Decided on November 12,1982

HARBANS LAL Respondents


I.K.Kotwal, J. - (1.) Decision of this revision petition turns upon the interpretation of Sub-section (4) of Section 12 of the Jammu & Kashmir Houses and Shops Rent Control Act 1966, hereinafter to be referred to as the Act which reads as under: "(4) If the tenant contests the suit, as regards claim for ejectment, the plaintiff landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at a rate which it was last paid and also the arrears of rent, if any, and the Court after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate, month by month, and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so."
(2.) The petitioner herein is the defendant in the suit, out of which this revision petition has arisen, against whom the trial Court has on the application of the respondent, the plaintiff in the suit, issued an order under Sub-section (4) of Section, 12, directing it to deposit the arrears of rent from it for the month of November 1981 within fifteen days from the date of the order, and to continue depositing the monthly rent by fifteenth day of every month following the month for which the rent may fall due after November 1981. This order has been assailed on the ground that it has been passed by the trial court like an automaton, without even being conscious of the fact that it had discretion not to pass such an order in the circumstances of a given case. The use of the word "may", it was argued, made it abundantly clear that the Court was not bound to issue a direction to the defendant tenant to deposit the rent in the Court, merely because an application in that behalf was moved before it by the plaintiff-landlord, but it had a discretion not to issue the same in the peculiar circumstances of a given case, the tenant not being in arrears, being always one of such circumstances. The petitioner not being in arrears when the impugned order came to be passed, the Court, it was contended, ought to have exercised its discretion in its favour and declined to pass such an order against it.
(3.) On behalf of the respondent, however, it was urged that Sub-section (4) is a salutary provision, the object whereof is to ensure regular payment of monthly rent to the landlord during the pendency of the suit for ejectment, including payment of the arrears of rent due from the tenant if any. In case the Court were to have a discretion in making such an order when approached in that behalf by the landlord the very object of this provision, it was argued, would stand defeated, adding, that in the context in which the word "may" is used in Sub-section (4), it has to be interpreted to mean "must". It was further contended that failure to make the deposit in terms of the order passed by the Court under Sub-section (4) would create an indefeasible right in the landlord to have the tenant's defence to his ejectment struck out, as such, no intention could be attributed to the legislature to invest the Court with a discretion to take away this valuable right of the landlord. In any event, the point sought to be raised now not having been raised before the trial Court and the trial Court, as such, not having been provided with an opportunity to apply its mind to the facts of the case, whether or riot to exercise its, discretion in favour of the petitioner, assuming that it had any, no fault. It was argued, could be found with the impugned order.;

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