(1.) THIS is plaintiffâ„¢s second appeal and arises out of a suit for ejectment of the defendant from a portion of the house situate in Raghunath Bazar, Jammu, and also for recovery of rent due for a period of one year amounting to Rs.360. The plaintiff alleged that the defendant executed a rent deed on 6th Assuj, 2003 by which he took the house on lease on monthly rent of Rs.30. The defendant failed to pay rent from 1st Katik 2015 to 1st Katik, 2016 and committed three defaults in the payment of rent and was liable to be ejected. A notice was served by the plaintiff upon the defendant for eviction from the house and for the payment of rent due. The defendant having failed to vacate the house a suit was brought by the plaintiff for ejectment and for arrears of rent. The defendant in his written statement denied the claim of the plaintiff in regard to the arrears of rent. He alleged that he made full payments and that the plaintiff had instructed him to pay the rent in lumpsum ; as such he had not committed any default and was not liable to be evicted. The trial court of Sub Judge, Jammu, found that the defendant had committed three defaults within a period of 18 months and was, therefore, liable to be ejected. As the defendant deposited one yearâ„¢s rent due from him a decree for ejectment alone was passed against him. The defendant appealed and the Additional District Judge relying on the amendment of section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 2009 which came into force on 28th March, 1961, held that the defendant had paid the rent due from him together with interest upto the end of Har 2018 and, therefore, he was not liable to be ejected. The defendantâ„¢s appeal was accordingly allowed and the plaintiffâ„¢s suit was dismissed. The plaintiff has come up in further appeal to this Court.
(2.) IT is argued on b3half of the appellant that the amendment relied upon by the Additional District Judge had no application to the present suit inasmuch as the plaintiff had given a notice to the defendant to pay arrears of rent and to vacate the premises as be had defaulted in the payment of rent. The question for consideration in this appeal is whether or not the amendment which carne into force on 28th March, 1961 applies to the present case. The amendment reads as under: -
(3.) THE Legislature by adding the above proviso to clause (i) of the proviso to sub -section (1) of section 11 has given special meaning to the arrears of rent for purposes of the Houses and Shops Rent Control Act. If a tenant has not paid rent for some months he will not be in arrears unless the following conditions contained in the proviso to clause (i) of the proviso to sub -section (1) of section 11 are fulfilled, namely, 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. This provision is made for the benefit to the tenants to save them from eviction on the mere ground that the tenant has defaulted in paying arrears of rent. It may be that the landlord himself allows the tenant to pay rent in lumpsum and subsequently makes it a ground for eviction of the tenant. In order to save tenants from such eventualities the Legislature has added a proviso to clause (i) of the proviso to sub -section (1) of section 11 by which a tenant will not be deemed to be in arrears unless there is a notice served by the landlord under a registered cover on the tenant to pay the rent due and that rent remains unpaid within a period of 15 days from the receipt of the notice. The notice given by the plaintiff in this case was not in accordance with the above -mentioned proviso. The landlord allowed the rent to accumulate and asked the defendant tenant by giving him notice to pay arrears and also to vacate the premises. It cannot be said, therefore, that the defendant had defaulted thrice and had lost all protection from eviction. In order to show that there had been three defaults committed by the tenant so that he was not entitled to the benefit of protection against eviction under the proviso to sub -section (3) of section 12 it was necessary for the plaintiff landlord to give notice to the tenant in accordance with the proviso to clause (i) of the proviso to sub -section (I) of section 11 of the Act and if the rent due was not paid within the specified time the tenant would be deemed to be in arrears. If such defaults are made by the tenant thrice he will lose the benefit of protection against eviction under the proviso to sub -section (3) of section 12. As has been stated above, no notice as contemplated by the proviso to clause (i) of the proviso to sub -section (1) of section 11 was given by the landlord and, therefore, the amendment which came into force on 28th March, 1961 was fully applicable to the plaintiffs case and as under that amendment the rent payable which was in arrears along with the interest on such arrears was paid by the defendant within the time specified he was not liable to be evicted from the house. The Additional District Judge has therefore rightly allowed the defendantâ„¢s appeal and dismissed the plaintiffâ„¢s suit. We find no force in this second appeal which is dismissed but in the circumstances of the case we leave the parties to bear their own costs in this Court.