ORDER
Sachchidanand Jha, J.
1. This revision by the plaintiffs-landlords is directed against an order allowing the defendants-tenants to cross-examine plaintiffs’ witnesses on the point of title and arrears of rent and to adduce evidence on the point of title, in a suit for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’).
2. The suit in question, namely, Title Suit No. 10/84 has been instituted for eviction on the grounds of default and personal necessity as well as for decree of arrears of rent.
3. The defendants have filed a written statement and it appears from the impugned order that besides taking other pleas, they have also claimed independent title in respect of the building in question. Pursuant to an application filed by the plaintiffs on 6-6-1985, the court below passed an order in terms of Section 15 of the Act on 19-7-1985, directing the defendants to deposit arrears of rent as well as current rent. Since the defendants failed to comply with the aforesaid order and make the necessary deposits, on 29-11-1986 the court below on petition filed by the plaintiffs in that behalf directed that the defence against ejectment be struck off. Later, on 12-3-1987, a petition was filed on behalf of the defendants for permission to cross-examine the plaintitls’ witnesses in respect of their claim of title and arrears of rent and also to adduce their own evidence in support of their case of title with respect to the building. The court below by the impugned order has allowed the aforesaid prayer in the manner stated above.
4. Learned counsel appearing on behalf of the petitioners has submitted that the aforementioned orders dated 19-7-1985 and 29-11-1986 having become final, the court below had no jurisdiction to allow the defendants to cross-examine the witnesses or to adduce their own evidence, which not only amounts to review of the earlier orders, but is also contrary to the provisions of Section 15 of the Act. Learned counsel in support of his contention has referred to the last part of Subsection (1) of Section 15 which prohibits the court from allowing the tenant to cross-examine the landlord’s witnesses in the event of failure to deposit the rent in compliance of the court’s order and has placed reliance on a decision of this Court in the case of Sheolal v. Anant Deo Mishra 1987 BBCJ (HC) 217.
5. Section 15 of the Act substantially is a reproduction of the corresponding provision under Section 11A of the 1947 Act; only the words “and further the court shall not allow the tenant to cross-examine the landlord’s witnesses” have been added at the end of Sub-section (1), which was pointedly referred to by learned counsel. Jt is true that the aforesaid clause did not find place in the corresponding provision under the previous Acts, nonetheless it would appear that what has now been sought to be expressly provided by the statute had already been laid down as a judicially evolved principle. The relevant part of Section 11A of the 1947 Act was as follows :–
“…..and the court, after giving an opportunity to the parties to be heard, may …make an order for deposit of rent at such rate as may be determined, month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at any such rate for any month by the 15th day of the next following month, the court shall order the defence against ejectment to be struck out and the tenant be placed in the same position as if he had not defended the claim of ejectment.
6. The aforesaid provision was interpreted by this Court so as to debar defendants from cross-examining the plaintiffs’ witnesses in the event of their failure to make the deposit in terms of the order. The new provision under Section 15 has ony made explicit as a part of the statute what had already been judicially evolved from before. As such, merely because the present statute, vide Section 15. precludes the court from allowing the tenant to cross-examine the landlord’s witnesses does not, in my opinion, make any material change in the legal position.
7. The moot question for consideration is whether on the facts of the case, when the defendants are claiming title in themselves and also resisting the plaintiffs’ claim of arrears of rent, as a consequence of non-deposit of the rent under Section 15, they can be prohibited from cross-examining the plain tiffs’ witnesses on the point of title and to adduce their own evidence in that regard.
8. Without referring to the catena of cases on the point, it would be sufficient to refer to a Full Bench decision of this Court in the case of Mahabir Ram v. Sheva Shankar Prasad AIR 1968 Patna 415 in which the aforesaid controversy had fallen for consideration and it was authoritatively stated :–
” The moment a defendant in such a suit takes the defence that he is not a tenant of the plaintiff landlord and no relationship of landlord and tenant was ever created, the position is that such a defence is taken by him not in the capacity of a tenant. His defence may be that he himself was the owner of the house or that a third party was an owner, but all the same this defence is not a defence qua tenant of the plaintiff. In such a case even on the striking out of his defence against ejectment he cannot be debarred from cross-examining the plaintiffs’ witnesses on the question of title or adducing his own evidence to prove either his title or that of a third party to the house in question.”
9. The question as to whether on the point of plaintiffs’ claim for arrears of rent also the defendants an be allowed to cross-examine the witnesses and to adduce their own evidence, has also been considered and decided in the same very case of Mahabir Ram (AIR 1968 Patna 515) (FB) (supra) wherein it has been stated :-
“In view of the observations, quoted above, there can be no doubt that even after striking out of the defence against ejectment, it is open to the defendant (tenant) to establish at the hearing of a suit that in fact rent was not in arrears provided the suit is for the realisation of arrears of rent also.”
The judgment rendered in the case of Sheolal (1987 BBCJ (HC) 217 (supra) relied upon by learned counsel for the petitioners also does not support his contention, In that case, it was stated :-
“I do not, however, propose to predicate any further because even assuming that the defence qua eviction was rightly struck out, since the suit is also one for arrears of rent the defendant could cross-examine the witnesses to show that the he had not been in any arrears of rent on the plaintiffs’ failing to prove that there had been default in payment of two months’ rent as envisaged by Section 1 l(l)(d) of the Act the suit could fail.”
10. In view of the aforesaid authoritative precedents of this Court, it is not possible to agree with the contentions advanced on behalf of the petitioners and consequently it has to be held that the impugned order is in accordance with law. However, before I part, I would like to remind the court while permitting the defendants to cross-examine the witnesses on the points indicated about to bear in mind the following observations of the Full Bench in (he case of Mahabir Ram (AIR 1963 Fatna 415) (supra):–
“In most of the suits of such a nature, the defendant takes up the plea that he was not a tenant of the plaintiff and that the plaintiff had no title to the building in question. If the contentions of Mr. J.C. Sinha were to be accepted, then the mere denial of the relationship of landlord and tenant would make the provisions of Section 11A nugatory and the jurisdiction of the court to pass an order that section would be ousted. Such interpretation of the provisions of Section 11A cannot be accepted, and, in my opinion, the correct procedure for a court to adopt would be that it should tentatively examine the materials available on the record and determine whether the denial of relationship of landlord and tenant by the defendant or a dispute raised by him with regard to the title of the plaintiff was bona fide or a mere pretence and without any merit. If the court finds that the said denial is merely for the sake of denial and that there was no substance in that denial, the court should proceed to make an order for deposit of rent if the other conditions laid down in that section are fulfilled.
11. The revision application is, accordingly, devoid of any merit and is dismissed but without any order to costs.