P.K.BALASUBRAMANYAN, J. - (1.) THIS second appeal by the defendants in a suit for eviction under Section 11(1)(c) and Sec.11(1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act was, admitted on the following substantial questions of law : - - "(i) Whether merely for non -production of postal receipts, when rent was tendered by way of money order and the same was refused by the landlord, it could be held that a default in payment of rent has been proved within the meaning of Sec.11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act? (ii) Whether on the pleadings and the evidence in the case, the Courts below were right in law in ordering, eviction under Sec.11(1)(d) of the Act?
(2.) AFTER taking notice of the second appeal, the plaintiff - respondents have filed a memorandum of cross -objections challenging the refusal of the decree by the lower appellate Court under Sec.11(1) (c) of the Act. Though the scope of the right of appeal has to be determined on the basis of the provision conferring such an appeal and Order LXI, Rule 22 of the Code contains no restriction in respect of a memorandum of cross -objections, but in view of the fact that a memorandum of cross - objections in a second appeal is only a substitute for the filing of a separate second appeal by the respondents challenging that part of the decree which has gone against him, that a memorandum of cross -objections has also to be viewed within the confines of Section 100 of the Code of Civil Procedure which confers the right of a second appeal, but restricts interference only on a substantial question of law. Therefore, it will be appropriate to frame a substantial question of law, if it arises, based on the memorandum of cross -objections. The trial Court had ordered eviction under Sec.11(1)(c) of the Act upholding the plea of the landlord. The lower appellate Court on appeal had reversed it, inter alia, on the ground that the landlord had, pending the proceeding, sold to a stranger, an extent of land that lay adjacent to the suit building. There is no clear finding by the lower appellate Court that the land that was sold did contain a building which was in possession of the landlord and which he could have profitably occupied. In that context, I am of the view that a substantial question of law also arises from the memorandum of cross -objections. That question is framed as under : - - (iii) whether on the pleadings and the evidence in the case, the lower appellate Court was justified in denying a decree for eviction to the plaintiffs under Sec.11(1)(c) of the Act and reversing the decree of the trial Court passed in that behalf.
(3.) I shall first deal with the questions arising out of the memorandum of the second appeal. That is essentially whether the decree for eviction under Section 11(1)(c) of the Act is sustainable in law. The plaintiffs, by virtue of a third amendment to the plaint, which originally contained only a claim for eviction under Sec.11(1)(c) of the Act on the ground of a bona fide personal necessity, Introduced a claim for eviction on the ground of default in payment of rent under Sec.11(1)(d) of the Act pleading that the rent for the months of July, August and September, 1992 were not paid by the tenants. The defendants -tenants pleaded that the amounts were sent by money orders in due time, but the plaintiffs refused to receive the money orders when tendered, and the money orders were returned with endorsements in that behalf. No replication or additional pleading was filed in that behalf by the plaintiff.;