K.K. Gupta, J.
1. Kuldeep Raj,respondent herein, filed a suit for ejectmentof Shallo Ram, from a shop situate in Rajouritown on the basis of personal necessity. Hissuit was decreed by the learned Sub-Judge,Rajouri vide his judgment and decree datedSept. 16, 1975. Shallo Ram went in appealbefore the learned District Judge, Rajouri,who, dismissed the appeal vide his judgmentdated Sept. 19, 1979. Shallo Ram aggrieved bythis judgment has come up in second appealbefore this Court.
2. During the course of proceedings before this Court, Kuldeep Raj moved an application (C.M.P. No. 11 of 1981) for issuing direction to Shallo Ram tenant to deposit the arrears of rent/compensation for use and occupation ofthe suit shop within 15 days from the date of order and further to direct him to continue to deposit the rent/compensation, month by month in this Court. After obtaining objections from the other side Justice G. M. Mir (as he then was) vide order dated May 16, 1980 allowed the application of Kuldeep Raj and directed Shallo Ram tenant to deposit all arrears of rent due from 1-4-78 up to date within 15 days from the date of order and further to continue to pay the rent month by month at the rate of Rs. 65/- per month. Kuldeep Raj has now filed the present application alleging therein that Shallo Ram has defaulted in depositing month by month rent and in view of this default which is in contravention of the order of the Court, the defence of the defendant tenant requires to be struck out. Shallo Ram has filed objections almost admitting the default, but according to him, the deposit of rent late by a few days would not make any difference when he had already deposited the arrears of rent in accordance with the directions of the Court.
3. Report of the Nazir was called and according to him, Shallo Ram, tenant-appellant deposited monthly rent on 26-6-1980 and afterwards on 27-10-1980 i.e. after more than four months. Similarly, he deposited rent on 3-11-1980 and thereafter on 13-2-1981 i.e. after more than three months.
4. I have heard learned counsel appearing for the petitioner- respondent. Shri Ajay Kotwal appeared on 12-9-1984 and at his request the case was adjourned for today for further hearing. Despite repeated calls today nobody has appeared on behalf of Shallo Ram and I propose to decide the matter in his absence.
5. The point for determination in this case is as to whether this default committed by the tenant-appellant, would amount to striking out the defence and ultimate dismissal of the appeal. Section 12(4) of the J&K; Houses & Shops Rent Control Act, empowers a Court to make an order for deposit of rent at such rate, month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within 15 days of the date (sic) of the rent at such rate for any month up to 15th day of the next following month, and in case of default, the Court is required to order the defence against ejectment to be struck out and the tenant placed in the same position as if he had not defended the claim to ejectment. This Court in ease Babu Ram v. Om Prakash reported as 1982 Kash LJ 456 : (AIR 1983 NOC 87) (J&K;) has held that Section 12(4) of the Houses & Shops Rent Control Act, is mandatory in character and its plain and unambiguous language does not admit of any equivocation. The learned Judge while disposing of the case held as under :
'.....The expression 'and on the failureof 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 out and the tenant to be placed in the same position as if he had not defended the claim of ejectment' occurring in the section leaves no room for doubt that the Court has in such a situation no option but to strike out the defence of the tenant. There is no provision in Section 12, or even elsewhere in the Act under which the Court may exercise discretion not to strike out the defence of the tenant on his failure to make the deposit within the period fixed by the section, even it were to exercise it on being satisfied that the tenant was prevented from making the deposit due to sufficient cause, or even if it were otherwise of the opinion that striking out his defence would, in the peculiar circumstances of the case, be against the notions of justice, equity or good conscience. Section 5 of the Limitation Act too does not apply in terms to an application by a tenant for depositing rent under Sub-section (4) and nor has this section been made applicable to such applications by the Act itself. The conclusion is, therefore, inescapable that the Court is bound to strike out the tenant's defence, once it is shown to it that he has failed to deposit the rent within the period prescribed by Sub-section (5); the reason why he failed to do so being always irrelevant. A similar view that Sub-section (4) is mandatory in nature was taken by this Court in Sudesh Kumar v. Kuldeep Raj. 1971 JKLR 55.'
To the same effect are the observations of the Full Bench of this Court in Gwasha Lal v. Harjit Lal reported as 1980 Kash LJ 25 : (AIR 1980 J&K; 36). The same are reproduced as follows :
'Then comes Sub-section (4). This subsection contemplates that the tenant shall havethe right to oppose landlord's claim for ejectment only so long as he pays admitted rent, past and present, without let or hindrance. This is another manifestation of the broad principle enshrined in Section 12 that the protection against eviction shall be available to the tenant only when he fulfils obligation as to the payment of rent. On its terms the sub-section enables the landlord to apply for an order directing the tenant to deposit the arrears of rent due in respect of the disputed premises and also the month to month rent at the rate last paid, if only the tenant contests the claim for ejectment. The Court is empowered to make an order to this effect after giving an opportunity to the parties to be heard on merits of the application. Where the Court makes such order, the tenant is bound to deposit the arrears of rent within 15 days from the date of order or on the rent at such rate for any month by fifteenth day of the next following month. In default of such payment, the Court is required to order the defence of the tenant-defendant against ejectment to be struck out and relegate him to the same position as if he had not defended the claim for ejectment.....'
6. Section 12(4) of the aforesaid Act gives a right to the landlord to get the defence of the tenant struck out in case of defaults committed by the tenant in violation of the Court order to deposit the arrears of rent and further to continue depositing the rent month to month. The provision contained in Section 12(4) is mandatory in nature and the Court in case of defaults committed by the tenant has no option but to strike out the defence of the tenant and to place him in the same position as if he had not defended the claim to ejectment. In the present case it is apparent from the objections of the respondent tenant and also report of Nazir of this Court that Shallo Ram had committed defaults in depositing the rent month to month as directed by the Court. As such the application (C.M.P. No. 4 of 1981) is allowed and in view of the provision contained in Section 12(4) of the J&K; Houses and Shops. Rent Control Act, defence of Shallo Ram, tenant, is struck out. As a necessary consequences thereof, the appeal filed by Shallo Ram (C.2nd Appeal No. 31/79) is dismissed. Under the circumstances of the case the parties are left to bear their own costs.