Bramheshwar Daya and Others vs Basanti Devi and Others

H.L. Agrawal, J.—This application in revision has been filed by the substituted defendants in a smt. brought by the ancestoi - of the opposite parties who have also been substituted in place of the original plaintiff, Ram Singhasan Prasad. The suit was instituted by the said plaintiff against one Lalajee Sahay on whose death during the pendency of the suit, the present petitioners, being big son and widow, were substituted on the 28ih April, 1971. The suit was for the eviction of the said defendant from the premises situated in the town of Arrah on the ground of personal necessity and default in payment of the house rent since July, 1966, till the date of the suit. The defendant; Laljee Sahay, filed his written statement on the 13th February, 1968, contesting the suit of the plaintiff and therenpon an application u/s 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act was made by the plaintiff on the 19th March, 1968. The learned Munsif passed an order on the said application directing the defendant to deposit all the arrears of rent till that date and also the current and future rent by the 15th of the following month, failing which his defence against ejectment was to be struck off in terms of Section 11A of the Act. The said defendant deposited the arrears as claimed by the plaintiff and also went on depositing the current rent regularly until his death which took place on the 11th of April, 1971 which covered the rent till the month of April 1971. On the death of the defendant, an application for substitution was filed and the present petitioners were substituted in his place as already stated. On the 24th June, 1971, the petitioner filed an application in the court below adopting the written statement already filed by deceased defendant Lalji Sahay, which prayer was allowed. The petitioner, however, committed default in depositing the house rent for the months of May and June, 1971, which was deposited on the 5th of August, 1971 in the court below along with the rent for the months of July and August, 1971. Thereupon, an application was filed on behalf of the plaintiff (the original plaintiff also having died in the meantime) (or striking off the defence of the petitioners on the ground of default committed by them in depositing the rent for the above two months after the dates in violating of the orders dated the 19th March, 1968, u/s 11A of the Act. The learned Munsif by the impugned order taking a view that the provisions of Section 11A of the Act are mandatory held that he had no jurisdiction to enlarge the period fixed for making the deposits and disbelieved the plea of the petitioners that they had no earlier knowledge of the order passed u/s 11A of the Act, and, as such, be granted the prayer of the plaintiffs and struck oil the defence against ejectment. Against this order, the petitioners have moved this Court.

In my opinion, the order of the learned Munsif cannot be sustained in law for the following reasons. The order u/s 11A of the Act was parsed on the 19th March, 1963 when the present petitioners who are the heirs of the original defendant were not on the record, and the consequence of default in making the deposits in terms of the order was to apply to the written statement which was filed by the original defendant against whom the order was passed. On the death of the original defendant, his written statement, automatically became non-existent, and therefore, there was nothing left on the record which could be struck off by a judicial order. His heirs, who were substituted, that is, the petitioners, within the period of limitation prescribed for their substitution in the peculiar circumstances of the this case could not be bound by this order which was passed at an earlier stage of the proceeding when they were not before court. The court having permitted these petitioners to file their own written statement and their written statement having been accepted in my opinion, it was obligatory for the plaintiffs to obtain a fresh order u/s 11A of the Act specifically against these defendants in order to apply the penalty contemplated u/s 11A on default being committed by these defendants. Section 11A has fixed the period of fifteen days only for making the deposits, whereas a period of ninety days is fixed for substitution in case a person dies. In this view of the matter, there will be an automatic default in case of a substitution taking place and it could not be possible for a substitution heir to carry out the direction which was given to his predecessor-in-interest, and therefore, he cannot contest the suit in any case. This cannot be the intention of the law, and, in my view, therefore, as already stated above, the direction which was given under order dated the 19th March, 1968, against the original defendant cannot be applied against the present defendants, and, therefore, the written statement which was filed by them could not be struck off for the non-compliance of the said directions. Learned Counsel appearing for the opposite party has invited my attention to a decision of the Supreme Court in (1) Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, which discusses the rights of the heirs and legal representatives after the death of the statutory tenant. The decision referred to by Learned Counsel has got no relevancy at the present stage of the litigation. The learned Munsif has therefore, committed an apparent error of jurisdiction in striking off the defence of these petitioners against ejectment and the order must be set aside. In the result, this application is allowed in the circumstances of the case there will be no order as to costs.