JUDGEMENT
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(1.) THE short question that falls for determination in this revision petition is: can the court refuse to strike out the defence of the
defendant, who in a suit for ejectment has been ordered by it to deposit
the rent due or recoverable from him in terms of Sub -section (4) of
Section 12 of the Jammu and Kashmir Houses and Shops Rent Control Act,
1966, but fails to deposit it within the period prescribed under the said section, where he shows sufficient cause for not depositing it within the
said period ?
(2.) THE petitioner on an application made by the respondent in terms of Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent
Control Act, 1966, hereinafter to be referred to as the Act, was ordered
by the trial court of City Judge at Jammu deposit in the court not only
the arrears of rent amounting to Rs. 160/ - due from him but also the
monthly rent payable by hIm. This order was passed on 3 -3 -1980. He,
deposited the arrears on 19 -3 -1980 and the monthly rent on 5 -5 -1980. It
is common ground that he in terms of the court order read along with the
provisions of Section 12 (4) had to deposit the arrears by or on
18 -3 -1980 and the monthly rent by or on 30 -3 -1980. Admittedly, therefore, the arrears of rent were concerned and it was late by six days in so far
as the monthly rent payable by him was concerned. The petitioners plea
that he was prevented on both the occasions from making the deposit
within time due to unavoidable circumstance having failed, his defence
was ordered to be struck out by the trial court, hence the revision
petition.
(3.) SECTION 12 (4) is mandatory in character and its plain and unambiguous language does not admit of any equivocation. The expression :
"and on the 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 of
ejectment" occurring in the section leaves no room for doubt that the
court has in such a situation no option but to strike out the defence of
the tenant. There is no provision in Section 12, or even elsewhere in the
Act under which the court may exercise discretion not to strike out the
defence of the tenant on his failure to make the deposit within the
period fixed by the section, even it were to exercise it on being
satisfied that the tenant was prevented from making the deposit due to
sufficient cause, or even if it were other wise of the opinion that
striking out his defence would in the peculiar circumstances of the case,
be against the motion of justice, equity, or good conscience. Section 5
of the Limitation Act too does not apply in terms to an application by a
tenant for depositing rent under Sub -section (4), and nor has this
section been made applicable to such applications by the Act itself. The
conclusion is, therefore, inescapable that the court is bound to strike
out the tenants defence, once it is shown to it that he has failed to
deposit the rent within the period prescribed by Sub -Section (4); the
reason why he failed to do so being always irrelevant. A similar view
that Sub -section (4) is mandatory in nature was taken by this Court in
Sudesh Kumar Vs. Harjilal, 1980 KLJ 25 F. B.)
Mr. Sharma, however, argued that keeping in view the object behind its enactment, Subsection (4) should not be construed to be
mandatory in nature, and in this view, the word "shall" occurring in it
should be interpreted to mean "may", giving the court a wide discretion
to extend time for making the deposit where to do so it deems necessary
for doing complete justice between the landlord and the tenant. The
object of the provision, according to the learned counsel, being two fold
i. e to ensure regular payment of rent to the landlord during the
pendency of the suit or appeal, and at the same time to protect the
tenant against eviction at the sweet will of his landlord, the tenant
should not be penalised for his failure to deposit the rent, where such
failure is not shown to be willful. I am afraid I cannot accept this
contention as well. The words used in a section, it is an elementary rule
of interpretation of a statute, have to be given their plain grammatical
meaning to find out the intention of the legislature, and this intention
cannot be found out by calling into aid any out side consideration.This
rule of interpretation was explained by Das J. in Ramanjaya Singh Vs.
Baijnath Singh, A I R 1954 S. C. 749 in these words :
"The spirit of the law may well be an elusive and unsafe guide and
the supposed spirit can certainly not be given effect to in opposition to
the plain language of the section of the Act and the rules made there
under. If all that can be said of these statutory provisions is that
construed according to the ordinary, grammatical and natural meaning of
their language they work injustice by placing the poorer candidates at a
disadvantage, the appeal must be to Parliament and not to this court.";
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