SUDERSHAN KUMAR KHAJURIA Vs. HARI KRISHAN GANDOTRA

JUDGEMENT

(1.) THIS revision arises out of an order dated 29.1.2005 passed by the Ist Additional Munisff (Forest Magistrate), Jammu allowing application of respondent/plaintiff under section 12(4) of the J&K Houses and Shops Rent Control Act, 1966( hereinafter called the Act) whereby the trial court has directed the petitioner/tenant to pay the arrears of rent amounting to Rs. 1,23,000/ - from September, 1999 to January, 2003 within a period of 15 days from the date of order and also to deposit month to month rent before 15th of every month.

(2.) BRIEFLY stated the facts as emerge from the record are that, the petitioner herein was a tenant under one Kunj Lal Gandotra at Ist Floor of House No. 733, Prem Nagar, New Plots, Jammu. The landlord filed a suit for eviction against the petitioner on three grounds: (i) that the premises in question is not being used by the defendant for more than seven consecutive months; (ii) that the premises is reasonably required by the plaintiff for his personal use and occupation; and (iii) that the defendant has committed three defaults within a period of 18 months . The defendant/petitioner after appearing in the suit , filed his written statement. During the pendency of the suit, sole plaintiff died and the present respondent namely Hari Krishen Gandotra made an application for substitution as plaintiff claiming himself to be the Legal Heir of deceased plaintiff on the strength of a Will said to be executed in his favour by the deceased plaintiff. This application was resisted by the present petitioner. It appears from the record that respondent applied for probate of the Will , which was granted to him. On the basis of probate of the Will, he was directed to be substituted as the plaintiff in place of deceased Kunj Lal vide order dated 10.12.2002. The respondent on being substituted as the plaintiff, filed an application under section 12(4) of the J&K Houses and Shops and Rent Control Act claiming arrears of rent amounting to Rs.1,23,000/ - w.e.f. September, 1999 to January, 2003 at the rate of Rs. 3000/ - per month and also sought direction for deposit of the rent every month in future. . This application too came to be resisted by the petitioner herein. It was urged that the deceased plaintiff during his life -time has received rent including the advance rent. It was specifically pleaded that the deceased was paid a sum of Rs. 45,000/ - @ Rs.2500 - per month on 10 -12 -2000 against proper receipt and another sum of Rs.60,000/ - on 10.4.2001 being advance rent against proper receipt . Xerox copies of these receipts were also placed on record. It was also stated that the deceased was paid Rs. 2500/ - per month and not Rs. 3000/ - as was claimed. The trial court vide its order dated 25.8.2003 ordered an enquiry into the matter and the parties were directed to adduce evidence with respect to their respective stands in the application , keeping in view the fact that the enquiry is of only summary nature, parties were further directed to adduce their evidence by way of affidavits. Parties filed their affidavits as also the list of witnesses. The defendant was asked to appear for cross - - examination and when his cross -examination was being conducted , learned counsel for the parties made statement before the court that they do not want any cross -examination and the affidavits of the parties as also the witnesses be considered for deciding the application under section 12(4) of the Act, as is evident from order dated 26.3.2004 recorded by the trial court in this regard. The trial court after hearing the parties and on the basis of material placed before it, passed impugned order allowing the application of the respondent under section 12(4) of the Act.

(3.) MR . Sunil Sethi, learned counsel for the petitioner has assailed the validity of the aforesaid order on various grounds: (i) that the finding of the trial court that there are arrear of rent, is not sustainable particularly when the liability to pay arrear is denied ; (ii) that the rate of rent payable was Rs. 2500/ - per month and not Rs.3000/ - per month and therefore the direction to pay rent at the rate of Rs.3000/ - per month, is contrary to facts on record. During the course of arguments, it has also been urged by Mr. Sethi that there was no valid ground of default in the suit and therefore, the trial court was not competent to pass direction for deposit of rent in terms of section 12(4), the default being one of the necessary ground for attracting provision of section 12(4) of the Act. It has also been vehemently argued that the trial court has relied upon the statement of defendant/petitioner made in cross - examination without allowing the cross -examination of respondent/plaintiff and his witnesses. Further submission of Mr. Sethi is that the trial court has illegally ignored the affidavits of two witnesses of the petitioner on baseless plea that they were not subjected to cross - examination. It is also stated that the relationship of the landlord and the tenant having been denied , the trial court was not competent to order payment of rent to the respondent.