Judgment

G.N.Prasad, J.

1. The petitioner, Shrimati Parbati Kueri, is the first defendant in a suit for eviction and for recovery of arrears of rent in respect of a house instituted by the plaintiff-opposite party No. 1. The application arises out of an order passed by the court below under the provisions of Sec.11-A of the Bihar Buildings (Lease. Rent and Eviction) Control Act, 1947.

2. The application of the plaintiff-landlord was opposed by the petitioner substantially on two grounds: (1) that there was no relationship of landlord and tenant between the parties, and (2) that there was no arrear of rent due to the plaintiff.

3. Both these questions have been raised as substantial defence to the suit filed by the plaintiff. Being aware of this, the court below for the purposes of disposal of the application under Sec.11-A recorded its findings holding that prima facie there was relationship of landlord and tenant between the parties, and prima facie again the rent, which was Rs. 120 per month, was in arrears since the 15th March, 1962 Upon these findings, the court below has directed the defendants to deposit the outstanding arrears of rent within fifteen days of the date of the impugned order and to deposit the monthly rent for the subsequent months by the 15th of the next month following, failing which the defence against ejectment shall be struck off

4. Learned Counsel for the petitioner put forward the contention that the court below was not justified in going into either of the above two questions, since both these questions will have to be decided as substantial questions at issue in the suit itself I do not think that on the ground that both these questions will have to be decided finally in the suit, the jurisdiction of the court in passing an order under Sec.11-A of the Act is ousted The court below, in my opinion, had to pass the necessary order upon the petition filed by the landlord under Sec.11-A of the Act For that purpose it had to make a summary investigation with respect to both the questions raised by way of objection to the landlords petition. The court below was careful to mention that it was dealing with both the questions in a summary manner and to pass the order upon prima facie grounds In Civil Revn. No. 710 of 1961 (Pat) Azizur Rahman V/s. Abdul Aziz disposed of by Untwalia. J. on 28-11-1961 a similar situation arose and his Lordship made observations to the effect that it was incumbent upon the court to find out in a summary way, upon the materials before it whether the plaintiffs case in support of the petition under Sec.11-A was correct or not His Lordship ob-served:

"On the other hand, a positive finding on the evidence on behalf of the plaintiff was necessary, although that finding may be a finding only for the purposes of Sec.11-A of the Act ...... of course, the question of arrears of rent from 15-7-59 to 15-7-60 will have to be gone into and decided in the suit".

5. Learned Counsel for the petitioner, however, relied upon an earlier decision of this Court in Civil Revn. No. 838 of 1956 Jamuna Misra V/s. Sri Kamdeo Prasad given on the 14th March, 1958. There, Kanhaiya Singh, J. made an observation upon which the learned Counsel has laid great stress in support of his contention and which reads:

"So far as Sec.11-A is concerned, it contemplates deposit of the arrear only when there was any arrear of rent. In my opinion, when on the defence taken by the defendant there was a plea of payment of the entire rent and nothing was admitted to be due, it was not at all necessary for the defendant to make the deposit as required by Sec.11-A of the Act aforesaid. Therefore, the learned Munsif seems to have misdirected himself in directing the deposit of the arrear of rent as claimed by the plaintiffs ignoring the defence set up by the defendant.

The observations of his Lordship, it is manifest, were in connection with the peculiar circumstances of the case which then came to this Court. I do not read these observations as amounting to a decision that whenever the defendant sets up a plea denying the relation-ship of landlord and tenant or denying the fact that rent is in arrears, the Court is precluded from passing an order in terms of Sec.11-A of the Act. If such a principle were to be laid down, then every application under Sec.11-A of the Act might be throttled by the defendant merely by setting up a plea, howsoever frivolous, that there is no relationship of landlord and tenant between the parties or that rent is not in arrears. I am, therefore, clearly of the opinion that there is no substance whatsoever in the attack made by the learned Counsel against the impugned order.

6. It was then contended by learned Counsel for the petitioner that even prima facie the court below is in error in holding that the relationship between the parties is that of landlord and tenant. The relevant facts have been stated as follows. Admittedly, the house formerly belonged to the petitioner. On the 3rd March. 1962, the petitioner executed a sale deed in respect of the house in favour of the plaintiff for Rs. 8,000/-. On the same day, there was a registered deed of agreement between the plaintiff and the petitioner for reconveyance of the house to the petitioner provided the petitioner paid back to the plaintiff a sum of Rs. 11,000.00 by the 1st of March, 1966. This was followed by a kirayanama dated the 16th March, 1962 executed by the petitioner in favour of the plaintiff agreeing to pay by her rent for the house at the rate of Rs. 120.00 per month.

7. The contention of the learned Counsel for the petitioner is that in substance the relationship between the parties is that of a mortgagor and mortgagee and that the second transaction executed on the 1st March, 1962, must have the effect of converting the salt deed executed on the same day into a mortgage by conditional sale. Support for this contention was sought to be derived from a Bench decision of this Court in Gaya Prasad Sah V/s. Chitrakut Narain Sinha, AIR 1960 Pat 485.

8. In my opinion, there is no substance in this contention which proceeds upon a disregard of the provisions of Sec. 58 (c) of the Transfer of Property Act defining mortgage by conditional sale. Apart from any thing else, Clause (c) has a proviso which reads:

"Provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale."

The term as to conveyance was not incorporated in the sale deed dated the 1st March, 1962. It was introduced in another document, though executed on that very day Merely because the two documents were executed on the same day, it is impossible to hold that the requirements of a document defined as mortgage by conditional sale have been fulfilled in the present case.

9 Gaya Prasad Sahs case AIR 1960 Pat 485 has no application to the facts and circumstances of this case. That was a case of zarpeshgi lease, and the question which arose for consideration was the rights of the parties under Sec. 68 of the Transfer of Property Act. Their Lordships did not decide the question like the one now arising in the present case as to the true nature of the transactions which took place on the 1st March, 1962, since no question arose before their Lordships as to whether the transaction was one of mortgage or of sale,

10. In my opinion, no grounds has been made for interference with the order of the court below. The application fails and is, accordingly, dismissed with costs; hearing fee Rs. 32/-.