Durga Devi vs Gian Chand

C.J.

This is plaintiff's second appeal and arises out of a suit for ejectment of the defendant from a portion of the house situate in Raghunath Bazar,

Jammu, and also for recovery of rent due for a period of one year amounting to Rs. 360. The plaintiff alleged that the defendant executed a rent

deed on 6th Assuj, 2003 by which he took the house on lease on monthly rent of Rs. 30. The defendant failed to pay rent from 1st Katik 2015 to

1st Katik, 2016 and committed three defaults in the payment of rent and was liable to be ejected. A notice was served by the plaintiff upon the

defendant for eviction from the house and for the payment of rent due. The defendant having failed to vacate the house a suit was brought by the

plaintiff for ejectmen and for arrears of rent. The defendant in his written statement denied the claim of the plaintiff in regard to the arrears of rent.

He alleged that he made full payments and that the plaintiff had instructed him to pay the rent in lumpsum ; as such he had not committed any

default and was not liable to be evicted. The trial court of Sub Judge, Jammu, found that the defendant had committed three defaults within a

period of 18 months and was, therefore, liable to be ejected. As the defendant deposited one year's rent due from him a decree for ejectment

alone was passed against him. The defendant appealed and the Additional District Judge relying on the amendment of section 11 of the Jammu and

Kashmir Houses and Shops Rent Control Act, 2009 which came into force on 28th March, 1961, held that the defendant had paid the rent due

from him together with interest upto the end of Har 2018 and, therefore, he was not liable to be ejected. The defendant's appeal was accordingly

allowed and the plaintiff's suit was dismissed. The plaintiff has come up in further appeal to this Court.

It is argued on behalf of the appellant that the amendment relied upon by the Additional District Judge had no application to the present suit

inasmuch as the plaintiff had given a notice to the defendant to pay arrears of rent and to vacate the premises as he had defaulted in the payment of

rent. The question for consideration in this appeal is whether or not the amendment which came into force on 28th March, 1961 applies to the

present case. The amendment reads as under :

Amendment of section 11 Act, XIV of Svt. 2009. In section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, Svt. 2009

(herein after referred to as the principal Act) after subsection (1) the following subsection shall be inserted, namely :

(1A) In all suits for the recovery of possession of any house or shop commenced before 19the October, 1960, in which no notice had been served

by the landlord as contemplated by the proviso to clause (i) of the proviso to subsection (1) and in all appeals and revision petitions arising out of

such suit ; and such proceedings being pending on 21st February, 1961 the Court shall at the request of the tenant made in writing grant the tenant

fifteen days time to pay or deposit in the Court the amount of the rent legally payable and which is in arrears along with the interest on such arrears

at the rate of nine and threeeight per centum per annum from the date when the rent became due up to the date of the order together with the costs

of the proceedings allowable in such cases and on such payment the suit, appeal or revision petition, as the case may be, shall be dismissed.

The learned counsel for the plaintiff appellant submits that as notice was given to he defendant the above amendment did not apple to this case.

The notice which the plaintiff had given to the defendant was not a notice as contemplated by the proviso to clause (i) of the proviso to subsection

(1) of section 1. of the Act The proviso to clause (i) of the proviso to subsection (1) was added by amendment of section 11 on 19th October,

1960 which reads as under :

Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through

Post Office under a registered cover on the tenant to pay or deposit the arrears within a period of fifteen days of the receipt of such notice and the

tenant fails to pay or deposit the said arrears within the specified period.

The Legislature by adding the above proviso to clause (i) of the proviso to subsection (1) of section 11 has given special meaning to the arrears of

rent for purposes of the Houses and Shops Rent Control Act. If a tenant has not paid rent for son months he will not be in arrears unless the

following conditions contained in the proviso to clause (i) of the proviso to subsection (1) of section 11 are fulfilled, namely, the landlord on the

rent, becoming due serves a notice in writing through Post Office under a registered cover on the tenant to pay or deposit the arrears within a

period of fifteen days. This provision is made for the benefit to the tenants to save them from eviction on the mere ground that the tenant has

defaulted in paying arrears of rent. It may be that the landlord himself allows the tenant to pay rent in lumpsum and subsequently makes it a ground

for eviction of the tenant. In order to save tenants from such eventualities the Legislature has added a proviso to clause (i) of the proviso to

subsection (1) of section 11 by which a tenant will not be deemed to be in arrears unless there is a notice served by the landlord under a registered

cover on the tenant to pay the rent due and that rent remains unpaid within a period of 15 days from the receipt of the notice. The notice given by

the plaintiff in this case was not in accordance with the above mentioned proviso. The landlord allowed the rent to accumulate and asked the

defendant tenant by giving him notice to pay arrears and also to vacate the premises. It cannot be said, therefore, that the defendant had defaulted

thrice and had lost all protection from eviction. In order to show that there had been three defaults committed by the tenant so that he was not

entitled to the benefit of protection against eviction under the proviso to subsection (3) of section 12 it was necessary for the plaintiff landlord to

give notice to the tenant in accordance with the proviso to clause (i) of the proviso to subsection (1) of section 11 of the Act and if the rent due

was not paid within the specified time the tenant would be deemed to be in arrears. If such defaults are made by the tenant thrice he wil1 lose the

benefit of protection against eviction under the proviso to subsection (3) of section 12. As has been stated above, no notice as contemplated by

the proviso to clause (i) of the proviso to subsection (1) of section 11 was given by the landlord and, therefore, the amendment which came into

force on 28th March, 1961 was fully applicable to the plaintiff's case and as under that amendment the rent payable which was in arrears along

with the interest on such arrears was paid by the defendant within the time specified he was not liable to be evicted from the house. The Additional

District Judge has therefore rightly allowed the defendant's appeal and dismissed the plaintiff's suit. We find no force in this second appeal which is

dismissed but in the circumstances of the case we leave the parties to bear their own costs in this Court.