Skip to content


Abdul Ahad Khan Vs. Ghulam Mohamad Bhat - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 50 of 1982
Judge
Reported inAIR1984J& K30
ActsJammu and Kashmir Houses and Shops Rent Control Act, 1966 - Sections 2(6) and 11(1)
AppellantAbdul Ahad Khan
RespondentGhulam Mohamad Bhat
Appellant Advocate Hakim Ishtiq, Adv.
Respondent Advocate Zahoor Ahmed, Adv.
DispositionRevision allowed
Cases ReferredBaldev Sahai v. R. C. Bhasin
Excerpt:
- .....members of his family residing with him. 4. section 11 (1) (h) of the jammu and kashmir houses and shops rent control act, 1966, provides as follows :-- '11 (1). 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 : provided that nothing in this sub-section shall apply to any suit or decree for such recovery of possession- (h) where the house or shop is reasonably required by the landlord either for purposes of building or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house of shop is held : provided that all sub-tenants in the house or shop.....
Judgment:
ORDER

Mufti Baha-Ud-Din Farooqi, C.J.

1. This revision is directed against an order passed on 28-4-1982, by the City Judge, Srinagar, declining the defendant's prayer for amendment of the written statement. The suit has been brought by the landlord for the eviction of the tenant on the ground of his personal necessity. During the pendency of the suit, the tenant asked for permission to amend the written statement The proposed amendment was aimed at raising the plea to the effect that the tenant's two brothers have left their studies and are now doing typing job along with the tenant in the disputed shop. The trial Court rejected the motion for the amendment on the ground that the proposed amendment fell outside the scope of the suit

2. The argument of the learned counsel for the tenant-petitioner is that the view expressed by the trial Court is erroneous. He urged that in determining the reasonableness of the personal necessity, the Court is required to have regard to the comparative advantage or disadvantage of the landlord and of the tenant. He further urged that the tenant would include the members of his family residing with him and, consequently the requirement of the brothers set up by the tenant was germane to the suit. In this context, he contended that the trial Court was unjustified in holding that the proposed amendment fell outside the scope of the suit.

3. In reply, learned counsel for the landlord-respondent contended that there can be no dispute with regard to the proposition of law that in judging the reasonableness of the personal necessity, the Court is required to have regard to the comparative advantage and disadvantage of the landlord and of the tenant, but the tenant would not include the members of his family residing with him.

4. Section 11 (1) (h) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, provides as follows :--

'11 (1). 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 :

Provided that nothing in this sub-section shall apply to any suit or decree for such recovery of possession-

(h) Where the house or shop is reasonably required by the landlord either for purposes of building or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house of shop is held :

Provided that all sub-tenants in the house or shop are made parties to the suit and allowed opportunity of contesting claim to decree for ejectment.'

Explanation: The Court in determining the reasonableness of requirement for purposes of building or rebuilding shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement of occupation shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant:

Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the house or shop and allowing the tenant to continue occupation of the rest, and the tenant agrees to such occupation, the Court shall pass a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the house or shop within Clause (3) or Clause (5) of Section 2 and the rent fixed shall be deemed to be the fair rent fixed under Section 8 :

(i) subject to the provisions of Section 12, where the amount of two months' rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by the contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with Section 14;

Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through Post Office under a registered cover on the tenant to pay or deposit the arrears within a period of fifteen days from the date of the receipt of such notice and the tenant fails to pay or deposit the said arrears within, the specified period.

2. 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 stoop 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.'

5. Section 2 (6) defines the expression 'tenant' as meaning any person by whom or on whose account rent or any money liable to be paid for use of house or shop, is or but for special contract would be payable for any such premises and includes legal representative of such person; and, person continuing in possession after termination of tenancy in his favour but does not include any person placed in occupation of the house or shop by its tenant without the consent of the landlord.

6. On the terms of this section, the persons who will be deemed to be the tenants, if the main tenant dies, are such persons only who can in law be regarded as his legal representatives. Thus the intention of the law is that the protection afforded by the Act should be available, apart from the main tenant, to these persons only who are residing with and dependent on the tenant and, in the event of his death, can be lawfully, regarded as his legal representatives. iN this view, the benefit of Section 11 (1) (h) can be claimed by the tenant; either for himself or for his dependants who are residing with him and can in the event of his death be regarded as his legal representatives,

7. For a contrary view reliance was placed on tine judgment of the Supreme Court in Baldev Sahai v. R. C. Bhasin (AIR 1982 SC 1091). In that case, the tenant was living in the tenanted house with his father, mother, two sisters, and his brother. Subsequently he shifted to Canada. His wife and children followed him. His mother and brother, however, continued to live in the tenanted house and kept on paying the rent to the landlord regularly. The landlord filed an application for ejectment of the tenant on the ground of requirement, and non-residence of the tenant under Section 14(1)(d) of the Delhi Rent Control Act. Section 14(1)(d) of the said Act provides as under:--

'14 (1). Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant;

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:--

(d) That the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof.'

8. The Supreme Court held that the word 'family' used in this section is to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants ' from the common ancestors who are actually living with the same head. A beneficial provision must be meaningfully construed as to advance the object of the Act, and curing any lacuna or defect appearing in the same. Thus the term 'family' must always be liberally and broadly construed so as to include near relations of the head of the family. On this interpretation, the Court dismissed the landlord's action for ejectment. The decision of this case obviously turns on a provision which is neither in pari materia nor even akin to Section 11(1)(h) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. Accordingly the decision is distinguishable in the present ease.

9. In the view expressed above, the decision of the proposed amendment hinged on the determination of the question whether the two brothers whose need was set up by the tenant as a defence to the suit were living with and dependent on him and whether, in the event of his death, they could be lawfully regarded as his legal representatives. If the answer to this question turned into affirmative, the proposed amendment was liable to be allowed and, on the other hand, if the answer was found to be in the negative, then the amendment was liable to be disallowed. The trial Court has not approached the matter in this light. Accordingly the impugned order must be set aside and the matter must be referred back to the trial Court for passing fresh orders in the light of the observations made above. Allowing this revision petition, I hereby do so. There shall be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //