BIBI AMNA KHATUN Vs. ZAHIR HUSSAIN

JUDGEMENT

(1.) This Civil revision application having been referred to a larger Bench by a Division Bench has been placed before us. The Division Bench has expressed its doubt regarding the correctness of a Bench decision of this Court in the case of Ranchhod Lodha v. Madhabji Kanji (AIR 1974 Pat 211).

(2.) The provision of law falling for our consideration is Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, which has since already vexed this Court time without number. This time we have to consider the effect of withdrawal of the rent deposited out of time by the landlord on his right to get the defence of the tenant against his ejectment struck off.

(3.) Before adverting to the question posed before us, I will very briefly state the relevant facts. The opposite party instituted a title suit for eviction of one Md. Ibrahim, the ancestor of the petitioners (who were substituted in the lower appellate Court) from a house in the town of Chapra. The suit having been dismissed by the trial court the opposite party filed the appeal. Thereon 1-5-1967, an application under Section 11A was filed by the opposite party, which was allowed on 10-1-1966. The tenant was directed to deposit the arrears of rent from January, 1966 to April, 1967, amounting to Rs. 1,040/- at the rate of Rs. 65/- per month and the current and future rents by the 15th day of each succeeding month in accordance with the said provision. Ibrahim deposited the arrears as also the monthly rents up to the month of December, 1969. He, however, died on 10-1-1969 and the petitioners were substituted in his place by an order dated 15-7-1969. They appeared in the appeal on 10-9-1969 after service of the appeal notices and on that very day petitioners Nos. 1 and 2 made an application for permission to deposit the rent for the months of March to August, 1969, which could not be deposited on account of death of the original tenant. This prayer was allowed and accordingly they deposited the rent for the said period and went on depositing the subsequent rents as well. In this case, however, we are concerned with the rent for the months of February, 1970 to October, 1971, which was deposited as under: Month for which rent was deposited date of deposit Date of withdrawal by the landlord. <FRM>JUDGEMENT_1_AIR(PAT)_1981Html1.htm</FRM> The landlord withdrew the deposits on the dates indicated in the above chart. He had, however, filed an application on 18-11-1971, i. e., after the first two withdrawals, for striking off the defence of the tenant on the ground that the deposits were made after delay and not in ac-cordance with the law. The petitioners resisted the prayer but the court of appeal below, by its order dated 9-8-1975, allowed the application and struck off the "defence of the substituted respondents against ejectment" on the ground that "they had defaulted seven times in depositing the arrears of rent". The petitioners are challenging this order.