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Vijay Kumar Vs. Jagbir Sagar Jain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 6 of 1984
Judge
Reported inAIR1985J& K20
ActsJammu and Kashmir Houses and Shopes Rent Control Act, 1966 - Section 11(1) and 11(2)
AppellantVijay Kumar
RespondentJagbir Sagar Jain
Appellant Advocate L.K. Sharma, Adv.
Respondent Advocate P. Kohli, Adv.
Excerpt:
- .....defendant and in favour of the plaintiffs. hence this revision2. the trial court found that the suit for ejectment on the basis of personal requirement could be filed and sustained during the subsistence of the period of tenancy as personal necessity could arise to the landlord at any time. reliance was placed for this conclusion on the decision of the supreme court reported in air 1979 sc 1745. the counsel for the petitioner submits that the suit was bad because the term of the contract bound the landlady and, therefore, the landlady should have waited till the expiry of the term to file the suit. the respondent's counsel on the other hand submits that none of the provisions of the act forbid action for ejectment during the subsistence of the tenancy. he contends that the landlord.....
Judgment:
ORDER

V. Khalid, C.J.

1. This revision is directed against an order of the Sub Judge, Jammu, dated 19-12-1983, deciding issue No. 1 against the petitioner holding that the suit is maintainable. The petitioner is a tenant of the suit premises. He is in possession on the strength of a rent deed at the monthly rate of rent of Rs. 225/- for a fixed period of three years with effect from 1st of April, 1980. The suit was filed for ejectment on the ground that the respondents who are the successors-in-interest of the landlady of the petitioner wanted it for their personal requirement The suit having been filed in Sept. 1981 before the expiry of the contractual term fixed under the registered rent deed, the petitioner resisted the action on the ground that the suit was premature. The trial Court framed an issue as 'whether the suit is premature' and entered a finding against the petitioner defendant and in favour of the plaintiffs. Hence this revision

2. The trial Court found that the suit for ejectment on the basis of personal requirement could be filed and sustained during the subsistence of the period of tenancy as personal necessity could arise to the landlord at any time. Reliance was placed for this conclusion on the decision of the Supreme Court reported in AIR 1979 SC 1745. The counsel for the petitioner submits that the suit was bad because the term of the contract bound the landlady and, therefore, the landlady should have waited till the expiry of the term to file the suit. The respondent's counsel on the other hand submits that none of the provisions of the Act forbid action for ejectment during the subsistence of the tenancy. He contends that the landlord cannot be put under an obligation to wait for the expiry of the term of tenancy to institute an action for ejectment on the ground of arrears of rent or subletting and for that reason on the ground of personal requirement also. In addition he submits that in any case the period of tenancy has now expired and the suit should be held to be maintainable.

3. Now I will examine the provisions of the Act and see whether the order passed by the Court below is correct Section 11(1) of the Act opens with the following :

'Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any house or shop shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired .....'

Emphasis was placed by the respondent's counsel on the words' including a tenant whose lease has expired' to contend that this expression clearly shows that action for ejectment can be taken against a tenant the term of whose lease has expired and also a tenant the term of whose lease has not expired. The petitioner's counsel on the other hand relied upon Section 11(2) of the Act in support of his contention that the suit filed before the expiry of the contractual term is bad. Section 11(2) runs as under : --

'Nothing in this Section or in this Act shall be deemed to entitle the landlord to get a decree for the recovery of possession of any house or shop against the tenant where any contract or law debars such relief or except in accordance with the provisions of law for getting such relief and such contract shall not be deemed to be inoperative by reason of. interference by this Act with other terms of the lease.'

The contention raised is that the period of lease having been fixed at 3 years, the tenant should be allowed to continue in possession undisturbed for the contractual term

4. In my view the contentions raised before me are partly sustainable and partly not It will not be correct in law to say that the landlord is disabled from pursuing his remedies for ejectment before the expiry of the contractual term when the tenant commits acts which entail forfeiture of the lease. Keeping rent in arrears, subletting using building for immoral or illegal purposes, causing damage to the building, doing acts which are a nuisance or annoyance to the neighbours are all acts on the part of the tenant by which he forfeits his right to continue as a tenant When a tenant breaks an express condition of the lease the lease gets determined by forfeiture. Equally so when he does acts which afford a ground under the Act to the landlord to seek eviction. In such cases the term of the lease is inconsequential and the landlord can maintain an action even before the expiry of the term of the lease. The Rent Control Act confers on the tenant certain benefits in addition to the benefits available under the general law. One such is the protection from eviction even after the expiry of the term unless the landlord establishes one or the other of the grounds mentioned in Section 11 of the Act A tenant cannot take advantage of the default or other irregular conduct and still tell the landlord that he should wait till the expiry of contractual term to take action for ejectment The provisions of the Act are clear that a suit for ejectment can be filed at any time, either during the contractual term or after when a tenant is guilty of conduct objectionable under the Act

5. The same cannot be said when the landlord requires the building for purposes of building or rebuilding or for his own occupation This is a ground which emanates from the landlord A tenant has no part to play so far as this ground is concerned A suit for ejectment on this ground embodied in Section 11(1)(h) is a suit not because the tenant has committed any default but because the landlord needs the building for his own purpose. The tenant does not contribute in any manner by his defaults for the institution of such a suit This ground according to me, should, therefore, stand on a different footing from the other grounds.

6. When the parties enter into a contract of tenancy for a fixed period, they may stipulate many conditions, some written, some oral There may be secret understandings between them also. There may sometimes be passing of amounts under the table. The tenant is thus lulled into his accepting the tenancy for a fixed term He expects to be at peace with his tenancy for the contractual term. The landlord normally would foresee, when a tenant is inducted, whether the building needs reconstruction or whether he needs the building for his persona! requirement He should be deemed to have reconciled to a position that he would not need the building for his purpose before the expiry of the lease. To accept the respondent's contention would be to permit the landlord to initiate a suit for ejectment on, personal requirement immediately after the tenancy comes into being without any default committed by the tenant This can never be the object of the enactment The underlying idea behind the Rent Control Legislation is to protect the tenant and to prevent unreasonable evictions. If the tenant is to be held at the mercy of the landlord in such cases that would be extremely unfair to the tenant In my view Section 11(2) should be pressed into service in favour of the tenant to that extent The stipulation in the registered document that the period of lease would be three years should be deemed to be a contract debarring the landlord to institute an action for ejectment before the expiry of that period The ground of personal requirement which is the only ground put forward in this case can be put forward only after the expiry of the terms of tenancy. In my view, therefore, a suit under Section 11(1)(h) before the expiry of the term of the lease is premature and is not sustainable.

7. I am not impressed with the submission made by the respondent's counsel that the suit should be held to be maintainable now, since the period of tenancy has expired. What he submits is that the subsequent events can be taken note of in such cases. This submission is misconceived. Subsequent events can be taken note of to modulate reliefs without doing injustice to parties before a Court The landlord cannot be allowed to opt out of the contract and then coerce the tenant into submission on the specious plea that at the time the petition is heard, the term of the lease has expired The relevant date for the purpose of the suit is the date on which the suit is filed and not when the suit is decided

8. The Supreme Court in its decision reported as AIR 1979 SC 1745, was considering the need for a notice under Section 106 of the T. P. Act to terminate the lease. The point before me was not considered by the Supreme Court in that decision,

9. The petitioner's counsel made an offer to me that he would not press for the suit to be dismissed if he was permitted to file an additional written statement as though the suit was instituted only after the expiry of three years' period. On the reasoning given above I will have to direct the suit to be dismissed with liberty to the respondents to institute a fresh suit I decline to do so, on the basis of the offer made before me.

10. Accordingly, while setting aside the finding of the Court below on issue No. 1, and holding that the suit is premature, I dispose of this revision petition directing the case to go back to the trial Court with permission to the petitioner-defendant to file a new written statement as though the suit was instituted only after the expiry of the contractual terra The parties are directed to appear before the trial Court on 5th of May, 1984.


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