Ali Mohd Wani vs Qazi Abdul Rashid

S.N. Jha, C.J.—This civil revision by the defendant is directed against part of the judgment and order of the District Judge, Srinagar dated

6th April, 1996 in appeal No. 7 of 1994 by which, while remanding the suit to the trial court for fresh decision, he upheld the order of the trial

court by which the defence of the defendant as to ejectment had been struck out in terms of Section 12(4) of the Jammu and Kashmir Houses and

Shops Rent Control Act, 1966.

The facts of the case so far as relevant for disposal of this revision are that the plaintiff-respondent filed suit for ejectment of the petitioner on

ground of personal requirement and default in payment of rent. On application for deposit of arrears and current rent, an order u/s 12(4) of the Act

was passed on 2nd August, 1985. Section 12(4) requires the tenant to deposit the arrear rent within fifteen days of the order and the current rent

by the fifteenth day of the next following month. Alleging that the petitioner had made irregular deposits and thus violated the order, the respondent

filed application for striking out the defence on 23rd November, 1993. The court allowed the prayer and by the same order, dated 29th June

1994, also decreed the suit. On appeal by the petitioner, the appellate court took the view that disposal of the suit was not in accordance with law

and, accordingly, remanded the suit for fresh decision but upheld the part of the order by which defend stood struck out.

It is relevant to mention here that during the intervening period, the present civil revision was dismissed in default against which the petitioner

moved the Supreme Court in SLP (C) No. 9507/2002 giving rise to Civil Appeal No. 6864 of 2003. A grievance was made on behalf of the

respondent that the petitioner was occupying the suit premises without paying rent. In the circumstances by order dated 29th August, 2003, while

setting aside the dismissal of the civil revision, the Supreme Court directed that the arrears of rent up to date shall he paid as condition precedent to

re-hearing of the civil revision. It is not in dispute that the petitioner deposited the arrears of rent pursuant to the above order of the Supreme Court

dated 29th August 2003.

I have mentioned the above development for the sake of record. In the instant case, we are only concerned with the question as to whether the

order of the trial court dated 2nd August, 1985 directing the petitioner to deposit arrear as well as current rent in terms of Section 12(4) of the Act

stood violated and if so, whether it warranted striking out the defence.

Mr. S.R. Hussain, learned Counsel for the petitioner, submitted that the court below proceeded on the assumption that the provisions of Section

12(4} are mandatory in nature which is not in accordance with law. Relying on Ganesh Prasad Sah Kesari and Another Vs. Lakshmi Narayan

Gupta, , he submitted that identical provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 was held to be directory. It was

also held that in suitable cases, the court can extend the period for making the deposit. The submission of the counsel, as a proposition of law, is

well founded.

In Ganesh Prasad v. Lakshmi Narayan (supra) the provision that fell for consideration before the Apex Court was as under:-

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 next following month, the court shall order the defence against ejectment to be struck off and the tenant be placed in the same position as if

he had not defended the claim to ejectment.

The Supreme Court held as Under:-

Where the court fixes a time to do a thing, the court always retains the power to extend the time for doing so... Failure to comply with an earlier

direction should not necessarily visit the tenant with the consequence of his defence being struck off because there might be myriad situations in

which default may be committed. The Court should adopt such a construction as would not render the court powerless in a situation in which ends

of justice demand relief being granted. The High Court has adopted such a construction which would defeat the beneficent nature of the provision.

The decision of the High Court will have to be set aside because it proceeds on the basis that once there is default, the tenant must suffer the

consequences of it.

The relevant provision of the Jammu and Kashmir Houses and Shops Rent Control Act is as under:

... 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....

From the conjoint reading of the two provisions, it is manifest that they are pari materia and, therefore, the decision, Ganesh Prasad v. Lakshmi

Narayan (supra), would apply to the present case on all fours. In view of the decision, there can be no doubt that the assumption on which the trial

court proceeded to strike out the petitioner's defence that the 'striking out' provisions of Section 12(4) are mandatory, is not correct.

The question which would then arise for consideration is whether the petitioner had sufficient cause for committing defaults in making regular

deposits of the monthly rental. The court has power to extend the period but only on sufficient cause shown by the tenant. If no sufficient cause is

shown to the satisfaction of the court, the question of extending the period may not arise.

In this regard the Submission of Mr. S. Hussain was that from perusal of the chart placed on record showing deposits of rent for different

months it would appear that the actual default was during 1990. Deposits thereafter were only irregular, as would appear from the chart,"" the

petitioner made deposits for more than one month either for the past month or the next month -- at a time. Counsel stated that as on date the

petitioner has paid the entire arrear and nothing is due to the respondent towards rental. Counsel Submitted that, as a matter of fact, the

respondent has withdrawn the amounts deposited by the petitioner from time to time. He submitted that having withdrawn the amounts, the

respondent waived his right to seek striking out of defence.

Sub-section (4) of Section 12 of the Act lastly provides--

...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.

The provision shows the intention of the legislature that the withdrawal of the amount would not affect the right of the landlord to claim decree for

eviction. It does not provide for the consequences of such withdrawal on the landlord's right to seek striking out the defence in terms of the

preceding clause, quoted earlier. In my opinion, withdrawal of the amount(s) deposited by the tenant would not stand in the way of the landlord to

claim ejectment form the suit premises but it is debatable if he can also seek striking out the defence. However, If tenant can explain the non-

deposit within the period allowed, and the court can extend the period, I am inclined to think that the act of withdrawal would constitute waiver of

his right and he can not later seek striking out defence. Waiver, as is well known, is relinquishment of a known right. Delayed deposits confer a

right to seek striking out the defence but where the landlord withdraws the amount without leave of the court, he would by conduct be deemed to

have condoned the default and relinquished his right.

There is, however, a dispute about the correctness of the case of the petitioner regarding deposits. Mr. H. L. Hussain appearing for the

respondent submitted that the respondent withdrew only the amount which the petitioner deposited after the Supreme Court's order and not the

deposits made prior to 23rd November when he filled application for striking out the defence. Counsel for the petitioner- Submitted that this

controversy may be resolved from the trial Court's record, which unfortunately is not available on the file. This is one aspect which needs

ascertainment.

Another aspect which needs verification from the trial court's record is whether the petitioner deposited the entire amount falling due upto

November, 1993. In fairness to the petitioner, I may mention that I calculated the figures as mentioned in the chart, reflecting the deposits allegedly

made by the petitioner pursuant to order dated 2nd August, 1984 u/s 12(4) of the Act from August 1985 to November, 1993 i.e. For 100 months

in all, As per the chart, the petitioner appears to have deposited a sum of Rs. 21,000/- which, if true, means that he deposited the amount due for

the entire period @ Rs. 210/-, the admitted rent per month. However, it is not proper to place total reliance on the chart. This also needs to be

verified from the trial court's record.

As indicated above, the trial court proceeded on the assumption that the provisions of Section 12(4) are mandatory which is not correct and

this alone is sufficient to warrant reconsideration of the matter.

Accordingly, the order of the trial court dated 29th June, 1994 striking out the defence as to ejectment as well as part of the appellate court's

order dated 6th April, 1996 upholding the same are set-aside. The trial court is directed to pass fresh order on the application filed by the plaintiff-

petitioner u/s 12(4) of the Act in accordance with law. This should be done preferably within one month of the receipt of the copy of this order.

The revision is thus allowed. There will be no order as to costs.