An application under Sec. 11-A of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947 is maintainable even if no claim for arrears of rent is made in the plaint and is not barred by limitation if the claim for arrears of rent is within three years of the date of filing of the application.

N.L.Untwalia, J.

1. This is an application in revision by the defendants and is directed from the order dated 23-11-1968 of the Court below, whereby it has directed the petitioners to deposit arrears of rent from August, 1965 at the rate of Rupees 237/50 within 15 days of the date of the order. They were further directed to pay subsequent rent month by month by the 15th day of the following month, failing which their defence as against ejectment was to be struck out. When this revision was admitted on 5-12-1968, further proceedings in the title suit were stayed. If I were to take a very strict view of the matter, the petitioners will find themselves in default. The operation of the order under revision was not staved, what was staved was the further proceedings. Strictly speaking, therefore, the petitioners could be held to be in default for non-compliance with the order of the court below. But then justice requires that such a technically strict view should not be taken and I shall, therefore, while finally dismissing the civil revision, as it has to be dismissed for the reasons to be stated hereinafter, substitute the said order by a new order.

2. The petitioners resisted the claim of the plaintiff opposite parties under Sec.11-A of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947 (hereinafter to be called the Act) on several grounds. They were all overruled by the learned Subordinate Judge, and a direction as stated above, was given to the petitioners. At the time of the hearing of the civil revision application, only two points have been pressed and no other point has been urged. The said points are as follows-

(i) That since no claim of arrears of rent was made in the plaint instituted in the suit, an application under Sec.11-A of the Act was not maintainable.

(ii) That in any view of the matter no direction under Sec.11-A could be made for deposit of arrears of rent for a period which was beyond three years of the date of the filing of the application

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3 In my opinion, there is no substance in either of the points. The maintainability of an application under Sec.11-A of the Act, is not dependent upon the making of a claim for arrears of rent in the suit. Obviously, such an application, even on the argument advanced on behalf of the Petitioners, would lie for a direction to the contesting defendants for deposit of current rent and future rent. The question is, is there anything in the wordings of Sec.11-A of the Act to debar the plaintiffs from tiling an application for claiming arrears of rent in respect of the period prior to the institution of the suit because they have not made any such claim in the suit? In this connection Mr. Prabha Shanker Mishra learned Counsel for the petitioners, made reference to Order 2, Rule 2 of the Code of Civil Procedure. In my opinion, the filing of an application under Sec.11-A of the Act is not hit by the provision of Sub-rule (2) of Rule 2 of Order 2, Civil P.C. because the said sub-rule debars the filing of a subsequent suit. The word used in that sub-rule is sue. It does not debar the filing of an application in the same suit. The conditions which are necessary to be fulfilled for the filing of an application under Sec.11-A, according to the said provision are only the following-

(i) That the suit should be for recovery of possession of any building by a landlord against the tenant.

(ii) That the tenant must contest the suit as regards claim for ejectment.

If these two conditions are fulfilled as they were fulfilled in this case, then the application under Sec.11-A is maintainable. And, the section does not further require that the claim for arrears of rent must have been made in the suit for recovery of possession of the building.

4. The question of limitation has been considered by me in two earlier cases reported in Rishab Sunder Das V/s. Dr. Raghubar Daval, (1960 BLJR 607) and Bholanath Tewari V/s. Kuer Rup Narain Singh Trust, (1967 BLJR 397). Even in rega