SHAMBHU PRASAD SINGH, J.

(1.) This application in revision by the defendant is directed against an order under Section 11-A of the Bihar Buildings (Lease. Rent and Eviction) Control Act, 1947 hereinafter referred to as the Act. The plaintiffs instituted the suit for eviction of the petitioner from the house fully described in Sch. I to the plaint, in the town of Chapra on the allegation that it was let out to the petitioner on a rent of Rs. 90/- per month and he had failed to pay rent from October. 1966 in spite of repeated demands. They also alleged that they needed the house for their personal necessity. The petitioner admitted in his written statement the tenancy and the rate of rent, but contested the suit on the ground that no rent was due from him and the plaintiffs did not require the house for their own use. On an application filed by the plaintiffs under Section 11-A of the Act for direction to the defendant for depositing the rent arrears, current and future, the Court below has passed the impugned order. It has directed the petitioner to deposit entire arrears of rent from October. 1966 up to the date of the institution of the suit at the rate of Rs. 90/- per month amounting to Rs. 2,430/-, within 15 days from the date of its order. It has also directed the petitioner to deposit at the same rate and within the said time all arrears of rent from the date of the institution of the suit till July, 1970 and further to go on depositing the current rent at the rate of Rs. 90/- per month from the month of August. 1970 by the 15th day of the next following month. It has further ordered that in case of default by the petitioner in deposit of the rent as directed, his defence against ejectment would stand struck off.

(2.) Mr. Birendra Prasad Sinha, learned counsel for the petitioner, has contended that though it was stated in the plaint that the petitioner was in arrears and was liable to pay to the plaintiff-landlord, a sum of Rs. 2430/- as rent up to the date of the institution of the suit, but as no decree for rent was claimed in the suit the claim if made in a subsequent suit would be barred under Order 2, Rule 2 of the Code of Civil Procedure and, therefore, not lawfully payable. According to him an order under Section 11-A of the Act for deposit of rent accrued due prior to the institution of this suit cannot be passed in respect of such arrears of rent which has become barred by some law and thus not lawfully payable and in respect whereof no decree could have been passed on the date of the order.

(3.) In Civil Revn. No. 1460 of 1970, (Sashadhar Das v. Harihar Prasad. Judgment has been delivered just now) = (Reported in AIR 1973 Pat 361 [LQ/PatHC/1973/52] ) it has been held by us that arrears of rent accrued due prior to the institution of the suit cannot be ordered to be deposited under Section 11-A of the Act if it is not lawfully payable, i.e. barred by limitation or some other law. In the case of Managing Committee v. Tripurary Cha-ran Palit, 1972 Pat LJR 529 = (AIR 1973 Pat 60 [LQ/PatHC/1972/95] ) it has been held by a learned Single Judge of this Court that the filing of an application under Section 11-A of the Act is not hit by the provisions of Sub-rule (2) of Rule 2 of the Code of Civil Procedure, because the said sub-rule debars the filing of and subsequent suit The observation that Order 2, Rule 2 of the Code debars only the filing of a subsequent suit is undoubtedly correct but as held in Sashadhar Dass case, Civil Revn. No. 1460 of 1970 = (AIR 1973 Pat 361 [LQ/PatHC/1973/52] ) (referred to lust above) the expression arrears of rent in Section 11-A must mean arrears of rent lawfully payable and what cannot be recovered by a suit cannot be said to be lawfully payable. Arrears of rent which is not claimed in a suit in which eviction is claimed on the ground of non-payment of rent cannot be recovered by another suit as it would become barred by Order 2. Rule 2 of the Code of Civil Procedure. Thus, such arrears is not lawfully payable and cannot be ordered to be deposited under Section 11-A of the Act. This Civil Revision, therefore, also must succeed in part

(4.) The Civil Revision is accordingly allowed in part and that part of the order of the Court below by which it has directed deposit of rent which accrued due prior to the institution of the suit is set aside. The petitioner must, however, pay arrears of rent up to March. 1973 accrued due during the pendency of the suit at the rate of Rs. 90/- per month within 15 days of this order. He must also go on depositing rent from April, 1973 month by month by the 15th of the following month. In case of default, his defence against ejectment shall stand struck out. In the circumstances, there will be no order as to costs for this Court.