Gulchain Singh Charak vs Ram Ditta Sharma

This civil revision petition against an order of learned Sub Judge (C. J. M.) Jammu dated 1841981 raises a short, though substantial question of

law, as to the true import and scope of the expression"" the arrears of rent"" occurring in subsection (4) of section 12 of the Jammu and Kashmir

Shops Rent Control Act, 1956 (hereinafter called 'the Act). Though the question is purely legal, yet some salient facts do require notice.

During the pndencyof an ejectment suit filed on 481975 before the statement of the defendant was recorded, the plaintifflandlord, filed an

application on 20. 8. 1980 in the trial court under the section12 and for a direction to the tenant to continue to diposite month by month rent during

the pendency of the suit. The arrears where clamied at the rate of Rs. 180. The application was resisted by the tenant petitioner internally on the

ground that the trial court was not compititant to entertraned the application under section 12(4) of the act, until and unless the suit filed by the

landlord in the subordinate judge court claiming arrears Rs.7,380 (for the period August 1975 to 1978 end was disposed of, it was then maintened

that the arreas of rent which where barred by time could not be ordered to be paid under section 12(4) pression arrears of rent, used in Section 12

(4) refers to all the arrears irrespective of any limitation, it is urged that the legislature in its supreme wisdom deliberately ommitted the use of the

expression ""legally payable"" in the said provision, in contradistinction to its use in clause (i) of proviso to subsection (1) of Section 11 and in

subsection (1) of Section 12 of the Act. It is argued that the arrears clamimed by the landlord in the present case were such arrears of rent, which

had accrued during the pendency of the suit and such arrears could not, by any stretch of imagination, be held to be barred by limitation. Learned

counsel has placed reliance on a Full Bench judgment of the Patna High Court in Ram Nandan Shartna and another vs. Mst. Maya Devi and

Others AIR 1975 Patna 283.

Before taking up for consideration the submissions on the points of law, it would be advantageous to note some admitted facts The landlord,

respondant in the suit for ejectment also claimed arrears of rent amounting to Rs. 720/ being the rent for four months with effect 1st April, 1975 to

ending July, 1975. In the written statement filed, the rate of rent at Rs. I50/ PM was not disputed nor was it disputed that rent from 1st April, 1975

to ending July, 75 amounting to Rs. 720/ had not been paid. In para 10 of the written statement it was categorically stated that the defendant has

been and is prepared to pay the rent as mentioned in the para. It is not disputed by Mr. Thakur that a suit for the recovery of Rs. 7380/ was also

filed by the plaintiff in the Court of Sub Judge, Jammu and that the said suit is still pending disposal and that the rent claimed in that suit was for a

period of 41 months starting from Agust, 1975. It is explained that since the suit for ejectment was based on the grounds of personal necessity, the

landlord was obliged to file a separate suit for recorvery of rent which had accrued during the pendency of the ejectment suit on the basis of the

law as it existed before the Full Bench judgment of this Court in Gwasha Lai's case.

Act.

For facility of reference let us notice section 12 (4) of the

(4) If the tenant contests the suit, as regards claim for ejectment, the plaintifflandlord may make an application at any stage of suit for order on the

tenantdefendant to deposit month by month rent at the rate of which it was last paid and also the arrears of rent, if any, and the court, after giving

an opportunity to the parties to be heard ; may make an order for deposit of rent at such rate, month by month and the arrears of rent, if any, and

on failure of the tenant to deposit the arrears of rent within fifteen days of the date of 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 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 and the court may permit him to do so.

A plain reading of the section shows that an application under this provision can be made in a suit for ejectment at any stage of the suit. The

prayer in the application can be restricted to seek an order to the tenant to deposit future rent month by month, during the pendency of the suit at

the stipulated rate, or can be extended to seek an order for depositing arrears of rent, if any. The Court can give a direction to the tenant to pay the

arrears of rent"" within 15 days and also to continue to deposit month to month rent by the 15th day of the month following the month for which the

rent was payable during the pendency of the suit. On the failure of the tenant to comply with the direction, the court is under a legal obligation to

strike out the defence against ejectment with the result that the tenant is to be placed in the position as if he had not defended the claim to

ejectment. It is in this back ground that I shall consider the respective submissions made at the bar.

So far as the judgment of the Madhya Pradesh High Court (Supra) is concerned, that is of no avail for the proposition put forth by Mr. JP

Singh, for the simple reason that it deals with a provision which is materially different from the provisions subsection (4) of section 12 of the State

Act. Under Section 13 of the Madhya Pradesh Act, rent which can be ordered to be deposited by the court, is only for the period for wnich use

tenant may have made a default, Mo direction can be given 10 the tenant under the M.P. Act for depositing any other arrears of rent, whether

accrued during the pendeney of the suit, or otherwise. Under the State Act, as noticed earlier, the position is entirely different. The M. P. High

Court judgment, there fore, cannot advance the case of the appellant. I am also unable to agree with Mr. JP Singh that the expression ""arrears of

rent"" as used in Section 12 (4) has to be understood as arrears ""legally payable"" When the legislature has consciously omittecl the use of the

expression ""legally payable"" in section 12 (4), it would be betraying the intention of the legislature and doing violence to the plain language oi the

section to read that expression in section 12 (4) of the Act. The expression ''legally payable"" has been used in clause (1) of Proviso I to Section 12

as also in section 11 (1). The replacement of that expression by ""arrears of rent"" in Section 12 (4) of the Act is not without significance and it

appears that the legislature did not want to restrict the ambit and scope of Section 12 (4) only to rent 'legally payable' but wanted to extend it to all

arrears of rent"". The provisions of Section 12 (4) of the State Act are in parimaterial with the provisions of the Bihar Building (lease, rent and

eviction) Control Act 1947 which was the subject matter of discussion before a Full Bench of Patna High Court in AIR 1975 Patna (Supra.)

Section 11A as introduced by an amendment in 1955 to the Bihar Building (lease, rent and eviction) Control Act 1947 (hereinafter called Bihar

Act) reads thus.

11A Deposit of rent by tenants in suits for ejectment. If in a suit for recovery of possession of any building the tenant contests the suit, as regards

claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month at a rate at

which it was last paid and also the arrears of rent, if any, and the Court after giving an opportunity to the parties to be heard, may make an order

for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any and 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 be struck out and the tenant to be placed in the same position as if he had not defended the claim

of rejectment. 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 Court may further order recovery of cost of suit and such other compensation as may be

determined by it from the tenant.

This provision is absolutely is indentical to the provision of the State Act and, therefore, the interpretation placed on this Section by the Full

Bench of the Patna High Court would be of considerable assistance. Interpretting the expression 'arrears of rent' occurring Section 11 A, the court

opined that this expression took within its sweep all ""arrears of rent"" which have accrued during the pendency of the suit as also those 'arreas' the

recovery of which was not barred by limitation. Their Lordships laid down the law thus :

On a comparison of the relevant provision of the various State Statutes with that of Section 11 A of the Bihar Act, it would be noticed that the

Bihar provision stands in glaring contract to similar provision in the other Acts. Even on payment of all arreats of rent it does not relieve the tenant

from his liability to be evicted on the ground of nonpayment of rent. It is therefore just and proper that the ""arrears of rent"" occurring in Section 11

A must be interpreted to mean arrears of rent falling due during the period of the suit, which expression in certain circumstances, may mean period

of appeal or appeals, on the basis of the well known principle that an appeal is a continuation of the suit. But the expression will not embrace within

its ambit arrears of rent wnich had accrued due prior to the institution of the suit. As the expression means arrears of rent accuring due during the

pendency of the suit, the question of the claim being barred under order II Rule 2(2) of the Code of Civil Procedure does not arise at all. A second

suit would be maintainable obviously for realisation of arrears of rent accruing due during the pendency of the first suit. If restricted meaning were

not to be given, to the expression ""arrears of rent"" occurring in Section 11A remedy by suit may be barred, but the remedy by Section 11 A will

not be barred, resulting in great injustice to tenants and depriving them of their right to contest the suit for ejectment under coercion of striking out

their defence if all arrears, whether barred or not are not paid. Hence no arrears of rent in respect of any period prior to the institution of the suit

can be directed to be deposited under section 11 A. Filing of an application under section 11A is not circumscribed by any period of limitation.

Such an application is not governed by Article 52 of the Limitation Act, which applies to suits oniy"" (quoted from the head note B)

From the above exposition of law it is manifest that the Patna High Court took the view that the ""arrears of rent"" regarding which a direction

could be made are such arrears which had accrued during or prior to the suit and were not barred by limitation. I am in respectful agreement with

the aforesaid view.

The use of the expression ""at any stage of the suit"", which occurs both in Section 11 A of the Bihar Act as well as in Section 12(4) of the State

Act makes the intention of the legislature abundantly clear that if the arrears have accrued, a claim for their recovery could be made ""at any stage of

the litigation, whether in the trial Court or in the first appellate court, or second appellate Court or in revision or even appeal to the Supreme Court

and the claim to such arrears which have in any case accrued during the pendency of the suit cannot be defeated on any plea of limitation, as long

as the application is made at some stage of the suit. In the M. P. Act there is no provision which entitles the landlord to make an application under

Section 13 of the Act at any stage"" of the litigation. This meaningful distinction between the Patna Act, the State Act and the M. P. Act was clearly

noticed by the M. P. High Court in Sharadchand and others Vs. Vishnupant AIR 1978 M. P. 143) The following observations of the Full Bench in

that case need a special notice in this regard.

The words"" ""at any stage of the suit"" are undoubtedly comprehensive enough to apply to all stages of the litigation whether in the trial court or in

the first appellate court or in the second appellate court or in revision, or even in appeal to the Supreme Court, In the Madhya Pradesh Act, the

words at any stage of the suit"" are not there. It can be seen from the observations in para 12 of their lordships' decision that it rests on the

expression"" at any stage of the suit"". Thus, the provisions in the Bihar Act being different from those in the M. P. Act, Radha Kishan's case (AIR

1977 SC 1217) (Supra) is not opposite. Shri Tare argued that in the M. P. Act also appeal is included in the suit, since appeal is a continuation of

the suit. It is not correct to think that for all purposes an appeal is to be considered as continuation of the suit. It has to be seen in the context of the

statute in each case, whether an appeal would be a continuation of the suit for the particular purpose under consideration. Having regard to the

provisions contained in subsection (1) of S. 13 their rigour and impact, it is not possible to construe the word 'suit' as including appeal on the basis

that an appeal is continuation of the suit. That interpretation would lead to such unreasonable and unjust conclusions which the framers of law could

not have contemplated."" 13. The Bihar Act which was the subject matter of discussion in the Patna High Court in AIR 1975 Patna (Supra) came

up for consideration by the Supreme Court in AIR 1978 SC 287. Their lordships while referring the Section 11 of the Bihar Act, opined that since

a suit includes an appeal also, the plea of limitation is inconsequential so long as the recovery is sought to be made during the pendency of the

litigation arising out of an ejectment suit and relates to recovery of 'arrears of rent' which had accumulated during the pendency of that litigation,

However, so far as this State is concerned, the matter has not been left open for any debate because the legislature itself provided in subsection (5)

of Section 12 that provisions of subsec (4) shall be applicable to the courts of appeal also. It is, thus, manifest that so far as the ""arrears of rent'

which have accrued during the pendency of a suit for ejectment or appeal, a landlord is at liberty to make an application, 'at any stage' before the

final determination of the lis for their recovery and the plea of limitation is not available against him. Thus, by an application under section 12(4) of

the Act, a landlord can seek to recover ""arrears of rent"" at any stage of the proceedings even where a suit for recovery of such rent, in the absence

of Section 12(4) would be barred by limitation. Recovery can also be sought of such ""arrears of rent"", the recovery of which was not barred on the

date when the suit for ejectment was filed.

The law as it stood before the Full Bench judgment in Gwasha Lai's case, 1980 KLJ 25 was that unless a suit for ejectment of a tenant was

founded on the plea of default, no application under section 12 (4) of the Act could lie to direct a tenant to fulfil his obligations as a tenant and pay

arrears as also rent to the landlord, during the pendency of a suit. In those cases, the landlord was compelled to file separate suit for recovery of

rent, whether accrued during the pendency of the suit or prior to it. What was happening in reality was that as soon as a suit for ejectment was

filed, on grounds other than defaults in payment of rent, the tenant used to stop paying the rent and this caused great harassment to the landlord,

Realising this hardship, Section 12 (4) was introduced in the Act to compel tenants, to perform their obligations of paying rent, if they sought

protection under the Act. The Full Bench in Gwash Lai's case clarified the Position that whatever be the plea on which ejectment of the tenant was

founded, if the tenant wanted to resist his ejectment he could be issued direction as contemplated by S. 12(4) of the Act, thus, compelling him to

pay 'arrears of rent' to the landlord, It was under these cirsumstances that the landlord had to, in the instant case take recourse to filing a separate

suit However, when the position was clarified by the Full Bench, it became open to the landlord to take recourse to Section 12(4) and thus, when

the application was filed for recovery of the 'arrears of rent' which had been claimed in that suit also, there was no bar. Merely by filing a suit for

recovery of 'arrears for 41 month in the court of Sub Judge, Jammu, the nature of the ""arrears"" did not change and so long as they remained

arrears of rent,"" which had accrued during die pendency of the ejectment suit, the same could be recovered by' the landlord by invoking the

provisions of Section 12 (4) of the Act. The landlord, in present case claimed 'arrears of rent' at the rate of Rs. ISO/ PM from 1st April 1975

onwards. He, thus, claimed arrears for a period of four months before the institution of the suit and, thereafter, for the duration of pendency of the

suit. Since, section 12(4) of the Act was introduced to come to the aid of the landlord to recover rent, while affording protection to the tenant

against arbitrary evictions, the pendency of the suit for recovery of the rent, which had accrued during the pendency of the suit, was in the facts and

circumstances of this case, no bar to the maintainability of the application.

Again, while a landlord can claim the arrears of rent which have accrued during the pendency of the ejectment suit, he can also seek to

recover, by means of his application under section 12(4) such arrears of rent, which were not barred by time on the date when the suit for

ejectment was filed, unless the claim was barred by order 2 Rub 2 C. P. C. Admittedly,, no arrears have been claimed in this case which were

barred by time on the date when the suit was instituted. Rs. 720/ which had been claimed in the suit, and the liability to to pay which amount had

not been disputed in the written statement, were the arrears for four months starting from 1st April 1975 till the institution of the suit. These were

thus, not barred by time when their recovery was sought in the suit. Therefore, keeping in view the object of Section 12(4) of the Act, I hold that

even if some amount claimed in the application was subject matter of the suit, its recovery under section 12(4) could be directed, provided on the

date when the suit for ejectment was instituted, the claim was not barred by time. However, I refrain from expressing any opinion as to whether

time barred arrears could also be made a subject matter of the application under section 12 (4) of the Act because no such question is directly

involved in this case.

In view of aforesaid discussion, I hold that the learned trial court was legally justified to issue direction to the tenant to deposit the arrears of

rent at the rate of Rs. 180/ PM from 1st April 1975 till ending March 1981, amounting to Rs. 12960/ and to futher direct that the tenant to

continue to deposit the monthly rent, on the same rate by 15th of every month following the month for which the rent falls due. The court below has

acted legally and properly I find no reason to take a different view. The view of the court below is, therefore, confirmed. This revision petition is

accordingly dismissed.

By order of this Court dated 1581 operation of the order of Sub Judge (CJM) Jammu dated 18481 had been stayed. The petitioner shall,

therefore, now deposit in addition to Rs. 12960/ a sum of Rs. 1440/ being the arrears of rent from 1st April 1981 till ending November 1981, at

the rate of Rs, 180/ PM. Thus, a total sum of Rs. 14,400/ shall be deposited by the tenant within a period of 15 days from the date of this order.

The tenant shall futher continue to deposit monthly rent at the rate of Rs 180/ PM by the 15th of every month, following the month for which the

rent is due, till the disposal of the suit.

In view of the intricate question involved, I leave the parties to bear their own costs so far as this petition is concerned. Parties to appear

before the trial court on 281281.