JUDGMENT
Lalit Mohan Sharma, J.
1. The
defendant, in a pending suit, filed for his eviction from a shop in Bhagalpur town, has by this application challenged the order dated 7-12-1977, passed by the court below striking off his defence under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as ‘the Act’). On an application by the plaintiff-landlord, the. Court passed an Order on 15-6-1974, directing the petitioner to deposit the arrears of rent and future rent in accordance with Section 11-A of the Act. The deposits were thereafter made, but the plaintiff filed two applications in September, 1977, alleging that the petitioner had defaulted in making several deposits in time and prayed for striking off the defence. The petitioner denied the allegations and after hearing the parties, the court has by the impugned order held that the petitioner defaulted in depositing in time the rent for the months of February and September, 1976 and April, 1977. The prayer for rejecting the written statement was allowed.
2. The last date for depositing the rent of a particular month is, according to the section, 15th day of the following month, and the rent for February, 1976, should have been deposited by the 15th March, 1976. Similarly, the rent for September, 1976, should have been deposited by the 15th of October 1976, and the rent of April, 1977, by the 15th of May, 1977. The chalan for deposit of the rent for February, 1976, was filed in Court on 12-3-1976, and was passed on 13-3-1976. The Court was closed from 14th March to 17th March 1976, and the Treasury, where the money had to be deposited, was closed from 14th March to 16th March, 1976. The money was deposited on the 18th March, 1976. So far the deposit of the rent for September, 1976 was concerned, admittedly the Court was closed for the Annual Vacation from 23-9-1976 to 29-10-1976 and it reopened on 30-10-1976, when the Chalan was filed by the petitioner in Court. It was passed the same day, but in the afternoon, and the petitioner was permitted to deposit the rent in the Treasury on the next available day, that is, 1-11-1976, 31st October, being a Sunday. The money was accordingly deposited. As regards the rent for April 1977, the same could not be deposited on the 15th May, 1977, which was a Sunday and the chalan was filed and passed on 16th May 1977 and the petitioner was permitted to make the deposit on the 17th May, 1977, when it was so done.
3. The trial court has held that the periods during which the deposits should have been made, are determined by law and nobody — not even the Court by passing the chalan and permitting the deposit — could extend the time. The penal consequence flows as a result of operation of law and the petitioner must be held to be a defaulter. The petitioner’s written statement has accordingly been struck off.
4. Mr. S. C. Ghosh, appearing for the petitioner, contended that the petitioner cannot be said to have defaulted within the meaning of the Act in making the deposits and the court below has no jurisdiction to reject his written statement. He relied upon the decisions in AIR 1974 Pat 159 and 1974 BBCJ 53. He alternatively argued that the court below, by permitting the petitioner to make the deposits by the dates on which actual deposits were made, must be deemed to have misled the petitioner in thinking that there would be no default if the deposits were not made earlier. Relying upon the principle that a party cannot suffer for the mistake of a court, it has been urged that in the circumstances of the case, the order striking off the defence is illegal.
5. The language of Section 11-A of the Act and the corresponding Section 13 of the new Act of 1977 is identical and it is enjoined that the tenant-defendant should deposit the rent within the period indicated therein. The money has not to be paid to the plaintiff landlord. Only after a deposit is made, a court may permit withdrawal of the same by the plaintiff, but it has discretion to refuse it in appropriate cases. What is material, therefore, is the deposit of the rent in court or with its agent. The question is as to when this deposit can be said to have been made in the present case,
6. It has been found inconvenient and unpractical and in many cases fraught with danger for the Court to deal with the liquid cash in transactions with the litigants and, accordingly, it has been provided in Rule 609 of the Civil Court Rules framed by the Patna High Court that Judges should generally as far as possible, in their transactions with public, avoid direct receipt of deposits including the rent deposits. The procedure dealing with such deposits is mentioned in Rules 611 to 614. The person desirous of making a deposit has to fill up chalans in quadruplicate and present them to a designated officer of the Court, who has to ascertain the correct amount in this regard and after making corrections in the chalans, if necessary, should lay them before the Judge for his signature. After they are signed, three copies of the chalans have to be returned to the party for deposit of the money into the Treasury. One copy is preserved by the Accountant of the Court. Rule 614 expressly directs that these steps should not be taken until the depositor is actually ready to pay the money. The ‘day’ is taken to close at 2 P. M. in accordance with Rule 604 (iv), so that accounts may be made up well before the Court hours are over. If the chalans are passed and handed over to the depositor during the early hours, money can be actually deposited in the Treasury the same day. If they are passed late, the deposit has to be made on the following working day of the Treasury. The Court has to indicate in the chalans accordingly.
7. It will be presumed that when a person desirous of making a deposit files the requisite number of chalans after properly filling them, he is so doing only after he has collected necessary funds and is in a position to make immediate deposit. If anybody asserts that such a person did not have the money with him and was not in a position to make the deposit, if called upon, he will have to prove the same by direct evidence or circumstances. I may point out at this stage that in the present case, there is no such suggestion on behalf of the opposite party. The inference, therefore, is that when a depositor files the chalan, he offers the money to be received by Court and cannot be adversely affected by the fact that the Court, due to procedural technicalities, is not in a position to receive the money immediately. I am of the view that as soon as chalans are filed, the depositor must be deemed to have deposited the money, for, a valid offer is tantamount to payment in law.
8. Coming to the facts of the present case, I will first consider the question whether the petitioner had defaulted in depositing the rents for the months of September, 1976 and April, 1977. The Court was closed till 29th October, 1976 for its annual vacation and on 30th October, 1976, the petitioner duly filed the chalans in Court. By virtue of the provision of Sec. 12 of the Bihar and Orissa General Clauses Act, 1917, the relevant portion whereof is quoted below, it must be held that the petitioner was in time when he approached the Court on 30-10-1976 for passing the chalans.
“12. Computation of time — Where, by any Bihar and Orissa Act or Bihar Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken, on the next day afterwards on which the Court or office is open.”
9. The copy of the chalan retained in Court, which is on the records of the case, indicates that the chalan was passed late in the day and the petitioner, for that reason, was permitted to make the deposit in the Treasury on the next working day, that is, 1-11-1976, October 31 being a Sunday. As has been mentioned above, it has not been suggested that the petitioner did not have ready money on 30-10-1976 and had filed the chalans in Court merely for gaining time. In fact, money was deposited as directed. I, therefore, hold that in law the petitioner must be deemed to have made the deposit on 30-10-1976. Similarly, the chalans for the deposit of rent for April, 1977 were filed in Court on 16-5-1977, May 15, being a Sunday and, as directed the money was deposited in the Treasury on 17-5-1977. The petitioner, therefore, cannot be held to be a defaulter in regard to this deposit also. The finding of the court below to the contrary is accordingly set aside.
10. So far as the rent for the month of February, 1976 is concerned, it could have been deposited by the 15th March, 1976 as permitted by the Act itself. The Court was closed from 14th to 17th Mar.
and by force of Section 12 of the Bihar and Orissa General Clauses Act, the last date was extended to the 18th March when the money was actually deposited. On behalf of the opposite party, Mr. Agrawal contended that as the Treasury was open on 17-3-1976, the petitioner ought to have deposited the money on that date. True it is that the petitioner having got his chalans passed by the Court on 13-3-1976 could have made the deposit in the Treasury on 17-3-1976, but the question is as to what was the last date available to him in law for making the deposit. It is not disputed that the rent has to be offered to the Court and it is actually deposited in the Treasury under the Court’s direction for its administrative convenience and since the Court was closed on the 17th, the period must be held to have been extended to the, 18th.
Besides, it must be held that in the eye of law, the rent was deposited on the 13th March, 1976, when the same was tendered before the Court along with the chalans. I may repeat that the deposit in the Treasury was made as directed by the Court and it is not suggested that the petitioner had no money with him on 13-3-1976.
11. For the reasons mentioned above, I am of the opinion that the petitioner did not default in making the deposits of the rent for February, 1976, September, 1976 and April, 1977 and his written statement, therefore, could not be lawfully rejected. The court below has struck off the defence without jurisdiction and the impugned order has to be set aside.
12. The civil revision application is accordingly allowed, but in the circumstances, without costs.
K.B.N. Singh, C.J.
13. I agree.