V. Khalid, C.J.
1. The tenant of a building against whom proceedings are pending under the J. & K. Houses and Shops Rent Control Act, has filed this writ petition, challenging the validity of Sub-section (4) of Section 12 of the Act and praying that the word 'shall' occurring in that section should be interpreted to mean 'may'.
2. Heard the counsel for the petitioner and that of the 2nd respondent. This writ petition is the finale of the various methods adopted by the petitioner to protract the rent control proceedings pending against him for ejectment He failed to deposit the rent as directed in the rant control suit. Necessary consequences as laid down in Section 12 (4) of the Act followed. I do not think it necessary to go into the further details of the proceedings in the suit since it is not necessary for the disposal of this writ petition.
3. The challenge against Sub-section (4) of Section 12 of the Act is based on its violation of Article 14 of the Constitution of India. To understand these contentions it is necessary to quote Section 12 (4):
'(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 giving 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 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.'
The petitioner's case is that this section cuts at the root of the object with which the Act itself, has been enacted. The Act was enacted to do away with the fanciful demands by the landlords for enhancement of rent and to prevent indiscriminate eviction on whimiscal or flimsy grounds. Section 12(4) enables the Court to strike off the defence of a tenant on his failure to deposit the arrears of rent within 15 days of the date of the order on an application at any stage of the suit directing the tenant to deposit the rent. The attack against this section is that it does not provide an opportunity to the tenant to explain the reasons and circumstances which prevented him from depositing the rent within the stipulated period. The section is bad since it does not confer a discretion on the Court to condone the delay in appropriate cases. The mandate contained in the section to strike out the defence is purely to the benefit of the landlord and is against the principles behind the enactment There may arise occasion where the tenant is prevented from making deposit for very valid reasons. To deny the Court a right to exercise discretion even in such cases, is to confer on the Court an arbitrary right which violates Article 14.
4. In support of his contention the petitioner's counsel strongly relied upon a Full Bench decision of the Patna High Court reported in AIR 1981 Pat 1. In that case the Court was considering the scope of Section 11-A of the Bihar Buildings (Lease, Rent and Eviction Control) Act. It is necessary to consider the facts of that case before testing the validity or the. correctness of the contentions raised in this writ petition.
5. A suit for eviction was originally dismissed by the trial Court An appeal was filed against that decision. On 1-5-1967 an application under Section 11-A was filed. This was allowed on 10-1-1968. The tenant was directed to deposit the arrears of rent amounting to Rs. 1,040/- and to continue to deposit thereafter every month. The legal representatives of the tenant who came on record after the death of the original tenant, moved an application for permission to deposit the arrears of rent which could not be deposited on account of the death of the Original tenant. This petition was allowed and the rent was being deposited as and when it fell due.
There was some delay in making the deposit, The landlord withdrew the rents deposited. However, he filed an application for striking off the defence on the ground that the deposits were made after delay and not in accordance with law. The appellate Court allowed the application despite opposition by the tenant and struck off the defence. The matter was placed before the Full Bench since a Division Bench of that Court had earlier spoken about the scope of Section 11-A of the Bihar Act, the correctness of which decision was doubted. It is necessary to understand the contentions raised in the case before the Full Bench before applying the principle laid down there to the facts of this case. I quote Section 11-A of the Bihar Act before proceeding further:
'11-A. If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment the landlord may make an application at any stage of the suit for order on the tenant to deposit mouth by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate as may be determined 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 any such rate for any month by the fifteenth 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 fight to claim decree for ejectment and the Court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant'
It is necessary to bear in mind that the discussion of the case by the Full Bench proceeded largely on the question of waiver and not on the question of the vires of Section 11-A or whether the word 'shall' should be read as 'may'. H. L. Aggarwal, J. held that the principle of waiver operated against the landlord despite the mandatory nature of the second part of Section 11-A since he had withdrawn the amount deposited out of time. The learned Judge held that Section 11-A was inserted for the sole benefit of the landlords and that the right of the landlord to withdraw the deposits made, was referable only to deposits made strictly in accordance with Section 11-A and not otherwise. The learned Judge observed further. :--
'The landlord is, therefore, not legally entitled to lay his hands on those deposits which are made out of time. Therefore, by making an application for withdrawing such deposits, certainly he derives an advantage which is due to him. ... .. ... .. ... .. ... ...
XX XX XX I have got no manner of doubt that striking out of defence does not cast any public duty on a Court nor does it contravene any public policy, The striking out of the tie-fence is purely intended for the, benefit of the landlord and therefore, it can be waived.'
6. B. A. Sinha, J. struck a slightly discordant note regarding some of the conclusions of Aggarwal, J. and held, after illustrating two instances where the tenant became disabled to make deposits in time, that even the second part of Section 11-A was directory in nature and not mandatory. He agreed with Aggarwal J. in his conclusion that the principle of waiver operated against the landlord in that case.
7. S. P. Sinha, J. dissented. He held that the striking out of the defence in that case was proper and in addition that consideration of the question of waiver which was not a pure question of law, not having been raised before the Court below, will not divest the Court of its jurisdiction: to strike out the defence of a tenant against ejectment. I may usefully refer to one observation of Sinha, J. in paragraph 37 of the judgment :
'... ... .. ... I may add that possibly ifthe provision of Section 11-A had required the Court to act only on the application of the landlord to strike out the defence, my answer would have been different. Since the provisions of Section 11-A do not require any such move on the part of the landlord, the action taken by the Court below striking out the defence has to be considered independent of any application having been made by the landlord for striking out the defence.'
8. Thus it can be seen that the above case turned on an entirely different set of facts. The question principally raised: and decided was the operation of the principle of waiver which is not present in this case.
9. The question raised in this writ petition was considered by this Court in 1971 J & K LR 55 and 1982 Kash LJ 456 : (AIR 1983 NOC 87). Fazal Ali, C. J. while considering the scope of Section 12 (4) of the Act held that the said section gave no discretion to the Court and non-deposit of rent within the time allowed by the Court mandated the Court to strike out the defence. The decision reported in AIR 1969 Guj 285, which was relied upon to contend that the Court had discretion to enlarge the time or to condone the delay in deposit, was distinguished in that case on the wording of Section 11 (4) of the Gujarat Act which used the word 'may' instead of the word 'shall' used in Section 12 (4) of the J. & K. Act. In 1982 Kash LJ 456 : (AIR 1983 NOC 87), Kotwal, J. again considered this question and held that Section 12 (4) was mandatory in character and that its plain and unambiguous language did not admit of any equivocation. The learned Judge repelled the contention that the word 'shall' occurring in Section 12 (4) should be interpreted to mean 'may' and that the Court had wide discretion to extend time for making deposit and for this proposition relied upon AIR 1954 SC 749, which held:
'The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the section of the Act and the rules made thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage, the appeal must be to Parliament and not to this Court.'
10. The learned Judge also referred to AIR 1980 SC 587 which was relied upon before me by the petitioner's counsel and AIR 1980 SC 1664 and distinguished those judgments the earlier one dealing with Section 13 (6) of the Madhya Pradesh Accommodation Control Act, 1961 and the latter with Section 15 (7) of the Delhi Rent Control Act, 1958 and held that the two sections referred to above on their wordings did not create any indefeasible right in favour of the landlord to have his tenant's defence struck out on his failure to pay the rent but gave a discretion to the Court whether or not to strike it out in the peculiar facts and circumstances of a given case. I respectfully agree with the above decisions.
11. The petitioner cannot, thus, successfully attack the validity of Section 12 (4) in a petition under Article 226 of the Constitution or Section 103 of the Constitution of Jammu and Kashmir. The section as it stands is clear. The Court cannot import into the section what it does not intend. The rent control legislation differs from State to State. Section 12 (4) gives a discretion to the Court by its first pact; the second part contains a mandate from which the Court cannot escape. As observed by the Supreme Court in AIR 1954 SC 749, the appeal as one made in this writ petition should be to the law making body and not to the Court. The policy of Courts is normally to keep away from deciding upon the vires of statutes. The Courts will do so only when it is absolutely necessary. The writ petition is an exercise, by a disgruntled tenant, after resorting to all the possible delaying tactics in the rent control proceedings taken against him to get the vires of the section questioned. The tenant has to be vigilant when ejectment suit is filed against him. The relief given to the tenant to deposit the rent to escape from his defence being struck off has to be jealously guarded by him. His default cannot be rewarded by an unnecessary exercise by this Court in a challenge about the vires of the section.
12. In 1980 Kash LJ 25 : (AIR 1980 J & K 36), a Full Bench of this Court had occasion to consider the scope of Section 12(4). Though the question as it is raised before me did not pointedly arise in that decision, Farooqi, J. (as be then was) while considering the scope of this section observed (in para 14 as follows :--
'... .. ... ... 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 fee struck out and relegate him to the same position as if he had not defended the claim for ejectment.. ... ...'
13. The writ petition is devoid of any merits. Section 12 (4) is perfectly valid and the word 'shall' occurring in that section has to be given its plain meaning. Dismissed.