JUDGMENT
Madan Mohan Prasad, J.
1. This is an application in revision against an order passed under Section 11-A of the Bihar Buildings (Lease. Bent and Eviction) Control Act, 1947, striking out the defence of the petitioner.
2. It appears that the plaintiffs Opposite Parties filed a suit for eviction of the petitioners on the ground of nonpayment of rent and personal necessity and for a decree for the arrears of rent to the tune of Rs. 1,284/-. During the course of the suit an application was filed on the 25th of November, 1971, under Section 11-A of the Act for a direction to the defendants to deposit the arrears of rent and the current and future rent at the rate of Rs. 150/- per month. An order to that effect was passed on the 15th of February. 1972. except that the rate of rent at which the payment was made last was held to be Rs. 105.25 PS. per month. In pursuance of this order, on the 3rd of March, 1972. the petitioners defendants granted two cheques drawn On the Reserve Bank of India for the arrears of rent upto the month of February, 1972. The plaintiffs opposite parties, however, raised objection to the effect that the deposit by cheques was not valid and prayed on that very day that the defence of the petitioners be struck out. Consideration of this application was postponed till the 28th of April. 1972. Meanwhile, a third cheque for the rent for the month of March. 1972. was also deposited on the 25th of April-1972. On the 28th April, 1972, the Munsiff considered the objection raised by the opposite parties in respect of the validity of the deposit and held that payments by cheques were valid deposits and accordingly, dismissed the petition of objection. The matter ‘seems to have rested here so far as the validity of the deposit is concerned. It appears that the plaintiffs did not agitate against the propriety or the legality of this order. Subsequently, on
the other hand, on the 10th of May, 1972. the plaintiffs filed a petition that those cheques be handed over to them for encashment and by an order of the Court, the cheques were handed over on the 13th May. 1972. It is said that on that very date, the first plaintiff deposited the cheques in his own account in Bank for collection from the Reserve Bank, It appears, however, that payment of the cheques aforesaid were refused by the Reserve Bank, as the cheques had been drawn in the name of ‘Akhauri Harendra Naravan Singh’, which ought to have been ‘Akhauri Harendra Naravan Sinha’. Thereafter, the plaintiffs presented an application to the Court that since payments had been refused by the Reserve Bank, the Court ought to modify its previous order, dated the 28th April, 1972 and strike out the defence of the petitioners. The matter was heard on the 12th of July, 1972, and the objection was upheld and the defence struck out by an order, dated the 17th of July. 1972, Hence, this revision application.
3. Learned counsel for the petitioners has ureed firstly, that the learned Munsif should not have reviewed his own order Passed on the 28th of July, 1972; secondly, that he has taken an erroneous view of law inasmuch as he has held that since the payment was not made to the plaintiffs within time, the defence of the petitioners had to be struck out; thirdly, that the conduct of the opposite parties established beyond doubt that they had accepted the deposit to be valid and the principle of estoppel should apply as against them: fourthly, that the learned Munsif has erred in law in putting the petitioners in a position as if they had never contested the suit
4. On the first point learned counsel has urged that the learned Munsif had clearly and unequivocally overruled the objection raised earlier by the opposite parties in respect of the form of deposit and held that the deposit by cheques was a valid deposit He had further held that the deposit must be treated to have been made on the date on which the cheque was filed In Court and not on the date on which the cheque was encashed. He had reiected the contention of the opposite parties to the contrary. If the previous order of the learned Munsif, therefore, stands, it means that the deposit had been validly made within time. It appears, however, that the subsequent event, namely, the failure in the matter of encashment of the cheques, had led the learned Munsif to come to the contrary conclusion while disposing of the application, dated the 14th of June, 1972. It appears that in the impugned order, the learned Munsif has held that
the cheques having been dishonoured, the defendants had failed to deposit the arrears of rent in time and hence allowed the prraver of the plaintiffs opposite parties for striking out the defence of the petitioners. It is quite obvious that the learned Munsif has gone back on his own earlier decision. In this connection, it bears repetition to say that the plaintiffs opposite parties had not moved higher Court for setting aside the order passed by the learned Munsif on the 28th July, 1972. The order had thus become final between the parties. In the impugned order, the learned Munsif has not cared to consider his previous order at all. In other words, he has not considered the question whether he had a right to review his own order and if he had. whether there was a ground for such a review. He seems to have ignored the effect of the previous order altogether. The question is whether he could review his own order in the circumstances of this case. Even if it be assumed that he had the right to do so. the question is whether there was any new fact discovered in the case, which entitled him to do so. In mv view, there was none. The cheques were deposited in Court and thev are today what thev were the other day. It seems to me to be a clear case of inadvertence on the part of everybody concerned and not a discovery of a new fact at all. so far as the error committed in spelling the name of plaintiff opposite party No. 1 is concerned. The cheaues were available for inspection to the parties on the very day they were filed in Court. Thev had become available to the plaintiffs on the day they were handed over to them for encashment and the cheques had been deposited by the first plaintiff for collection and being credited in his own account. Neither the plaintiff nor the defendants nor the Court seems to have noticed the slight mistake in the cheques, which resulted in their being dishonoured. It is obvious that the deposit when made was made bona fide, and there is nothing to show that it was mala fide at all. As I have stated earlier, it is a case of innocent mistake. A slight correction in the name of the plaintiff, in whose name the cheques had been issued, would have entitled him to set this amount from the Reserve Bank of India. It has not been suggested either that the cheque was without any content in the sense that there was no money in the account of the petitioners, which could have been available for encashment of the cheques. There is thus nothing to show that there was any subsequent event to indicate that the deposit wag not valid at all. The learned Munsif, therefore, could not have reviewed his own order.
which had become final between the parties.
5. There has been some argument at the bar in connection with the question whether the deposit by cheque is valid. The question, however, does not require any consideration in the present case, because the deposit had been accepted as valid by the Court and by the parties to the case and as the order has become final. Assuming that the learned Munsif had committed an error of law in holding the deposit to be valid, it is well settled that the parties cannot be allowed to suffer for the mistake of a Court. If the learned Munsif had committed that mistake, if at all the petitioners cannot be allowed to say that the deposit had been invalidly made, and for that the defence of the petitioners may be struck off.
6. The second contention of the learned counsel for the petitioners is equally well founded. Section 11-A of the Act directs deposit to be made within 15 days from the date of the order. It has not directed for payments to be made to the landlord within that time. The deposits might as well remain in Court lying until an order is passed by the Court directing its withdrawal by the landlord. Obviously, therefore, it is not the date when the money is handed over to the landlord, which is the relevant date for the purpose of considering whether the deposit has been made within 15 days or not. The point needs no authority, the statute itself being so clear. Learned counsel has however, drawn my attention to a few unreported decisions of this Court in Sankar Lal Hazarika v. Kanhai Lal, Civil Revn. No. 1182 of I960 disposed of on 9-5-1961 (Pat). An order was passed to make a deposit under Section 11-A of the Act on the 26th of August, 1960. The challan was filed on the 6th of August, 1960. and passed the same day hut the money wss deposited on the 12th of September. 1960 thus late by two days. The deposit was held to be valid inasmuch as the tender was within time and the order striking out the defence was set aside. In Bibi Mohitun-nisa v. Mohammad Mohiuddin, I960 Pat LJR 80 = (AIR 1969 Pat 334); Bijoy Singh v. Kirtyanand Singh. AIR 1932 Pat 342: Mt. Gomti v. Lachman Das Champa Ram, AIR 1934 All 817 the date of presentation of the challan was held to be the relevant date for the purpose of a decision on the question whether the deposit had been made. In Allahabad case, it was further stated that a bone fide tender itself amounts to payment. There cannot, therefore, be the least doubt that it is the date on which the tender Is made which is the date of deposit in Court
The learned Munsif was, therefore, in error in ordering that since the money could not go into the hands of the plaintiffs within the statutory period, the deposit had not been made in time. Besides that the finding on this point contained in the impugned order is diametrically opposed to his earlier finding on the point.
7. The third point raised by the learned counsel regarding waiver also appears to receive some support from an unreported decision of this Court in Moti Lal Tewari v. Prabhu Daval Agra-walla. Civil Revn. No. 820 of 1962 decided by a learned Single Judge of this Court It is however, not necessarv to go into the points in view of my findings on other questions raised.
8. On the fourth point, the order itself shows that the learned Munsif has put the defendants in a Position “as if they never contested the suit”. Section 11-A of the Act merely says that “on failure to deposit the rent as directed, the Court shall order the defence against the ejectment to be struck out and the tenant be placed in the same position as if he had not defended the claim to ejectment.” There is quite a lot of difference between the defendant being put in a position in which his claim against ejectment is struck out and the position as if he never contested the suit on any Point whatsoever. Learned Munsif has fallen into an error of law in making direction in the nature aforesaid. It is well settled that even if the defence affainst eiectment is struck out under Section, 11-A of the Act, it is vet open to the defendant to agitate matters other than eiectment. In Chaturbhui Mistry v. Jagan Ram. 1967 BLJR 44 the learned Judges held that the striking out the defence did not mean that the tenant’s other defence for example, his defence in regard to the ar-rear of rent as claimed by the plaintiff will stand struck off. A Full Bench of this Court in Mahabir Ram v. Shiva Shanker Prasad, AIR 1968 Pat 415 (FB) held that even after the striking out of the defence of the tenant, it is open to him to challenge the title of the plaintiff to the house and set UP his own title. Thus, if the order of the learned Munsif is sustained, it will have the result of debarring the defendants from challenging either the amount due or any other defence other than the one against ejectment,
5. In the result. I find that the
learned Munsif had no right to review his earlier decision, secondly that he has taken a wrong view of law in taking the date of encashment to be the relevant date, thirdly that the operative part of his order debarring the defendants from con-
testing the suit altogether is also illegal. In that view of the matter, the order cannot be sustained.
10. The proper course for the learned Munsif, in the circumstances of the case, was to ask the defendants to correct the mistake in the cheques. Since the cheques were issued in March. 1972, they cannot be encashed now after a lapse of so many months, and the parties have agreed that now the petitioners be directed to deposit the amount in cash. It will be expedient in the ends of justice to direct the petitioners to deposit the arrears of rent in cash.
11. For the reasons aforesaid, the order of the learned Magistrate is set aside and the petitioners are directed to deposit in the Court below the entire amount for which the three cheques had been issued within a period of 15 days from the date of this order. The application is accordingly allowed. In the circumstances of the case, however, there will be no order as to costs.