JUDGMENT
S.B. Sinha, J.
1. This appeal is directed against an order dated 18th June, 1990 passed by Shri Uma Shankar, 1st Additional District Judge, Hazaribagh in Title (Eviction) Appeal No. 15 of 1989 whereby and whereunder the said learned court remanded the suit to the trial court.
2. The appellant filed a suit for eviction against the defendant for his eviction and also for a decree for arrears of rent.
3. In that suit an order was passed on 2-7-1988 by the learned Trial Court in terms of the provision of Section 15 of the Bihar Buildings (Lease Rent and Eviction Control) Act whereby the defendant was directed to pay arrears of rent from July, 1985 till June, 1988 within a period of fifteen days from the date of the order. The defendant did not comply with the said order and as such his defence against ejectment was struck off.
4. Before the court of appeal below a contention was raised on behalf of the defendant that the said order was without jurisdiction us the trial Court directed the defendant to deposit rent prior to the institution of the suit, which was contrary to the decisions of the court below upon taking into consideration as various decisions of this Court upheld the said contention.
5. The learned court of appeal below further found that the learned trial court had not taken into consideration the proviso appended to Section 11(1)(c) of the Bihar Buildings (Lease Rent and Eviction Control) Act, 1982, He therefore remanded the entire suit.
6. Mr. V. Shivnath, learned Counsel appearing on behalf of the appellant has raised a short question in support of this appeal.
The learned Counsel contended that the court of appeal below has committed a serious error in passing the order of open remand which is not permissible in law. The learned Counsel appears to be correct.
7. Mr. V. Shivnath, learned Counsel appearing on behalf of the appellant has further drawn my attention to paragraph 9 of the judgment of the learned trial Court and submitted that in this case despite the order striking off of the ejectment of PW 1 was cross-examined by the defendant but thereafter the defendant did not take in part the trial of the case and thus in this case the defendant cannot be said to have been prejudiced.
8. This may be so but there cannot be any doubt that in view of the Division Bench decision of this Court in 1989 BBCJ 469, wherein it has been held that the power of the court to direct to deposit the arrears of rents prior to the institution of the suit is unconstitutional, the defendant in law had no right to cross-examine the witnesses examined on behalf of the plaintiff except as a tenant.
9. In this view of the matter, it cannot be said that the defendant deliberately did not take part in the trial of the case as admittedly his defence against ejectment was struck out in terms of the provisions of Section 15 of the said Act.
10. In this situation, as the defendant could not cross-examine the witnesses examined on behalf of the plaintiff, the entire trial become vitiated, and thus, in my opinion, the impugned order would be governed by the provisions of Rule 23-A of Order XLI of the Code of Civil Procedure.
11. In this view of the matter, in my opinion, no illegality can be said to have been committed by the learned court below.
12. However, in view of the fact that the suit is one for eviction, the learned trial court shall dispose of the suit within two months from the date of the receipt of a copy of this order.
Both the parties shall appear before the court below within 15 days from today.
13. In view of the admitted fact that the defendant is a tenant, the defendant shall deposit all arrears of rent from the date of the institution of the suit upto August, 1991 by 19th September, and shall continue to deposit the current and future rent before 15th of the next month succeeding.
The plaintiff shall produce all his witnesses for cross-examination of the defendant.
14. This appeal is disposed of with the aforementioned directions without any order as to costs.