LAL MOHAN PRASAD Vs. BHAIRO KUMAR JAIN

JUDGEMENT

(1.) The defendant in an action for eviction from a house is the petitioner. The suit was for two reliefs : (i) eviction, and (ii) realisation of arrears of rent. The eviction was sought for on two grounds; default in payment of rent and personal necessity of the plaintiff. There was an order under Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, directing the defendant petitioner to pay all the arrears of rent and the current rent by the 15th of each of the following months during the pendency of the suit. Admittedly there was a default in payment of the current month for October, 1966, failing which the defence of the defendant -petitioner was struck out and the case was fixed for ex parte hearing, It is against this order that the present application is directed.

(2.) It is well settled that stacking out of the defence in a suit for eviction on account of default in compliance with the order passed under Section 11A of the Act only means that the defendant is precluded from contesting the plaintiff's claim for eviction. That, however, does not disentitle him to contest the plaintiff's other relief for the realisation of arrears of rent. It will still be open to the defendant to show by evidence that there was no arrears rent due from him as claimed by the plaintiff. That relief is not a relief for eviction, and, therefore, any defence raised in the written statement by the defendant in regard to that relief does not stand struck out under the order passed under Section 11A of the Act. Even where the defence against eviction is struck out, it will still be necessary for the court to be satisfied on the plaintiff's ex -parte evidence that the case for eviction of the defendant is made out.

(3.) In the instant case, as there was a relief other than that for eviction of the defendant, as claimed by the plaintiff, namely, realisation of the arrears of rent, the fixing up the case for ex parte hearing will only mean that the defendant is precluded from contesting by giving evidence, the plaintiff's claim for eviction. But he can still contest the arrears of rent as claimed by the plaintiff. If the Court finds on evidence that would come before it that no arrears of rent amounting to two consecutive months rent had been due from the defendant before the suit was instituted, the Court will not pass a decree in favour of the plaintiff for eviction on the ground of default in payment of such rent, although the defence against eviction was already struck out. It will, however, be open to the court to pass a decree for eviction on plaintiff's ex parte satisfactory evidence about his personal necessity of the suit house. That part of the plaintiff's case is no longer open to be contested by the defendant as he incurred the penalty of stricking out of the defence by his default in compliance with the order passed under Section 11A of the Act.