RAJESH UPPAL Vs. TILAK RAJ BAKSHI

JUDGEMENT

(1.) THE revision is directed against the order passed by Sub -Judge, Jammu on February 20, 1985 in Civil Suit No. 9 of 1984. Facts giving rise to the present revision arises out of the order passed by the learned Sub -Judge on an application filed by the plaintiff/ respondent on 11 -12 -1984 in a case for ejectment from a shop in dispute filed under the provisions of Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (hereinafter called the Act), wherein the plaintiff has prayed in terms of Section 12(4) of the Act for striking out the defence of the defendant -tenant as he failed to comply with the order of the Court passed on October 5,1984. The trial court by order passed on October 5, 1984 directed the defendant/petitioner to deposit the rent for the amount of October, 1984 before 15th of the next month, which the petitioner instead deposited on November 24, 1984. The application filed by the respondent was resisted by the petitioner on the ground that he could not deposit the rent of October, 1984 in time due to unavoidable circumstances, secondly on the ground of waiver, because the respondent has already withdrawn the rent for the month of October, 1984 so deposited.

(2.) THE learned trial Court after hearing the respective parties negatived the plea of waiver on the ground that the petitioner/tenant having failed to comply with the order for the deposit of rent for the month of October, 1984 before 15th of the next month, the Court is left with no other alternative except to strike out the defence of the petitioner allowing the application of the plaintiff by the order impugned with a further direction that the petitioner is placed in a position as if he has not at all defended the plaintiff suit. The record was sent for, after notice to the respondent/plaintiff, the revision is contested by the respondent. The petitioner has challenged the order impugned by enumerating the various dates on which the arrears of rent have been deposited by him before the trial court as follows: -

(3.) LEARNED counsel for the respondent in reply relying on various authorities of this Court reported in 1984 K. L. J. 46 (Shri Ram Nath vs. State of J&K anr.). 1983 K. L. J. 93 (M/s Mangat Ram Roshan Lal vs. Harbans Lal), 1980 K. L. J. 25 (Gwasha Lal vs. Harji Lal), a Full Bench authority on the scope of section 12(4) of the Act, A. I. R. 1976 S.C, 309 (M/s. Paradise Industrial Corpn. Appellants Vs. M/s Kiln Plastics Products, Respondents) and A. I. R. 1934 Orissa 207 (Md. Kamruddin Jamma, Petitioner Vs. Ganga Prasad and others, Opposite Parties) submitted that a willful default by the tenant having been made despite the orders of the Court, the withdrawal of such an amount does not amount to Waiver, hence the order passed by the learned trial court cannot be assailed.