BIMAL KUMAR GHOSH Vs. SUSANTA KUMAR BOSE

JUDGEMENT

(1.) This appeal has been filed by the defendant against the Judgment of the Judicial Commissioner of Chotanagpur confirming the order of the Munsif passed in title Suit No. 336 of 1966.

(2.) In order to appreciate the point involved in this appeal it is necessary to state briefly the facts. The respondent was appointed by the Judicial Commissioner; Ranchi, as the executor with respect to the properties of Manmohini Paul Estate including the properties in suit in Probate Case No. 14 of 1925. The defendant-appellant was a monthly tenant of the suit premises and the tenancy used to begin from the 15th of every month and to end on the 14th of the succeeding month. The monthly rent was fixed at Rs. 25.00 by the House Rent Controller of Ranchi. The rent payable by the defendant fell in arrears from the 15th July; 1964; i.e.; for a period of more than two months. Thus, he was liable to be evicted under section l l (1) (d) of the Bihar Buildings (Lease, Rent & Evictions) Control 1947 (Bihar Act III of 1947) (hereinafter referred to as the Act'). The respondents, as he was executor; sent a notice under section 106 of the Transfer of Property Act on 3-12-65 to the defendant-appellant which was duly served on him on 6-12-65. In spite of that the defendant did not vacate the premises. Therefore, the respondent filed the aforesaid suit mainly for the eviction and the arrears of rent. After the service of notice of the suit the defendant filed written statement. Subsequently, the plaintiff filed a petition under section 11-A of the Act graving for direction to the defendant to deposit the arrears of rent from July, 1964 on wards at the rate of Rs. 251.00 per month as also the current rents month by month. The defendant did not file any rejoinder to this petition of the plaintiff, but when it was taken on for disposal on 6-4-67 he resisted the same by stating that he was not a defaulter as alleged and no rent was due from him. However; he did not file any evidence to support his assertion. Therefore, after hearing both the parties the learned Munsif by order dated 6-4-67 directed the defendant to deposit the arrears of rent from July 1954 on wards at the rate of Rs. 25.00 within 15 days from the date of his order; i.e. 6 4-67 and also current rents month by month by the 15th of each succeeding month and in cage of his failure to abide by the said direction it was clearly mentioned in the order that his defence against his ejectment would be struck out. It seems that the defendant did not comply with order ; he did not deposit the rent for the month of April, 1967) through clerical mistake in the order March 1967 Is written by the 13th of May, 1967, within the time prescribed. Therefore, by order dated 26-7-67 the Munsif struck out his defence against his ejectment under section 11-A of the Act. On 14-8-67 the title suit was put up before him fur disposal. Both parties filed their Hazais, but since the defence of the defendant was struck out. It was heard ex parte and after considering the evidence on the record the learned Munsif directed the defendant to vacate the suit premises within two months from the date of the order, i.e. 14-8-67, failing which, he further directed, that the defendant will be evicted through the process of the court at his cost. Dissatisfied with the order the defendant filed appeal in the Court of Judicial Commissioner, Ranchi. Before the lower appellate court the defendant pleaded Inter alia that his defence was wrongly struck out. However, the appellate court after considering the evidence on the record and hearing both the parties dismissed the appeal and affirmed the judgment and decree of the trial court. Hence this second appeal.

(3.) Learned counsel appearing on behalf of the appellant raised a single point for consideration by this Court, namely, that his defence has been wrongly struck out under section 11-A of the Act. He submitted that it is admitted case of the parties that the defendant was a monthly tenant of the premises and his tenancy began from the 15th of every month and used to end on the 14th of the succeeding month. Further, the rent was fixed at Rs. 25.00 per month, it was also admitted case of the parties that the arrears of rent fell due from the 15th July, 1964. He referred to paragraph 2 and 3 of the plaint wherein these facts are clearly stated. He urged that on 14-4-67 he deposited a lump sum of Rs. 825.00 through chalan. In the court towards the arrears of rent as directed by the court, i. e., within 15 days of the order dated 6.4.67. This amount of Rs. 825.00, according to him, will cover rent for the premises from 15th July, 1964 to 14th April, 1967, for a period of 33 months, tenancy the beginning from 15th of every month to 14th succeeding month. By another chalan dated 6-6-67 the defendant further deposited a sum of Rs. 75.00 as rent from 15th April, 1967 to 14th May, 1967, 15th May, 1967 to 14th June, 1967 and 1Icth June, 1967 to 14th July, 1967, i. e., for three months. The rent from 15th of April, 1967 to 14th of May, 1967 was current rent whereas the rent for the latter two months was even advance rent. Therefore, he submitted that as per direction of the court he deposited the current rents month by month by the 15th of each succeeding month. Hence, there was no failure on his part either in depositing the arrears or in depositing the current rent as ordered by the court. Hence, he contended that the court below was clearly in error In striking out the defence against ejectment under section 11-A of the Act. He submitted that both the courts below erred in ignoring the fact that in the case of the defendant the tenancy began from 15th of every month ending on 14th of the succeeding month. They also failed to notice that the arrears of rent were from 15th July, 1964 and not from 1st of July, 1964, Hence, according to him, they committed mistake in calculating the arrears of rent of Rs. 825.00 which was deposited by the defendant on 13-4-67.