IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.434 of 2007 1. Sitaram Prasad, son of late Deoki Prasad 2. Binod Kumar 3. Pramod Kumar sons of Sitaram Prasad All residents of Mohalla Mahabir Asthan, Ward no.6, Sitamarhi Town, P.S. and District Sitamarhi. …Defendants-Petitioners. Versus Jai Prakash Kumar, son of Sri Chandrika Prasad, Resident of Main Road, Sitamarhi Town, P.S. and District Sitamarhi. …Plaintiff-Opposite Party ----------- For the Petitioners : Miss Sushmita Mishra, Advocates. For the Opp. Parties : None. ---- 03/ 20.08.2009 Heard learned counsel for the petitioners. 2. This civil revision has been filed by the defendants- petitioners challenging order dated 02.02.2007, by which learned Subordinate Judge-I, Sitamarhi rejected their application dated 26.09.2005 for recalling order of the trial court dated 12.01.2005 and allowing them to cross-examine the witnesses of the plaintiffs in Eviction Suit No. 01 of 2002. 3. The aforesaid suit was filed by the sole plaintiff- opposite party for eviction of the defendants-petitioners on the ground of default in payment of rent and also for other ancillary reliefs including the arrears of rent. In the said suit, the defendants appeared and contested. 4. It transpires that the plaintiff-opposite party filed an application under section 15 of the Bihar Building (Lease, Rent and Eviction ) Control Act, 1982 ( hereinafter referred to as `the Act’ for the sake of brevity ), which was allowed after hearing the parties on 2 05.06.2003 directing the defendants-petitioners to deposit arrears of rent since August 1999 at the rate of Rs.1200.00 per month and was also directed to deposit the current rent at the rate of Rs.1200.00 per month within stipulated period as provided under the law. It further transpires that neither the said order was challenged by the defendants-petitioners nor was it complied within the time prescribed. 5. However, much later on 30.09.2003 the defendants- petitioners filed an application in the learned court below for fixing instalment of the arrears of rent. This application was allowed by the learned court below on 02.12.2003, according to which instalment of Rs.3,000.00 per month was fixed for payment of arrears of rent along with current rent of Rs.1200.00 per month by 10th and 15th of each month, respectively. The said order of the trial court was also not challenged nor was it complied by the defendants-petitioners within time granted by the court. 6. Considering the aforesaid facts and circumstances and continuous violation of the orders of the learned trial court for more than a year under the specific provisions of law, the trial court had no option but to pass the impugned order dated 12.01.2005 striking off the defence of the defendants. The said order was clearly in view of the specific provisions of section 15 of the Act and was also never challenged by the defendants-petitioners before any higher court. 7. However, about nine months thereafter the 3 defendants again filed an application in the trial court on 26.09.2005 for recall of order dated 12.01.2005 and to allow them to cross- examine the witnesses of the plaintiff taking the plea that they had paid part of the arrears of rent in August 2005 and that they could not deposit the rent due to flood in the area. This application of the defendants-petitioners has been rejected by the learned court below vide order dated 02.02.2007, which is under challenge in the instant civil revision. 8. So far the deposit of some amount of arrears of rent in August 2005 is concerned, it is much beyond the period granted by the learned court below on 05.06.2003 and 02.12.2003 and it was also about seven months after the defence of the defendants had been struck off vide order dated 12.01.2005. Hence, the said deposit cannot be valid plea for recall of the said order dated 12.01.2005 Furthermore, since the defendants were admittedly tenants, they were duty bound to pay the rent and if they had deposited some rent much belatedly at any time during the pendency of the suit, that will not legally take away the plaintiff’s right from getting the defendants evicted on the ground of default in payment of rent. 9. So far question of flood is concerned, the instalment was fixed on 02.12.2003 by the learned court below and at that time there was no question of any flood but even then the said order was not complied for more than one and a half years except some deposits made for few months, although a lenient view was taken by 4 the learned court below in that regard. 10. In the said circumstances, the grounds taken by the defendants-petitioners were clearly not valid and proper and the learned court below was quite justified in rejecting the application of the defendants by the impugned order for recall of order dated 12.01.2005. 11. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the learned court below nor does it find any irregularity therein and, accordingly, this civil revision is dismissed. MPS/ ( S. N. Hussain, J. )