Withdrawal of rent by the plaintiff after an order under Sec.11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, waives the plaintiff's right to complain about non-compliance of the order.

1. This application has been filed by the tenant-defendant of Title Suit No. 156 of 1967. The application is directed against an order, dated the 23rd December 1970, by which the defence of the defendant has been struck off.

2. The plaintiff-opposite party instituted the suit in question for the eviction of the defendant from a portion of Holding No. 73, Ward No. 15 of Dhanbad Municipality on the ground of default in payment of rent, breach of condition of tenancy and for personal necessity. By order, dated the 10th July 1968 passed under Sec.11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947), the trial Court passed an order for deposit of arrears of rent for November 1966 to June 1968 and for deposit of rent thereafter. It is stated, that, the arrears were deposited in time and for rent for the months of January to April 1970 a Chalan was passed on the 14th February 1970 for Rs. 120/-. The money was, however, deposited on the 19th February. Then, the suit itself stood dismissed for default by order dated the 10th March 1970. The plaintiff had filed an application for restoring the suit to its original file and on the 29th August 1970 a conditional order of restoration was passed and the actual restoration was made on the 8th September 1970. It appears, that, in the meantime, on the 10th June 1970, the plaintiff had withdrawn the rent for January to April 1970, deposited on the 19th February. Then, the Chalan for rent for the months of May to October, 1970 was passed on the 15th September 1970 but the money was actually deposited on the 18th September. On the 18th November 1970, the plaintiff filed an application before the trial Court, stating, that, the defendant was directed to deposit the current rent by the 15th of the subsequent month and as the defendant has failed to do so. the defence may be struck off. It is on this application that the impugned order was passed on the 23rd December 1970.

3. The learned counsel for the petitioner has submitted, that, when the plaintiff had withdrawn the rent for the months of January to April 1970, his grievance that the rent for these months was not deposited, strictly in terms of the order passed on the 10th July 1968, should not have been allowed to succeed. It is further, contended, that, so far as rent for the months of May to October 1970, deposited on the 18th September 1970, was concerned, no breach of the order dated the 10th July 1968 could have been committed by the defendant and the order for striking off the defence has been passed irregularly. The learned counsel for the plaintiff-opposite party has contended, that, the withdrawal of the rent for the months of January to April 1970, after the suit was dismissed for default, did not affect the plaintiffs right to complain, that, the order dated the 10th July 1968 was not followed with respect to the rent for these months. On the question of rent for the months of May to October 1970, it is argued, that, there has been a contravention of Sec.11-A of the Act and, therefore, the defence has been rightly struck off. We would consider the two points raised by the learned counsel for the parties separately.

4. So far as rent for the months of January to April 1970 was concerned, we are of opinion, that, the plaintiff could not have made a greivance of non-compliance of the order, dated the 10th July 1968, after withdrawing the rent for these months. Learned counsel for the opposite party has referred to two decisions, one. in the case of Mahamood Hassan V/s. Parsutam Pande, reported in 1964 BLJR 24 and another, in the case of Mangilal V/s. Sugan Chand, reported in AIR 1965 SC 101. Neither of these decisions assists the learned counsel for the plaintiff opposite party in the contention raised on this point. We are not determining the point as to whether the plaintiffs suit should be dismissed or not, as he has accepted the rent for January to April 1970, so that he can be met