Decided on October 16,1986

SITA RAM Appellant
Nek Ram Sharma Respondents


- (1.) SHRI Nek Ram Sharma, respondent here o, has filed a suit for ejectment of Sita Ram, petitioner herein, from the premises situate at Talab Tiloo, Jammu, which is pending disposal in the court of learned Additional District Judge, Jammu. During the course of proceedings in that court, Nek Ram plaintiff -landlord moved an application under seer 12(4) of the J&K Houses and Shops Rent Control Act, (for short Act hereafter), for issuing a direction to Sita Ram defendant -tenant to deposit arrears of rent w. e. f. Feb. 16, 1984 till today. Objection were filed by the tenant resisting the above said application and further averring that his income had been alleged to be more than Rs. 40,000/ - per annum by the plaintiff and as such the provisions of the Act were not applicable and further that the matter regarding existence of relationship of landlord and tenant between the parties was pending before the Court. The learned trial Judge after holding a summary inquiry directed the tenat to deposit arrears of rent amounting to Rs. 45450/ - within 15 days of the passing of the order and further to deposit rent of @ Rs. 1500/ - P. M. on future in 15th day of the next following month, for which rent becomes due, failing which his defence against ejectment would be struck off. Aggrieved by this order the petitioner -defendant has come up in revision before this Court.
(2.) I have heard the learned counsel for the parties, learned counsel for the petitioner has argued that the plaintiff -respondent has taken a plea in the plaint that the income of the petitioner is more than Rs. 40,000/ - per annum and as such the provisions of the Act are not applicable to the present case and under such circumstances there is no reason to invoke the provisions of the Act for granting some concession to the plaintiff. I think learned counsel for the petitioner is not correct in his contention. No doubt the plaintiff has taken a specific plea in para 9 of the plaint that income of the defendant exceeds. ,Rs. 40,000,and as such the protection under the Act is not available to him, but the defendant in his written statement has denied this fact and thereby has contested the suit filed by the plaintiff. Sec. 12(4) of the Act provides that if the tenant contests the suit as regards claim for ejectment, the plaintiff landlord may make application, at any stage of the suit, for order on the tenant to deposit arrears of rent and also month by month rent. In this provision of law the words "contest the suit" are very pertinent. The relief available to the land lord under this provision is only when the tenant contests the suit. Admittedly the tenant -defendant in this case has contested the suit and specially denied his income to be more than Rs. 40,000/ -P. A. There was thus no bar for the Trial Court to have passed the order under Sec. 12(4) of the Act.
(3.) A Full Bench of this Court in case, Gwashlal Vs. Harjilal, reported as 1980 K. L. J. 25 has held as under : - "Then comes sub -sec. (4). This sub -section contemplates that the tenant shall have the right to oppose landlords claim for ejectment only so long as he pays the admitted rent past and present, without let or hindrance. This is another manifestation of the broad principle enshrined in Sec. 12 that the protection against eviction shall be available to the tenant only when he fulfils the enables the landlord to apply for an order directing the tenant to deposit arrears of rent due in respect of the disputed premises and also month to month rent at the rate last paid, if only tenant contests the claim for ejectment. The court is empowered to make an order to this effect after giving an opportunity to the parties to be heard on merits to the application, Where the court makes such an order, tenant is bound to deposit the arrears of rent within 15 days from the date of order on the rent at such rate for any month by fifteen day of the next following month, In default of such payment the court is required to order defence of the tenant -defendant against ejectment to be struck off and relegate him to the same position as if he had not defended the claim for ejectment." It is thus clear that in cases where landlords suit for ejectment is contested by the tenant, the landlord has been granted a right under Sec. 12(4) to make an application for deposit of arrears of rent and month to moth rent at the rate at which it was last paid. In fact it is a concession to the landlord to obtain arrears of rent from a tenant, who is defaulter in payment of the same. The rent of the premises @ Rs. 1500/ - P.M. is admitted. It is also not denied that the tenant -petitioner is in arrears since Feb. 16 1984. He is, therefore, bound to deposit arrears of rent under Sec. 12(4) of the Act for which a direction has rightly been issued by the Trial Court. There is thus no merit in this revision, which is dismissed accordingly. The petitioner -tenant shall now deposit arrears of rent with in fifteen days from today, failing which the consequence as incorporated in the above provisions of law shall follow. Learned Counsel for the parties have been directed to cause the appearance of their clients before the Trial Court on 30.10.1986.;

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