IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11113 of 2011 Mrs.Zakia Varis Versus Ejazullah Khan ---------------------------------- O R D E R 10. 15.12.2011 1. I have heard the learned counsel Mr. J.S. Arora on behalf of the petitioner and the learned counsel Mr. Rajendra Prasad Singh on behalf of the respondent. 2. The plaintiff has filed this application under Article 227 of the Constitution of India against a part of the Order dated 8.12.2008 passed by Munsif – II, Patna in Eviction Suit No.1 of 2007 whereby the court below has disallowed the prayer made by the plaintiff petitioner under Section 15 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as B.B.C. Act). 3. The learned counsel Mr. Arora submitted that this eviction suit was filed on the ground of personal necessity. The relationship of landlord and tenant as well as the rate of rent is admitted. The plaintiff petitioner filed application under Section 15 of the B.B.C. Act for a direction to the respondent to pay the arrears of rent at the rate of Rs.1200/- per month from August 2005 to May 2008 amounting to Rs.40,800/-. The learned court below directed the defendant to deposit the arrears of rent of Rs.17,284/- only and so 2 far the rest arrear of rent of Rs.23,516/- is concerned, the learned court below directed that the same shall be decided in Eviction Suit No. 6 of 2007 which has been filed by the petitioner against the tenant for eviction on the ground of default. According to the learned counsel in the said eviction suit on the ground of default the plaintiff never filed any application under Section 15 of B.B.C. Act and now he cannot file the application under Section 15 of B.B.C. Act for direction to deposit arrears of rent. The defendant’s claim is that the plaintiff was purchasing materials from the shop of the defendant and the cost of the material was to be adjusted towards the rent. According to the defendant plaintiff has purchased the material of Rs.23,516/- which is to be adjusted towards the arrears of rent. The learned court below has illegally relying on this fact did not direct the defendant to deposit the said amount because that amount is deposited which can only be decided after the evidences are produced by the parties in the eviction suit filed by the plaintiff on the ground of default and, therefore, the learned court below should have directed the defendant to deposit the said amount. Whether the amount can be adjusted towards rent or not can only be decided in final judgment of suit filed on the ground of default. 4. On the other hand, the learned counsel Mr. Rajendra Prasad Singh submitted that the amount of 3 cost of purchased article can be adjusted in the rent or not is an issue involved in the suit on the ground of default and that cannot be decided in the present suit which is only on the ground of personal necessity and, therefore, the learned court below has rightly held that that amount can be directed to be deposited after the disposal of the said eviction suit. 5. In a decision reported in 1987 PLJR 260 Maksudan Prasad Kesarwani @ Maksudan Prasad vs. Abid Ahmad and others this Court has held that the court cannot direct adjustment of cost of articles due to be paid by the plaintiff to the defendant while passing an order under Section 15 of the B.B.C. Act. It appears that in that case also the case of the defendant was that some amount was due to be paid by the plaintiff towards the cost of the medicine purchased by the plaintiff defendant. In the present case admittedly, the court has the jurisdiction to direct the defendant to deposit the arrears of rent in view of the Full Bench decision reported in 1996 (1) PLJR 732 Priyavarti Mehta vs. Amrendu Banerji which has been confirmed by the Apex Court in AIR 1997 SC 2561 Bindeshwari Chaudhari vs. Ajay Kumar. However, while directing the tenant to deposit the arrears of rent deducted the amount which is disputed by the defendant. In my opinion, at this stage whether the said deposited amount can be adjusted towards rent or 4 not cannot be decided. It can only be decided after recording of the evidence and hearing the parties in the judgment that may be passed in the eviction suit which has been filed separately on the ground of default. In such circumstances the learned court below should have directed the defendant to deposit this amount in this present case on condition that the plaintiff will not be allowed to withdraw the said amount till the disposal of the suit filed by the plaintiff on the ground of default. In such view of the matter, in my opinion, the learned court below has wrongly interpreted the settled law and has not exercised a jurisdiction vested in it by law. Thus, that part of the impugned order which is challenged in this application is set aside and the defendant respondent is directed to deposit the said amount in the court below within 15 days from receipt of a copy of this order in the court below, failing which the court below shall pass necessary order according to law provided under Section 15 of the B.B.C. Act for striking of the defence of the respondent. 6. Thus, this writ application is allowed. S.S. (Mungeshwar Sahoo, J.)