BANDI SAH Vs. GANGAURI SAH

JUDGEMENT

(1.) This application under section 115 of the Code of Civil Procedure by the defendant is directed against the order, dated the 25th June, 1971, passed by the Subordinate Judge in the suit, under section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III, 1947) (hereinafter to be called as the Act) striking out the defence against ejectment.

(2.) The relevant facts may be stated here. The plaintiff-opposite party filed a suit for eviction on the ground of default in payment of rent from December, 1968 to March, 1969 as also personal necessity. A written statement contesting the suit was filed by the defendant. Thereafter the plaintiff filed an application under section 11A of tho Act praying therein that the defendant be directed to deposit the arrears of rent as well as the current rent at the rate of Rs. 15 per month. The said application on contest was allowed by the order dated the 27th May, 1970 directing the defendant to deposit Rs. 270 towards arrears of rent within fifteen days of that order and tho current rent beginning from June, 1970 by 15th of the next succeeding month. It is not disputed that the arrears of rent was deposited by challan within time granted by the aforesaid order. It is also not disputed that the current rent for the subsequent months was also deposited from time to time in obedience to the aforesaid order, dated 27.5.1970, except for the month of July, 1970 which was deposited out of time. It may be stated here that July rent 1970 was not deposited within time but the same was deposited along with the rent of August, 1970 vide challan dated 1.9.1970. The plaintiff therefore filed two applications on 18.6.1971, one for withdrawal of all the rents deposited under section 11-A of the Act including that of July, 1970, and the other for striking out tho defence on the ground that the rent for the month of July, 1970 was not deposited within time. It appears that the court below passed an order for the withdrawal of all the rents except the rent for two months, namely, July. 1970 and August 1970, which were deposited together vide challan, dated 1.9.1970, by the order dated 19th June, 1971. It is not disputed by Mr. B. P. Gupta appearing on behalf of the plaintiff opposite party that the plaintiff withdrew all the rents except for the two months aforesaid on 24.6.1971. Thereafter an application for striking out the defence was taken up on 25.6.1971 and after hearing the learned counsel for the parties the court below passed the impugned order aforesaid.

(3.) The only question for determination in this case is as to what would be the effect of withdrawal of current rents from September, 1970 to April, 1971 which were deposited within time but subsequent to July, 1970 for which month admittedly there has been a default in depositing of the rent for that month and which was not allowed to be withdrawn. Mr. Naseem Ahmad, learned counsel appearing in support of the application contended that the withdrawal of the current rent subsequent to the month of July, 1970 would amount to waiver on the facts and in the circumstances of the case. Mr. Gupta on the other hand contended that the rent for July, 1970 which was deposited on 1.9.1970 not having been withdrawn the court below was justified in striking out the defence under section 11-A of the Act on the ground that there was admittedly default in payment of rent for the month of July, 1970.