., •

MIS INTER STATE TRANSPORT AGENCY

BIBI HABIBA KHA TOON (DEAD) BY L.RS.

MARCH, 24 1998

[DR. A.S. ANAND AND S.P. BHARUCHA, JJ.]

Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947: Sections II and 15.

Rent Control-Eviction-Default in payment of rent-Distinction between the remedies available under Section 11 of the Act and those available for non-compliance with the directions under Section 15 of, The Act-Suit for eviction filed by respondent-Landlady-Ground default in payment of rent by appellant-Tenant-Suit dismissed by Trial Court but decreed by First Appellate Court-Second appeal preferred by appellant- Tenant-Direction by High Court to deposit arrears of rent by 15.ll.1979- Tenant deposited arrears of rent on 9.2.1980 and the same withdrawn by landlady-During pendency of second appeal respondent landlady instituted eviction suit-Ground that during the pendency of the appeal in the High Court arising out of the earlier suit, the appellant had not complied with the directions of the High Court to deposit the rent-Held for non-compliance of the directions in the second appeal, recourse could not be had to seek ejectment under Section 11 of the Act-Delay in the deposit of the rent is not covered by Section 11 of the Act, particularly after the rent was withdrawn without demur by the Landlord-Eviction suit held non-Maintainable.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2751 of 1991.

From the Judgment and Order dated 6.2.91 of the Patna High Court in S.A. No. 265of1990.

S.B. Sanyal, and S.K. Sinha for the Appellant.

S.N. Misra and P.P. Singh for the Respondents

The following Order of the Court was delivered by :

The respondent instituted Title Suit No.6 of 1974 for eviction of the H 425

SUPREME COURT REPORTS

[ 1998] 2 S.C.R.

A appellant on ground of default in payment of rent. That suit was dismissed on 31.1.1978. The first appeal preferred by the respondent before the District Judge succeeded vide judgment and order dated 31.3.1979. The appellant filed second appeal in the High Court, being Second Appeal No. 404 of 1979.

During the pendency of that appeal, landlord respondent filed an application B under Section 15 of the Bihar Building Control Act (hereinafter the Act) for deposit of arrears of rent accumulated during pendency of the appeal and future rent during the pendency of the appeal. An order came to be made by the High Court on 25.9.1979 to deposit the arrears of rent by 15.11.1979. The appellant, however, deposited the arrears of rent on 9.2.1980 and that amount was subsequently withdrawn by the respondent • landlord. While the second C appeal was pending in the High Court, the respondent instituted Title Suit No.

I 00 of 1980 seeking eviction of the appellant on the ground that during the pendency of the appeal in the High Court arising out of the earlier suit, the appellant had not complied with the directions of the High Court to deposit the rent made on 25.9.1979, in the application under Section 15 of the Act within the prescribed time and was thus in default in payment to arrears of

~ I

D rent and, therefore, liable to be evicted. The appellant contested the suit and in his written statement inter-alia raised the plea that the default in the deposit 1 of rent pursuant to the orders passed by the High Court in the application under Section 15 of the Act within the prescribed period could not be a ground for his eviction. It was also averred that since the respondent had E withdrawn the rent amount, she had waived her right to complain about the delayed deposit of rent. The trial court decreed title suit No. JOO of 1980 on 29.3.198:. An appeal filed by the appellant before the District Judge was dismissed on 10.5.1990. His second appeal failed before the High Court on 6.2.1991. Hence this appeal by special leave.

F We have heard learned counsel for the parties and gone through the records. The consequence of non-compliance with a direction made under Section 15 of the Act is contained in Section 15(1) of the Act. The court could order the defence against ejectment to be struck off and to place the tenant in the same position as if he had not defended the claim to ejectment in the G matter or cause in which the direction was made. For non-compliance of the directions in the second appeal, recourse could not be had to seeking ejectment under Section 11 of the Act. Delay in the deposit of rent is not covered by Section 11 of the Act, particularly after the rent was withdrawn without demur by the landlord. The trial court, the first appellate court and the High Court fell in error in not noticing the distinction between the remedies available H under Section 11 of the Act and those available for non-compliance with the

L '---

INTER STATE TRANSPORT AGENCYv. BIBI !IA BI BA KHA TOON 427

directions under Section 15 of the Act. The courts below ought to have held A that the suit for eviction was not maintainable on the ground of delay in deposit of rent in violation of the directions given in the second appeal arising out of Title Suit No. 6 of 1974. The impugned order, under the circumstances, cannot be sustained. Consequently, we allow this appeal and set aside the impugned order. As a result, Title Suit No. l 00 of 1980 shall B stand dismissed. No costs.

T.N.A.

Appeal allowed.