An application under Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, is maintainable only after the filing of a written statement by the defendant contesting the claim for ejectment.

Tarkeshwar Nath, J.

1. This application by defendant No. 1 is directed against an order passed under Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, directing him and opposite party Nos. 2 and 3 to deposit a sum of Rs. 6,300/- as arrears of rent within a month and the current rent at the rate of Rs. 350/- per month by the first week of every month.

1.

2. Opposite party No. 1 (Plaintiff) filed a Title Suit No. 27 of 1968 on 29-2-1968 for the eviction of the petitioner and opposite party Nos. 2 and 3. On 20-4-1968 the plaintiff filed an application under Section 11A of the said Act for a direction to the defendants to deposit the arrears of rent and currentrent. None of the defendant had filed any written statement till that date (20-4-1968). Defendant No. 1 (the petitioner) filed a rejoinder on 26-4-1968 asserting that the said petition under Section 11A was premature inasmuch as he (defendant No. 1) had not even filed a written statement at that stage. He further contested the application, on other grounds, but it is not necessary to refer to those grounds. The learned Subordinate Judge passed an order directing the defendants to make the deposit as stated above and hence defendant No. 1 has filed this application in revision.

3. Learned Counsel for the petitioner submitted that the application under Section 11A of the aforesaid Act was extremely premature and not maintainable as there was nothing to show that the petitioner had contested the claim for ejectment till the 20th of April, 1968 when the said application was filed. The point raised by learned Counsel is interesting. His contention was that a written statement not having been filed till the 20th of April, 1968, no defence at all was known to the trial court and it could not be said at that stage that there was any contest with regard to the claim made by the plaintiff for ejectment. He further pressed that no defence having been taken till that time the court could not possibly strike out any defence against ejectment in the event of the default by the defendant in making the said deposit. In answer to this, learned Counsel for opposite party No. 1 (plaintiff) submitted that the petitioner had filed an application showing cause when the plaintiff sought to attach his properties before judgment by filing an application under Order XXVIII, Rule 5 of the Code of Civil Procedure and the statements made in that show cause petition indicated that the petitioner had contested the plaintiffs suit.

4. In order to appreciate the respective contentions, it is essential to mention certain dates. As already indicated, the suit was filed on 29-2-1968. On 29-3-1968 the plaintiff filed an application for attachment of certain properties before judgment in accordance with the provisions of Order XXXVIII of the Code of Civil Procedure. A notice of that application was issued and then defendant No. 1 appeared on 3-4-1968 and filed a petition showing cause in that matter. He stated in paragraph 11 that the order fixing fair rent at the rate of Rs. 350/- per month was illegal and the plaintiff had made a prayer for attachment before judgment only with a view to vex and harass him (defendant No. 1) inasmuch as the fixation of rent itself was invalid. On this basis, learned Counsel for opposite party No. 1 contended that there was sufficient material before the court for indicating that the suit was contested by defendant No. 1.

5. The question for consideration is as to how the court can come to a conclusion that the claim for ejectment was being contested in the suit instituted by the plaintiff landlord. On the facts of the present case, it is quite clear that a written statement had not been filed by any of the defendants till the 20th April, 1968. In other words, their defence, if any, had not been disclosed in the trial court till the 20th April, 1968, when the petition under Section 11A was filed by the plaintiff. Order VIII, Rule 1 of the Co