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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 The appellant,  however,   deposited  the  arrears  of  rent  on 9.2.1980 and  that amount  was subsequently withdrawn by the respondent -  landlord.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  It was also averred that since the respondent had withdrawn  the rent  amount, we  had waived her right to complain about  the delayed deposit of rent.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

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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.