PREMJIT SINGH Vs. SHIV RAM

JUDGEMENT

(1.) THIS is an application by the defendant against an order of the Sub Judge Baramulla dated 24 -4 -1969 striking out the defence of the petitioner as a consequence of his not complying with order dated 9 -12 -1968, directing the petitioner -tenant to deposit arrears of rent within 15 days of the order and also deposit rent month by month at the rate of Rs. 7.50 per month.

(2.) THE application arises out of a suit instituted by the plaintiff landlord for ejectment of the defendant mainly on the ground of personal necessity. The only point argued before me is that since the suit was based on the ground of personal necessity as contemplated by S. ll(i)(h) of the Houses and Shops Rent Control Act (hereinafter to be referred to as the Act), therefore S. 12(4) of the Act would have no application to the case and the order passed by the court below was without jurisdiction. Counsel for the respondent, however, contended that S. 12(4) was an independent section and the learned Judge had ample jurisdiction to make an order directing deposit of the rent by the defendant. In my opinion the contention of the petitioner is well -founded and must prevail. In order to appreciate the scope and ambit of S. 12(4) the provisions of S. 12(1) cannot be divorced and sub -section 4 cannot be read in isolation. The relevant portion of S. 12(4) runs thus: - "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 arrear 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 15 days of the date of the order or the rent at such rate for any month by the 15th 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 suit mentioned in Sub -Section (4) obviously refers to the nature of the suit contemplated by S. 12(1) which runs thus: "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 Cl. (i) of the proviso to Sub. S. (I) of S. 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 -S. (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 day when the rents became arrears up to such date, together with the amount of such cost of the suit as if 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 " Analyzing S. 12 it would appear that this section imposes upon the court a duty to determine the amount of rent legally payable as also the arrears in a case where a suit is for eviction of the tenant not only on other grounds mentioned in S. 11 but also on ground (i) that is to say where two months rent legally payable has not been paid. In other words S. 12(1) would apply to cases where amongst other grounds taken by the landlord for evicting the tenant one of the grounds is also the ground of default. If the landlord does not seek to eject the tenant on the ground that he is a defaulter as contemplated by S. 11(1) (i) of the Act, then S. 12(1) would have no application to such a case. Since the words "if the tenant contests the suit..." in S. 12(4) refer to the suit as envisaged by S. 12(1) it is manifest that S. 12(4) would also apply to the same nature of suits in which the court has been given the power to determine the rent legally payable etc., that is to say a suit which amongst other grounds is also based on the ground that the tenant is a defaulter as contemplated by S. ll(I)(i).

(3.) IN the present case it is common ground that the plaintiff has not prayed for recovery of the rent on the ground that the defendant is a defaulter, nor has he pleaded facts necessary for the application of S. 11 (I) (i) of the Act. To such a case therefore neither S. 12(1) nor S. 12(4) would apply. In my opinion S. 12(4) has been engrafted for the benefit of a landlord who brings a suit for ejecting the tenant mainly on the ground of nonpayment of rent and the object behind this section is to see that all arrears of rent are paid to the landlord and further that the rent is paid to him regularly so long as the suit lasts because even if a case for ejectment on the ground of nonpayment of rent is made out, unless there are three successive defaults the suit can still be dismissed after payment of rent, arrears, interest and costs. These considerations, however, do not apply to a suit which is brought against the tenant for his ejectment on the ground of personal necessity or other clauses of S. 11(1). That is why in S. 12(1) emphasis has been laid on Cl. (i) of the proviso to S. 11(1) by using the words. "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 cl. (i) of the proviso to Sub -S. (I) of S. 11......