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Gwasha Lal and anr. Vs. Harji Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. Nos. 116 of 1976 and 3 of 1978
Judge
Reported inAIR1980J& K36
ActsJammu and Kashmir Houses and Shops Rent Control Act, 1966 - Sections 11(1) and 12(4)
AppellantGwasha Lal and anr.
RespondentHarji Lal and anr.
Appellant Advocate Z.A. Qureshi and; M.L. Bhat, Advs.
Respondent Advocate S.N. Raina,; M.A. Nehvi and; O.N. Trisal, Advs.
Cases Referred and Mohammad Shaffi v. Mohi
Excerpt:
- mufti, j.1. these references arise under the jammu and kashmir houses and shops rent control act, 1966. the questions referred to the full bench are as under:--(1) is sub-section (4) of section 12 of the act applicable to suits wherein ejectment of the defendant has been based also on the grounds other than the ground of non-payment of rent ? (2) what is the scope and ambit of enquiry which the court is required to make before passing an order under sub-section (4) of section 12 of the act? 2. there is a difference of opinion in this court as to the type of suits in which sub-section (4) of section 12 would apply. one view is that this sub-section is limited to suits in which eviction of the tenant is claimed solely on the ground of non-payment of rent as contemplated by clause (i) of.....
Judgment:

Mufti, J.

1. These references arise under the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. The questions referred to the Full Bench are as under:--

(1) Is Sub-section (4) of Section 12 of the Act applicable to suits wherein ejectment of the defendant has been based also on the grounds other than the ground of non-payment of rent ?

(2) What is the scope and ambit of enquiry which the court is required to make before passing an order under Sub-section (4) of Section 12 of the Act?

2. There is a difference of opinion in this Court as to the type of suits in which Sub-section (4) of Section 12 would apply. One view is that this sub-section is limited to suits in which eviction of the tenant is claimed solely on the ground of non-payment of rent as contemplated by Clause (i) of proviso to Sub-section (1) of Section 11. To this effect is the view expressed by a Division Bench in Gurcharan Das v. Bodh Raj, AIR 1954 J & K 48. This view has been followed in the subsequent single Bench decisions in Wahi-ud-Din v. Sanatan Dharam Sabha, 1970 Ron CJ 916, Madan Lal v. Zahoor Hussain, 1973 J&K; LR 445 and Mohd. Shaffi v. Mohi-ud-Din, 1977 J&K; LR 427 : (AIR 1977 NOC 368) (J&K;). Another view is that the sub-section would apply when in respect of suits in which the landlord claims eviction of the tenant on the ground of non-payment of rent in addition to any other permissible ground as mentioned in Clauses (a) to (h) of the proviso to Sub-section (1) of Section 11. This view has been expressed by a learned single Judge in Premjit Singh v. Shiv Ram, 1971 J&K; LR 47. Yet another view is that the sub-section would apply to the suits for eviction generally irrespective of the fact where the eviction is claimed on the ground of non-payment of rent or on any other ground mentioned in Clauses (a) to (h) or on any of those grounds in addition to the ground of non-payment of rent. This view finds place in a recent decision delivered by another learned single Judge in Sukh Ram v. Sat Paul, 1979 Kash LJ 268.

3. As regards the scope and ambit of enquiry under Sub-section (4) of Section 12 it has been held in the case of Sukh Ram (supra) that if the tenant denies his liability for the arrears of rent or disputes the rent at which it was last paid, the court shall determine the same but such determination shall be made 'only after hearing the parties and recording evidence, if any, led by them'. There is no other decision either in favour or opposing this view. The decision in the case of Sukh Ram was, however, delivered during the pendency of these references.

4. In view of the fact, that there was divergence of opinion in this court in respect of question No. 1 and the fact that there was no specific pronouncement as regards question No. 2, a learned single Judge, while hearing a revision petition in Mohd. Shaffi v. Ghulam Mohi-ud-Din (Civil Revn. No. 3 of 1978) formulated two specific questions set out in the beginning of this judgment and referred them for an authoritative decision by a Full Bench. Another learred single Judge also noticed the divergence of opinion at the time of hearing another revision in Gwasha Lal v. Harji Lal (Civil Revn. No. 116 of 1976) and referred the case to a Full Bench for resolving it.

5. In Civil Revision No. 3 of 1978 the landlord had sued the tenant for ejectment on several grounds including the ground of non-payment of rent as mentioned in Clause (i) of proviso to Sub-section (1) of Section 11. On 12-1-1978, while the suit was still pending, counsel for the plaintiff made a statement in the trial court and limited the ground of claim for ejectment to non-payment of rent as mentioned in Clause (i) after giving up all other grounds and insisted for an order as provided in Sub-section (4) of Section 12. The trial court granted the prayer and directed the tenant-defendant to deposit a sum of Rs. 2,375/- representing arrears of rent as also future rent month by month in the manner and within the time prescribed in the said sub-section, adding that in the event of default his defence shall be deemed to have been struck out. Aggrieved by this order the defendant filed a revision. At the hearing of the revision before a learned single Judge, it was contended on behalf of the defendant that the alleged relinquishment of the grounds of claim was not complete and effective and that, in any case, the court could not pass an order directing the defendant to deposit the rent, past or future, without first determining what was the stipulated rate of rent and what were the arrears of rent due and payable by the tenant It was further contended that in order to make such determination, the court ought to have allowed the parties to lead evidence. On the other hand, it was contended on behalf of the plaintiff that the relinquishment was complete and effective and that, even if it was not so, still the court could pass an order under Section 12 (4), that it did. It was further contended that Section 12 (4) did not contemplate a regular trial. What was required was that the court should permit the parties to make their submissions before making the desired order. In view of the rival contentions and conflicting decisions of this court, the learned single Judge formulated the two questions set out in the beginning and referred them for the opinion of the Full Bench.

6. In Civil Revision No. 116 of 1976, the landlord claimed eviction of the tenant on the ground of non-payment of rent and also several other permissible grounds. On 13-5-1976, the trial court directed the tenant to deposit in the court, within a period of 15 days, a sum of Rs. 820/- representing the arrears of rent up to the end of April, 1976. The tenant failed to comply with the order. Consequently the court passed an order on 1-11-1976 striking out his defence. Aggrieved by the orders dated 13-5-1976 and 1-11-1976, the tenant filed a revision. At the time of hearing of the revision another learned single Judge noticed that there was difference of opinion between the decision s of this court in the cases of Gurcharan Dass and Premjit Singh (AIR 1954 J&K; 48 and 1971 J&K; LR 47) (supra). He observed that it was no doubt true that the judgment of a Division Bench had to be followed in preference to the judgment of a Single Judge but it was proper and desirable to have the difference resolved by larger bench. Accordingly he directed that the case be placed beforea full bench.

7. In order to appreciate and determine the questions before us it will be necessary to read Sections 11 and 12 together. Section 11 consists of two sub-sections. The opening clause of Sub-section (1) forbids the courts to order the eviction of the tenant from a house or shop. There is a proviso appended to it which relaxes the bar. The condition of relaxation is twofold. Firstly, that the landlord must bring a suit for eviction against the tenant on any of the grounds as mentioned in Clauses (a) to (i) of the proviso. Secondly, the landlord must satisfy the court that such ground existed prior to or at the time of institution of such suit. The subjection opens with a non-obstante clause implying that the ground of eviction can be neither curtailed nor even enlarged by anything to the contrary contained in any Act or law in force in the State. Sub-section (2) saves the operation of any contract or law which prevents the landlord from obtaining the relief of possession against the tenant Section 11 is clearly Intended to give protection to the tenant against eviction by the landlord except when such eviction is reasonably due or necessary. It is quite natural to think that the benefit of this protection should be available only when the tenant fulfils his obligation as to the payment of rent. The legislature cannot be unmindful of this equitable principle. The Act seeks to make provisions to give shape to this principle. Section 12 is intended to serve this purpose. That section reads thus:--

'12. When a tenant can get the benefit of protection against eviction,--(1) If in a suit for the recovery of possession of any house or shop from the tenant the landlord would not get a decree for possession but for Clause (i) of proviso to Sub-section (1) of Section 11, the court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made under Sub-section (4) and effect thereof up to the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and three eights per centum per annum from the daywhen the rents became arrears up to such date, together with the amount of such cost of the suit as is fairly allowable to the plaintiff-landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order.

(2) Such date fixed for payment shall be the fifteenth day from the date of the order, excluding the day of the order.

(3) If, within the time fixed in the order under Sub-section (1), the tenant deposits in the court the sum specified in the said order, the suit, so far as it is a suit for recovery of possession of the house or shop, shall be dismissed by the court In default of such payment the court shall proceed with the hearing of the suit:

Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section, if, notwithstanding the receipt of notice under proviso to Clause (i) of the proviso to Sub-section (1) of Section 11, he makes a default in the payment of the rent referred to in Clause (i) of the proviso to Sub-section (1) of Section 11 on three occasions within a period of eighteen months. (4) If the tenant contests the suit as regards claim for ejectment, the plaintiff-landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the court, after giv-ing an opportunity to the parties to be heard, may 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 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 to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so.

(5) The power given under Sub-section (4) may be exercised by courts of appeal with necessary adaptation.'

8. This section fixes the terms subject to which the benefit of the protection against eviction shall be available to the tenant. Sub-sections (1) to (3) contemplate that the ground of non-payment of rent as provided in Clause (1) of proviso to Section 11 can be cured by the tenant after the ejectment suit has been filed against him provided he pays the amount of rent legally payable, arrears, interest and costs at the earliest stage of the suit. This is a manifestation of the broad principle that the benefit of the protection against eviction shall be available to the tenant only when he fulfils his obligation as to the payment of rent. The court is bound to determine the aggregate amount of the rent legally payable, arrears, interest and costs and, then, direct the tenant to deposit the same in the court by a particular date, irrespective of the fact whether he has admitted or denied the claim for ejectment or has remained ex parte: provided, of course, his defence has not been struck out under Sub-section (4). In case his defence has been already struck out, then he is not entitled to indulgence that the order might have afforded him. The court is to pass such order before the hearing proceeds to the investigation of the claim of ejectment on merits. If the tenant deposits the amount within the time fixed, then the ground of nonpayment of rent would be removed and the suit 'so far as it is a suit for the recovery of the possession of the shop or house, shall be dismissed', implying that the dismissal shall be total or only partial depending on whether the ground taken in the suit is the only ground of non-payment of rent or any other permissible ground in addition to the ground of non-payment of rent. In the event of the tenant's failure to deposit the amounts and within the time fixed, the court 'shall proceed to the hearing of the suit' implying that the ground of nonpayment of rent shall become irremovable, and the court shall proceed to investigate such ground on merits, of course along with other grounds, if any, pleaded in the suit. In this view, Sub-section (1) contemplates suits in which eviction of the tenant is claimed on the ground of non-payment of rent, singly or in combination with other permissible grounds. This is exactly what the opening words of Sub-section (1) also suggest. The sub-section is limited to suits in which 'the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 11'. That can be so in two cases. Firstly, when the only ground pleaded and proved in the suit is the ground of non-payment of rent. Secondly, when the grounds pleaded in the suit are more than one including the ground of non-payment of rent but the only ground established at the trial is the ground of non-payment of rent. It necessarily follows that Sub-section (1) contemplates suits in which eviction of the tenant is claimed on the ground of non-payment of rent, singly or in combination with any other permissible ground.

9. There is yet another reason for this view. The entire scheme and object of Sub-sections (1) to (3) is to enable the tenant to cure the ground of non-payment of rent even after filing of the suit though only on payment of rent, arrears, interest and costs. It is difficult to think that the Legislature should have intended to grant him this indulgence in one case and not in the other depending on whether the ground of non-payment of rent appeared in the suit singly or by the side of any other permissible ground. Consequently, it must be held that Sub-section (1) would apply as much to suits based upon more grounds than one including the ground of non-payment of rent as to the suits based solely on the ground of non-payment of rent. Any attempt to limit this subsection to suits in which the ground taken is the only ground of non-payment of rent would not only lead to anomalous and absurd results but might also render its operation discriminatory. For, if, in a suit for eviction based upon more grounds than one including the ground of non-payment of rent, all other grounds fail and the ground of non-payment succeeds, the landlord would be entitled to a decree on the basis of the ground of non-payment of rent without the tenant having any chance to remove such ground. This could never be the intention of the Legislature.

10. In the circumstances, I have no doubt in my mind that Sub-section (1)contemplates not only suits in which ejectment of the tenant is claimed solely on the ground of non-payment of rent but also suits in which such ejectment is claimed on more grounds than ore including the ground of nonpayment of rent. To the same effect is the view expressed by a learned single Judge of this court in the case of Premjit Singh (1971 J&K; LR 47) (supra) and by another learned single Judge in the case of Sukh Ram (1979 Kash LJ 268) (supra). In the case of Gurcharan Das (AIR 1954 J&K; 48), (supra) the Division Bench, has, however, taken a contrary view. It has been held that Sub-section (1) contemplates only suits in which the ejectment is claimed solely on the ground of nonpayment of rent. For this, the Bench has drawn support from a Division Bench judgment of the Calcutta High Court in Miah Moulvi v. Sashanko Mohan : AIR 1953 Cal 600. That judgment is based upon a Full Bench decision of that court in T. S. R. Sarma v. Nagendra Bala Debi, AIR 1952 Cal 879. Section 14 of the West Bengal Premises Rent Control Act, 1950 is the same literally as Section 12 of our Act. Dealing with Sub-section (1) of Section 14, Chakravarty C. J. speaking for the Bench, has observed:

'Sub-section (1) with which the sec-tion begins is clearly limited to suits in which 'landlord would not get a decree for possession but for Clause (i) of proviso to Sub-section (1) of Section 12', i.e. the suits in which the only ground which disentitles the defendant from protection of the Act is that he has defaulted in the payment of rent for two months. Suits in which the protection of the Act may be unavailable to the tenant on any of the other grounds mentioned in Clauses (a) to (h) of Section 12 (1) or any of those grounds in addition to the ground of default are rot within the ambit of Section 14 (1).'

With respect, I may say that the view expressed in these observations is justified neither on principle nor on the terms of Sub-section (1). For this, I rely upon the observation hereinbefore made by me in regard to the ambit and scope of Sub-section (1). In the circumstances I am of the opinion that the view expressed by the Division Bench of this court in the case ofGurcharan Das (supra) based, as it really is, on the decision of the Cal-crtta High Court in T. S. R. Sarma's case (supra) is not correct and I respectfully say so.

11. At this stage may be noticedcertain observations made by the learned single Judge in the case of Sukh Ram (supra). While dealing with Sub-section (1), he has, inter alia, observed:

'.....Sub-section (1) envisages asituation where there is no contest to either the rate of rent, the quantum of rent or the service of notice under proviso to Clause (i) of Section 11 and the ejectment is possible only on the ground mentioned in Clause (i). The moment a dispute in regard to any one of these matters is raised by the ten-art the litigation shall have to enter the arena of Sub-section (4).....'

With respect, I may say that these observations do not state the law correctly. The power of the court to make an order as provided in Sub-section (1) is not limited by the nature and character of the defence set up by the defendant. The power is subject to two conditions only. First condition is, that suit for eviction must necessarily contain a ground of non-payment of rent whether singly or in combination with other permissible grounds. This condition flows from the letter and spirit of the Sub-section with which the learned single Judge has not disagreed. The second condition is, that the defence should not have been already struck out under Sub-section (4). This is what necessarily follows from the words 'taking into consideration any order made under Sub-section (4)' used in this sub-section. In the circumstances, these observations cannot be treated to be laying down a good law and must be overruled.

12. At another place, while dealing with Sub-section (3), the learned Single Judge has observed as under:--

'.....Sub-section (3) of Section 12of the Act is not happily worded, inasmuch as it only says that 'in default of such payment the court shall proceed with the hearing of the suit'. What purpose would be served by further hearing of such a suit where the parties are not at issue on any point? The court in such a case would have no option but to pass a decree for ejectment against the tenant, as alsofor arrears of rent, provided a decree for recovery of the same is also claimed in the suit. The expression 'hearing of the suit' used in Sub-section (3) shall in the context merely imply hearing for the purpose of passing the decree prayed for,'

With respect, I may again say that these observations do not lay down the law correctly. The words 'in default of such payment the court shall proceed with the hearing of the suit' used in Sub-section (3) are intended to convey that an order under Sub-section (1) must be made at an early stage of the suit and in any case before the hearing proceeds to the investigation of the claim for ejectment on merits. Obviously, because there is every sense in non-suiting the landlord at the threshold and none if, after he has gone through the entire gamut of the trial, he is asked to accept the rent and arrears etc, and the ground of nonpayment of rent is allowed to be cured. The Legislature has, therefore, sought to provide that after the ground of non-payment has become incurable, the landlord shall proceed to prove the same on merits and if he is ultimately successful in proving this ground, a decree for ejectment shall follow. In the circumstances, the view expressed by the learned single Judge, that a decree shall immediately follow the default under Sub-section (3), does not reflect the true sense of the words mentioned above.

13. Then comes Sub-section (4), This sub-section contemplates that the ten-ant shall have the right to oppose land-lord's claim for ejectment only so long as he pays admitted rent, past and present, without let or hinderance. 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 opportu-nity 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 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 ha had not defended the claim for ejectment. Two questions of construction arise for decision viz. (1) what type of suits is covered by this sub-section and, (2) what is the ambit and scope of the words used, 'after giving an opportunity to the parties to be heard' in this sub-section.

14. The sub-section opens with the words 'if the tenant contests the suit as regards the claim for ejectment'. These words, to my mind, Indicate that this sub-section refers back to the suit as contemplated by proviso to Sub-section (1) In this view, this sub-section would apply to the suits for eviction generally irre-spective of the fact whether eviction is claimed solely on the ground of nonpayment of rent under Clause (1) or on any other ground as mentioned in Clauses (a) to (h) of proviso to Sub-section (1) of Section 11 or on any of, those grounds in addition to the ground of non-payment of rent. On principle too, this appears to be the true sense of these words. For, the principle of this sub-section is that the tenant should have the right to oppose landlord's claim for ejectment only so long as he pays the current and the arrears of admitted rent. There is no reason to think why this principle should apply to a particular type of suits, say for example, the types of suits contemplated by Sub-section (1) and not to other type of suits that do not strictly fall within the ambit of that sub-section. Any attempt to limit this sub-section to the suits contemplated) by Sub-section (1) would not only lead to anomalous results but might also render the operation of this section discriminatory. For, in a case where ejectment is claimed on any ground other than the ground of non-payment of rent, the tenant will be at liberty to withhold the arrears of rent and even refuse to pay the current rent without any effect on his right to contest the claim for ejectment whereas the same would not hold true if thesuit is based upon the ground of nonpayment of rent singly or in combina-tion with any other principal ground, This is manifestly absurd and even makes the operation of Sub-section (4) discriminatory which could never be intended by the Legislature. In the cases of Gurcharan Das and Premjit Singh (AIR 1954 J&K; 48 and 1971 J & K LR 47) (supra) it has, however, been held by this court that Sub-section (4) applies only to the type of suits contemplated by Sub-section (1). For this, the reason given in the case of Gurcharan Das is that 'use of the article 'the' with the word 'suit' shows that Sub-section (4) is dealing with the same suit as has been dealt with in the previous sub-section' but no ostensible reason has been given in the case of Premjit Singh, In support of this view reliance has been placed on the decision of the Calcutta High Court in the case of Miah Moulvi, (AIR 1953 Cal 600) (supra) which, as I have said earlier, is actually based upon a Full Bench judgment of that court in the case of T. S. R. Sarma (AIR 1952 Cal 879) (supra). With respect, I would say that the reasoning given is sustainable neither on principle nor on the terms of sub-section (4). I am therefore, of the considered opinion that Sub-section (4) would apply to the suits for eviction as contemplated by Sub-section (1) of Section 11 generally irrespective of the fact whether the eviction is claimed solely on the ground of non-payment of rent under Clause (i) or on any other ground as mentioned in Clauses (a) to (h) or any of these grounds in addition to the ground of non-payment of rent under Clause (i). This is also the view expressed in the case of Sukh Ram (1979 Kash LJ 268) (supra) with which I agree. The view to the contrary expressed in the case of Gurcharan Das, is not correct and is overruled. Accordingly it must also be held that the cases of Wahi-ud-Din, Madan Lal and Mohd. Shaffi (1970 Ren CJ 916) (J & K), 1973 J & K LR 445 and 1977 J & K LR 427 : AIR 1977 NOC 368 (J & K) (supra), in which the decision in the case of Gurcharan Das has been followed, have not been correctly decided.

15. Then comes the question, what is the ambit and scope of the words 'by giving an opportunity to the par-ties to be heard'' used in Sub-section (4)? The answer to this question, in turn, depends upon the question: what is the nature and character of the order contemplated by this sub-section? It is not difficult to see that the order is intended to be of an interim nature in order to compel the tenant to pay up current and arrears of rent at the rate last paid, i.e. at the rate impliedly admitted by the tenant, on pain of his defence being struck off at any stage if he commits default in such payment so long as the suit lasts. Therefore, where the tenant disputes his liability for the arrears or as regards the rate of rent last paid, the court would be required to hold an enquiry and deter- mine the dispute but the enquiry must necessarily be of a summary nature, For, the determination is intended to be merely provisional subject to correction by a regular determination in the same suit or in the separate suit depending upon the facts and circumstances of each case. In the circumstances I am of the opinion that the enquiry contemplated by Sub-section (4) is to be a summary enquiry and not a regular enquiry in which oral evidence may be examined. In the case of Sukh Ram. (1979 Kash LJ 268) (supra) the learned single Judge, has, however, held that the expression 'after giving an opportunity to the parties to be heard' must necessrily include an opportunity to lead evidence also and then he has amplified this position observing as under:--'.....If the defendant-tenant doesnot admit his liability to deposit the arrears of rent or the monthly rent payable, the court is bound to determine such amount itself but only after hearing the parties and recording evidence, if any, led by them.' In view of what has been stated above, I would say with respect, that the law laid down in these observations is much too wide. It hardly leaves any room for distinction between Sub-section (1) and Sub-section (4) although the distinction is much too clear to be elaborated.

16. For the reasons stated above my answer to the two questions set out in the beginning would be as follows:--

QUESTION NO. 1

Sub-section (4) of Section 12 would be applicable to the suits for eviction as contemplated by Sub-section (1) ofSection 11 generally irrespective of the fact whether eviction is claimed on the ground of non payment of rent under Clause (i) or on any other ground mentioned in Clauses (a) to (h) or on any of those grounds in addition to the ground of the non-payment of rent.

QUESTION NO. 2

The enquiry contemplated by Sub-section (4) of Section 12 is to be of a summary nature and not of a regular nature in which the parties may be entitled to produce the oral evidence.

17-18. In the view expressed above Civil Revision No. 116 of 1976 fails. It is dismissed accordingly. So far as Civil Revision No. 3 of 1978 is concerned, the same, along with this opinion, shall be placed before the learned Single Judge, concerned and, in his absence, before any available bench competent to hear the same.

Mir, J.

I agree.

Mian Jalal-ud-Din, C.J.

19.I have had the benefit of going through the elaborate and lucid judgment prepared by my learned brother Mufti, J.

20. The following two questions have been referred to the Full Bench for an authoritative pronouncement.

(1) Is Sub-section (4) of Section 12 of the Act applicable to suits wherein ejectment of the defendant has been based also on the grounds other than the ground of non-payment of rent ?

(2) What is the scope and ambit of enquiry which the Court is required to make before passing an order under Sub-section (4) of Section 12 of the Act? I agree with the reasoning adopted and the conclusions arrived at by my learned brother that Sub-section (4) of Section 12 of the Houses and Shops Rent Control Act, (hereinafter referred to as 'The Act') would apply to suits for eviction as contemplated by Sub-section (1) of Section 11 generally irrespective of the fact whether the eviction is sought on the ground of non-payment of rent under Clause (i) or any other ground mentioned in cls. (a) to (h) or any other such ground in addition to the ground of non-payment of rent; and further that the enquiry contemplated by Sub-section (4) of Section 12 of the Act is to be of a summary nature.

21. There has been divergence of opinion in this Court on the proposi-tions of law canvassed before the Full Bench. I was a party to certain derisions of this Court namely Madan Lal v. Zahoor Hussain, Civil Second Appeal No. 119 of 1972, reported as 1973 J & K LR 445 and Mohammad Shaffi v. Mohi-ud-Din, Civil Revn. No. 53 of 1977 reported as 1977 J & K LR 427 : (AIR 1977 NOC 368 (J & K)). In these decisions, I expressed the view that Sub-section (4) of Section 12 of the Act would apply to a suit where the plaintiff's suit for ejectment is wholly and solely based on the ground of non-payment of rent; and where there are other grounds taken in the suit Sub-clause (4) of Section 12 of the Act would not apply. This view was expressed following the decisions given by a Division Bench of this Court in AIR 1954 J & K 48 and 1970 Ren CJ 916. The soundness of the proposition of law laid down by the Division Bench was not challenged before me in any of the above mentioned cases. Being a decision of Division Bench it was binding on the Single Bench. Now that the matter has been referred to the Full Bench, I think that I should reconsider my earlier view taken in the above mentioned cases.

22. It has been debated before us that the words used in Section 12 of the Act are significant inasmuch as what that section envisages is that if in a suit for recovery of possession of any house or shop from the tenant, the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 11 of the Act, the Court shall determine the amount of rent legally payable by the tenant including the arrears. Emphasis has been laid down on the words 'but for Clause (i)' and it is argued that Section 12 is limited to those suits in which the landlord would not get a decree for ejectment but only on the grourd mentioned in Clause (i) of the proviso to Sub-section (1) of Section 11 of the Act. In other words, the section is applicable only to those suits in which the sole ground taken which disentitles the defendant from protection of the Act is that the tenant has committed default in payment of rent for two months. Classes of suits in which the landlord claims eviction on other grounds also as mentioned in cls. (a) to (h) of Section 12 (1) of the Act in addition to the ground of default, do notfall within the ambit of Section 12 (4) of the Act.

23. On a careful consideration of the merits of this argument, I am of the view that what is sought to be canvassed by the learned counsel for the defendant is not the correct exposition of law. The expression 'the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 11' does not necessarily limit the application of the section only to those suits in which eviction is claimed only on the ground of nonpayment of rent. These words do convey the meaning that it is permissible to pass a decree for ejectment only on the ground mentioned in Clause (i) but these words cannot be construed to mean that the suit must be based upon the sole ground of default of payment of rent. That would be stretching the language too far and to an unreasonable limit.

24. Again, cases are conceivable where a landlord may claim eviction of the tenant on the ground of default of payment of rent and also on other grounds namely reasonable requirement of the premises for his own use and occupation, for building and rebuilding purposes, and such other permissible grounds. Does it mean that a bad tenant is entitled to claim protection because the plaintiff has based his suit for eviction on other grounds also Does it give impunity to a bad tenant from being evicted because of other grounds taken by the landlord in the suit In my opinion such a situation cannot be countenanced as it would put premium on bad tenants. Nor do the relevant provisions of the Act indicate anything like that. For the fore-going reasons, I am, therefore, of the clear opinion that Sub-section (4) of Section 12 of the Act would apply to suits wherein the ejectment of the defendant is claimed also on other grounds besides the ground of non-payment of rent.

25. I need not dilate upon the merits of the Question No. 2 inasmuch as my learned brother has elaborately dealt with this aspect of the matter. The enquiry contemplated by Sub-section (4) of Section 12 of the Act is not to be a full-fledged enquiry, but what is required is that the enquiry should be of summary nature in which the parties may be afforded an opportunity to be heard.


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