R.S. Pathak, C.J.
1. This is a defendants' revision petition against an order of the learned Subordinate Judge, Simla, in a suit for ejectment and damages.
2. The plaintiffs filed a suit alleging that they were owners of a certain property, that one Rai Sahib Dina Nath was a statutory tenant therein, that on his death the statutory tenancy came to an end, but the defendants, who were his widow and daughter respectively, continued in illegal occupation. Accordingly, they prayed for a decree for possession of the property and damages for the use and occupation of the property from May 16, 1967, the date of institution of the suit, with future damages till the date of delivery of possession. A written statement was filed by the defendants setting out certain preliminary objections to the maintainability of the suit, and they intended to file a written statement subsequently on the merits of the case. The trial Court framed issues on the points raised by the plaint and the initial written statement. One issue was whether the suit was maintainable inasmuch as the defendants claimed to be tenants of the plaintiff. Before the preliminary issues could be decided, an application was made by the defendants, purporting to be one under Rules 1 and 9 of Order 8, for permission to file a written statement on the merits of the case. By his order dated Dec. 14, 1976 the learned Subordinate Judge allowed the application on condition of payment of the arrears of rent from May 16, 1967 to Nov. 15, 1976 together with costs awarded from time to time in the suit against the defendants. The defendants challenge the validity of that order.
3. It is apparent that in the initial written statement the defendants took the plea that they were tenants of the plaintiffs, and that therefore the suit was not maintainable, in the Civil court, The condition imposed by the trial Court under the impugned order is payment of arrears of rent. If the defendants are right in their assertion that the civil court has no jurisdiction to entertain the suit, the court cannot in law direct payment of the arrears of rent as a condition for permitting the filing of an additional written statement. It could of course make payment of the costs awarded from time to time a condition of the filing of the additional written statement, and that it had jurisdiction to do so is not disputed by learned counsel for the petitioner. I am, therefore, of the view that the impugned order dated Nov. 10, 1976 is invalid insofar as it makes payment of the arrears of rent a condition for the filing of the additional written statement.
4. The revision petition is allowed, and the order dated Nov. 10, 1976 is modified in the terms set out above. There is no order as to costs.