BABU RAM Vs. OM PARKASH

JUDGEMENT

(1.) THE short question that falls for determination in this revision petition is: can the court refuse to strike out the defence of the defendant, who in a suit for ejectment has been ordered by it to deposit the rent due or recoverable from him in terms of Sub -section (4) of Section 12 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, but fails to deposit it within the period prescribed under the said section, where he shows sufficient cause for not depositing it within the said period ?

(2.) THE petitioner on an application made by the respondent in terms of Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, hereinafter to be referred to as the Act, was ordered by the trial court of City Judge at Jammu deposit in the court not only the arrears of rent amounting to Rs. 160/ - due from him but also the monthly rent payable by hIm. This order was passed on 3 -3 -1980. He, deposited the arrears on 19 -3 -1980 and the monthly rent on 5 -5 -1980. It is common ground that he in terms of the court order read along with the provisions of Section 12 (4) had to deposit the arrears by or on 18 -3 -1980 and the monthly rent by or on 30 -3 -1980. Admittedly, therefore, the arrears of rent were concerned and it was late by six days in so far as the monthly rent payable by him was concerned. The petitioners plea that he was prevented on both the occasions from making the deposit within time due to unavoidable circumstance having failed, his defence was ordered to be struck out by the trial court, hence the revision petition.

(3.) SECTION 12 (4) is mandatory in character and its plain and unambiguous language does not admit of any equivocation. The expression : "and on the 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 of ejectment" occurring in the section leaves no room for doubt that the court has in such a situation no option but to strike out the defence of the tenant. There is no provision in Section 12, or even elsewhere in the Act under which the court may exercise discretion not to strike out the defence of the tenant on his failure to make the deposit within the period fixed by the section, even it were to exercise it on being satisfied that the tenant was prevented from making the deposit due to sufficient cause, or even if it were other wise of the opinion that striking out his defence would in the peculiar circumstances of the case, be against the motion of justice, equity, or good conscience. Section 5 of the Limitation Act too does not apply in terms to an application by a tenant for depositing rent under Sub -section (4), and nor has this section been made applicable to such applications by the Act itself. The conclusion is, therefore, inescapable that the court is bound to strike out the tenants defence, once it is shown to it that he has failed to deposit the rent within the period prescribed by Sub -Section (4); the reason why he failed to do so being always irrelevant. A similar view that Sub -section (4) is mandatory in nature was taken by this Court in Sudesh Kumar Vs. Harjilal, 1980 KLJ 25 F. B.)