Sikender Pal Jain vs Sardar Gurcharn Singh

Kotwal, J.

(1) This civil second appeal, which should have been normally heard by a Single Judge, has been referred to this Bench, for reconsidering the

correctness of a Single Bench judgment of this court in Dewan Chand Versus Davinder Kumar and others, 1971 K.LJ 325. The reference has

arisen in the following circumstances.

(2) The appellant brought a suit for ejectment against the respondent under the provisions of the Jammu and Kashmir Houses and Shops Rent

Control Act, 1966 (hereinafter referred to as the Act) on the ground of three defaults in payment of rent within a period of 18 months, and

annoyance caused by him to the appellant and to his neighbours. This suit was resisted by the respondent on the grounds that he had neither

committed any default in payment of rent, nor caused any annoyance to the appellant or to his neighbours, and further, that the notice for ejectment

served upon him by the appellant was not in accordance with law.

(3) The trial court, on the authority of the judgment given by this court in Dewan Chand's case (Supra) dismissed the suit as premature, without

recording its finding on the issues relating to annoyance and validity of the notice for ejectment. An appeal was taken by the appellant against this

judgment, and the lower appellate court upheld the finding of the trial court on the concession of the learned counsel for the appellant that three

successive defaults in ""payment of rent as alleged by the appellant in his plaint were not proved, but being of the view that even one default could

entitle the appellant to obtain a decree for ejectment under Cl. (1) of Section 11 of the Act, overset the judgment of the trial court and remanded

the case back to it to decide it afresh keeping in view the effect of a single default in payment of rent, with a further direction to record its finding on

the issues which it had previously left undecided.

(4) The appellant, not being satisfied with the aforesaid judgment of the lower appellate court, challenged the same in this court in second appeal.

The ground pertaining to annoyance was, however, given up by the learned counsel for the appellant by making a statement to that effect in this

court. The learned Single Judge who initially heard the appeal by his order dated Dec. 13, 1973 remitted the same to the lower appellate court,

with a direction to record its findings on the issue relating to three successive defaults in payments of rent and validity of the notice for ejectmentthe

ground relating to annoyance having been already given up by the appellantand return the same to this court within one month, as in the opinion of

the learned .Judge, counsel for the appellant had in fact never made any concession on the issues of defaults, as had been recorded by the lower

appellate court.

(5) The lower appellate court, after sifting the evidence led by the parties, arrived at the conclusion that the deposit of rent which was made by the

respondent after 20 days from the date of receipt of the notice, was not valid within the meaning of sec: 14 of the Act, as the same had been made

without first tendering the rent to the appellantlandlord, himself assuming that the respondent had sufficient cause for not depositing the same with

the Rent Controller within the statutory period of 15 days. It. however concurred with the finding of the trial court, and on the ratio of Dewan

Chand's case (Supra) held that three successive defaults in payment of rent at the time of the institution of the suit did not stand proved. In this view

of the matter, the lower appellate court also dismissed the respondent's application for additional evidence to prove the factum of deposit of rent

which was made to it after the order of remand dated Dec: 13, 1973. It further held, that the notice of ejectment served upon the respondent was

legally valid.

(6) After this report of the lower appellate court was received in this court, this appeal again came up for hearing before Chief Justice S. M. F. Ali,

as his Lordship then was, but his Lordship being of the opinion, that correctness of the judgment in Dewan Chand's case (Supra) was seriously

open to challenge referred the app al to a Division Bench. It is in this background that the appeal has been placed before us.

(7) Mr. Dutta, appearing for the respondents, has raised a preliminary objection to the maintainability of the appeal. According to him, the order of

the lower court remanding the case to the trial court was not the one which could possibly fall under order 41 Rule 23 of the Code of Civil

Procedure. It was on the other hand an order under section 151 of the Code of Civil Procedure, added the learned counsel, against which no

appeal lay. This objection of the learned counsel is untenable for the reasons, that it is based upon an erroneous interpretation of the expression

preliminary point"" occurring in Rule 23 The expression ""preliminary point"" is not interchangeable with the expression ""preliminary issue"", and has to

be construed liberally, so as to render it exhaustive enough to include every such issue of law or fact, a decision on which would result in the final

disposal of the suit, without deciding the remaining issues. A similar question arose before the Bombay High Court in Bai Bai w/o Gyanoba Vs.

Mahadu Maruti, AIR 1960 Bom. 513. The trial court had dismissed a suit for possession in which the plaintiff had founded his title to the suit

property on his alleged adoption by its original owner. A number of issues were raised in the suit, out of which one was; whether the plaintiff had

been in fact adopted. The trial court found the issue against the plaintiff and dismissed the suit without deciding other issues. On first appeal the

finding of the trial court was reversed and the case remanded to it for deciding it afresh after giving its finding on the remaining issues as well. In

second appeal, a preliminary objection was raised in regard to its maintainability on the ground, that the order of the lower appellate court was not

covered by Rule 23, as the trial court had not decided the suit on a preliminary point. This plea was repelled by the High Court with the following

observations :

In order that rule 23 may apply, it is necessary that there would be a decision by the trial court on a preliminary point. The expression 'preliminary

point' does not mean the same thing as a 'preliminary issue'. A 'preliminary point' means a point the determination of which enables the trial court to

pass a decree and relieves it from the necessity of determining the other points, involvedin the suits. Mr. V. S. Deshpande further contended that

the expression 'preliminary points' should be confined only to points of law and points of jurisdiction and not to points of fact There is nothing in

rule 23 which goes to support this contention. Even if the point decided by the trial court happens to be a point of fact, but if the test is satisfied that

the point was such that a decree could have been granted by the trial court on the basis of it? decision on that point, then, it would be preliminary

point within the meaning of Order XLI, rule 23 Civil Procedure Code....

(8) A similar point was taken in the Rajasthan High Court in Abdual Gam and another Vs. Devi Lal and another, AIR I960 Raj, 77 wherein it was

held :

In passing I may also observe that the expression 'decision on merits cannot be said to have acquired a settled meaning. It is rather an elastic

expression. Some times the expression is used in contradistinction with decisions on legal and technical points and some times in contradistinction

with one by way of penalty. An interpretation of the words ""preliminary point"" by reference to an expression which itself is elastic cannot be said to

be satisfactory and in strict accordance with the accepted notions of the administration of justice and jurisprudence requiring certainty and

predictability.

I have therefore, no hesitation in holding that the words ""preliminary point"" should not be narrowly construed so as to be confined to pleas like

limitation and resjudicata but should b6 given a liberal meaning so as to include any point connected or not connected with the merits of the case, a

decision of which in some particular manner results in the disposal of the suit without the necessity of deciding other points actually arising in the

case which or at any rate some of which must necessarily be decided for the disposal of the case in the 'event of a different decision L on

preliminary point not resulting in the disposal of the 'suit. In this view of the matter I do not find any force in the preliminary objection which is

consequently overruled.

(9) To us, the view expressed in some decisions, that a preliminary point within the meaning of Rule 23 cannot but be a point, whether of law or

fact, which has nothing to do with merits of the case, appears to be too narrow and pedantic. We would, therefore, prefer to fall in line with the

High Courts of Bombay and Rajasthan, in taking the view expressed by these courts in the aforesaid two decisions. The decisions relied upon by

Mr. Dutta, nemely, Mallappa Chettiar Vs. Alagiri Naicker, AIR 1931 Madras 791, Purshottam Datta Traya Vs. Yeshvadabi Qayadeo Rhetye,

AIR 1953 Bom. 216, and Brij Lal Vs. Tikku, AIR 1956 H.P. 37 were given in cases in which the only point raised and decided was, that the

court could not exercise its inherent powers of remanding an appeal to the trial court u/s 151 C.P.C when a case squarely fell under any one of the

provisions contained in Rule 23 or Rule 25 of Order 41 C.P.C. and in case, it did so, the order could be revised by the High Court.

(10) In this case, rightly or wrongly, the trial court dismissed the suit by merely finding the issue relating to three defaults in payment of rent against

the appellant, as in its opinion, it was wholly unnecessary to decide the remaining issues. It, therefore, decided the case on a preliminary point

within the meaning of Rule 23 and its order was appealable under Order 43 Rule 1 (u) C. P. C. The preliminary objection raised by Mr. Dutta is,

therefore, overruled.

(11) Turning now to the merits of the appeal, the suit was originally based upon two grounds, i e. three defaults made by the respondent in

payment of rent within a period of 18 months in terms of proviso to subsection (3) of Section 12 of the Act, and his bad conduct of causing

annoyance to the appellant and other occupants of the neighbouring houses. As already noticed, the second ground having been given up by the

appellant, we are left with the ground of defaults alone. At the relevant time, proviso to subsection (3) of Section 12 of the Act read as under :

Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section, if notwithstanding the receipt of notice

under proviso to clause (i) of the proviso to subsection (i) of Section (11) he makes a default in the payment of the rent referred to in clause

(i) of the proviso to subsection (1) of section 11 on three occasions within a period of eighteen months.

(12) Clause (i) of the proviso to subsection (1) of sec: 11 of the Act reads as under :

(i) subject to the provisions of Sec 12 where the amount of two months rent legally payable by the tenant and due from him is in arrears by not

having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which

the rent is payable or by not having been validly deposited in accordance with section 14:

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 from the date of the receipt of such notice

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

(13) On the plain terms of the aforesaid provisions, a landlord acquires an indefeasible right to eject a tenant provided :

(i) at least two months rent legally payable by the tenant has fallen due in accordance with the terms of the contract of tenancy;

(ii) such rent shall be deemed to have fallen due on the date fixed by the parties for its payment in the contract of tenancy' and where no such date

is fixed, then on the 15th day of the next following month;

(iii) no such rent shall be deemed to be legally payable where the same has in fact been paid by the tenant to the landlord or deposited by him with

the Rent Controller by following the procedure laid down in Section 14 of the Act;

(iv) on two months rent falling due, but not earlier to it, the landlord serves a notice in writing on the tenant through Post Office and under a

registered cover calling upon him to either pay to him the rent due. or deposit the same with the Rent Controller in terms of Section 14 within a

period of 15 days from he receives the notice, and

(v) despite the receipt of the notice, the tenant commits three defaults of two months each, in payment of rent; within a period of 18 months, the

period to be reckoned from the date the notice for the first default as contemplated by the proviso to Cl (1) of the proviso to SubSection (1) of

Section 11 has been received by the tenant.

(14) Before actually coming to grips with the abstract proposition of law in this, case, we deem it necessary to first of all dispose of a mixed

question of law and fact as to whether the respondent .made any payment towards the rent after he admittedly received a notice on 2281970

which was sent to him by the appellant on 188J 970 through post office and under a registered cover, calling upon him to pay the arrears of rent'

On his own showing, the respondent on 2491970, deposited with the Rent Controller, an amount of Rs. 330/on account of rent due from

1111969 to 318rl970. This fact has not been disputed before us by the appellant. The next question which, therefore, falls for determination is was

it a valid deposit within the meaning of Section 14 of the Act? Subsection (1) of Section 14 reads as under.

(1) Where the landlord does not accept any rent tendered by the tenant or the tenant experiences difficulty in paying the rent to the landlord of the

house or shop he may deposit such rent with the controller in the prescribed manner.

(15) A plain reading of this provision reveals that a tenant cannot acquire a right to deposit rent with the Rent Controller, unless he has before

doing so offered the same to the landlord and the latter has refused to accept it, or where he has experienced difficulty in paying it to the landlord

for any other reason. It therefore, follows that where a tenant deposits rent without satisfying at least one of these two conditions, the deposit is

rendered illegal. In the eye of law, therefore, such a deposit would neither be a deposit u/s 14 nor a payment to the landlord himself. A similar view

has been taken in a Single Bench decision of this court in Inderjit Vs. Jai Manmohan, 1970 R.CJ. 391.

(16) The lower appellate court has held, that there was nothing to show either that the respondent had tendered the rent to the landlord, or had

experienced any difficulty in paying it to him, as such, the deposit made by him was not valid. To us, the view taken by the lower appellate court

appears to be the only one which could have been taken in the circumstances 6f the case. Muchless to speak of any proof, we do not find even a

word in the written statement of the respondent to the effect that he had before depositing the rent offered it to the landlord or had otherwise found

any difficulty in paying it to him. Barring the aforesaid deposit, no other deposit or payment of rent to the appellant has been pleaded by the

respondent. Viewed thus, it cannot but be held, that the respondent was in arrears of rent from 1111969 to the date of the suit.

(17) It is common ground, that the tenancy in this case was a month to month tenancy commencing from 1st day of each English Calendar month.

There is, however, no pleading much less any proof, as to the date on which the rent for each month would be paid by the tenant. In the absence

of any such pleading or proof, the rent in terms of Cl. (i) of the proviso to Subsection (i) of Section 11, would become due on the 15th day of the

next following month. It is also not disputed, that the respondent had failed to pay rent from Nov. 1969 to August 1970 for which a notice was

sent on 1881970 which he received on 2281970. The appellant, on 1881970. could have claimed arrears of rent from 1111969 to 317 1970

alone, as the rent for the month of August 197U could not become payable to him before 15th Sept 1970. Again, the entire period from 1111969

to 3171970 constituted only one default, as no such notice previous to 2281970 had been served upon the respondent. The respondent, as

already found, not only failed to pay to the appellant the rent due from 1111969 to 3171970 but also committed defaults for the months of August,

Sept. October and November 1970, as the rent for the month of August became due on 15th Sept. rent for the month of Sept. became due on

15th Nov. and rent for the month of November became due on 15th Dec 1970. The three defaults in terms of the proviso to Subsection (3) of

Section 12 were therefore, complete on 5th of January, 1971 when the suit came to be filed, the first being the one covered by the notice period,

the second being for the months of August and September and the third being for the months of October and November 1970. Clearly, therefore,

an indefeasible right to claim ejectment of the respondent had accrued to the appellant on the day he filed the present suit. But for their compulsion

to follow the dictum in Dewanchand's case (supra) it could not be said, that the courts below were right in holding that the appellant's suit was

premature, as three defaults in terms of the proviso to subsection (3) of Sec: 12 were not complete on the date of the suit, We now proceed to

examine the correctness of the view taken in the aforesaid case.

(18) In Dewanchand's case (supra) notice in terms of proviso to clause (i) of the proviso to Subsection (i) was served upon the tenant on 2471968

and the suit for ejectment was brought on 22111968. The learned Single Judge held, that the first default was complete on 881968 i. e. 15 days

after the receipt of the notice, and reckoning the other two defaults from the said date his Lordship further held, that the second default did not

become complete before 8101968, and the third default too could not become complete before 3121968, and the suit having been instituted

before the third default could actually become complete, no absolute right in favour of the Landlord, in the opinion of the learned Judge could be

said to have accrued. In our opinion the view taken by the learned Judge is not only opposed to the pro ' visions of Sees: 11 and 12 of the Act, but

is also contrary to the principles of ordinary law of contracts. To begin with, the learned Judge in effect granted to the tenant a period of 15 days

for making payment of arrears of rent, not only in respect of the first default which was followed by a notice but also for the subsequent two

defaults, even when no such notices were indeed served, nor were required under law to be served upon the tenant. This, the learned Judge did

after placing reliance upon a Full Bench judgment of this court in Kewal Krishan Vs. Harish Kumar, AIR 1964 J and K 67, wherein the court had

laid down the following principles :

A landlord can bring a suit for ejectment in caseof a single default if he proves that the tenant had defaulted in payment of two months rent

which is due, of which notices as provided by proviso to subsection (i) of Section 11 have been given. But such a suit will be subject to the

provisions of subsections (1) (2) and (3) of Section 12 of the Act.

That where even one notice as contemplated by the proviso to subsection (i) of Section 11 has been given and three successive defaults have

been committed despite the said single notice, the landlord has an absolute right to eject the tenant and on proof of these circumstances, the tenant

will not be entitled to the protection given to him by Section 12 (1), (2) and (3). In such cases, the application of provisions of section 12 (1), (2)

and (3) would be completely excluded.

That the amended proviso to subsection 12 0)of the Act does not contemplate the giving of notice en each successive default and the provisions

of this proviso would be complied with if the notice for the first default has been given by the landlord.

(19) There can be no manner of doubt, that under the legal fiction created by the proviso to Cl. (i) of the proviso to subsection (1) of sec: 11, the

first default did not become complete till the expiry of 15 days after the defendant had received the notice. Nevertheless, there was absolutely no

justification for applying this fiction to the subsequent two defaults, when neither any such notice had in fact been served, not even required to be

served on the defendant. This, the learned Judge did by unwittingly assuming that every fresh default required to be followed by a fresh notice,

which was undoubtedly not warranted by the provisions of sections 11 and 12 of the Act. Not only that, the learned Judge further assumed, that

every time notice would be issued. If this was not exactly the reason, then surely, the learned Judge substituted a new contract for the original one,

obviously without the consent of the parties, making the rent payable on the 6th day of the month next following the one for which it was payable,

no matter, whether under the terms of the contract of tenancy it became due on a particular day of the very month for which it was payable, or in

the absence of any such term, on the 15th day of the next following month. Fifteen days time to pay or deposit rent as provided under proviso to

Cl. (i) of the proviso to subsection (1) of Section 11 was to be allowed to a tenant, only in relation to the first default for which a notice was given

to him, and not for any other default committed thereafter by him during the period of 13 months next following the date of the receipt of the said

notice. The rent for each month following the ones for which such a notice was given to a tenant became due from him, either in accordance with

the terms of the contract of tenancy, or in the absence of any such term, on the 15th day of the month next following the one for which it was

payable. With utmost respect to the learned Judge, his Lordship cannot be said to have laid down the correct law in Dewanchand's case (Supra),

we, accordingly overrule the said judgment.

(21) For the foregoing reasons, we allow the appeal, set aside the judgments of the courts below, and decree the appellant's suit for ejectment

against the respondent with costs throughout.