Order XXIII Rule 1 of the Code of Civil Procedure does not apply to petitions in revision.

Madan Mohan Prasad, J.

1. This application in revision is directed against an order dated the 16th November 1976 passed under section 11-A of the Bihar buildings (lease, Rent and Eviction) Control Act, 1947.

2. It is said that opposite-party nos.1 and 2 (plaintiffs) filed a suit alleging that the house in question belonged to them and defendant first party their interest being 2/3rd and 1/3rd respectively and it had been let out to the petitioner-defendant second party on a monthly rental of Rs.150. the plaintiffs alleged that the defendant second party had not paid rent of the house to them for the period beginning with January, 1972. Accordingly, notice under section 106 of the Transfer of Property Act was served but the tenant did not vacate the premises and for that reason he became a trespasser. Thus on the 27th February 1974 the present suit was filed for eviction of the tenant and a decree for arrears of rent for the period January 1972 to April 1972 and for, damages with effect from May 1972 at the same rate. The plaintiffs, therefore, claimed Rs.400 as their 2/3rd share of the amount of Rs.600 the rental of the aforesaid months and Rs.2100 as their share of the damages of Rs.3,150, for the period May 1972 to January 1974.

3. During the course of the suit, the opposite party filed a petition under section 11-A of the Act praying for an order to deposit the rent and damages amounting to Rs.2,500 as mentioned in the plaint. It was further said that no payment had been made even during the pendency of the suit and thus a sum of Rs.2800 was claimed in that respect. Further prayer was made for deposit of monthly rental month by month.

4. A rejoinder was filed by the petitioner saying that the petition was not maintainable that unless fair rent had been determined, the prayer; could not be allowed that the rental originally being Rs.100 and having been unlawfully increased to Rs, 150 in violation of the provision of section 4 of the Act of the prayer could not be granted and further that the defendant had paid up to April 1976 the arrears of rent at the rate of Rs.50 per month to defendant first party.

5. The learned Subordinate Judge relied upon the admission alleged to have been made by the petitioners Counsel that there was no prohibition in law against the order for deposit of rent due from January 1972. The court below found the rent from Jannary 1972 to be at the rate of Rs.150 per month due. Accordingly it ordered the defendant to deposit rent from January 1972 to October 1976 by the 1st December 1976 and the monthly rental from november 1976 onward by the 15th of the every next month. This order was passed on the 16th November 1976.

6. It appears that against this order the petitioner came up to this Court in its revisional jurisdistion. The application was filed on 8th November 1976 and was numbered as Civil Revision no, 1393 of 1976. It appears next that on the 14th December 1976, the application was placed for admission. It was, however, adjourned to the next date On that date, it appears, Counsel prayed for permission to withdraw the application and such permission was granted. Thereafter it appears that the petitioner filed an application for review of its order before the court below on the 16th December 1976. It was, however, fixed for hearing on 17th January 1977. Not waiting until that date, on the 5th January 1977 itself, the present application in revision was filed and it was admitted on the 6th January 1977.

7. Before I deal with the arguments of the learned Counsel for the petitioner in support of the application. I would like to dispose of the preliminary objection raised by Mr. Mahesh Prasad learned Counsel for the opposite party. He contends that in view of the withdrawal of the earlier application in revision, the present application is not maintainable. In this connection jt has been urged that the withdrawal of the earlier revision application should be deemed to be at par with withdrawal