DINBANDHU GHOSH Vs. TASAWAR HUSSAIN

JUDGEMENT

(1.) This application by the plaintiff arises out of an order passed by the Court of appeal below modifying an earlier order passed by it under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the 'Act').

(2.) The petitioner filed a suit in the year 1965 for eviction of the opposite party No. 1 from the premises in question on the ground that he required the same for 'his personal use and occupation. The suit was decreed on contest and opposite party No. 1 filed Title Appeal No. 8 of 1965 in the Court below. In that appeal, he made an application on 15-7-1969 under the provisions of Section 11-A of the Act for a direction to opposite party No. I to deposit all tthe arrears of rent from May 1963 at the rate of Rs. 25/- per month and also current and future rents at the same rate. By his order dated 29-11-1971, the learned Subordinate Judge allowed the petition of the petitioner and directed the opposite party No. 1 to deposit the arrears of rent from May 1963 as well as the current and future rents in terms of Section 1'1-A of the Act, failing which the memorandum of appeal itself was to stand dismissed. This order was challenged by opposite party No. 1 in Civil Revn. No. 1361 of 1971, and this Court by its order dated 2-12-1971 at the admissible stage itself, directed the learned Subordinate Judge to modify its above order with regard to the penalty which should follow for the failure of the defendant appellant to deposit the arrears of rent or current or future rent in terms of a Bench decision of this Court in Sheikh Mohammad Rasool v. Sheikh Anisur Rahman, (1967 BLJR 108), where it has been laid down that even at the appellate stage, on failure to carry out the order passed under Section 11-A of the Act, the penalty should be to strike out the defence as against ejectment and to give effect to the ensuing consequences, and not to dismiss the appeal itself.

(3.) Default had, however, already been committed by the opposite party No. 1 in the meantime and the Court of appeal below had dismissed the appeal by an order dated 9-12-1971 before the order of this Court was communicated, but it was restored in view of the order of this Court on the application of opposite party No. 1.