RAM NANDAN SHARMA Vs. MAYA DEVI

JUDGEMENT

(1.) These two Civil Revision Applications, in the first instance, came up for hearing before a learned Single Judge of this Court. He referred them for disposal by a Division Bench. When they were placed before two of us for hearing, we doubted the correctness of the Division Bench decision of this Court in Sashadhar Das v. Harihar Prasad (AIR 1973 Pat 361) and desired constitution of a larger Bench for disposal of these two civil revision applications. Since the points involved in the two cases are common and identical, they were heard together and are being disposed of by this judgment.

(2.) Civil Revision No. 856 of 1971 filed by the tenant-defendant proceeded to hearing ex parte as the plaintiffs-landlords-opposite party did not appear to contest it. The plaintiffs filed a suit on the 1st August, 1970 for eviction of the defendants out of whom the main contesting defendant is the petitioner. During the pendency of the suit, the plaintiffs filed an application on the 22nd May, 1971, under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction Control Act, 1947 (hereinafter called 'the Bihar Act') for a direction to the defendants to deposit arrears of rent due in respect of the suit premises with effect from the 1st April, 1964 till the date of institution of the suit, at the rate of Rs. 80 per month. It is somewhat unusual to find in this case that no prayer was made in the application under Section 11-A of the Bihar Act for deposit of rent which had accrued due during the pendency of the suit and rent month by month. It may be stated that no decree for arrears of rent for any period was asked for in the suit. The application was resisted by the petitioner on the short plea that he had taken the suit premises, namely, two shops, from the father of the plaintiffs on a monthly rental of Rs. 34 and not on a monthly rental of Rs. 40 each shop, as stated by the plaintiffs. The entire rent had been duly paid till the institution of the suit, but no receipt was granted either by the father of the plaintiffs or by the plaintiffs. The learned Munsif, prima facie, believed the case of the plaintiffs that the two shops were let out at Rs. 80 per month and rent was due with effect from the 1st April, 1964. Accordingly, he directed full arrears of rent to be deposited within fifteen days of the date of the order, from 1-4-1964 to 1-8-1970, at the rate of Rs. 80 per month.

(3.) Mr. S. K. Mazumdar, learned counsel for the petitioner challenges this order on the following grounds:-- (1) That no arrear of rent in respect of any period prior to the institution of the suit could be directed to be deposited under Section 11-A of the Bihar Act; (2) That the claim for arrears of rent prior to the institution of the suit was barred under Order II, Rule 2 of the Code of Civil Procedure (hereinafter called 'the Code'), inasmuch as no decree in this respect having been asked for in the suit, recovery under Section 11-A of the Bihar Act was barred; (3) That in any view of the matter, no direction for deposit of rent in respect of a period beyond three years of the date of institution of the suit could be given under Section 11-A of the Bihar Act. In other words, direction could be given for deposit of arrears of rent only from 1-8-1967 and not from 1-4-1964. In support of all the three points learned counsel relied upon the observations and decision of the Bench in Sashadhar Das's case. (AIR 1973 Pat 361) (supra).