SHOE KUMAR Vs. RAM CHANDRA RAM

JUDGEMENT

(1.) This application by the defendant is directed against the order dated 18th November, 1969 allowing the application of the plaintiff-opposite party under Section 11-A of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947, (Bihar Act III of 1947) (hereinafter referred to as 'the Act').

(2.) In order to appreciate the point involved in this application it will be necessary to set out facts in brief. On 2nd July, 1968, the plaintiff opposite party instituted Title Suit No. 113 of 1968 impleading the petitioner as the defendant in the Court of Munsif-If, Gaya. In that suit the plaintiff alleged that the rent was due from the defendant from the month of June, 1967, at the rate to Rs. 60/- per month which was not paid, in spite of demand. He claimed the following reliefs in the said suit :-

(3.) Learned counsel appearing on behalf of the petitioner has as sailed the impugned order, and contended that the learned Munsiff erred in passing the said order without giving a finding with regard to arrears of rent. According to the learned counsel, it was imperative for him to give a finding regarding arrears of rent for the purposes of the order contemplated under Section 11-A of the Act. Without such finding according to him the order is vitiated. In order to substantiate his contention, learned counsel relied on an unreported decision of this Court in Azizur Rahman v. Abdul Aziz, C.R. No, 710 of 1961, decided on 28.11.1961. That case also related to an order for deposit of arrears of rent as well as current rent under Section 11-A of the Act, in that case according to the petitioner, the petitioner was not the tenant but he was only a sub-tenant or sub-lessee of the tenant, namely, the first defendant. This contention is not relevant for the present case. His second contention was that specific direction ought to have been given by the Court to the petitioner to deposit the arrears of rent. His Lordship. while dealing with the second contention, observed that the second contention raised on behalf of the petitioner had enough force. The petitioner did not admit that any arrears of rent were due and in that situation before ordering him to pay arrears of rent under Section 11-A of the Act it was incumbent upon the Court to find out in a summary way on such evidence which might have, been placed before it as to whether the plaintiff's case about arrears of rent was correct. The learned Munsif, according to his Lordship, could not have made the order against the defendant by merely observing that "there is no evidence on behalf of the defendant that he paid rent to the plaintiff before July, 1960". On the other hand, a positive finding on the evidence on behalf of the plaintiff, according to his Lordship, was necessary although that finding would be a finding only for the purpose of Section 11-A of the Act. In that view of the matter it was held that the direction to the petitioner to deposit a sum of Rs. 240/- under Section 11-A had to be deleted and the application in revision was allowed. Learned counsel submitted that according to the said judgment it was necessary in the instant case for the learned Munsiff to have given a finding on the evidence that the said arrears of rent was due against the defendant. Learned counsel has also placed before me the order of the learned Munsif dated 18th May, 1961 which had given rise to Civil Revision No. 710 of 1961. In my judgment the said order of the Munsiff and the impugned order of the Munsiff dated 18th November, 1969, which has given rise to the present application are more or less similar in terms. Besides, the judgement in Civil Revision No. 710 of 1961 has been followed in another decision of this Court in Parbati Kumari v. Suga Chand Jain, 1967 AIR(Pat) 415 Further, the judgment in Civil Revision No. 710 of 1961 was also referred to and relied upon in a Full Bench decision of this Court in Mahabir Ram v. Shiva Shankar Prasad,1968 BLJR 447. In that view of the matter in my judgment, the contention of learned counsel for the petitioner is well founded and has got to be accepted. The impugned order cannot be sustained. The learned Munsiff ought to have given a finding on the evidence on record regarding the arrears of rent to be paid by the defendant-petitioner.