IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3883 of 2011 ====================================================== Radha Krishna Jha @ Bachcha Babu son of late Jaya Nand Jha, resident of Village- Kathra, P.S. Manigachhi, District Darbhanga. .... .... Petitioner/s Versus Dinesh Jha son of Sri Digambar Jha, resident of Village Kathra, P.S. Manigachhi, District Darbhanga .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.4301 of 2011 ====================================================== Radha Krishna Jha @ Bachcha Babu son of late Jaya Nand Jha, resident of Village- Kathra, P.S. Manigachhi, District Darbhanga.... .... Petitioner/s Versus Ganesh Jha son of Sri Digambar Jha, resident of Village Kathra, P.S. Manigachhi, District Darbhanga .... .... Respondent/s ====================================================== Appearance : (In CWJC No.3883 of 2011) For the Petitioner/s : Mr. Durga Nand Jha For the Respondent/s : Mr. (In CWJC No.4301 of 2011) For the Petitioner/s : Mr. Durga Nand Jha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) O R D E R 2 07-09-2011 Both these writ applications are taken up together as the issues are common in both these cases. The petitioner in both these cases, Radha Krishna Jha is the common plaintiff in Eviction Case No.2 of 2009 and 3 of 2009. In C.W.J.C. No.3883 of 2011, Dinesh Jha is sole defendant, whereas in C.W.J.C. No.4301 of 2011, his brother Ganesh Jha is the Patna High Court CWJC No.3883 of 2011 (2) dt.07-09-2011 2 defendant. 2. It is not in dispute that both the defendants namely Dinesh Jha and Ganesh Jha are tenants of the petitioner. The petitioner filed two Eviction cases bearing Eviction Suit No.2 of 2009 and Eviction Suit No.3 of 2009. Both the cases proceeded simultaneously in the court of Munsif II, Darbhanga. During the proceeding of Eviction case, the plaintiff/petitioner filed petitions under section 15 of the B.B.C. Act in each of the Eviction Cases for deposit of arrears of rent from August, 2009 to April, 2010 at the rate of Rs.400/- per month as well as current rent. The trial court vide order dated 6.5.2010 allowed the petition of the plaintiff and directed each of the two defendants to deposit arrears of rent @ Rs.400/- per month from August, 2009 to April, 2010 by 30.6.2010 as well as current rent at the same rate by 7th day of subsequent month. In pursuance of the order dated 6.5.2010, the defendants deposited the entire arrears of rent amounting to Rs.3600/- in time, but did not deposit the current rent in time, which led the plaintiff to file a petition in terms of section 15(1) of the B.B.C. Act to strike off the defence of the defendants. Only after filing of the petition to strike off the defence, the defendants deposited the current rent from May, 2010 onwards in two installments belatedly beyond Patna High Court CWJC No.3883 of 2011 (2) dt.07-09-2011 3 prescribed time. The first installment of Rs.2000/- was deposited on 25.9.2010 and the second installment of Rs.800/- was deposited on 3.11.2010. The trial court refused to strike off the defence holding that though there was violation in depositing the rent in time, the same in the facts and circumstances did not warrant extreme punishment of ejectment of defence. 3. Mr.Durga Nand Jha, learned counsel appearing for the petitioner submitted that the defendants did not deposit the current rent in time, as such trial court ought to have struk off the defence of the defendants in view of mandate of section 15 of the B.B.C. Act. He submits that if the tenant does not deposit the arrears as well as current rent or either of it, as ordered under section 15 of the Act, the Court would have no option but to order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlord’s witnesses. The plaintiff/petitioner contended that such delay is not condonable in view of express provision of section 15 of the Act. In support of his contention, the petitioner relied upon decision of the Apex Court in the case of Manju Choudhary & Patna High Court CWJC No.3883 of 2011 (2) dt.07-09-2011 4 anr Vs Dulal Kumar Chandra, reported in 1988 PLJR 36(SC) as well as in the case of Kamla Prasad Gupta Vs. Arun Kumar Ojha, reported in 1992(2) PLJR 778. 4. On these premises, the petitioner submits that in the instant case also only when the plaintiff-landlord filed a petition to strike off the defence on 16.9.2010, the defendant-tenant deposited the current rent for May to August, 2010 on 25.9.2010 and 3.11.2010. Further more no petition for extension of time was filed. Thus mandatory provision of section 15 of the B.B.C. Act was violated and the trial court erred in not striking off the defence. 5. Whether the defence against ejectment is necessarily to be struck off under section 15(1) of the Act, which states that “the court shall order defence to be struck off”, on failure of tenant to deposit the rent as ordered thereof? 6. As disputes centers round intent and scope of section 15, the same is quoted herein below: “15(1)- If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any and the Court after giving opportunity to the Patna High Court CWJC No.3883 of 2011 (2) dt.07-09-2011 5 parties to be heard may make an order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before ( or after the institution of the suit if any and on failure of the tenant 12/09/2011. deposit the arrears f rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlord’s witnesses”. 7. While examining the scope of section 15 of the B.B.C. Act, the Hon’ble Apex Court in the case of Ganesh Prasad Sah Kesari & anr Vs Lakshmi Narayan Gupta, reported in A.I.R. 1985 SC 964 : (1985) 3 SCC 53 the Hon’ble Apex Court observed in Para 12 as follows: “Failure to comply with an earlier direction should not necessarily visit the tenant with the consequence of his defence being struck off because there might be myriad situations in which default may be committed. The Court should adopt such a construction as would not render the court powerless in a situation in which ends of justice demand relief being granted”. In the aforesaid case the tenant defaulted in payment of the rent as directed under section 15(1) of the B.B.C. Act. Laying down the law, the Hon’ble Apex Court observed that failure to comply with earlier direction to deposit rent ordered Patna High Court CWJC No.3883 of 2011 (2) dt.07-09-2011 6 under section 15 may not in all circumstances visit the tenant with consequence of his defence being struck off. But if there is deliberate attempt to flout the order passed under section 15 of the Act, the Court necessarily would struck off the defence. The Hon’ble Apex Court in the case of Manmohan Kaur v. Surya Kant Bhagwani, reported in 1989 SC 291 observed as follows: “Therefore, the interest of justice which is the paramount justification of the administration of justice with the purpose of the Act, compels us to hold that if the delay is explained then there is no delay and the court in such a case cannot strike off the defence. If, on the other hand, the delay is not explained or the explanation is one which is not acceptable to the court, then the court must strike out the defence and there is no discretion”. 8. It would appear from the observations of the Hon’ble Apex Court that if the delay is explained and the same is acceptable then in such cases, the court would not strike out the defence. In other words, if the delay is not explained and the explanation is one which is not acceptable to the court, then the Court must strike off of the defence. It is thus evident that the word “shall” used in section 15(1) is not couched in mandatory terms, and the delay can be relaxed and condoned in exceptional circumstances. On any general and sundry ground, a Patna High Court CWJC No.3883 of 2011 (2) dt.07-09-2011 7 tenant cannot lay a claim for condonation of delay against the spirit of the provision which states that “the Court shall order the defence against ejectment to be struck off”. 9. The petitioner has relied upon decision in the case of Manju Choudhary (supra). In the aforesaid case, the appellant- tenant deposited the rent five days beyond the time prescribed in the order passed under section 15 of the B.B.C. Act. On petition of land lord, the trial court struck off the defence which was affirmed by the High Court. An appeal was preferred by the defendant Manju Choudhary and ors, which too was dismissed by the Hon’ble Supreme Court. The Hon’ble Apex Court noticed that the tenant-appellant took a false plea that he could not deposit the rent in time as there was a Bank strike when in fact there was no strike in the Bank. In such circumstances, the Apex Court upheld the order striking off the defence though there was five days delay in depositing the rent. In the case of Kamla Prasad Gupta (supra), the trial court by order dated 13.2.1990 directed the tenant to deposit the arrears of rent under section 15 of the B.B.C. Act. A Civil Revision preferred against the order dated 13.2.1990 too failed on 11.5.1990, still rent was not deposited. The landlord filed a petition on 6.11.1990 to strike off the defence and only Patna High Court CWJC No.3883 of 2011 (2) dt.07-09-2011 8 thereafter the defendant deposited the arrears of rent. The trial court on 2.2.1991 rejected the petition of the landlord dated 6.11.1990 to strike off the defence as defendant tenant in the meantime had deposited the rent on 29.1.1991. Being aggrieved, the plaintiff/land lord filed Civil Revision before the Ranchi Bench of Patna High Court which reversed the order of trial court. The learned Judge held that the defendant-tenant intentionally flouted the order passed under section 15 of the B.B.C.Act to deposit the rent, as even after dismissal of the Civil Revision, the tenant-respondent, did not deposit the rent. It was only when a follow up petition to strike off his defence in terms of section 15 of the B.B.C. Act was moved, the tenant- defendant deposited the arrears of rent belatedly on 29.1.1991. It is evident that the tenant did not deposit the arrears of rent till 29.1.1991, though the order to deposit the same was passed on 13.2.1990. Further more, even after dismissal of his Civil Revision on 7.5.1990 preferred against order dated 13.2.1990, the tenant did not deposit arrears of rent within 15 days. In the aforesaid circumstances, the learned Judge observed that over all conduct of defendant/tenant was not bonafide and there was deliberate violation of the order of the court to deposit the arrears of rent. Thus the learned Judge further observed that Patna High Court CWJC No.3883 of 2011 (2) dt.07-09-2011 9 the trial court erred in not striking off the defence. 10. In the instant case it is an admitted position that the tenant deposited the arrears of rent within the time frame mentioned by the trial court. However, he did not deposit the current rent of May onwards under illusion that his application dated 3.6.2010 seeking a direction to the plaintiff to make repairs of the rented premises was pending. Once the petition was rejected in September, 2010, the first payment of Rs.2000/- was made within ten days on 25.9.2010 and the rest of the current monthly dues was paid on 3.11.2010. Thus, the over all attitude and conduct of the defendants was not guided by an intention not to deposit the rent. On the other hand, the entire arrears of rent were deposited as ordered by Court within the time frame, irrespective of filing of petition for repair. I am in agreement with the observation of the learned trial court that intention of the defendants was not to flout the order of the court. 11. I want to make it clear that merely because the defendant tenant files a petition for repair of premises at land lord’s cost, the same cannot be a ground for not depositing the rent as ordered under section 15(1) of the B.B.C. Act. I want to caution further that though the words “Court shall order the defence Patna High Court CWJC No.3883 of 2011 (2) dt.07-09-2011 10 Md.Jamaluddin Khan against ejectment struck off” stated in section 15 of the B.B.C. Act may not be mandatory in intent, nonetheless no laxity would be permissible on any vague or sundry grounds. The tenant generally would be bound to obey the order. For instance, a weak economic condition cannot be a ground for not depositing the rent ordered under section 15(1) of the Act as one cannot fairly cling to the tenancy, when one knows that he does not have sufficient money to hold on to it. The delay in making deposit under section 15 of the Act can be condoned in ends of justice only in exceptional circumstances likes accident, closure of Bank, medical exigency, hold ups or circumstances ejusdem generis. 12. In the backdrop of the aforesaid discussions, I do not find any merit in this application. It is accordingly dismissed. The trial court would proceed with the suit expeditiously and both the parties would cooperate in the suit. (Samarendra Pratap Singh, J)