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201 paragraphs · 4,942 wordsBhat, J.—A reference has been made in these three C.M.Ps. by a learned single Judge of this Court on 4-2-1982. The questions for
decision formulated in the reference are as under :--
What is the ambit and scope of the words ""the arrears of rent"" used in Sub-section (4) of Section 12 and, in particular, whether these words
include : --
a. the arrears which are barred by limitation on the date of the filing of the suit;
b. the arrears which are barred by limitation on the date of the filing of the application u/s. 12;
c. arrears for which a separate suit has been filed;
d. arrears for which relief has been claimed in the suit for ejectment itself;
e. arrears which accrue during the pendency of the suit for ejectment?
What is the ambit and scope of the power conferred on the appellate Court under sub-sec. (5) of Section 12, and, in particular : --
a. whether it is discretionary with the Court of appeal to order or not to order the recovery of arrears?
b. whether the Court of appeal can order the recovery of arrears which the appellant could claim during the pendency of the suit?
c. whether the Court of appeal can order the recovery of the arrears which have fallen due from the date of the decision of the suit for ejectment up
to the filing of the appeal?
The learned single Judge has also raised doubts in respect of the decision given in Civil Revision No. 42 of 1981 by a learned single Judge of
this Court (Gulchain Singh Charak v. Ram Ditta Sharma) reported as 1982 Srinagar LJ 219. Therefore, the correctness or otherwise of this
authority is also to be considered.
Mr. Thakur appearing for the landlords has submitted that even time barred arrears of rent can be recovered u/s 12(4) of the J & K Houses and
Shops Rent Control Act, 1966, hereinafter to be referred to as the Act. His contention is that the limitation is irrelevant in so far as the recovery of
arrears of rent u/s 12(4) of the Act is concerned. According to him Sub-sections (1), (2) and (3) of Section 12 of the Act are applicable in a
situation which is distinct and different from the situation to which Section 12(4) of the Act can be made applicable. It will be profitable to
reproduce Section 12(4) of the Act:
(4) If the tenant contests the suit, as regards claim for ejectment, the plaintiff-landlord may make an application at any stage of the suit for order on
the tenant-defendant to deposit month by month rent 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, 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
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 and the Court may permit him to do so.
In Sub-section (1) of Section 12 of the Act, the Court has to determine the amount of rent legally payable by the tenant which is in arrears. But in
Sub-section (4) of Section 12 of the Act the words ""arrears of rent"" are used. On the basis of the difference in the language in the two subsections
Mr. Thakur has contended that u/s 12(4) arrears of rent recovery whereof is barred by the provisions of the Limitation Act, can be claimed and
the Court can pass an order about its deposit and on failure of the tenant to deposit such rent within the stipulated time, defence of the tenant about
ejectment is to be struck out. For the proposition which he has canvassed he has relied on Khadi Gram Udyog Trust Vs. Ram Chandraji Virajman
Mandir, Sarasiya Ghat, Kanpur, . The Supreme Court was considering the expression ""entire amount of rent due"" occuring in Section 20(4) of the
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. It was held that the expression would include rent which has become time
barred. Another authority relied upon by him is the Managing Committee v. Tripurary Charan Palit AIR 1973 Pal 60, It was a case under Bihar
Buildings (Lease, Rent and Eviction) Control Act of 1947. It was held that relief can be claimed u/s 11-A of the said Act in respect of arrears
which are barred by limitation i.e. claim beyond three years of the filing of the suit Khadi Gram Udyog Trust Vs. Ram Chandraji Virajman Mandir,
Sarasiya Ghat, Kanpur, has affirmed the authority reported as Khadi Gramudyog Trust (Gramodyog) Mandal Vs. Ram Chandraji, , therefore, this
authority need not be discussed separately.
For proper understanding of the authority reported in Khadi Gram Udyog Trust Vs. Ram Chandraji Virajman Mandir, Sarasiya Ghat, Kanpur,
it is necessary to consider the import of provisions of Sections 20(2) and 20(4) of the U.P. Act. Under the said Act a landlord gets a cause of
action for eviction of his tenant when the tenant is in arrears of rent for not less than four months despite service of notice of demand upon him. The
Court can make an order for deposit of rent and in the event of the tenant's failure to deposit the rent, he is to suffer penal consequences. When an
order u/s 20(2) of the said Act is made and the tenant has not complied with it, still the tenant can be relieved of the liability of eviction if he
volunteers to pay the entire amount due to the landlord. This benefit is given to the tenant u/s 20(4) of the Act. In this view of the matter tenant gets
two opportunities of saving himself from being evicted; one, when he complies with the order passed by the Court u/s 20(2); and two, even after
not complying with the order passed u/s 20(2), if he deposits the entire amount due he is to be relieved of the liability of eviction on the grounds of
default of payment of arrears of rent. The expression ""Entire amount due"" is used in Section 20(4) of the U.P. Act. which is not the same as
arrears of rent"" used in our Act. The expression ""entire amount due"", therefore has a different connotation than the expression ""arrears of rent"".
Section 20(4) of the U.P. Act is a saving clause for the benefit of a tenant. Even after having disobeyed the Court directions u/s 20(2) in respect of
making of deposit of rent in the Court, he can volunteer to pay the entire amount due and save himself from the liability of eviction. So the ""entire
amount due"" is used in a different context and the authority of the Supreme Court has dealt with the expression ""entire amount due"" in the context in
which it occurs in the U.P. Act. Since the provision in our Act is different and not same as it exists in the U.P. Act, therefore, the authority reported
in Khadi Gram Udyog Trust Vs. Ram Chandraji Virajman Mandir, Sarasiya Ghat, Kanpur, will have no application to the facts of the present case
and the said authority is distinguishable.
The Managing Committee and Others Vs. Tripurary Charan Palit and Others, also is distinguishable on the point of law and facts. The
provisions contained in the Bihar Act are distinct from the provisions contained in our Act.
Section 12(4) of the Act imposes an obligation on a tenant to deposit rent within fifteen days from the date of order and on failure of the tenent
to deposit the arrears and month to month rent, as may be directed, his defence will be struck out and he will be placed in a position as if he had
not defended the claim of ejectment. The first portion of Section 12(4) of the Act enables the landlord to make an application for an order against
the tenant to deposit month by month rent and also the arrears of rent, if any, and the Court after hearing the parties may make an order for deposit
of rent month by month and arrears of rent, if any, and On failure of the tenant to deposit arrears of rent as specified in the order, he shall face the
consequences of striking out his defence. From the plain reading of the sub-section it is clear that a landlord can make an application for payment
of arrears of rent and the Court can make an order for payment of arrears of rent etc. etc. and if the order is made, and the tenant fails to comply
with the order, consequences for the tenant are penal. The question, therefore, would arise as to whether time barred rent can be claimed and as to
whether court can make an order for deposit of time barred rent and for non-compliance with the order of deposit of time barred rent can a tenant
be placed in a position as if he had not defended the claim of eviction brought by the landlord against him?
The expression ""arrears of rent"" used in Section 12(4) of the Act are such arrears which would include those arrears recovery whereof is not
barred by limitation. It cannot be conceived that time barred arrears of rent implying thereby that the arrears of rent which were already time
barred at the time of the institution of the suit could be ordered to be deposited u/s 12(4) of the Act and failure to comply with the directions of the
Court in respect of deposit of such rent would have a serious consequence on the right of the tenant. Therefore, these consequences must have
relation or proximity with the relief which is not barred by limitation or with the remedy which is not destroyed by the lapse of time. In our Act
unlike the U.P. Act, expression ""entire amount due"" is not used what is used ""arrears of rent"" which would mean those arrears about which remedy
to recover survives and is not lost by lapse of time. The distinction drawn by Mr. Thakur about Sub-section (1) and Sub-section (4) of Section 12
of the Act in respect of the expressions used for arrears of rent also will not be of any help to him. His contention was that under Sub-section (1)
of Section 12 arrears of rent legally recoverable would mean the arrears which were within time. Since this expression was not used in Sub-
section(4) of Section 12 of the Act, therefore, time barred arrears could be ordered to be deposited and its non-deposit would have the
consequences given in Section 12(4) of the Act. In our opinion this contention of the learned counsel does not appear to be sound. The expression
legally payable"" occurring in Sub-section (1) of Section 12 of the Act has proximity with the rate of payment of rent as stipulated, in the contract
of rent or as was payable to the landlord. Expression ""arrears of rent"" in Section 12(4) of the Act must be such rent about which a claim can be
enforced. If a claim for such arrears of rent cannot be enforced implying thereby that if it is barred by time on the date of institution of the suit, its
deposit cannot be claimed or ordered by the Court.
Section 12(4) of the Act has to be read conjointly with Section 11(1)(i). For non-payment of rent under different circumstances a relief for
eviction can be claimed against a tenant. Section 12(1), (2) and (3) of the Act are also to be read in that context. Sub-section (4) of Section 12
makes it clear that a suit for eviction as contemplated by Sub-section (1)(i) of Section 11 can be brought against a tenant and in the said suit any
other ground as mentioned in Section 11(1)(a) to (h) can be added and if in such a suit tenant fails to obey the directions in respect of deposit of
rent, he is to face penal consequences. For imposing penalty on the tenant, it is, therefore, necessary that there must be an obligation on the tenant
to pay the rent. As regards time barred rent, it cannot be countenanced that a tenant has obligation to pay the same to the landlord and the court
also cannot make a direction for payment of arrears of rent which are time barred by limitation, for the court is bound to strike out the defence of
the tenant in case he fails to deposit the arrears of rent within the time specified. This direction can be made only in respect of the arrears of rent
recovery whereof is not lost to the landlord by lapse of time. Therefore, the observation made in Khadi Gram Udyog Trust Vs. Ram Chandraji
Virajman Mandir, Sarasiya Ghat, Kanpur, cannot be pressed into service in the present case because the Supreme Court was considering the
expression ""entire amount of arrears of rent due"" in the context of Section 20(4) of the U.P. Act. This provision in the U.P. Act has a peculiar
effect of destroying the penal consequences which may ensure if compliance with the directions of the court made u/s 20 (2) of the U.P. Act is not
made by the tenant. After having failed to comply with the directions of the Court, the tenant can still apply to the Court and volunteer to deposit
the entire amount due on account of arrears of rent which will save him from the liability of eviction. Having regard to the U.P. Act it was correctly
observed by the Supreme Court that entire amount due in a given context would mean even time barred arrears of rent. In our Act such a
provision as exists in the U.P. Act is not in existence, therefore, any authority based on the U.P. Act will have no application to the facts of the
present case.
Section 12(4) of the Act, as already discussed has penal consequences if the directions in respect of the deposit of the rent are not complied
with. Arrears of rent which have become barred by time are not recoverable from the tenant ordinarily. Landlord's right in respect of the time
barred rent may be in existence hut the remedy to recover the same gets extinguished by lapse of time. What is lost to the landlord by lapse of time
will not be available to him in a summary manner u/s 12(4) of the Act. If Mr. Thakur's contention is accepted, it will make Section 12(4) of the Act
in so far as the deposit of arrears of rent and the penal consequences arc concerned, absurd, and meaningless. A condition can be imposed on a
tenant only for doing a thing which he is obliged to do and which under law he is bound to do. This obligation gets obliterated if the remedy against
him is lost by lapse of time. Therefore, in respect of time barred arrears of rent Section 12(4) of the Act cannot be invoked, implying thereby that if
the arrears of rent arc barred by limitation on the date of filing of the suit, a direction cannot be made as regards its deposit u/s 12(4) of the Act nor
can penal consequences ensue for non-compliance with the directions of the court.
An application u/s 12(4) of the Act can be made for payable arrears of rent. The word 'payable' is somewhat indefinite. Its import is to be
gathered from the context in which it occurs. In the context of the Rent Control Act it means the amount which should be paid. Of necessity the
Court trying a suit for eviction has to determine the arrears of rent, which determination must be in accordance with the law. Section 12(4) of the
Act does not create or purport to create a new right in favour of the landlord for recovery of arrears of rent. It only lays down procedure for
obtaining payment of rent which is due against a tenant. Therefore, the said section cannot be read in isolation and the limitation cannot be said to
be irrelevant, as contended by Mr. Thakur, in adjudging the liability of a tenant as regards arrears of rent.
That brings us to point 1(b). It relates to arrears which are barred by limitation on the date of filing of the application u/s 12 of the Act. There is
no difficulty in considering this point referred to this Bench. Section 12(4) of the Act does not provide the stage when the application by the
landlord for recovery or arrears of rent should be made. It can be made any time during the pendency of the suit for ejectment. The application is
designed to be made against such tenants who contest the suit for ejectment and who are defaulters in payment of rent. Tenants who are protected
by Section 11 of the Act against eviction at the whim and caprice of the landlord are, therefore, required to pay the arrears of rent and month to
month rent in case an application is made by the landlord and a direction is given by the Court failing which the tenant's defence is to be struck out.
Application may be made at a later stage say after six months or thereafter, of the filing of the suit. The arrears of rent claimed in the suit can be
required to be deposited provided their recovery is nut barred at the time of institution of the suit. Limitation would operate as a bar against
recovery only if the arrears are time barred on the date of institution of the suit. Arrears which are not time barred on the date of institution of the
suit can be claimed by means of an application u/s 12(4) of the Act at any time and for filing the application no limitation is prescribed either under
the Act or under the general law. Recovery of arrears of rent in the light of the limitation applicable for recovery of such arrears is to be seen only
at the time of institution of the suit and not at the time of filing of the application. If the arrears are payable on the date of institution of the suit,
application for its recovery u/s 12(4) of the Act can be made at any time. If we hold otherwise that would be placing a construction on Section
12(4) of the Act to the repugnancy of the legislative intention. Therefore, we answer the point accordingly.
So far as point 1(c) is concerned, if relates to such arrears for which a separate suit has already been filed. Obviously if a remedy is sought by
the landlord for recovery of rent in a separate suit, an application for recovery of rent for the same period for which a civil suit is pending, cannot
be made on the principle of two remedies in respect of the same relief are not to be pursued simultaneously. If a landlord has chosen a remedy by
way of a suit in a competent Court of law for recovery of rent he will not be permitted to seek its recovery u/s 12(4) of the Act in a summary
manner. This may amount to abuse of procedure and on that ground also will be not permissible. So, it is to be held that for the amount of arrears if
a separate suit is pending, the same amount cannot be claimed in a suit for eviction u/s 12(4) of the Act.
That brings us to points 1(d) and 1(e) which we take up jointly. In a suit for ejectment a landlord can claim arrears of rent which are payable to
him and which are recoverable from the tenant. Therefore, Section 12(4) of the Act will be attracted in respect of recovery of such arrears. Same
will be the case so far as the arrears of rent which accrue to the landlord during the pendency of ejectment suit. The landlord at the time of
institution of the suit is entitled to claim arrears of rent which are not barred by limitation. At that stage he cannot anticipate tenant's conduct during
the trial of the suit. An honest tenant may keep on paying the rent during the pendency of the suit to the landlord while a bad tenant may stop
paying rent which accrues during the pendency of the suit for ejectment. Its deposit is to be made month to month and failure on the part of the
tenant to deposit the same will place him in the same position as if he had not defended the claim for ejectment. Language of Section 12(4) of the
Act makes it abundantly clear that the rent pendente lite can be claimed and ordered to be deposited by the court. The expression 'month to
month' in Section 12(4) of the Act is import and self-explanatory.
That brings us to point 2(a). This relates to Sub-section (5) of Section 12 of the Act and it will be profitable to reproduce it here : --
(5) The power given under Sub-section (4) may be exercised by courts of appeal with necessary adaptation.
14A. A court of appeal is competent to exercise powers u/s 12(4) of the Act and the language of Sub-section (5) of Section 12 suggests that it has
the same power as is exercisable by the trial Court. The principle for making an application before the trial court and the principle of the trial
Courts' determination as regards making an order shall apply to the appellate court also and the appellate court may make an order for deposit of
rent in the same manner in which the trial Court can make such an order. Even under the general law powers given to the trial Courts are,
exercisable by the appellate Courts also. In addition to that Sub-section (5) of Section 12 of the Act has specifically conferred powers on the
appellate court which are exercisable by the trial court u/s 12(4) of the Act.
That brings us to the point 2(b) which relates to the recovery of arrears by the court of appeal during the pendency of the suit. This point in turn
will depend on the finding on the arrears of rent arrived at by the trial Court or by the first appellate Court as the case may be. If the trial Court has
held rent payable to the landlord as claimed by him on an appeal filed by the tenant first appellate Court can make an order for deposit of the rent
u/s 12(4) of the Act by invoking Sub-section (5) of Section 12. But if the trial Court has negatived the claim of the landlord as regards payment of
arrears of rent or as regards rate of rent, the first appellate Court shall have to first consider the correctness or otherwise of the findings of the trial
Court and then arrive at a conclusion as to whether power under Sub-section (5) should or should not be exercised by it. If the first appellate
Court agrees with the trial Courts, and the landlord in a second appeal, which is to be admitted only on a substantial question of law by the High
Court, cannot make an application for recovery of arrears of rent during the pendency of the suit in view of the concurrent findings of the two
courts below. Point 2(b) presupposes that landlord's suit for eviction as also arrears of rent is dismissed by the trial court because the learned
Judge has said as to whether appellant could claim arrears of rent, appellant in the context would mean landlord. A tenant also can come in appeal
against a decree for eviction. In such a case the appellate court can exercise powers u/s 12(4) of the Act in the light of the judgment appealed
against after giving parties a right of hearing. The appellate court is not obliged to give directions but once the directions are given, the tenant will
not be heard unless the directions given are complied with by him. His defence may not be struck out because at the stage of appeal question of
striking out the defence may not arise, but he will be denied hearing and that can be done by invoking Sub-section (5) of Section 12 of the Act. At
the appellate stage appellate court is to take into consideration the judgment of the court below and will be competent to exercise powers u/s
12(4) of the Act. Much will depend on the judgment of the trial Court which will be the basis for the appellate Court to make or not to make an
order u/s 12(4) of the Act.
Having answered points 2(a) and (b), we shall take up point 2(c) which relates to the arrears of rent for the intervening period i.e. from the
date of the decision of the suit by the trial court upto the date of filing of the appeal, which would be 60 or 90 days, as the case may be. If the
appeal lies to Sub-Judge (CJM) limitation would be 60 days and if it lies to District Judge or to High Court the limitation would be 90 days. If the
trial court had held against the landlord, the appellate court may not disturb that finding unless the judgment of the trial Court is overset. In case the
trial Court has allowed arrears payable to the landlord to be deposited, the appellate court will have the power to issue the same order even for the
intervening period. The appellate court in that case will be guided by the judgment of the trial Court as that will be the basis for making or for not
making an order u/s 12(4) of the Act.
The appeal is continuation of the original lis. Till the appeal is settled finally, the lis is not concluded. Therefore, the appellate Court shall have
the power to determine the question of deposit of rent u/s 12(4) of the Act for the intervening period also provided it finds that the arrears are
payable to the landlord having regard to the judgment of the trial court and the law bearing on the subject. For the intervening period i.e. from the
date of decision of the suit to the filing of the appeal, a separate suit also may be filed but that is not the only remedy, the landlord whose claim has
been upheld by the trial court in respect of arrears of rent in an ejectment suit may get relief u/s 12(4) of the Act from the appellate court for the
intervening period also provided he makes an application u/s 12(4) and satisfies the appellate court as regard his entitlement. In such a case the
appellate court shall have the power to enforce its order of deposit of rent by denying right of hearing to the tenant in case he fails to comply with
the order of deposit made by the appellate Court. During the intervening period the right of the landlord to recover arrears of rent does not get
suspended. He has a remedy provided the arrears are payable to him, that remedy is before the appellate court by making an application u/s 12(4)
of the Act. Accordingly, we answer the point in affirmative.
These were the broad points referred to this Bench. We need not give facts of each case. As regards the authority of the learned single Judge
1982 SLJ 219 (Supra) these points were not decided as they were not involved therein. In para 15 of the judgment the learned Judge had held as
under : --
However, I refrain from expressing any opinion as to whether time barred arrears could also be made subject matter of the application u/s 12(4)
of the Act because no such question is directly involved in this case.
Though in the foregoing paras in the judgment the learned Judge has held that 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. This conclusion was drawn by the learned Single
Judge from an authority of the Patna High Court viz : Ram Nandan Sharma and Another Vs. Mt. Maya Devi and Others, . Therefore 1982 SLJ
219 (supra) cannot be an authority for the proposition which we have laid in this judgment. We have noted some contradictions in the said
authority. Moreover the points referred to this Bench were not before the learned single Judge, therefore the said authority will not be a guide in so
far as the points referred to this Bench are concerned.
As to the ambit and scope of Section 12(4) of the Act it is safe to rely on a Full Bench authority of this Court in Gwasha Lal v. Harji Lal 1980
KLJ 25 : (AIR 1980 J &K 36). In view of the authoritative pronouncement of this Court on the point we need not dwell on it again in this
judgment.