HARI LAL AGRAWAL, J.

1. This Civil revision application having been referred to a larger Bench by a Division Bench has been placed before us. The Division Bench has expressed its doubt regarding the correctness of a Bench decision of this Court in the case of Ranchhod Lodha V/s. Madhabji Kanji (AIR 1974 Pat 211).

2. The provision of law falling for our consideration is Sec.11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, which has since already vexed this Court time without number. This time we have to consider the effect of withdrawal of the rent deposited out of time by the landlord on his right to get the defence of the tenant against his ejectment struck off.

3. Before adverting to the question posed before us, I will very briefly state the relevant facts. The opposite party instituted a title suit for eviction of one Md. Ibrahim, the ancestor of the petitioners (who were substituted in the lower appellate Court) from a house in the town of Chapra. The suit having been dismissed by the trial court the opposite party filed the appeal. There on 1-5-1967, an application under Sec. 11A was filed by the opposite party, which was allowed on 10-1-1966. The tenant was directed to deposit the arrears of rent from January, 1966 to April, 1967, amounting to Rs. 1,040.00 at the rate of Rs. 65/- per month and the current and future rents by the 15th day of each succeeding month in accordance with the said provision. Ibrahim deposited the arrears as also the monthly rents up to the month of December, 1969. He, however, died on 10-1-1969 and the petitioners were substituted in his place by an order dated 15-7-1969. They appeared in the appeal on 10-9-1969 after service of the appeal notices and on that very day petitioners Nos. 1 and 2 made an application for permission to deposit the rent for the months of March to August, 1969, which could not be deposited on account of death of the original tenant. This prayer was allowed and accordingly they deposited the rent for the said period and went on depositing the subsequent rents as well. In this case, however, we are concerned with the rent for the months of February, 1970 to October, 1971, which was deposited as under:

TABLE

The landlord withdrew the deposits on the dates indicated in the above chart. He had, however, filed an application on 18-11-1971, i. e., after the first two withdrawals, for striking off the defence of the tenant on the ground that the deposits were made after delay and not in accordance with the law. The petitioners resisted the prayer but the court of appeal below, by its order dated 9-8-1975, allowed the application and struck off the "defence of the substituted respondents against ejectment" on the ground that "they had defaulted seven times in depositing the arrears of rent". The petitioners are challenging this order.

4. When the case was placed before the Division Bench, reliance was placed on behalf of the petitioners on the aforesaid Bench decision of this Court in Ranchhod Lodhas case (AIR 1974 Pat 211) where it was held that the plaintiff-landlord having withdrawn the rent for the period in question, could not make a grievance of the non-compliance of the order under Sec.11A. The Division Bench, however, felt that inasmuch as Sec.11A itself contemplates for withdrawal of rent by the landlord without prejudice to his right to claim decree for ejectment, the withdrawal of the rent should not also prejudice his right to pray before the court for striking off the defence against the ejectment.

5. At the outset I must say that the correctness of the decision in Lodhas case cannot be doubted on the reasoning expressed by the Division Bench and I would do better to deal with this aspect of the matter before I proceed to advert to various other contentions that were raised during the course of hearing of this application. In order to appreciate the points Sec.11A itself may be quoted :

11A. "If in a suit for recovery of possession o