Judgment

UNTWALIA, J.: - This appeal by the plaintiffs filed by special leave of this Court against the defendant respondent arises out of a suit for eviction instituted by the former against the latter from the suit premises situated in the town of Patna. According to the case of the plaintiffs the defendant had been inducted as a monthly tenant of the premises on a rent of Rs. 135/- per month. Subsequently, as a result of a decree in a Partition Suit between the plaintiffs and their cosharers the property was allotted to the farmer and they became the absolute owners thereof. Plaintiffs wanted to evict the defendant on the ground of non-payment of rent, breach of the conditions of the tenancy and on account of their bona fide personal requirements of the suit premises. The defendant in his defence took the plea that he was not the tenant of the premises, the tenant was Liberty and Co. and that the plaintiffs were not the absolute owners thereof, as the decree for partition had been set aside in a first appeal filed in the Patna High Court, there were others who also were the landlords. Some other pleas were also raised to resist the suit for eviction.

2. The suit was instituted on 27-9-1962. On 18-12-1963 the plaintiffs filed a petition under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 - hereinafter called the Act - for directing the defendant to pay the arrears of rent as also the current and future rent. The defendant resisted the claim of the plaintiffs under Section 11-A of the Act on the ground that besides them there were other landlords of the building in question. But an order under Section 11-A of the Act was made against the defendant by the Trial Court on 6-2-1964. To safeguard the interest of the defendant the Court directed that the plaintiffs would not withdraw the amounts deposited in pursuance of the order made under Section 11-A of the Act until the disposal of the suit. The defendant defaulted in compliance with the order. Hence his defence as against ejectment was struck out by an order of the Trial Court made on 8-7-1964. The suit was eventually taken up for ex parte hearing on 1-7-1967. The defendant wanted to obstruct the hearing of the suit proceeding ex parte but failed.

3. At the ex parte hearing plaintiff No. 3 was examined as plaintiffs witness No. 1. He supported their case in toto including their claim that they were the absolute owners of the building of which the defendant was the tenant. The Munsif, third Court, Patna believed the evidence adduced on behalf of the plaintiffs and passed an ex parte decree directing eviction of the defendant. The latter went up in appeal which was dismissed by Subordinate Judge, First Court, Patna on 21-4-1969. All arguments raised on behalf of the defendant appellant to challenge the ex parte decree failed. He preferred second appeal No. 262/1969 in the High Court of judicature at Patna. A learned Judge of that Court sitting singly allowed the appeal and remitted the case back to the Trial Court for a fresh trial and decision after allowing opportunity to the parties to adduce their evidence in the light of the judgment of the High Court. The plaintiff s appellants challenge the propriety and legality of the High Court judgment passed in the second appeal.

4. The High Court rejected some of the contentions raised on behalf of the defendant to challenge the legality of the order made under Section 11-A of the Act as also the order striking out his defence as against ejectment. But it has taken the view following the Full Bench decision of the Patna High Court in the case of Mahabir Ram v. Shiva Shankar Prasad, AIR 1968 Pat 415 (FB) that since the defendant had not admitted the plaintiffs to be his 16 annas landlord there was a denial of relationship of landlord and tenant between the parties and as such the order striking out the defence as against ejectment of the defendant qua tenant could not prevent him from contesting the s