S.Narain, J. - (1.) The opposite party in this court, Ugrasen Narain Agrawal, filed a suit in the court of Munsif, Begusarai Title Suit no. 91 of 1973 for a decree for eviction and arrears of rent against Jageshwar Choudhary petitioner in this court and in the court below. The suit which was for eviction from a house in Begusarai Town in the occupation of defendant had been filed on the ground of personal necessity for the suit premises and also of default in payment of rent. A sum of Rs. 600 as arrears of rent was also claimed.
(2.) The defendant-petitioner denied that he had committed any default in payment of rent. He also denied that plaintiff had personal necessity for the house He also resisted the claim for decree of arrears of rent on the allegation that a sum of Rs. 509/- had been spent by the defendant in carrying out the necessary repairs and white washing of the suit premises and in paying municipal taxes in respect of the house both of which were payable by the plaintiff's landlord. Eventually, an order for deposit of rent in accordance with the provisions of Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 was passed and for non-compliance of that order by his order dated 6th October, 1978 the trial court struck-off the defence against ejectment of the defendant. That order was impugned by a civil revision application filed in this Court but the challenge failed and the civil revision application against that order was dismissed. Thereafter, on 14th April 1980, the defendant-petitioner filed a petition praying that the defendant be allowed to contest the suit on the points mentioned in the petition on which points according to him he was entitled to cross-examine the plaintiff's witnesses as also to lead his own evidence in spite of the order striking off his defence against ejectment. One of the points mentioned in the petition was that the defendant had made out a case of set off for a sum of Rs 509/-. I need not set out the other points mentioned in the petition because the learned Advocate for the petitioners very fairly and, in my opinion, correctly, did not press the application in this Court with respect to those points mentioned in the application. The application was opposed. By his order dated 24th April, 1980, the Munsif, Begusarai, has rejected the aforesaid petition filed by the defendant. It is against that order that the present revision application by the defendant is directed.
(3.) The learned Advocate for the petitioner contends that the order of the court below, at least in so far as it has rejected the prayer of the defendant for permission to contest the suit so far as the claim for arrears of rent was concerned by leading evidence in support of the case of set off made out in his written statement and by cross-examining the plaintiff's witnesses on that point, is clearly erroneous and the learned Munsif has acted illegally or with material irregularity in exercise of its jurisdiction in rejecting the prayer to that extent. In my opinion, this contention is correct and must prevail. In the suit, the plain till had claimed not merely a decree for eviction but also a decree for arrears of rent. For non-compliance with the order under Section 11-A of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act), the court below could only "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". Therefore, it is only the defence against ejectment that could be struck out and it is only against the claim to ejectment that the suit has to be decided ex parte, that is to say, as if the defendant had not defended the claim to ejectment. And, that is what the court below had done by its order dated 6th October, 1978. That order did not strike off the defence against arrears of rent. The defendant was, therefore, entitled to defend the suit so far as arrears of rent were concerned by leading evidence in support of his claim that no arrear of rent much less the amount claimed as arrear of rent was due from him and also by cross-examining the plaintiff's witnesses on the point of the plaintiff's claim for arrears of rent. The defence against the claim for arrears of rent consisted of a plea of set off. That plea he was entitled to prove both by cross-examining the witnesses on behalf of the plaintiff and also by leading his own evidence in support of that plea. As has been pointed out in the Full Bench decision of this Court in Mahabir Ram v. Shiva Shankar Prasad, (A. I. R. 1968 Patna 415), "there can be no doubt that even after striking out of the defence against ejectment, It is open to the defendant (tenant) to establish at the hearing of a suit that in fact rent was not in arrear prov ided the suit is for the realisation of arrears of rent also" (at page 419 of the Report).;