Judgment

GOSWAMI, J.:- This appeal by special leave is directed against the judgment of the Patna High Court in a second appeal arising out of a suit for eviction of the tenant.

2. Two rooms being shop Nos. 17 and 18 of Modi Building in Commissioners Compound, Ranchi, were let out by the plaintiff (respondents herein) on a monthly rental to the defendant (appellant herein). We will describe them as the plaintiff and the defendant. It is common ground that fair rent of Rs. 50/- per month (including water tax) was determined for the two shops by an order of the Rent Controller under Section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the Act) on May 30, 1953. Later on, certain furniture, such as five almirahs and six racks, were also let out by the plaintiff to the defendant on a monthly rental of Rs. 28/-, A suit was instituted by the plaintiff on April 18, 1966, praying for eviction of the defendant on the ground of non-payment of rent of the said two shops and furniture for three months from July to September 1965.

3. The Munsiff, Ranchi dismissed the suit holding that failure to remit rent for furniture along with rent for the two shops did not amount to default under section 11 (1) (d) of the Act. The Munsif also held that there was no valid service of notice under Section 106 of the Transfer of Property Act.

4. On appeal the Second Additional Subordinate Judge, Ranchi, reversed the judgment of the trial Court and decreed the suit for eviction upholding the ground of default. The Subordinate Judge held that the plaintiff was entitled to realise rent at the rate of Rs. 78/- per month which included the rent for furniture and hence remittance by the defendant of Rs. 50/- per month was not a valid discharge of his rental liability and he was a defaulter within the meaning of Sec. 11(1) (d) of the Act. The Subordinate Judge also held that there was no proper service of the notice of eviction. We are not concerned in this appeal with the question of service of notice.

5. Since the Subordinate Judge was the final court of facts, it will be appropriate to note the following findings material for our purpose:

(1) I, therefore, decide that the plaintiff was entitled to realise Rs. 50/- as monthly rent.

(2) In view of the evidence of the parties and Ext. 2 I hold that plaintiff had supplied the furniture detailed in Schedule B of the plaint and rent fixed for the same had been Rs. 28/- per month.

(3) The subsequent supply of furniture and that of sufficient value must be construed as a quite independent contract unconnected with the original tenancy......

6. the defendants second appeal to the High Court failed. The High Court agreed with the first appellate court that the rent for furniture was also lawfully payable under Section 11 (1) (d) and hence the ground of default of payment of Rs. 78/- per month from July to September 1965 was available to the plaintiff.

7. The High Court also gave an additional reason for sustaining the eviction decree. There was an order by the Subordinate Judge in the Course of the appeal under S. 11A of the Act directing the defendant to deposit the rent of the premises at the rate of Rs. 50/- per month in terms of that section. It appears there was some controversy, before the Subordinate Judge as to whether this order under Section 11A was complied with or not by the defendant. The Subordinate Judge, however, repelled the contention of the plaintiff to strike out the defence of the defendant on the ground of non-compliance with the courts order under Section 11A in the following terms:

It was argued on behalf of the appellant (plaintiff) that the defendant had not deposited subsequent rent in spite of direction by the court and so this court had to strike out the defence against ejectment. The defendant had filed the documents to show subsequent deposit in regular way. So this plea of plaintiff fails.

8. A second attempt, and this time successfully, was made in the High Court