P.K.BALASUBRAMANYAN,C.J. - (1.) IN this second appeal, at the stage of admission, it was seen that the respondent had filed a Caveat. Hence even at this stage, the second appeal was finally heard.
(2.) THIS is an appeal by the defendant in a suit for eviction under Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. The plaintiff obtained an assignment of the suit building on 15.12.1987. As an assignee landlord, he issued a notice to the defendant on 22.1.1988 which was received by the defendant on 27.1.1988., Thereafter, it is seen that the defendant was paying rent to the plaintiff and his case was that receipt were being given, not regularly but once in 3 or 4 months. The plaintiff approached the Court with the suit on 30.9.1999 on a plea that the defendant had defaulted in paying rent at the rate of Rs. 400/ - per month from the month of August, 1997 and has hence become a defaulter within the meaning of Section 11(1)(d) of the Act. The plaintiff, therefore, claimed that he was entitled to a decree for eviction on the ground that the defendant has defaulted in paying the rent. The defendant sought to resist the suit by questioning the rate of rent as claimed by the plaintiff and submitting that the rent was only Rs. 250/ - per month and not Rs. 400/ - per month and an advance of Rs. 5200/ - belonging to him and given to the plaintiff, the landlord, was with the landlord and the said amount had to be taken note of and he cannot be deemed to be a defaulter. During the course of the proceeding, an order was passed by the trial Court under Section 15 of the Act, directing the defendant to deposit the rent in arrears. The defendant did not deposit the amount but filed a revision before this Court. This Court in the revision directed the defendant to deposit the arrears of rent at the admitted rate of Rs. 250/ - per month within the time fixed. That order was not complied with by the defendant and the trial Court was compelled to strike out the defence of the defendant in terms of Section 15 of the Act. Thereafter, the suit went to trial. The plaintiff examined himself as PW 1 and produced a counter foil receipt book to establish that he was in the habit of issuing rent receipts with the counter foils kept by him. It is seen that there were six rooms in the building belonging to the plaintiff and one of the rooms was in the occupation of the defendant. The counter foil receipt book, showed that the other five tenants in occupation of the other rooms were paying rent and receipts were being regularly issued to them. Though, going by the decisions of the Patna High Court, the defendant had no right to pursue any defence, qua tenant, in view of the striking out of his defence, the trial Court appears to have permitted him to cross -examine the plaintiff, examined as PW 1. But, it appears to me that in the nature of the suit and in the light of the defence adopted by the defendant, all his pleas were qua tenant and strictly speaking the trial Court ought not to have permitted him to cross -examine the plaintiff. Whatever it be, the plaintiff was cross -examined. The trial Court, on an appreciation of the evidence held that the defendant had failed to prove that he had made a deposit of Rs. 5200/ - as advance, which was available with the plaintiff for being adjusted against the rent due. Noticing that there was no dispute that the rent has not been paid from August, 1997, it held that there existed the relationship of landlord and tenant between the plaintiff and the defendant and the defendant was a defaulter. Thus, the trial Court found that the defendant as a defaulter, liable to be evicted under Section 11(1)(d) of the Act. It, therefore, decreed the suit. The defendant filed an appeal. The lower appellate Court, on a reappraisal of the pleadings and the evidence in the case, came to the conclusion that the trial Court was fully justified in finding that the defendant was a defaulter and in decreeing the suit for eviction under Section 11(1)(d) of the Act. Thus, the appeal was dismissed. Feeling aggrieved, the defendant has filed this second appeal.
(3.) AT the hearing, learned counsel for the defendant submitted that the question whether the decree for eviction under Section 11(1)(d) of the Act passed by the Courts below was legal and within jurisdiction, was the substantial question of law that arose for consideration.;