LALIT MOHAN SHARMA, J.

1. This second appeal arises out of a suit filed by the plaintiffs-respondents for eviction of the defendant-appellant from a house and for recovery of arrears of rent as detailed in Schedules A and B of the plaint. The suit to which the Bihar Building (Lease Rent and Eviction) Control Act, 1947 (hereinafter referred to as the Act) applied, was filed on 9-8-66 on the grounds covered by Sec.11 of the Act. It was, inter alia, alleged that the rent for the period November, 1964 to July, 1966 at the rate of Rs. 38/- per month was in arrears. The defendant filed a written statement challenging the statements made in the plaint and further claiming set off in respect of certain amount spent over the repairs of the house.

2. On 2-6-1967, the plaintiffs filed an application under Sec.11A of the Act for a direction to the defendant to deposit the rent - past, current and future. In his rejoinder, the defendant claimed certain deductions by way of liability of the plaintiffs towards repairs of the house and averred that the sum of Rs. 493.86p. only was due. However, the trial court by its order dated 28-6-1967 directed the defendant to deposit the entire rent for the period November, 1964 to June, 1967 amounting to Rs. 1178.00. The defendant did not, however, make any deposit and on 20-7-1967 the Court passed an order striking off the defence and directing ex parte hearing of the suit.

3. The suit was taken up for trial accordingly and the defendant was not permitted to lead evidence in support of his defence to the prayer for eviction. On 20-9-1967, a decree was passed in favour of the plaintiffs and the defendant appealed. The lower appellate court allowed the appeal on 16-6-1971 and remanded the matter to the trial court for fresh hearing after giving the defendant an opportunity to cross-examine the plaintiffs witness. The plaintiffs witness was accordingly recalled by the trial court for cross-examination by the defendant, but the defendant was not permitted to lead any evidence in support of his defence. The suit was again decreed on 8-9-1973 and the defendant once more filed an appeal which was dismissed by the lower appellate Court on 28-8-1975. The defendant has now come to this Court in second appeal.

4. It was been contended on behalf of the appellant that the trial court, in view of a Special Bench decision of this Court, had no power to direct the defendant under Sec.11A of the Act to deposit the arrears of rent for the period prior to the institution of the suit and the order in this regard dated 28-6-1967 as well the later order dated 20-7-1967 striking off the defence are entirely without jurisdiction. As a result of these illegal orders, the defendant was wrongly prevented from leading evidence in support of his defence to the eviction and this has resulted in serious prejudice to him. The appeal should, therefore, be allowed and the case sent back for fresh trial.

5. The appeal was initially heard by a learned single Judge who directed the case to be placed before a Division Bench. Before the Division Bench, the respondent relied upon the decision dated 4-7-1978 in the case of Ramnarain Prasad V/s. Seth Sao (S.A. No. 743 of 1974 D.B.) wherein, in similar circumstances, the appellantss point was repelled on the grounds that the defendants had failed to deposit even the rent due for the period subsequent to the institution of the suit and that the question had not been raised and pressed in two courts below. The Bench hearing the present case doubted the correctness of the decision in S.A. No. 748 of 1974 and the appeal has, therefore, been referred to Full Bench.

6. In view of the decision in Ram Nandan Sharma V/s. Maya Devi. (AIR 1975 Pat 288) (FB) it must be held that the trial court had no power to order, under Sec.11A of the Act, for the deposit of the arrears of rent for the period before 9-8-1966, the date of institution of the suit, and this position has not been challenged on behal