Prabha Shankar Mishra, J.

1. The landlord appellant who has sought eviction of the defendant-respondent from a building let out to him on rent has appealed. Although at the hearing of the appeal under Order 41, Rule 11 of the Code of Civil Procedure the only question of law framed was whether the court of appeal below has committed error of law in reversing the finding of the trial court on the question of arrears of rent and personal necessity in so far as the default and eviction of the respondent is concerned, when the defence stood struck out for non-compliance with the order of depositing arrears of rent Under Sec.11-A of the Bihar Building (lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act) and the learned Counsel for the appellant has confined the hearing of the appeal to the question of default only he has broaden the issue by adding certain ancillary and consequential contentions. He has, accordingly canvassed before me that (1) on the defence of the defendant tenant having been struck out any plea qua eviction on his behalf is not entertainable; the court of appeal below has committed error of law in holding that the order Under Sec.1-A of the Act was illegal and without jurisdiction and so the tenant cannot be denied his defence qua eviction for the reason that he defaulted in depositing rent as directed by the trial court (2) the orders striking out the defence having striken the tenant, he in no case could resist eviction even by suggesting that he was not in arrears of rent and the requirement of Sec.11 (1)(d) of the Act are not complied with (3) the court of appeal below lias reversed the finding of the trial court on the question of default without either considering the materials and evidence which were led before the trial court or without meeting the reasonings adopted by the trial court to hold that the tenant had defaulted in paying rent to the landlord (4) the tenant having admittedly defaulted in depositing rent during the pendency of the trial and thereafter during the pendency of the appeal in the court below and appeal in this Court, has evidently incurred the disability and become liable for eviction. Although, as I have already noticed, the question framed at the time of hearing of the appeal under Order 41, Rule 11 of the Code of Civil Procedure is not that elastic to admit into it all that is sought to be canvassed by the learned Counsel appearing for the appellant since he has sought permission to raise these questions which were not considered at that stage and prayed to invoke the Courts jurisdiction preserved by the proviso to Section 100(5) of the Code of Civil Procedure, I have heard the parties on all these aspects.

2. In Zafar Alam V/s. Md. Nizam and Ors. 1986 P.L.J.R. 333. a Division Bench of this Court has expressed that the court hearing appeal has to confine itself to substantial question so formulated at the time of admission and only in rare cases where substantial question of law is so patent on the face of record and grave injustice is likely to follow that resort to the proviso to Sec.100 (5) should be taken. The amendment which has given the present shape to Section 100 including the proviso to Sub-section 5 thereof has come as a result of various considerations and recommendations including the report of the Law Commission (54th report at page 17-87. The Law Commission was of the view that there should be stricter and better scrutiny and instead of appeal as a right on any substantial question of law, should be subject to special leave. The legislature, however, thought it better to preserve the Courts descretion to hear the appeal, but placed injunction to keep the hearing confined to the question formulated by it at the hearing of the appeal under Order 41, Rule 11. The proviso to Sec.100 of Sub-section 5, has, however, been kept as the repository of judicial discretion for reasons to be recorded; the power although not unbridled, ye