HAFIZULLAHA Vs. BALKISHUN AGARWALLA

JUDGEMENT

(1.) This second appeal by Md. Hafizullah the defendant-tenant arises out of a suit for his eviction from certain premises situate in the town of Dhanbad. The suit was filed on 28th July, 1966, on the ground of default in payment of rent. The suit was decreed by both the courts below in favour of the plaintiff-respondents and a decree for eviction of the appellant was passed. It appears that during the pendency of the suit the munsif 1st court, who tried the suit, by his order dated 31st July, 1967, under Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act (briefly, the Act) directed the defendant-appellant to deposit arrears of rent from March 1963 to July, 1963. The defendant did not comply with the order. As a result of non-compliance of that order the defence as against ejectment was struck out. However, the suit proceeded and was decreed as mentioned above.

(2.) At the time of admission of this appeal a point of law was raised by the defendant-appellant that the trial court had no power to direct the defendant-tenant under Section 11A of the Act to deposit any arrears of rent prior to the institution of the suit and hence the order in this regard dated 31st July, 1967 was illegal and without jurisdiction and that the defence of the appellant could not be legally struck out. Accordingly, a substantial question of law formulated by this court by Order No. 8 dated 20th December, 1978, to the following effect:

(3.) The next question is as to what would be the effect of the Illegality of that order on the decrees under appeal. This point was considered in an unreported Full Bench case of Ganesh Ram v. Smt. Ram Lakhan Devi (S. A. No. 606 of 1975 disposed of on 25th September 1980): (Since reported in AIR 1981 Pat 36). In that case it was observed that by an order striking off the defence under Section 11A of the Act, the tenant is placed in the same position as if he had not defended the claim of ejectment and that he is not permitted to lead evidence in support of his plea and the issue has to be decided ex parte and that such an order does affect the decision in the case. It was also held that if the trial Court had no authority to pass an order for deposit of rent for the period prior to the institution of the suit, the order in this regard must be held to be without jurisdiction. After making the aforesaid observation the concluded opinion expressed was that since the written statement of the defendant was illegally struck off which robbed him of the right to lead and establish his case, the decree of eviction passed by the Courts below must go and he should get a fair chance to plead and prove his case.