IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1184 of 2011 1.Smt. Kumud Sinha wife of Late Prem Kumar Sinha 2.Mithlesh Kumar Sinha sonof late Ram Swaroop Lal 3.Anil Kumar Sinha son of late Ram Swaroop Lal 4. Manish Kumar son of Late Prem Kumar Sinha Nos.3 and 4 Partners of M/s Bihar Galwanassing Works, all residents of Mohalla Diwan Mohalla Sidhi Ghat, P.O. Jhauganj, P.S. Khajekalan, District Patna .......... Petitioners Versus 1.State Of Bihar through Secretary, Law Department, Bihar, Patna 2.Smt. Kamla Devi wife of Sri Parmeshwar Sah, resident of Mohalla Karwan Ki Sarai, Purab Darwaja, Patna City, P.O. Begampur, P.S. Malsalami, District Patna-800 009 ....... Respondents For the Petitioners : Mr. S.S. Dwivedi, Sr. Advocate Mr. B.K. Bariar, Advocate For Respondent no.2: Mr. Dilip Kumar Jha, Advocate O r d e r 5 15.9.2011 Heard learned counsel for the defendants- petitioners and learned counsel appearing for the plaintiff- Opposite party no.2. 2. The defendants-petitioners have filed the instant application against the order dated 2.5.2009 passed by the Sub Judge III, Patna City in Title Eviction Suit No.9/2001 by which the learned court has struck off the defendants‟ defence under section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act (hereinafter referred to as “B.B.C. Act”) due to non payment of current rent @ Rs.750/- per month. 3. The plaintiff filed Title Eviction Suit No.9/2001 against defendant nos.1 and 2 for eviction from the suit 2 premises which is a residential complex bearing Holding No.38/25 measuring an area of 5 Kathas 17 dhurs 2 ½ dhurkies equal to 183 Karies. During the pendency of the proceeding, the plaintiff filed an application under section 15 of the B.B.C.Act for deposit of arrears of rent. The trial court by order dated 7.7.2005 directed the defendants nos.1 to 4 to deposit and pay the arrears of rent for the period from June 2001 to July 2005 @ Rs.750/- per month amounting to Rs.36,750/- along with current monthly rent to be paid in the subsequent month. Being aggrieved by the aforesaid order, the defendants-petitioners filed Civil Revision No.1824 of 2005 before this Court with a prayer that the liability to pay the rent rests on defendant nos.3 and 4 only. The learned Judge by order dated 18.4.2006 modified the order of the trial court fastening the liability to deposit the arrears of rent on defendant nos.3 and 4 only. 4. The case of the defendants-petitioners is that the suit land personally belonged to one Sona Devi who entered into an agreement to sell the suit property to the defendants in the year 1996. The petitioners filed Title Suit No.33 of 1997 for specific performance of contract. 3 As per the defendants-petitioners‟ case, the plaintiff in the meantime got executed sale deed of the premises in their favour inspite of the pendency of suit, filed by the petitioners. The defendants-petitioners submits that in such circumstances they filed a petition before the trial court with a prayer that the plaintiff may not be permitted to withdraw the amount so deposited pursuant to the court‟s order passed under section 15(1) of the Act. 5. It is relevant to state herein that the plaintiff had also filed a petition under section 15 of the Act for withdrawal of the deposited amount. No order was passed either on petition of plaintiff/defendant or may be none of them pressed their petition. However, the plaintiff filed a petition to strike off the defence in terms of section 15(1) and (2) of the B.B.C. Act. 6. Mr. S.S. Dwivedi, learned Senior Counsel appearing for the defendants-petitioners submits that the rent was duly deposited in time in the trial court in form of Bank Drafts and there has been no default. He submits that the trial court‟s order to pay the arrears merged in the order dated 18.4.2006 passed in C.R. No.1824 of 2005 preferred against order dated 24.8.2005 passed under 4 section 15(1) of the B.B.C. Act wherein the learned Single Judge observed that the time period fixed by the trial court for deposit of rent is extended by one month. He submits that defendants/petitioners did file a petition to restrain the plaintiff from withdrawing the rent. The petitioners submit that the trial court could have directed for deposit of rent. 7. Mr. Ashok Choudhary, learned counsel appearing for the plaintiff-Opposite party no.2 submits that had it not been for the petition of the defendants, he could have withdrawn the amount so deposited. He further submits that that the defendants have been using her premises since 1960s and the plaintiff all these years have been deprived of her right to get the rent. The plaintiff was thus left with no alternative to file eviction suit in the year 2001. He submits that the trial court by order dated 7.7.2005 directed the defendants-petitioners to pay the arrears as well as current rent to her through Bank Drafts but the defendants-petitioners instead deposited the same in the court with a view to frustrate the plaintiff from receiving the rent amount. 8. I have heard counsel for the parties. The plaintiff- Opposite party no.2 filed Title Eviction Suit No.9/2001 in 5 which she filed a petition under section 15(1) of the Act for deposit of arrears of rent. The learned trial court by order dated 24.8.2005 directed that the rent amount is to be paid to the land lord directly through the Bank Drafts. The defendants preferred a Civil Revision bearing C.R.No.1824 of 2005 before this court which was disposed of by order dated 18.4.2006. The learned Judge while disposing of the Civil Revision observed that the liability to pay the rent is on defendants nos.3 and 4 and not on defendant nos.1 and 2. The learned Judge further observed that as the time for deposit of arrears of rent has expired during the pendency of this Civil Revision, the time for deposit of arrears is extended by a period of one month from that date. The case of the defendants petitioners is that in view of the order of learned Single Judge, now they were to deposit the rent by way of Bank drafts in the Court, which they did. In the meantime, the defendants-petitioners filed a petition under section 15(2) for restraining the plaintiff from withdrawing the deposited amount. On the other hand, the plaintiff filed a petition seeking permission to withdraw the aforesaid amount. Unfortunately, both the petitions remained 6 pending. The plaintiff thereafter filed another application to strike off the defence as there was non-compliance of the order dated 24.8.2005 which was pressed and taken up for hearing. The trial court by the impugned order dated 2.5.2009 struck off the defence observing that the defendants deliberately flouted the order to pay the rent to plaintiff, by filing a petition wherein they prayed that latter be restrained from withdrawing the amount. 9. It is not in dispute that the defendants did not deposit the arrears of rent as well as current rent regularly in the trial court. It further appears that the defendants in view of the order of this court dated 18.4.2006 passed in C.R.No.1824 of 2005 could be under an impression that instead of making payment of rent directly to the land lord, the same now has been deposited in court. It appears from order dated 18.4.2006 of learned Single Judge that the issue involved was whether it is defendant nos.3 and 4 or defendant nos.1 and 2 who are liable to pay the rent. The learned Judge substantially upheld the order of trial court of paying the rent to land lord. But it appears that inadvertently the word „deposit‟ was typed in place topay the rent to land lord. Thus, the benefit of doubt cannot be 7 totally denied to the petitioners-defendants. In this view of the matter, the impugned order dated 2.5.2009 passed in Title Eviction Suit No.9/2001 striking off the defence of the defendants-petitioners is not sustainable and is set aside. 10. The trial court directed that the rent is to be paid directly to the land lord through Bank Drafts. The defendants admittedly are tenant of the original land lord Sona Devi. Whether the original land lord has executed sale deed in favour of the plaintiff or whether the defendants would have a better claim on the property in view of the agreement to sell as claimed by them executed in their favour is sub judice in respective Title Suit. 11. I want to make it clear that once a trial court directs for payment of rent to land lord, mere filing of petition would not save the defendant/tenant from depositing or paying the rent as ordered. 12. As of today, the plaintiff has got a registered sale deed in her favour in respect of property. All this while she has been denied the benefit of enjoying the rent of the premises. In these circumstances, I direct the defendants-petitioners to pay the arrears of rent for the 8 period from June 2001 onwards as directed by the trial court in its order dated 7.7.2005 with up to date arrears to the Opposite party no.2 through Bank drafts, within a period of two months from today. The defendants- petitioners would continue to pay the current monthly rent @ Rs.750/- per month to the plaintiff through the Bank draft/cheque positively by 15th of the subsequent months till the matter is finally adjudicated by the trial court. All the Bank drafts or cheque must be deposited in the court. The Opposite party no.2 would be at liberty to withdraw the same forthwith. The trial court would see that the Bank drafts or cheques are handed over to Opposite party no.2 without delay. The trial court is directed to return all the Bank drafts previously deposited to the defendants- petitioners. 13. With the aforesaid observations and directions, this writ petition stands disposed of. Md.Jamaluddin Khan (Samarendra Pratap Singh, J)