MANAGING COMMITTEE Vs. TRIPURARY CHARAN PALIT

JUDGEMENT

(1.) This is an application in revision by the defendants and is directed from the order dated 23-11-1968 of the Court below, whereby it has directed the petitioners to deposit arrears of rent from August, 1965 at the rate of Rupees 237/50 within 15 days of the date of the order. They were further directed to pay subsequent rent month by month by the 15th day of the following month, failing which their defence as against ejectment was to be struck out. When this revision was admitted on 5-12-1968, further proceedings in the title suit were stayed. If I were to take a very strict view of the matter, the petitioners will find themselves in default. The operation of the order under revision was not staved, what was staved was the further proceedings. Strictly speaking, therefore, the petitioners could be held to be in default for non-compliance with the order of the court below. But then justice requires that such a technically strict view should not be taken and I shall, therefore, while finally dismissing the civil revision, as it has to be dismissed for the reasons to be stated hereinafter, substitute the said order by a new order,

(2.) The petitioners resisted the claim of the plaintiff opposite parties under Section 11-A of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947 (hereinafter to be called the Act) on several grounds. They were all overruled by the learned Subordinate Judge, and a direction as stated above, was given to the petitioners. At the time of the hearing of the civil revision application, only two points have been pressed and no other point has been urged. The said points are as follows-

(3.) In my opinion, there is no substance in either of the points. The maintainability of an application under Section 11-A of the Act, is not dependent upon the making of a claim for arrears of rent in the suit. Obviously, such an application, even on the argument advanced on behalf of the Petitioners, would lie for a direction to the contesting defendants for deposit of current rent and future rent. The question is, is there anything in the wordings of Section 11-A of the Act to debar the plaintiffs from tiling an application for claiming arrears of rent in respect of the period prior to the institution of the suit because they have not made any such claim in the suit? In this connection Mr. Prabha Shanker Mishra learned Counsel for the petitioners, made reference to Order 2. Rule 2 of the Code of Civil Procedure. In my opinion, the filing of an application under Section 11-A of the Act is not hit by the provision of Sub-rule (2) of Rule 2 of Order 2, Civil P.C. because the said sub-rule debars the filing of a subsequent suit. The word used in that sub-rule is 'sue'. It does not debar the filing of an application in the same suit. The conditions which are necessary to be fulfilled for the filing of an application under Section 11-A, according to the said provision are only the following-