ABDUL SAMAD Vs. ABDUL AZIZ AHANGAR

JUDGEMENT

(1.) The Petitioner on 21.5.2009 instituted a suit for ejectment against the Respondent, in the court of Sub Judge Bandipora, pleading therein that the Petitioner was owner of a shop situated at Gulshan Chowk, Main Bazar, Bandipora let out to the Respondent for a period of 11 months commencing 11.4.2003 and that the period of tenancy having come to an end the Respondent was under obligation to handover vacant possession of the suit shop to the Petitioner. The Petitioner complained that the Respondent despite repeated requests and registered notice dated 7.2.2009 failed to handover possession of the suit shop to the Petitioner, leaving no option for the Petitioner but to institute the suit, seek eviction of the Respondent and also an amount of Rs. 1000/- per day as damages/compensation for illegal occupation of the shop by the Respondent.

(2.) The Respondent entered appearance in the suit and filed an application under Order 7 Rule 11 Code of Civil Procedure asking for rejection of the plaint.

(3.) The case set up by the Respondent was that Jammu & Kashmir Houses and Shops Rent Control Act 1966, being applicable to the place where suit shop was situated, the suit was barred under Section 11 of the Act and the plaint was liable to be rejected in terms of Order 7 Rule 11 Code of Civil Procedure. The application was resisted by the Petitioner on the grounds that order 7 Rule 11 Code of Civil Procedure had no application to the matter in controversy and was intended to prolong the proceedings. The Petitioner insisted that the Petitioner had cause of action to file the suit against the Respondents in as much as the Respondent was in un authorized occupation of the suit shop and no notice was required to be served, on the Respondent under J&K Houses and Shops Rent Control Act, prior to institution of the suit.