KEWAL KRISHEN Vs. HARISH KUMAR

JUDGEMENT

(1.) THIS is a plaintiffs appeal against the judgment and decree of the District Judge Jammu dismissing the plaintiffs suit for ejectment of the tenant defendant from the premises in question.

(2.) THE case came up before a division bench of this court, where the_ correctness of a Division Bench judgment reported in Kashmir Law Journal 1962, 176, Shrimati Durga Devi v/s Gian Chand with respect to interpretation of the amended Proviso to Section 12(1) of the Jammu and Kashmir Houses and Shops Rent Control Act, was questioned, and in view of the substantial question of law, the entire case has been placed before us.

(3.) THE plaintiffs case was that his father Lala Kashmiri Mal was the owner of the house situated in Parade ground Jammu and he rented out the house to the father of the defendant on a monthly rent of Rs. 22. A rent deed was executed on 24 -1 -2008. Subsequently, there, was a partition in the family of the plaintiff and his father as a result of which the house in question fell to the share of the plaintiff and the plaintiff was recognized as the landlord by the father of the defendant who further agreed to pay Rs. 30 per month as the rent of the house. On the death of the father of the defendant, the defendant continued to be the tenant on payment of rent agreed to by his father. The plaintiffs case further was that since August 1960 upto the end of December 1960 the defendant defaulted in payment of rent agreed to between the parties. The plaintiff further averred that after the default was committed by the defendant, he gave a notice as provided by the amended proviso to section 11 (i) of the Act, calling upon the defendant to pay the rent within 15 days and he further terminated the tenancy of the defendant tenant and directed him to surrender possession to the landlord. In spite of this notice, the defendant tenant defaulted in payment of the rent right upto December 1962. -The plaintiff, therefore, brought the present suit for ejectment of the tenant and for a decree for arrears of rent on the ground that the tenant had defaulted on more than three occasions within period of 18 months, in spite of a notice having been given to him as required by the amended proviso to Section 11 (i) of the Act.