GANESH LAL SONAR Vs. MOHAMMAD ISMAIL

JUDGEMENT

(1.) In this second appeal by the defendant, a very interesting question has been raised for my consideration.

(2.) The plaintiffs instituted a title suit for eviction of the defendant from the suit premises bearine Holding No. 154. Circle No. 102, Ward No. 26 of the Patna Municipal Corporation on the ground that he was a defaulter within the meaning of Clause (d) of Section 11 (1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as the 'Act'), having failed to pay rent for two months, namely, Shrawan and Bhado 1369 Fasli. Admittedly, the tenancy in question is governed by the Hindi (Fasli) calendar. The defendant resisted the suit on the ground that he was not a defaulter in the eye of law, having remitted the rent for the two months in question by money order within the stipulated period.

(3.) The plaintiffs had instituted earlier Title Suit No. 332 of 1962 in the trial Court for the same relief and the same cause of action against the defendant. In that suit, the plaintiffs had obtained an order under Section 11-A of the Act for deposit of the arrears of rent, including rent for the months of Shrawan and Bhado 1369 Fasli, which was deposited by the defendant under the said provision, and I am informed at the Bar that the plaintiffs withdrew the same. The months of Shrawan, Bhado and Aswin in the Fasli year 1369 commenced on the 18th of July, 16th of August and 15th of September and ended on the 15th August, 14th September and 13th October 1962 respectively. The earlier title suit instituted on the 27th September 1962 was, therefore, premature, as the period of one month after Bhado 1369 Fasli, during which period the tenant could have made the payment of the rent of that month, had not passed out, nor the plaintiffs had determined the tenancy in question by serving a notice of termination under Section 106 of the Transfer of Property Act. Accordingly, on 23-6-1965, a petition was filed on behalf of the plaintiffs seeking permission of the Court to withdraw the suit with liberty to institute a fresh suit on the same cause of action. The defendant did not object to this prayer and, accordingly, the suit was permitted to be withdrawn with an express permission to institute a fresh suit.