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2005 DIGILAW 286 (JK)

Sudershan Kumar Khajuria v. Hari Krishan Gandotra

2005-10-25

PERMOD KOHLI

body2005
1. This revision arises out of an order dated 29.1.2005 passed by the Ist Additional Munisff (Forest Magistrate), Jammu allowing application of respondent/plaintiff under section 12(4) of the J&K Houses and Shops Rent Control Act, 1966( hereinafter called the Act) whereby the trial court has directed the petitioner/tenant to pay the arrears of rent amounting to Rs. 1,23,000/- from September, 1999 to January, 2003 within a period of 15 days from the date of order and also to deposit month to month rent before 15th of every month. 2. Briefly stated the facts as emerge from the record are that, the petitioner herein was a tenant under one Kunj Lal Gandotra at Ist Floor of House No. 733, Prem Nagar, New Plots, Jammu. The landlord filed a suit for eviction against the petitioner on three grounds: (i) that the premises in question is not being used by the defendant for more than seven consecutive months; (ii) that the premises is reasonably required by the plaintiff for his personal use and occupation; and (iii) that the defendant has committed three defaults within a period of 18 months . The defendant/petitioner after appearing in the suit , filed his written statement. During the pendency of the suit, sole plaintiff died and the present respondent namely Hari Krishen Gandotra made an application for substitution as plaintiff claiming himself to be the Legal Heir of deceased plaintiff on the strength of a Will said to be executed in his favour by the deceased plaintiff. This application was resisted by the present petitioner. It appears from the record that respondent applied for probate of the Will , which was granted to him. On the basis of probate of the Will, he was directed to be substituted as the plaintiff in place of deceased Kunj Lal vide order dated 10.12.2002. The respondent on being substituted as the plaintiff, filed an application under section 12(4) of the J&K Houses and Shops and Rent Control Act claiming arrears of rent amounting to Rs.1,23,000/- w.e.f. September, 1999 to January, 2003 at the rate of Rs. 3000/- per month and also sought direction for deposit of the rent every month in future. . This application too came to be resisted by the petitioner herein. It was urged that the deceased plaintiff during his life-time has received rent including the advance rent. 3000/- per month and also sought direction for deposit of the rent every month in future. . This application too came to be resisted by the petitioner herein. It was urged that the deceased plaintiff during his life-time has received rent including the advance rent. It was specifically pleaded that the deceased was paid a sum of Rs. 45,000/- @ Rs.2500- per month on 10-12-2000 against proper receipt and another sum of Rs.60,000/- on 10.4.2001 being advance rent against proper receipt . Xerox copies of these receipts were also placed on record. It was also stated that the deceased was paid Rs. 2500/- per month and not Rs. 3000/- as was claimed. The trial court vide its order dated 25.8.2003 ordered an enquiry into the matter and the parties were directed to adduce evidence with respect to their respective stands in the application , keeping in view the fact that the enquiry is of only summary nature, parties were further directed to adduce their evidence by way of affidavits. Parties filed their affidavits as also the list of witnesses. The defendant was asked to appear for cross -- examination and when his cross -examination was being conducted , learned counsel for the parties made statement before the court that they do not want any cross-examination and the affidavits of the parties as also the witnesses be considered for deciding the application under section 12(4) of the Act, as is evident from order dated 26.3.2004 recorded by the trial court in this regard. The trial court after hearing the parties and on the basis of material placed before it, passed impugned order allowing the application of the respondent under section 12(4) of the Act. 3. Mr. Sunil Sethi, learned counsel for the petitioner has assailed the validity of the aforesaid order on various grounds: (i) that the finding of the trial court that there are arrear of rent, is not sustainable particularly when the liability to pay arrear is denied ; (ii) that the rate of rent payable was Rs. 2500/- per month and not Rs.3000/- per month and therefore the direction to pay rent at the rate of Rs.3000/- per month, is contrary to facts on record. During the course of arguments, it has also been urged by Mr. 2500/- per month and not Rs.3000/- per month and therefore the direction to pay rent at the rate of Rs.3000/- per month, is contrary to facts on record. During the course of arguments, it has also been urged by Mr. Sethi that there was no valid ground of default in the suit and therefore, the trial court was not competent to pass direction for deposit of rent in terms of section 12(4), the default being one of the necessary ground for attracting provision of section 12(4) of the Act. It has also been vehemently argued that the trial court has relied upon the statement of defendant/petitioner made in cross- examination without allowing the cross-examination of respondent/plaintiff and his witnesses. Further submission of Mr. Sethi is that the trial court has illegally ignored the affidavits of two witnesses of the petitioner on baseless plea that they were not subjected to cross- examination. It is also stated that the relationship of the landlord and the tenant having been denied , the trial court was not competent to order payment of rent to the respondent. 4. I have heard learned counsel for the parties at length. The trial court while considering the question of arrears, has referred to the receipts alleged to be executed by deceased Kunj Lal on 10.12.2000 and 10.4.2001 for Rs. 45,000/- and Rs. 60,000/- respectively and held that these receipts do not seem to be genuine. For arriving at such a finding, the trial court has referred to the written statement filed by the present petitioner before it. It is admitted position that written statement was filed by the defendant/petitioner on 1.2.2002 i.e. much later that the alleged execution of the two receipts regarding the payment of rent which were said to be issued on 10.12.2000 and 10.4.2001 respectively. Surprisingly, there is no mention of these receipts in the written statement and to the contrary. In para-2 of the written statement, it is stated that "the petitioner/defendant was a good tenant and was used to pay regular monthly rent to the deceased plaintiff (Kunj Lal ) without any default". 5. Surprisingly, there is no mention of these receipts in the written statement and to the contrary. In para-2 of the written statement, it is stated that "the petitioner/defendant was a good tenant and was used to pay regular monthly rent to the deceased plaintiff (Kunj Lal ) without any default". 5. Similarly, in para-5 of the written statement, it is stated " It is relevant to mention here that the defendant used to pay regular monthly rent of Rs.2500/- to the deceased plaintiff ( Kunj Lal ) till his death and after his death there was no one to claim rent as the true legal heir/representative duly authorized by the learned District Judge, Jammu to be true legal representative of late Kunj Lal and therefore, the answering defendant could not pay the rent." This plea in the written statement belies the statement made in the objections to the application under section 12(4) of the Act and the trial court accordingly while expressing its serious doubt regarding the genuineness of the photo copies of the receipts, directed the payment of arrears of rent as claimed. 6. Mr.Sunil Sethi, learned counsel relied upon a Full Bench Judgment of this Court in Gwasha Lal Vs. Harji Lal reported as 1980 KLJ 25. In para- 16 thereof, the Court has observed as under: "... Therefore, where the tenant disputes his liability for the arrears or as regards the rate of rent last paid , the court would be required to hold an enquiry and determine the dispute but the enquiry must necessarily be a summary nature . For the determination is intended to be merely provisional subject to correction by a regular determination in the same suit or in the separate suit depending upon the facts and circumstances of each case. In the circumstances, I am of the opinion that the enquiry contemplated by sub- section 4 is to be summary enquiry and not a regular enquiry in which oral evidence may be examined..." 7. The Full Bench of this Court while considering this question, has clearly ruled that where -ever the liability is disputed, enquiry is required to be conducted but the enquiry must be of a summary nature. The Full Bench of this Court while considering this question, has clearly ruled that where -ever the liability is disputed, enquiry is required to be conducted but the enquiry must be of a summary nature. It is not in dispute that the trial court has specifically ordered an enquiry while considering the application under section 12(4) of the Act and parties were allowed to file their affidavits and even oral evidence was recorded though subsequently it was abandoned on the basis of statements of learned counsel for the parties. It was after conducting an enquiry, the trial court has passed impugned order. Regarding rate of rent, the trial court has observed that before the institution of the present suit, the petitioner -- tenant had issued a cheque for Rs. 6,000/- representing two months rent i.e. for July and August, 1999. The cheque having been dis-honoured , a complaint under section 138 Negotiable Instrument Act came to be filed . During the pendency of this complaint, the original complainant namely Kunj Lal died and respondent Hari Krishen Gandotra was substituted as complainant in place of deceased Kunj Lal and it was during this period that the complaint came to be compromised and an amount of Rs.6000/- representing two months rent was paid to the complainant/respondent as is evident from order dated 25.7.2001 placed on record of the trial court. The fact that the defendant has made payment of Rs. 6000/- as rent of two months through cheque to the deceased plaintiff, makes it clear that the monthly rent was fixed @ Rs. 3000/- per month. The trial court also observed that the tenant was paying the rent through cheques all along . Accordingly, a finding has been returned that the rate of rent was Rs.3000/- per month. 8. Mr.Sunil Sethi, learned counsel has next referred to the provisions of section 11 read with section 12( 4 )of the Act to urge that to constitute the arrears , it is necessary that notice of demand is served upon the defaulter for payment of amount within thirty days. According to him notice issued by the original landlord was not valid as suit was instituted before the expiry of requisite period as provided under law. According to him notice issued by the original landlord was not valid as suit was instituted before the expiry of requisite period as provided under law. He accordingly states that there being no valid ground of default for eviction contemplated under law, the suit is incompetent and therefore, the direction to pay the arrears of rent in terms of section 12 (4) is not sustainable. He has also relied upon a Full Bench judgment of this Court in Gwasha Lal Vs. Harji Lal (Supra), wherein it is held that for attracting section 4, it is necessary that ground for non-payment of rent should be one of the grounds for eviction. Reference is made to para 10, which reads as under: " In the circumstances, I have no doubt in my mind that sub section(1) contemplates not only suit in which ejectment of the tenant is claimed solely on the ground of non-payment of rent but also suit in which such ejetment is claimed on more grounds than one including the ground of non-payment of rent. To the same effect is the view expressed by a learned Single Judge of this court in the case of Premjit Singh( supra) and by another learned Single Judge in the case of Sukh Ram ( supra) . In case of Gurcharn Dass ( supra ) the Division Bench , however, taken a contrary view . It has been held that sub section(1) contemplates only suits in which the ejectment is claimed solely on the ground of non- payment of rent . For this, the Bench has drawn support from a Division Bench judgment of the Calcutta High Court in Mian Moulvi Vs. Sashanko iMohan: AIR 1953 Calcutta 600. That judgment is based I upon a full bench decision of that Court in T.S.R. Sarma Vs. Nagendra Bal Dobi : AIR sic 879, section 14 of the West Bengal Premises Rent Control Act, 1950 is the same literally as section 12 of our Act. Sashanko iMohan: AIR 1953 Calcutta 600. That judgment is based I upon a full bench decision of that Court in T.S.R. Sarma Vs. Nagendra Bal Dobi : AIR sic 879, section 14 of the West Bengal Premises Rent Control Act, 1950 is the same literally as section 12 of our Act. Dealing with subs section(1) of Section 14 , Chakarverty CJ, Speaking for bench has observed: " Sub Section(1) with which the section begins is clearly limited to suits in which " in which landlord would not get a decree for possession but for clause(i) of proviso to sub- section (1) of Section 12" i.e. the suits in which the only ground which disentitles the defendant from protection of the Act is that he has defaulted in the payment of rent for two months . Suits in which the protection of the Act may be unavailable to the tenant on any of the other grounds mentioned in clauses(a) to (h) of Section 12(1) or any of those grounds in addition to the ground of default are not within the ambit of Section 14(1)." 9. There is no dispute with this proposition of law. The only question that needs to be examined in exercise of revisional power against the order under section 12 (4) is, whether the suit filed contains the ground of default in payment of rent as one of the ground for eviction . Paragraphs 5 & 6 of the plaint deal with the default in payment of rent as one of the grounds. These paragraphs are noticed as under:- " That, the defendant has proved himself as a bad tenant/defaulter because the defendant has not paid the rent since September, 1999 till date, despite legal notices. The original copies of the notices are attached herewith for kind perusal. That , since the defendant has committed three defaults within the period of 18 months, as such the defendant is liable to be ejected on this ground also." 10. From the above paragraphs, it is evident that the suit filed by the respondent contains default as one of the grounds for eviction. It is, however, stated that the notice being defective, it does not constitute legally payable arrears. According to petitioner, mere allegations in the plaint, will not constitute a valid ground for eviction. Mr. Sethi accordingly submits that application should have been rejected on this ground. It is, however, stated that the notice being defective, it does not constitute legally payable arrears. According to petitioner, mere allegations in the plaint, will not constitute a valid ground for eviction. Mr. Sethi accordingly submits that application should have been rejected on this ground. I am unable to appreciate this contention of the learned counsel. This court or even the trial court while considering application under section 12(4) has not to return a finding whether the plaintiff will finally succeed in the suit or not. The court has simply to see whether the default is one of the ground in the suit. The plea that the notice of arrears of rent is defective, cannot prevent the court from considering the application under section 12(4) , which provision is enacted to ensure payment of rent to the landlord during the pendency of litigation particularly eviction proceedings. 11. Regarding the contention of Mr. Sethi that unless a valid notice is served, legally constituted arrears of rent cannot be determined, suffice it to say that service of notice of demand has been admitted . The question of validity of notice and its implications can not and should not be determined in ancillary proceedings. 12. The plaintiff may ultimately fail if notice is defective, but for the purpose of section 12(4) , any amount of rent legally payable , will be in arrears and the court is competent to pass direction for deposit of the same where-ever there is suit for eviction and default being one of ground. 13. The other contention of Mr. Sethi is that cross-examination of petitioner has been relied upon by the trial court to pass the order impugned. At the same time, it is stated that the trial court has refused to rely upon the affidavits of two witnesses of the petitioner, whose affidavits were filed in the court. 14. During the course of hearing, I have perused two affidavits filed by petitioners herein. One affidavit is of Kuldip Kumar. Only para-4 of this affidavit is relevant wherein it is stated that one day this witness went to deliver the vegetables to the defendant and he took him to the deceased Kunj Lal and paid some money and also handed over a book to Kunj Lal in his presence and an entry was made in the note book. The witness has not stated anything beyond that. The witness has not stated anything beyond that. Neither the amount is specified nor the time and the period and even the year has not been mentioned. Reference is made to which transaction, is not known. Similarly, another affidavit of Binny Magotra speaks of similar incident without mentioning the date, time, year and the amount. Even if these affidavits are taken into consideration, plea raised by the petitioner herein, is not established at all. In exercise of revisional power, I need not go into this aspect of the case. However, with a view to examine the contention of the learned counsel for petitioner, I looked into this material on record to satisfy myself regarding the varsity of the contention. 15. It is lastly urged by Mr.Sethi that the relationship between the landlord and defendant is denied in the suit and therefore, the trial court has committed glaring illegality in passing the order for payment of arrears of rent . It is not in dispute that the respondent Hari Krishen Gandotra was the only person who claimed himself to be the legal representative of deceased Kunj Lal . On the strength of the Will, application for substitution as LRs was resisted by the present petitioner and thereafter, the respondent obtained probate of the Will. The Will is also a registered document and after the probate was granted by the competent court, respondent was substituted vide order dated 10.12.2002. It is also relevant to note that the petitioner contested the grant of probate but failed . Order dated 10.12.2002 whereby the respondent was substituted as plaintiff, has not been challenged in any manner. In any case, the tenant has no right to challenge the transfer of the property by landlord. Property stands bequeathed in favour of petitioner. It is settled proposition of law that once a tenant, isalways a tenant . Therefore, petitioner cannot be permitted to call in question the right of the respondent to claim the property of deceased Kunj Lal and to be substituted his legal representative on the strength of the Will. Even the Will on the basis of which, respondent has been substituted as plaintiff, has not been challenged. Therefore, the petition fails on this count also. 16. Even the Will on the basis of which, respondent has been substituted as plaintiff, has not been challenged. Therefore, the petition fails on this count also. 16. For what has been stated above, I do not find any valid ground to interfere in the impugned order which does not suffer from any legal infirmity or lack of jurisdiction. There was a stay of the impugned order, same is hereby vacated. Mr. Sethi seeks some time to deposit the rent. Petitioner is allowed to deposit the arrears of rent within a period of one month from today and also to deposit the rent on monthly basis as directed . Record of the trial court be sent back. Parties to appear before the trial court on 14.11.2005.