1990 INSC 0364
                                                  Awadhesh Mishra

                                                           Vs

                                              Lakhan Sao and Another

                                          Civil Appeal No. 133 of 1984

                                          (L. M. Sharma, J. S. Verma JJ)

                                                      10.08.1990

                                                        ORDER

1. This appeal arises out of an order of interlocutory nature passed by the trial court in a pending
suit filed by the landlord, respondent 1, for the eviction of the appellant. On an application under
Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Ordinance, 1982, the appellant
was, by an order dated January 6, 1983, directed to deposit the arrears of rent, and in compliance
thereof the necessary amount was deposited through a challan within the time available under the
law. On January 22, 1983 an application was filed by the appellant for permission to correct certain
errors in the challan under which the deposit had been made with was rejected by the trial court.
The order was maintained by the High Court and hence the present appeal.

2. On the finding of the courts below that the deposit cannot be treated to have been made in proper
compliance of the court's direction, the defence of the appellant is liable to be struck off. It,
therefore, becomes necessary to examine as to whether the irregularities in the challan are vital so as
to ignore the deposit and to hold that there has been a failure of compliance of the direction of the
court.

3. We have heard the learned counsel for the parties and examined the challan and the other relevant
documents and in our view the irregularities pointed out were fit to be permitted to be rectified.
Besides, it has to be appreciated that a prayer for rectification was made within a fortnight of the
date on which the order under Section 15 of the Ordinance had been passed.

4. It has been contended on behalf of respondent 1 that at least one of the mistakes committed in the
challan is serious and cannot be ignored. According to his case, the appellant, who is defendant 1 in
the suit, is the tenant and is guilty of sub-letting the premises to defendant 2, his father. While
passing the order dated January 6, 1983 the trial court directed defendant 1 to make the deposit, but
the challan which was filed through the common advocate, indicated that the deposit was being
made by defendant 2. The interpretation of the order dated January 6, 1983 as suggested on behalf
of respondent 1 is correct that the deposit ought to have been made by defendant 1, but towards the
end of the order the trial court made a misleading statement by observing :

                  "The defendants are to note that as per the provision, they should make payment of
                  the arrears of rent within 15 days from the date of the order otherwise their defence,
                  if any, on the record will be struck off and they will be stopped from cross-examining
                  the PWs on this point."

There was sufficient scope for confusion on account of the above statement. We, therefore, do not
think that for this defect the defence is liable to be struck off, specially when the prayer for
rectification was made within a fortnight. Accordingly, we set aside the judgment of the trial court
as also that of the High Court and allow the appellant's prayer for rectification of the challan. The
amount shall be treated to have been deposited within time by defendant 1 and it will be open to the
plaintiff to withdraw the same without prejudice to any of his pleas. The appeal is accordingly
allowed, but there will be no order as to costs.

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