1. This application in revision under Section 115 of the CPC has been filed by the defendant against an order passed on the application under Section 11-A of the Bihar Buildings (Lease. Rent and Eviction) Control Act, 1947 (hereinafter referred to as the Act) of the plaintiff directing the petitioner to pay arrears of rent from Baisakh 1373 B.S to Bhado 1376 B.S within 15 days from the date of the order at the rate of Rs. 77/- per month. The court below further directed the petitioner to deposit the rent for Asin 1376 B.S and following months by 15th of the succeeding month. In case of default, either in payment of arrears of rent or of the current or future rent as directed, the defence regarding the eviction was to be struck off. Eviction in the suit was claimed on the ground of non-payment of rent as also for sub-letting a portion of the premises to defendant No. 2 opposite party No. 2. According to the case of the plaintiff, the petitioner was a month to month tenant of holding No. 16, ward No. 6 of Deoghar Municipality on a monthly rental of Rs. 77/-. He had defaulted in payment of rent from Baisakh 1373 B.S to Shrawan 1374 B.S A decree for arrears of rent for this period of 16 months was also claimed.

2. The case of the petitioner in his written statement was that the plaintiff was not the sole owner of the holding in question; rather, it belonged to one Mahabir Prasad Sah who had inducted Nagendra Nath Patra in this holding on a rental of Rs. 31/- per month. Nagendra Nath Patra who was doing business assigned the same to the petitioner who was his nephew. After the death of Mahabir Prasad Sab, the plaintiff and his brothers enhanced the rent to Rs. 35/- per month from 1347 B.S In 1357 B.S It was further enhanced to Rs. 60/- per month and then to Rs. 72/- per month in 1357 B.S and ultimately it was illegally enhanced to Rs. 77/- per month. The entire rent from Baisakh 1373 B.S to Chaitra 1374 B.S was paid to the plaintiff in 1967. The rent for Baisakh. Jeth and Asadh of 1374 B.S was tendered by the defendant to the plaintiffs but the latter refused to accept the same.

3. The court below has disbelieved the petitioner's case of payment of rent from Baisakh 1373 B.S to Chaitra 1374 B.S Mr. S.C Ghose learned counsel appearing for the petitioner, has raised the following points:

(i) The learned Subordinate Judge acted with material irregularity in directing the petitioner to deposit under Section 11-A of the Act rent at Rs. 77/- per month, the enhanced rate.

(ii) The learned Subordinate Judge was in error in directing the petitioner to deposit rent from Bhado 1374 B.S to Bhado 1376 B.S when the plaintiffs had not claimed the amount of rent in the plaint.

4. I propose to take up first the second contention of Mr. Ghose. Obviously there is no substance in it A decree for rent from Baisakh 1373 B.S to Shrawan 1374 B.S which had fallen in arrears with the petitioner before filing of the suit was claimed in it Rent which fell due after the institution of the suit could not have been claimed in that suit. A claim in respect of rent accruing due during the pendency of the suit had not become barred by limitation or any other law on the date of the impugned order which it appears, was passed with in three years of the institution of the suit. The petitioner cannot, therefore, successfully contend that the court below has committed any error in directing the petitioner to deposit rent for the period of the pendency of the suit.

5. The next and the only other question which arises for consideration in the case is whether the order of the court below directing the petitioner to deposit rent at the rate of Rs. 77/- per month which, according to him is enhanced rent, suffers from an error of jurisdiction and can be set aside. Section 11-A reads as follows:

“If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent if any; and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant.”

6. According to Mr. Ghose the Court below has misdirected itself in observing that in an application under Section 11-A of the Act, it has to determine only the last rent paid by the tenant. He submits that no doubt a landlord while applying under that section has to mention in the application the last rent paid by the tenant, but the section does not lay down that the Court would direct that tenant to deposit the arrears of rent at that rate. He urges that Section 11-A of the Act enjoins on the Court to determine the rate of rent at which a tenant would be directed to deposit month by month as also the arrears of rent in other words, according to him. Section 11-A does not preclude a Court where an application under that section is made to determine the rent to be deposited by the tenant at the rate other than the rate at which it was last paid. In support of his submission, he has also placed reliance on Section 4 of the Act which is as follows:

“Notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in the rent which is payable for the time being. In respect of any building except in accordance with the provisions of this Act”

7. He contends that in view of Section 4, the landlord can never claim rent which is increased otherwise than in accordance with the provisions of the Act which are contained in Sections 5, 6 and 7 of the Act as an increase in the rent by an agreement between the landlord and tenant is illegal. According to Mr. Ghose therefore, we should read the word “lawfully” before the words “last paid” in Section 11-A for “lawfully” has been used in S. 11(1)(d) of the Act and that if a tenant cannot be evicted for default in payment of rent which is not lawfully payable, he cannot be asked to deposit, in a suit for eviction, rent which is not lawfully payable under Sec. 11-A of the Act.

8. On the other hand, Mr. Kailash Roy learned counsel for plaintiff-opposite party has contended that even if two interpretations of S. 11-A of the Act are possible, one as contended by Mr. Ghose and another as given by the Court below which is supported by a Bench decision of this Court in S.M Khalil v. A. Sitaram, AIR 1958 Pat 103 the Court below cannot be said to have committed any error of jurisdiction within the meaning of Section 115 of the CPC and the Court cannot set aside that order in exercise of revisional jurisdiction. Mr. Roy has further submitted that the decision is binding upon us. In S.M Khalil's case, it has been held that the Court is not required to go into the question of fair rent on an application under Section 11-A of the Act and the only enquiry which the Court should make is as to what was the rent which was last paid by the tenant and what was the quantum of arrears of rent according to the rate of rent which was actually paid last in Mahabir Ram v. Shiva Shanker Prasad, AIR 1968 Pat 415 (FB), Tarkeshwar Nath, J. laid down the procedure which a Court has to adopt on an application under Section 11-A of the Act as follows:

“(a) In case the defendant denies the relationship of landlord and tenant between the plaintiff and himself, the Court has to examine the materials then available and come to a conclusion whether the said denial or a dispute as to the title of the plaintiff was bona fide or a mere pretence; and in case there is no prima facie merit in the said denial, the defendant can be called upon to make the deposit if other conditions are fulfilled.

(b) The Court has to determine as to what was the rate of rent last paid and as to what amount of rent was in arrear. If any? The order passed in this connection is subject to variation, inasmuch as the House Controller may determine during the pendency of the suit that the fair rent of the house is somewhat different.

The orders passed at the stage of the said application under Section 11-A are subject to the final decision on the very same questions in the suit.”

9. Mr. Ghose has submitted that the Full Bench does not approve of the decision in S.M Khalil's case, and, therefore, the Bench decision is not binding on us. He has placed reliance on an unreported Bench decision of the Court in Nayan Chandra Das v. Smt. Bani Bose, Civil Revision No. 686 of 1969, Judgment dated 23-12-1969 (Pat) wherein it has been observed that it is not mandatory for the Court to make an order for deposit of rent, but if the Court decides to make an order on the tenant to deposit month by month rent as also the arrears of rent, if any, it must be fair rent, if any determined by the House Controller under the provisions of the Act. He has submitted that this decision supports his contention that Section 11-A of the Act has to be read subject to other provisions of the Act and therefore, under that section rent cannot be ordered to be deposited at the rate it was last paid if it was unlawful and against the provisions of the Act.

10. In my opinion. Mr. Ghose is right in his submission. In case of conflict between Section 11-A and Section 4, even if it be assumed that under Section 11-A rent has to be deposited at the rate it was last paid. Section 4 must prevail for it starts with the expression “Notwithstanding anything contained in any agreement or law to the contrary” which is not there in Section 11-A. No doubt in S.M Khalil's case, AIR 1958 Pat 103 it has been held by a Bench of this Court that Court is not required to go into the question of fair rent on an application under Sec. 11-A of the Act and the only enquiry which the Court should make is as to what was the rent which was last paid by the tenant and what was the quantum of arrears of rent according to the rate of rent which was actually paid last but in my opinion, in view of the Full Bench decision in Mahabir Ram's case, AIR 1968 Pat 415 (FB) the decision in S.M Khalil's case so far as it says that the Court under Sec. 11-A must order payment of rent, arrears or current, at the rate which was actually paid last is no longer good law.

11. As pointed out it has been held in Mahabir Ram's case that if the fair rent is determined by the House Controller and rate of rent at which it was last paid is varied on that account, the deposit is to be ordered according to the rate of rent determined by the Controller. Rather, the Full Bench decision in Mahabir Ram's case and Bench decision in Nayan Chandra Das's case. Civil Revn. No. 686 of 1969. D/- 23-12-1969 (Pat) which is in line with the Full Bench decision are binding upon us. It is manifest from these decisions that Section 11-A is not to be read independent of other provisions of the Act, but it is to be read with them and subject to them. In my opinion, therefore on an application under Section 11-A rent cannot be ordered to be deposited at a rent which is unlawful on account of the provision of Section 4 of Act. In order to determine whether the rent at the rate it was actually paid last was contrary to the provisions of Section 4 or not an inquiry has to be made by the Court below on the basis of materials made available to it in my opinion, therefore, the Court below has failed to exercise jurisdiction vested in it by refusing to go into the question whether the rate of rent of Rs. 77/- per month at which it was actually paid last was lawfully payable or not in view of the provisions of Section 4 of the Act. In the result, the application is allowed, the order of the Court below is set aside and the case is remanded to the Court below for disposal of the application under Section 11-A of the Act in the light of the observations made above and in accordance with law. In the circumstances, parties are directed to bear their own costs of this Court.

Mukharji, J.:— I agree.

12. Petition allowed.