S.B. Sinha, J.

1. This civil revision application involves an interesting question of law with regard to the interpretation of second part of Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter to be referred to the said Act).

2. Shorn of all unnecessary details the fact of the matter is as follows:

The plaintiff-opposite party filed a suit for eviction as against the defendant-petitioner in the court of Munsif 2nd Court, Kishanganj, which was registered as Eviction Suit No. 2 of 1983.

3. The defendant petitioner filed a written statement contesting the claim of the plaintiff-opposite party in the 8aid suit for eviction.

4. On 28.3.1985 the plaintiff-opposite-party filed an application in terms of Section 15 of the said Act for a direction that the defendant be asked to deposit the arrears of rent as well as current and future monthly rent. By an order, dated 20th March, 1987 the said application was allowed and the defendant was directed to deposits before the learned Court below a sum of Rs. 1260 towards arrears of rent. In the said order the trial court observed that although the defendant has challenged the title of the plaintiff with regard to the suit premises; but as he himself admitted to be a tenant o a 3rd party and not under the plaintiff; the plaintiff would not be entitled to withdraw the amount in deposit. A copy of the said order, dated 20th March, 1987 is contained in Annexure-1 to the civil revision application.

5. The defendant-petitioner admittedly did not deposit the said amount as a result whereof his defence was directed to be struck-off by an order, dated 8.3.1987. By the said order the defendant-petitioner was debarred from cross-examining the witnesses of the plaintiff even with regard to her title and was also debarred from examining any witness in support of his own title.

6. In this case a counter-affidavit has been filed on behalf of the plaintiff opposite party. In the said counter-affidavit the plaintiff opposite party inter alia, stated that she had title in respect of the property in question.

It has further been mentioned therein that the trial court in its order, dated 20th March, 1987 directed the defendant-petitioner to deposit the arrears of rent and further directed him to go on depositing the current and the further monthly rental at the rate claimed by the plaintiff-opposite party by 15th day of each month succeeding to the English calendar month.

It further appears that the defendant petitioner was given several opportunities to comply with the aforementioned order, dated 20th March, 1987 and by an order, dated 21.4.1987 the trial court directed the defendant-petitioner to comply with the said order by 28.4.1987.

It appears that plaintiff-opposite party his examined several witnesses with regard to her title in respect of the suit premises.

7. Mr. Uma Kant Shukla, the learned Counsel appearing on behalf of the petitioner submitted that upon a proper construction of Section 15 of the said Act it would be evidence that the power of the court to strike-off the defendant of a tenant is confined to such defences which are raised by him as a tenant and not otherwise. In this connection the learned Counsel has placed strong reliance upon a Full Bench decision of this Court reported in Muhabir Ram v. Shanker Prasad and Ors.

8. On the other hand, Mr. Subhro Sanyal, the learned Counsel appearing on behalf of the opposite party submitted that the aforesaid Full Bench decision was rendered while Section 11-A of the Bihar Buldings (Lease, Rent and Eviction) Control Act, 1947 was in force and the said provision being not in pari material with Section 15 of the said Act, the said decision is not applicable to the facts and circumstances of this case.

9. According to Mr. Sanyal, the legislature while enacting Section 15 of thein its wisdom having specifically inserted the words "and further the Court shall not allow the tenant to cross-examine the landlords witnesses" clearly put an embargo upon the right of the tenant to cross-examine the witnesses examined on behalf of the land-lord on all questions including the question of title of the landlord and/or existence of relationship of landlord and tenant by and between the plaintiff and the defendant.

Learned Counsel, in this connection, has drawn my attention to the observation made in a recent decision of a learned single judge of this Court reported in 1986 PLJR 1144 Sheo Lal v. Anantdeo Mishra.

10. However, it may be mentioned that in Sheo Lals case (supra) the learned Judge has not decided the effect of Section 15 of the said Act, which would be evidence from the following observations:

But effect of the injunction is yet to be considered in an appropriate case. The instant case is one which has to be decided as if the old Act is still in force.

11. Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 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 patties 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 any 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 defendant 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 the suit and such other compensation as may be determined by it from the tenant.

12. Section 15 of the said Act reads as follows:

Deposit of rent by tenants in suits for ejectment.--(1) If, m a suit for recovery of possession of any building, the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also, subject to the law of limitation, the arrears of rent, if any, and the court after giving opportunity to the parties to be heard may make any order for deposit of rent month by month at a such rate as may be determined and the arrears of rent, both of before and after the institution of the suit 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-off and the tenant to be placed in the same position as if be had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlords witnesses.

(2) ** ** **

(3) ** ** **

13. From a perusal of the aforementioned provision, it is evident that the legislature in its wisdom while enacting the said Act introduced in Section 15 thereof some new words which does not occur in the earlier provisions concerning similar matters, namely Section 11-A of the Bihar Buildings (lease, Rent and Eviction) Control Act, 1947 and Section 13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977.

14. The question, which, therefore, arises for consideration in this case is as to whether in spite of changes brought out by the legislature in Section 15 of the New Act, the court while striking off the defence of a tenant can also debar him from cross-examining the witnesses examined on behalf of the plaintiff with regard to his defence other than his defences as a tenant.

15. Section 15 of the said Act and the corresponding provisions occurring in the earlier Acts namely, Section 11-A of 1947 Act and Section 13 of the 1977 Act are beneficient provisions so far as landlords are concerned.

However, there cannot be any doubt that the said Act itself seeks to protect the tenants, under the general law a landlord is entitled to evict the tenant at his sweet-will and the only requirement in respect thereof was to serve a notice upon him in terms of Section 106 of the Transfer of Property Act.

16. By reason of the rent control legislations, an embargo has been put on such an unfettered right of the landlords.

17. From a perusal of the said Act it would be absolutely clear that the scheme thereof is to protect a tenant. The very fact that in terms of Section 11 of the said Act a protection has been accorded to a tenant to the effect that he shall not be liable 11 be evicted from a tenanted premises except in execution of a decree passed by the court on one or more of the ground enumerated therein, clearly goes to show that unless one or the other grounds, as mentioned in the said provision is are available. The landlord cannot evict a tenant from the tenanted premise. It, therefore, necessarily follows that the provisions of the said Act will apply only where there exists a relationship of landlord and tenant.

Once a question arises as to whether the plaintiff has title in respect of the premises in question are not and in the event of failure on the part of the plaintiff to prove the relationship of landlord and tenant existing by and between the plaintiff and the defendant, the only course kit open to him is to file a suit for declaration of his right title an interest and pray a decree for recovery of possession if the suit premises in payment of ad valorem court-fees. Even in a case where the relationship of plaintiff and defendant is that of a licensor and the licencee the provisions of the said Act would have no application.

18. It may, however, be noticed that by reason of judicial pronouncement of this Court, a court while deciding the matter against a tenant may grant decree of eviction on the basis of general title of the plaintiff, if the plaintiff, pays ad valorem court fee on the valuation of the suit premises, although he has not been able to prove the relationship of landlord and tenant Such a course, however, must be held to be an exception to the general rule and not the rule itself.

In a suit for eviction where there is no dispute with respect to the relationship of landlord and tenant or in a case where the plaintiff has been able to prove the relationship of landlord by and between himself and the defendant the amount of court fee payable is to be calculated on the basis of 12 months rent ant1 in such a case court fee payable is not the ad valorem court-fee on market value of the premises in question.

19. There cannot therefore, be any doubt whatsoever that a suit in which a decree is sought fur by the plaintiff on the ground that the defendant should be evicted from the tenanted premises he must not only prove one or the other ground enumerated in various clauses contained in Section 11(1) of the said Act; but has also to prove the relationship of landlord and tenant.

20. It is, however, true that even in a suit which is within the purview of the provisions of the said Act, a landlord in spite of the tenants denial of the relationship of landlord and tenant, may prove such a relationship and contend that such a defence is not bona fide and/or a mere pretence and in fact there exists such a relationship.

21. It Is also well settled that once such a relationship is admitted or established a tenant would be estopped and precluded from challenging the title of the landlord and if he does so, under the general law, makes himself liable for eviction on that ground alone.

22. It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore, the plaintiff on payment of ad valorem court-fee may obtain a decree for eviction on the basis of his general title.

In this background the provisions contained in second part of Section 13 of the said Act should be viewed.

23. In Nagina Ram v. Bishwanath Prasad Khemani reported in a Division Bench of this Court held that a defence is liable to be struck-off in terms of Section 11-A of 1947 Act in the same manner, which is done in terms of Order XI, Rule 21 of the Code of Civil Procedure.

24. However, in view of the persistent controversy in the matter and in spite of the decision reported in Chaturbhuj Mistry and Ors. v. Jagan Ram, the matter was referred to a Full Bench. The decision of the Full Bench is reported in 1968 BLJR 447 Mahabir Ram v. Sheo Shankar Prasad and Ors.

25. In Full Bench in Mahabir Rams case (supra) expressly overruled Chaturbhuj Mistrys case (supra) wherein it was held that while a defence in regard to the ejectment was struck out, the same would include defendants plea against the plaintiffs title and his claim title in himself. In Mahabir Rams case (supra) the Full Bench specifically considered this aspect of the matter and laid down following procedure which a court has to adopt on an application under Section 11-A of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947:

(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.

26. It was further held that the order passed at that stage were subject to final decision on the very same question in the suit.

27. The Full Bench ultimately on the aforementioned question laid down the following law:

On a consideration of the points urged by the learned Counsel for the parties, I am of the view that the learned Munsif acted illegally in the exercise of his jurisdiction is so far he refused the prayer of the petitioner to cross-examine the witnesses of the plaintiffs on the question of title to the house in suit. It is further open to the petitioner to adduce his own evidence to prove that either he had title to the house in question or that the plaintiffs had no title. The order, dated 8.2.1964 for the striking out of the defence against ejectment does not debar the petitioner from cross-examining the witnesses of the plaintiff on the lines, indicated above.

28. The question, which arises for consideration in this case is whether the legislature by inserting the words "And further the court shall not allow the tenant to cross-examine the landlords witnesses "intended to make the afore mentioned Full Bench decision in Mahabir Rams case (supra) ineffective and/or inoperative To my mind the answer is in the negative.

The legislature inserted the aforementioned sentences in Section 15 of the said Act. as I read it, ex abundanti cautela. The said words have not been inserted to render the judgment in Mahabir Rams case (supra) inoperative.

29. From a plain reading of Section 15 of the said Act, it would be evident that therein the words tenant and landlord have been used. The legislature has also inserted new provision to the effect that in a case there exists a dispute as to the person/persons to whom rent is payable, the court although may direct the tenant to deposit the rent, in such a case no person shall be entitled to withdraw the amount in deposit until the court decides the dispute and make an order for payment of the same.

30. It is, therefore, evident that the court has to ultimately decide the question as to whether the plaintiff in case his title is in dispute, would be entitled to withdraw the rent so deposited by the tenant for not. It therefore, makes the position, in my opinion, absolutely clear that before the said question is decided finally so as to enable the court to come to a decision whether the plaintiff landlord is entitled to a decree for eviction or not must come to the finding that there exists a relationship of landlord and tenant by and between the plaintiff and the defendant, if such an issue is raised. In absence of any such finding the court will have no jurisdiction to pass a decree of evidence as against the defendant in such a suit.

31. Further on a plain reading of Section 15 of the said Act it would appear that in the event of a dispute with regard to the existence of the relationship of tenant, the court while deciding the question as to whether the defendants should be directed to deposit the rent in terms of Section 15 of the said Act or not, as has been held in Mahabir Rams case (supra) must consider the said question and come to a tentative opinion in relation thereto. Such opinion, as noticed hereinbefore, is subject to the final decision of the suit.

32. The plaintiff is entitled to take benefit of the provisions contained in Section 15 of the said Act in the matter of a direction from the court that the defendant should be asked to deposit the arrears of rent as also the current and future monthly rent only in the event of his success in prima facie establishing the relationship of landlord and tenant and not otherwise. Such a decision being subject to the final decision of the court, in my opinion, it will result in absurdity if the tenant is not permitted to cross-examine the witnesses of the plaintiff and examine his own witnesses in support of his plea that the plaintiff has no title in relation to the properties in such and/or there exists no relationship of landlord and tenant by and between the plaintiff and himself. If such a construction is put, the same would lead to a manifest injustice.

33. Further the very fact that Section 16 of the said Act itself provides that in the event of courts order to the effect that defence against ejectment be struck-off, the tenant is to be placed in the same position as if he had not defendant the claim of ejectment is demonstrative of the fact that only his defence against ejectment is to be struck-off and not any other defence. The words "As if he had not defendent the claim to ejectment" must thus beread in the same manner as has been in Mahabir Rams case (supra).

34. It, therefore, logically follows that the defence, which are directed to be struck-off are only such defences which he could raise only as a tenant and not otherwise. On the touch stone of these considerations the insertion of the words" and further the court shall not allow the tenant to examine the landlordss witnesses" must be viewed. The very fact that the tenant is not being allowed to cross-examine the landlord witnesses on the question at the relationship of land lord and tenant and as such if there arises dispute as to whether the plaintiff is a landlord or not and whether a tenant is a tenant of the plaintiff or not or as to whether a defendant is a tenant of the plaintiff or not, the same may have to be decided without there being any material brought on record on the part of the defendant-tenant. In such a situation the defendant in his capacity other than a tenant of the plaintiff can certainly cross-exmine the witnesses of the plaintiff, who is not his landlord. The power of the court to direet striking-off a defence has to be read as a whole and the last sentence occuring in Section 15 of the said Act cannot be read in isolation. Such a reading of Section 15 of the said Act shall, in my opinion violate the well known principles of construction of statute.

35. Rent is payable by the tenant in respect of a tenant premises. A person, who is not a landlord is, therefore, not entitled to receive the rent.

Further, the relationship of landlord and tenant arises out of a contract entered into by and between two or more parties.

In absence of such a contract, the person, who claims himself to be the owner of the house will not be entitled to receive any rent although in a given case he may become entitled to damages only.

From the scheme of the said Act it is evident that the said Act would apply in a case where such a relationship is either admitted or established,

36. In a case involving serious and complicated question of title the court may decline to decide the issue and leave the plaintiff to seek his remedy by filing a title suit except in cases where upon equitable considerations and in terms of Order VII, Rule 7 of the Code of Civil Procedure, the court may pass a decree for eviction on the basis of general title of the plaintiff. But the court may decline to do so if the plaintiffs conduct is such so as to disentitle him from such equitable considerations.

In my considered view, therefore, the provisions contained in second part of Section 15 of the said Act must be construed with reference to the object of the in terms whereof the court is required to decide the claim of ejectment in terms of Section 11(1) of the said Act and not when there involves a dispute of title in respect of the premises in question.

37. In Sohan Lal v. Hodal Singh and Ors. : AIR1979All230 Allahabad High Court while considering the provisions of Order XV, Rule 5 of the Code of Civil Procedure as amended in Uttar Pradesh held that in a case where the defence is struck-off a defendant is not precluded from cross-examining the witnesses of the plaintiff. In tie said decision the Allahabad High Court relied upon a decision of the Supreme Court in Paradise Industrial Corporation v. Klin Plastic Products : [1976]2SCR32 .

38. The insertion of last sentence in Section 15 of the said Act may also be viewed from that angle. It is, therefore, in my opinion, absolutely clear that in a case where the court directs the defence of the defendant to be struck-off the same would mean that his defence quo-tenant are struck-off and not his other defences like absence of title in the plaintiff or the relationship of landlord and tenant.

39. Further the second part of Section 15 of the said Act is penal in nature and as such it must be construed strictly. The right to cross-examiae the witnesses of the plaintiff and the right to adduce ones own evidence, inter alia by examining his own witnesses is a very valuable right. Such a right comes within the purview and ambit of the principles of natural justice. If by reason of the provisions of statute such a valuable right is sought to be taken away, the same, in my opinion, must be strictly construed.

In the case of London and North Eastern Railway Company and Berriman Simonds quoted with approval the following observations of Lord Esher N.K. In the case of Tuck and Sons v. Priestor .

We must be very careful in constuing that section, because it imposes a penalty, if there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. This is the settled rule for the construction of penal sections.

40. Thus, judging the case from all its ramifications, I am of the view, on a proper construction of Section 15 of the said Act it must be held that while defence of a defendant is struck-off, the same only means his defence qua-tenant and not his other defence which, if permitted to be raised, would enable him to prove the absence of title in respect of the properties in suit in the plaintiff and/or absence of relationship of landlord and tenant by and between the plaintiff and himself.

41. In this view of the matter, the learned court below could not debar the petitioner from cross-examining the witnesses of the plaintiff and adduce his own evidence to the aforementioned extent.

42. In the result, this civil revision application allowed and the Court below is hereby directed to premit the petitioner to cross examine the witnesses of the plaintiff and adduce his own evidence in relation to his defence that the plaintiff has no title to the suit premises and/or is he owner in respect thereof.

43. In the facts and circumstances of the case, there will, however, be no order as to costs.