlord for a direction under Sec. 11 A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 ('Act' for short). Section 11 A reads as under

(3.) Section 11A, to some extent, can be styled as a check on. the tendency of the defendant to protract the litigation by frivolous more especially where the duty to pay the rent is unmistakably admitted. In a suit for eviction, Sec. 11 A enables the court to give a direction to pay rent which is claimed to be in arrears as also to compel the defendant who continues to remain in possession during the pendency of the proceedings to perform his obligation to deposit the rent regularly. It also enables the court to determine the rate of rent at which the deposit shall be made, where in a case there is a dispute as to the rate of rent. It is an undeniable feature of the tenancies in this country that more or less excluding the metropolitan areas, the tenancy is generally oral and no written record is usually available to furnish evidence as to the terms of lease. Giving a receipt for the rent paid has not still become a part of the culture of a landlord. Therefore, where eviction is sought on the ground of non-payment of rent, it places a tenant at a comparative disadvantage if the landlord chooses to claim rent at the rate which is beyond the capacity of the tenant to pay. In such a situation, the tenant will be exposed to double jeopardy in that on a prima facie pleading he will be directed to deposit the rent at the rate claimed by. the landlord, if the court has no power to determinate of rent at an interim stage. Such power is conferred by Sec. 11A on the court. The court can also determine as to from what date the tenant appears to be in arrears so that an appropriate direction can be given that the rent in arrears may be deposited within the time stipulated by' the court as also future rent may be deposited regularly in the court. It is a wholesome provision which would advance justice.