INDER JIT Vs. JAI MANMOHAN

JUDGEMENT

(1.) THIS is a defendants second appeal against a decree for ejectment passed against him on the ground of his having com ­mitted three successive defaults so as to come within the mis ­chief of the proviso to S. 12 of the Houses and Shops Rent Control Act, 1966. Admittedly the landlord was one Tilk Raj who sold his properly to Mst. Jai Kour mother of the first respondent in 1958. A suit by Mst. Jai Kour for evicting the defendant on the ground of personal necessity had been dis ­missed by this Court and the decree was upheld by the Supreme Court. Thereafter a partition suit was filed by Jai Kaur and her sons and a compromise decree was passed by which the shop was allotted to the share of the plaintiff, Jai Monmohan. Immediately after the decree a notice was sent by Mst. Jai Kaur directing the defendant tenant to attorn to her son Jai Manmohan. A similar notice was sent by Jai Manmohan to the defendant tenant. Despite these two notices and without there being any ground for suspecting the title of the new owner, the defendant appellant appears to have imagined the existence of a dispute and deposited the arrears of rent from April to July 1964 in the Court of the Rent Controller under S. 14 of the Act. Even after the filing of the present suit, the defendant has been depositing rent before the Rent Controller. The Courts below concurrently found as a fact that the defendant tenant had committed three successive defaults and a notice was given by the plaintiff through Mr. Satish Kumar Grover pleader directing the tenant to pay up all the arrears of rent within 15 days. It would be seen that under the proviso to S. 12 (3) of the Act the landlord before evicting the tenant on the ground of three successive defaults was required to give notice of the default. A Full Bench of this Court in Kewal Krishen V. Harish Kumar, AIR 1964 J & K 67 has clearly held that a single notice for three successive defaults is sufficient to bring the tenant within the mischief of the proviso to S. 12 (3) of the Act. In this connection the Full Bench made the following observa ­tions: - "That where even one notice as contemplated by the proviso to S. 11 (i) has been given and three successive defaults have been committed despite the said single notice, the landlord has an absolute right to eject the tenant and on proof of these circumstances, the tenant will not be entitled to the protection given to him by S. 12 (1), (2) and (3). In such cases the application of pro ­visions of S. 12 (1), (2) and (3) would be completely excluded. That the amended proviso to sub -section 12 (1) of the Act does not contemplate the giving of notice on each succes ­sive default and the provisions of this proviso would be complied with if the notice for the first default has been given by the landlord."

(2.) THE learned counsel for the appellant tried to take shelter under S. 14 of the Act by arguing that a valid deposit of the arrears of rent having been made by him the defendant tenant cannot be held to be a defaulter within the meaning of S. 11 (i) of the Act. In my opinion the argument is wholly untenable. S. 14 (1) clearly indicates the conditions under which a deposit can be made and runs thus: - "Where the landlord does not accept any rent tendered by the tenant, or the tenant experiences difficulty in paying the rent to the landlord of the house or shop, he may deposit such rent with the Controller in the pres ­cribed manner."

(3.) BEFORE this section can apply, two conditions must exist. In the first place there must be a tender by the tenant to the landlord and a refusal on the part of the landlord to accept the rent. (2) The tenant must be experiencing difficulty in paying rent to the landlord. So far as the first condition is concerned, that does not arise in the present case at all. So far as the second condition is concerned, that also does not legally exist in the present case. The defendant tenant was informed by a legal notice served both by Mst. Jai Kour the ex -landlord of the tenant and by Jai Manmohan the present landlord of the tenant that rent was to be paid to Jai Manmohan. There was thus no Question of the defendant experiencing any difficulty in pay ­ment of rent to Jai Manmohan. If the defendant tenant imagin ­ed that a dispute existed between Jai Manmohan and Jai Kaur, then such a difficulty cannot be envisaged by S. 14 of the Act. The difficulty contemplated by this provision must be a real difficulty and cannot include a difficulty which exists in the imagination of the tenant. On the other hand the defendant tenant had absolutely no business to dispute the title of his new landlord and there were no grounds for suspecting his title at all, particularly when the original landlord had by a notice asked him. to attorn to the new landlord namely, Jai Manmohan. In these circumstances I am satisfied that the essential conditions necessary for a deposit to be made under S, 14 have not been fulfilled in this case and therefore any deposit which was made by the defendant tenant was an invalid deposit and has to be ignored. S. 11 (i) runs thus: - "Subject to the provisions of S, 12 where the amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with S. 14..." A perusal of this provision would show that the sub -section contemplates only three modes of payment. First the rent is paid by the tenant within the time fixed by the contract or failing that by the 15th of the month following or failing this by validly depositing it in the Rent Controllers Court under S. 14. In the present case the defendant tenant did not choose to deposit rent by the first two modes indicated above. In view of my finding on the application of S. 14 of the Act to the facts of the case, the deposit was clearly invalid and therefore it would not amount to payment within the meaning of S. 11 (i). The position therefore is that the defendant tenant was a defaulter and had committed default in payment of rent on more than three successive occasions within a period of one year. A notice for payment of rent was given to him and despite receipt of the notice he did not choose to pay up the arrears. Mr. Kotwal faintly suggested that in the notice the landlord had not indi ­cated the amount of arrears. In the first place there is no pro ­vision in the Act which requires the landlord to specify the amount of arrears in the notice to be given under the proviso to S. 12 (3). Secondly this was a case where the tenant was him ­self a party to the contract and knew that the rent was Rs. 40 a month. Furthermore he had himself calculated the arrears and deposited them illegally before the Rent Controller. In these circumstances there could be no question of the tenant being misled by the non -description of the arrears in the notice served. For these reasons this contention is over -ruled.