KULDEEP MATTOO Vs. HIRDAY NATH PANDITA

JUDGEMENT

(1.) THIS revision petition has been preferred against an order dated 24th of July 2002, propounded by the Sub -Judge, Jammu in a eviction suit, whereby the defence of the petitioners has been struck off for non -depositing of the month by month rent and arrears of rent, in terms of the provisions of Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. It is not in dispute that an agreement came to be executed between the parties on 14.10.1997. It is also not in dispute that the eviction suit has been initiated by the plaintiff -landlord against the defendants/petitioners on the grounds of defaults in the payment of rent. It was during the pendency of the suit, an application came to be filed by the plaintiff -landlord in the court of Sub -Judge, Jammu under Section 12(4) of the Houses and Shops Rent Control Act, 1966, alleging therein, that the defendants/petitioners be directed to pay the month by month rent and also to liquidate the arrears of rent. While disposing of the said application, the trial court directed the defendants to clear the arrears of out -standing rent within a period of fifteen days from the date of the order, with a further direction to deposit the monthly rent by fifteenth day of the next following month. Since the defendants did not comply with the directions of the court, an application came to be initiated by the plaintiff -landlord seeking indulgence of the Court to struck off the defence of the defendants/petitioners for having not complied with the court direction. The contention of the plaintiff -landlord has found favour with the trial court and the defence of the defendants/petitioners has been struck off on account of the non -compliance of the order of the court. An application was also moved by the defendants/petitioners seeking condonation of delay, for depositing the arrears of rent, which, in fact, has already been deposited about eight, months prior to the filing of the said application, under Section 12(4) of the Houses and Shops Rent Control Act, 1966. As a matter of fact, the trial court allowed the plaintiffs application and struck off the defence of the defendants/petitioners, and dismissed the application of the defendants/petitioners seeking condonation of delay for depositing the arrears of rent, which, in fact, had already been deposited, which became the subject matter of challenge in this revision petition.

(2.) I have heard learned counsel for the respective parties at length and meticulously gone through the order impugned under revision.

(3.) THE short controversy in this revision petition centers around the interpretation of the word 'shall occurring in Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 is directory or mandatory and whether in default of payment of monthly rent by the tenant, the striking out of the defence is inevitable. For facility of reference Sub -Section (4) of Section 12 of the Jammu and Kashmir House and Shops Rent Control Act, reads as under: - "(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 orders 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 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 has 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."