PETITIONER: M/S. INTER STATE TRANSPORT AGENCY Vs. RESPONDENT: BIBI HABIBA KHATOON (DEAD) BY L. RS. DATE OF JUDGMENT: 24/03/1998 BENCH: A.S. ANAND, S.P. BHARUCHA ACT: HEADNOTE: JUDGMENT:
O R D E R
The respondent instituted Title Suit No.6 of 1974 for
eviction of the 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 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9.2.1980 and that amount was subsequently withdrawn by the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 appeal was pending
in the High Court, the respondent instituted Title Suit No.
100 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 direction of the High Court to deposit the
rent mad eon 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 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 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had withdrawn the rent amount, we had waived her right to
complain about the delayed deposit of rent. The trial court
decreed title suit No. 100 of 1980 on 29.3.1985. 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.
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 matter or cause in which the direction was
made. For non-compliance of the direction in the second
appeal, recourse could not be had to seeking ejectment under
Section 11 of the Act. Delay in the deposit of trend 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 under Section 11 of the Act and those available
for non-compliance with the directions under Section 15 of
the Act. The courts below ought to have held 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. 100 of 1980
shall stand dismissed. No costs.