Samir Ahmad Shah vs Abdul Rashid Wani & Others

1) Order dated 29th of December, 2020 passed by Principal District Judge, Srinagar “the trial court†in file No.13/N is assailed by the petitioner

(defendant in the suit) by way of this petition filed under Article 227 of the Constitution of India. Before adverting to the grounds of challenge to the

impugned order urged by the petitioner, it would be appropriate to, briefly, notice few material facts.

2) Petitioner is a tenant of the respondents qua a shop situated in a building known as “Landmark Complex†Karan Nagar, Srinagar. It is the case

of the respondents set up in the suit filed before the trial court that the petitioner paid the agreed rent with 5% annual increase till 31st January, 2018

and thereafter stopped paying the rent without any reason or justification. When the petitioner turned a bad tenant, the respondents filed a suit for

eviction of the petitioner from the suit shop and also prayed for a decree for recovery of arrears of rent amounting to Rs.46,250/ due and recoverable

till 31st of December, 2018.

3) The suit was contested by the petitioner and in the written statement filed by him, the petitioner did not dispute his status as tenant but pleaded that

he was not liable to pay rent as per the agreement executed between the parties on 2nd of June, 2007, which was only for a period of eleven months.

The petitioner took a specific stand in his written statement that the petitioner and the respondents had amicably sorted out the matter and it was

decided that the respondents would reduce the rent by 25% of the basic rent with effect from February, 2018. The petitioner also claims to have paid

rent of Rs.16400/ till May, 2019.

4) The matter came up for consideration before the trial court on 2nd of November, 2019, when the trial court, taking note of the stand of the

petitioner in the written statement and with the consent of the parties, directed the petitioner to deposit the agreed amount of rent in the Court within

two weeks, providing further that the deposit of agreed amount of rent shall not cause any prejudice to the rights of the parties and shall have no

bearing upon merits of the case.

5) When the consent order dated 2nd of November, 2019, was not complied by the petitioner, the respondents (plaintiffs before the court below) filed

an application seeking a direction to the petitioner to deposit the agreed amount of rent in the Court as per the rent agreement.

6) The matter was considered by the trial court and vide order dated 18th of August, 2020, the trial court clarified that the agreed rent in the instant

case would prima facie mean and include rent governed by the agreement and, accordingly, directed the petitioner to deposit the outstanding rent in

terms of the rent agreement entered into by the parties along with 5% increase every year. The trial court further provided that the respondents herein

shall give an undertaking that in case it is proved by the petitioner that there was a reduction of the rent, the respondents shall reimburse the same to

the petitioner forthwith.

7) This order of the trial court was assailed by the petitioner in CM(M) No.78/2020 by way of a petition under Article 227 of the Constitution of India.

A Bench of this Court, after considering the matter, found no merit in the petition and dismissed the same vide its order dated 27th of November,

2020. The parties were, however, left free to approach the trial court for clarification with regard to the period for which the rent has been ordered to

be paid.

8) Taking queue from the aforesaid observation of this Court in the order dated 27th of November, 2020, an application was moved by the respondents

for issuance of direction to the petitioner to deposit the rent in terms of the order of the trial court dated 18.08.2020 as upheld by the High Court vide

order dated 27th of November, 2020.

The application was opposed by the petitioner.

9) The trial court after considering the stand of the rival parties and in terms of the observations of the High Court clarified that the petitioner would be

liable to deposit rent in the trial court with effect from 1st February, 2018, till final disposal of the suit. It was further provided that the arrears till 31st

December, 2020, shall be deposited by or before 31st of January, 2021, and thereafter rent shall be deposited on monthly basis on 5th day of every

month. The trial court reiterated that the petitioner shall pay rent as per the rent agreement forming part of the plaint with 5% increase per annum as

directed vide order of the trial court dated 18.08.2020. It is this order of trial court which is called in question by the petitioner in this petition.

10) Having heard learned counsel for the parties and perused the record, I find no legal infirmity in the order impugned. It is the argument of learned

counsel for the petitioner that in a suit for eviction and recovery of arrears, the trial court is not competent to issue direction for deposit of arrears of

rent without first determining the arrears due and also the date from which these are due. The trial court, without determining these vital aspects has

virtually decreed the suit in so far as payment of arrears of rent is concerned. The argument will not hold any water for the simple reason that first

direction in the suit was passed by the trial court on 2nd of November, 2019 with the consent of parties and it was for depositing the agreed amount of

rent in the Court within two weeks.

11) It is true that in the order dated 2nd November, 2019, it was not clarified by the Court as to what would be the agreed amount of rent in the instant

case. This made the respondents to file another application which was contested by the petitioner by filing his objections. The matter was considered

at length by the trial court and vide its order dated 18.08.2020, the position with regard to “agreed rent†was clarified. What was held by the trial

court in the order is contained in para 14 and 15 of the order and is reproduced herein for facility of reference:

“14. Therefore, in the backdrop of the aforesaid discussion, it is clarified that the agreed rent in the instant case prima facie means and includes

rent governed by the agreement which agreement is admitted by the tenant in his written statement subject, of course, to the plea of oral amicable

settlement, the heavy burden of proof regarding the reduction of rent is upon the tenant to be discharged during the trial of the suit.

With this clarification, the defendant/non-applicant/tenant is directed to deposit the outstanding rent till date in terms of the Rent Agreement

entered into by the parties along with 5% increase forming part of the plaint.

However, to protect the lis and the interest of the tenant, it is directed that the plaintiff shall give an undertaking that in case it is proved by the

defendant that there was reduction of the rent, the plaintiff(s) shall reimburse the same to the defendant/non-applicant forthwith. The plaintiff shall

give undertaking within a week’s time and after furnishing of the undertaking, the tenant/non-applicant shall deposit the outstanding rent to this

court within a period of one month from the date of this order.â€​

12) Feeling aggrieved and dissatisfied with the order, the petitioner moved this Court by way of a petition under Article 227 of the Constitution of

India. The petition was found to be devoid of merit and dismissed by this Court. The parties, however, were left free to seek clarification from the trial

court from which date the agreed rent was payable. So far as the clarification given by the trial court in its order dated 18.08.2020 with regard to

agreed rent is concerned, the same was accepted by this Court. In this way, order dated 2nd November, 2019 read with order dated 18.08.2020

attained finality. The trial court was now called upon to determine the date from which the rent was payable. This was done by the trial court vide

order dated 29th of December, 2020.

13) The plea of the petitioner that the order impugned is tantamount to grant of decree in the suit by way of interim order is devoid of any substance

and cannot be accepted. As noted above, the petitioner has not disputed his status as tenant in the shop of the respondents and nor has he disputed

that he has not paid any rent with effect from February, 2018. Though petitioner claims that he has paid the rent of Rs.16400/ till May, 2019 after

deducting an amount of Rs.1600/ deposited in the office of Rent Controller, Srinagar, yet he has categorically admitted that from the month of June,

2019, he has not paid even a single penny towards rental of the shop under his possession. In this way, in terms of the order impugned, the petitioner

has become liable to be pay rent as per the rent agreement forming part of the plaint with 5% increase per annum, as directed by the trial court vide

its order dated 18.08.2020 and the amount shall be deposited in the Court with effect from 1st of February, 2018 to 31st of December, 2020 by or

before 31st of January, 2021. It is however, added that the amount claimed to have been paid by the petitioner shall be set off on producing the proof

thereof.

14) In view of the aforesaid, I find nothing wrong with the order impugned which is only by way of giving effect to the orders passed on 2nd of

November, 2019 and 18.08.2020, which orders have since attained finality. This petition is, therefore, found to be without any merit and is, accordingly,

dismissed along with connected CM. However, in the given facts and circumstances of the case, this Court would like to clarify that in case any

request for release of amount is filed, the trial court shall release only 50% of the amount of rent deposited before it and the release of rest of the

amount shall abide by the decree, if any, passed by the trial court finally.

15) Copy of this order be sent to the trial court for information and compliance.