MOHD SHAFI Vs. MOHI-UD-DIN

JUDGEMENT

(1.) IN a suit for ejectment in respect of shops rented out to the defendant, the plaintiff made an application under section 12(4) of the J&K Houses and Shops Rent Control Act in which he averred that the defendant is a bad tenant and has been in arrears for a pretty long time. He, therefore, requested the court that the defendant be directed under sub -section 4 of the Section 12 of the J&K Houses and Shops Rent Control Act to deposit the rent in the court. The defendant resisted this application on two fold grounds; that it was not maintainable because, of the grounds taken in the suit and further that the rate of rent being in dispute, the defendant claimed compensation for damages against the plaintiff the application was misconceived. The learned Sub Judge, Judge Small Causes Court who is seized of the case allowed the application and overruled the objections of the defendant. He ordered that the Defendant should deposit in the court arrears of rent amounting to Rs. 2850/ - within fifteen days. The same order has been passed in another suit No. 6 of 1971 which is pending for the recovery of rent. As the defendant feels aggrieved by these orders and a common question of law arises in both the suits, this single judgment will dispose both of them.

(2.) APPEARING for the defendant -petitioner, Mr. O. N. Trisal has contended that no order could be made for depositing the arrears of rent under section 12(4) of the J&K Houses and Shops Rent Control Act inasmuch as the suit for ejectment was grounded on manifold pleas. Vide Para 5 of the plaint the plaintiff claimed recovery of possession of the suit premises on a number of grounds; (i) that the defendant was a bad tenant who had committed successive defaults in the payment of rent; (ii) He had damaged the suit property and was proving a nuisance to the neighbours; (iii) that the plaintiff required the suit premises for his personal use and occupation. It is submitted that when recovery of possession is sought on different grounds then an application under Section 12(4) of the J&K Houses and Shops Rent Control Act is not maintainable. An application under section 12 calling upon the defendant to deposit the rent lies only when the sole ground urged is that the defendant is a bad tenant. Reliance is placed upon A.I.R. 1954 J&K 48 and J&K LR 1973: 446 (para 6) to support this legal proposition. Mr. Abdul Hamid Qarra learned counsel for the respondent has on the other hand convassed the preposition that application under section 12(4) is maintainable notwithstanding the fact that the plaintiff seeking ejectment of suit premises has added other grounds in support of his claim. In support of his contention he has relied upon the observations made by a single judge of this court in case reported in 1971 J&K LR: 47. He has further submitted that as a matter of fact the sole ground for ejectment taken by the plaintiff is failure of the defendant to pay rent and his being a bad tenant. Although there is an averment in the plaint that the plaintiff requires shop for his personal use, the plaintiff has not pressed this in the court below. No issue has been framed on this question. This shows that the plaintiff is not serious about this ground. In fact no evidence, it is urged has been led by the plaintiff to substantiate this ground. He has further urged that in view of this the only recognisable ground under the Houses and Shops Rent Control Act which entitles the plaintiff to seek recovery of the shop is under clause (i) of the proviso of sub section 1 of Section 11.

(3.) IN so far as the first legal proposition canvassed is concerned I agree with the learned counsel for the defendant petitioner that "an application under section 12(4) of the Houses and Shops Rent Control Act is not maintainable where a plaintiff has clubbed together different grounds for recovery of possession of the demised premises". The same question arose before a D.B. of this court (vide AIR 1954 J&K: 48) for consideration. The D.B. observed that the provisions of sub -sec. 4 of Section 12 are applicable to those suits which are instituted for eviction on the ground of non -payment of rent. If other grounds are taken by the plaintiff for ejectment then sub section 4 of section 12 is not applicable. Their Lordships of the D.B. proceeded to observe that in a suit in which the plaintiff bases his claim for ejectment not on the ground of arrears of rent due from the defendant, but on an other ground that the shop is needed by the plaintiff for his personal use the suit can -not fall within the ambit of Section 12(4). The same view has been reiterated in 1973 J&KLR page 445. That was also a case of ejectment based on several grounds. While disposing of this question I observed: