Desai, J. - (1.) Where a plaintiff in a suit bitterly complains that the defendant would be getting unfair advantage of his own lapse, if we were to interfere with the judgment rendered by the High court, we put ourselves on caution whether such be the outcome of our setting aside the order under appeal. Unwittingly, this Court should not be a party to the conferment of an undeserved advantage of a party to a proceeding guilty of a lapse though remediable and even unintentional. Deeper probing into the facts reveals that the boot is on the other foot in that the respondent-plaintiff is wholly to be blamed for the delay.
(2.) The facts first. The respondent-plaintiff filed a suit for eviction against the appellant defendant on the only ground that the tenant committed default in payment of rent for the period May, 1969 to December, 1971. The defendant contested the suit inter alia contending that he was not in default. There followed an application by the respondent-landlord for a direction under Sec. 11 A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 ('Act' for short). Section 11 A reads as under "11A. Deposit of rent by tenants in suits for ejectment - If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any; and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant." The prayer in the application was that the defendant-tenant be directed to deposit the rent in arrears up to and inclusive of June 1973 within a period of fifteen days from the date of the order and a further direction be given that he should continue to deposit the rent from month to month. The learned Judge made an order directing the appellant to deposit rent for the period up to and inclusive of June 1973 at the rate of Rs. 32/- per month and thereafter to continue to deposit the rent from month to month at the rate of Rs. 12.20 per month. The tenant preferred a revision petition which was dismissed on March 26, 1974. The suit was fixed for hearing on January 28, 1975. The tenant moved an application for adjournment which was rejected. Plaintiff's witnesses were examined and the suit was decreed ex parte on January 30, 1975. On an application moved by the defendant praying for relief under Order IX Rule 13, Code of Civil Procedure, the learned Judge set aside the ex parte decree and set down the suit for proceeding further from the stage where it was decreed ex parte. On January 5, 1976, the respondent-landlord moved an application praying that as there was irregularity in depositing the rent for the months of August to October, 1975, defence of the appellant be struck off, for his failure to strictly comply with the order made under Section 11A. After the appellant filed his rejoinder, the learned Judge heard the application and rejected the same on the ground that as the earlier order was made prior to the date on which the suit was decreed ex parte, on the setting aside of the ex parte decree and revival of the suit, the order giving ,directions for deposit of future rent does not per se revive and therefore even if there was some default on the part of the tenant in depositing the rent for the months from February to April, 1979, his defence cannot be struck off. Promptly, the respondent-landlord moved a revision petition before the High Court being Civil Revision No. 585 of 1976. A Division Bench of the High Court heard and disposed of the revision petition on August 11, 1977. ILR (1977) 56 Pat 873. The learned Judges of the High Court made the rule absolute and set aside the order of the learned trial Judge refusing to strike off the defence of the appellant and directed the learned Judge to note that the defence of the appellant will be deemed to have been struck off due to non-compliance of the order dated April 26, 1973. Hence this appeal by special leave which is being heard after seven years.
(3.) Section 11A, to some extent, can be styled as a check on. the tendency of the defendant to protract the litigation by frivolous more especially where the duty to pay the rent is unmistakably admitted. In a suit for eviction, Sec. 11 A enables the court to give a direction to pay rent which is claimed to be in arrears as also to compel the defendant who continues to remain in possession during the pendency of the proceedings to perform his obligation to deposit the rent regularly. It also enables the court to determine the rate of rent at which the deposit shall be made, where in a case there is a dispute as to the rate of rent. It is an undeniable feature of the tenancies in this country that more or less excluding the metropolitan areas, the tenancy is generally oral and no written record is usually available to furnish evidence as to the terms of lease. Giving a receipt for the rent paid has not still become a part of the culture of a landlord. Therefore, where eviction is sought on the ground of non-payment of rent, it places a tenant at a comparative disadvantage if the landlord chooses to claim rent at the rate which is beyond the capacity of the tenant to pay. In such a situation, the tenant will be exposed to double jeopardy in that on a prima facie pleading he will be directed to deposit the rent at the rate claimed by. the landlord, if the court has no power to determinate of rent at an interim stage. Such power is conferred by Sec. 11A on the court. The court can also determine as to from what date the tenant appears to be in arrears so that an appropriate direction can be given that the rent in arrears may be deposited within the time stipulated by' the court as also future rent may be deposited regularly in the court. It is a wholesome provision which would advance justice.;