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2007 DIGILAW 116 (JK)

Krishan Lal Sudan v. Rajesh Kohli

2007-07-09

J.P.SINGH

body2007
1. During the currency of a suit for ejectment filed by respondent Rajesh Kohli against the petitioner-tenant, Learned Sub-ordinate Judge, Jammu, the trial Court passed an Order under Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 directing the petitioner-defendant to deposit the arrears of rent of the shop from January, 2007 onwards as also the monthly rent before 5th of every month, in the Court, on 3-4-2007. Failure of the petitioner to comply with the Order resulted in trial Courts passing an Order on 14-05-07 striking out the tenants defence. This Order was passed by the trial Court treating the provisions of Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act as mandatory. 2. Aggrieved by these two Orders, the petitioner-tenant has come to this Court in these two Revision Petitions. He questions Order dated 03-04-2007 in Civil Revision No. 68/07 and Order dated 14-05-2007 in Civil Revision No. 67/07. 3. Petitioners grievance in Civil Revision No.68/2007 is that the trial Court was not right in passing the impugned Order unless the issue framed by it as to whether there existed relationship of landlord and tenant between the parties to the suit had been decided in favour of the respondent. The Order impugned in Civil Revision No. 67/2007 has been questioned on the ground that the trial Court had erred in not considering the explanation of the petitioner which had disabled him to comply with the terms of Order dated 3rd of April, 2007 and in treating the provisions of Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act as mandatory. 4. Respondent-plaintiff appearing in person, who is an Advocate also submits that the petitioner, a tenant of his late father, had, after the death of respondents father executed a Rent Deed in his favour and had been paying rent to him. Respondent had been allowed to withdraw the rent which the petitioner had deposited for the shop by the Rent Controller, Jammu. This material, according to the respondent was sufficient enough for the trial Court to pass an Order under Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act. Respondent had been allowed to withdraw the rent which the petitioner had deposited for the shop by the Rent Controller, Jammu. This material, according to the respondent was sufficient enough for the trial Court to pass an Order under Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act. After having executed Rent Deed in his favour, the petitioner-tenant was estopped from leading any parole evidence to disprove the contents of the Rent Deed and denying his status as his landlord, submits the plaintiff. It is urged by him that use of word `shall in Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act indicates the provision to be mandatory. Respondent-plaintiff additionally submits that the Revision Petitions had been filed by the petitioner-defendant to protract the proceedings in the suit which was pending in the trial Court since 1999. 5. I have considered the submissions of learned counsel for the parties and gone through the Orders impugned in these petitions. 6. During the hearing of plaintiffs application seeking an Order under Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act to direct the tenant to pay the arrears of rent as also monthly rent during the pendency of the suit, it was noticed by the learned trial Court that the petitioner had executed a rent Deed in favour of the respondent and had been paying him rent initially @ Rs.200/- per month which was later raised to Rs.300/- per month. The petitioner was found to have deposited rent for the years 2000 to 2006 with the Rent Controller, Jammu which had been received by the respondent-plaintiff. 7. Relying upon the Rent Deed executed by the petitioner in favour of the respondent and taking into consideration the fact of respondents having received rent from the petitioner as also from the Rent Controller, Jammu, the trial Court had passed the Order impugned in Civil Revision No.68/2007. 8. 7. Relying upon the Rent Deed executed by the petitioner in favour of the respondent and taking into consideration the fact of respondents having received rent from the petitioner as also from the Rent Controller, Jammu, the trial Court had passed the Order impugned in Civil Revision No.68/2007. 8. Mere denial of a tenant of the existence of the relationship of landlord and tenant between the parties would not, as such, debar the trial Court from exercising power under Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act till the issue as to the existence of the relationship of landlord and tenant between the parties to the suit was finally decided by the Court provided, however, that there was some prima facie evidence indicating the existence of the relationship of landlord and tenant between the parties. Execution of Rent Deed by the respondent in favour of the plaintiff, which he alleges had been executed not for the purposes of payment of rent, but for some tax purposes, is in my opinion, sufficient prima facie evidence to warrant exercise of power by the trial Court under Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act for the plea of the petitioner that the Rent Deed had been executed for tax purposes only, had yet to be adjudicated upon in the Suit. 9. I, therefore, do not find any error in the trial Courts passing the Order directing the petitioner to deposit arrears of rent with effect from January, 2007 onwards as also monthly rent in the Court during the currency of the Suit. A tenant desirous of enjoying the protection of the Jammu and Kashmir Houses and Shops Rent Control Act cannot avoid his liability to pay rent to the landlord during the pendency of the Suit for ejectment against him. He may enjoy the protection of the Jammu and Kashmir Houses and Shops Rent Control Act only if he behaves as a good tenant and pays the arrears of rent as also monthly rent in terms of Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act. There is thus no force in Civil Revision No. 68/2007. 10. There is thus no force in Civil Revision No. 68/2007. 10. The plea of the respondent in support of trial Courts Order dated 14-05-2007 that the provisions of Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act are mandatory and non-compliance of Order dated 3-04-2007 would result in striking out of petitioners defence to the suit may not detain the Court for long because a similar provision as the one existing in Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act had come up for discussion before the Honble Supreme Court of India which, while dealing with the question in Ganesh Prasad Sah Kesari and another Versus Lakshmi Narayan Gupta reported as AIR 1985 SC 964, held as follows:-- "The statute in which the expression is used is The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. It is a statute enacted with a view to providing a fetter on the right of a landlord to evict tenant at his whim or fancy. The long title of the Act shows that it was enacted to regulate the letting of buildings and the rent for such buildings and to prevent unreasonable eviction of tenants therefrom in the Province of Bihar. A provision in such a statute primarily enacted for the protection of tenants against unreasonable eviction that the court is required to find out whether the word `shall was used as to make the provision mandatory or imperative. Obviously if one ascertains the intendment of the legislature, the purpose for which the provision was enacted, the beneficent nature of the statute and to protect the harassed tenant obviously it does not require long argument to hold that the expression `shall was used not with a view to making the provision mandatory or imperative but it was to be directory. Such a construction would advance the purpose for which the Act was enacted namely the protection of tenants. It will also not render the court powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice. 9. Mrs. Such a construction would advance the purpose for which the Act was enacted namely the protection of tenants. It will also not render the court powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice. 9. Mrs. Gyan Sudha Misra, learned counsel however contended that where the expression `may and `shall both are used in the same provision the legislative intendment is unmistakable that the provision where the word `shall is used must be held to be mandatory because the previous use of the expression `may shows that the legislature was conscious, which part of the provision is to be directory and which other part to be mandatory. She relied upon a statement in Maxwell on the Interpretation of Statutes, 12th Edn. Page 282 wherein it is stated relying upon the decision in R. V. Inhabitants of Great Bolton (1828) 8 B & C 71 at p. 74 that "where the Legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas." Obviously where the legislature uses two words `may and `shall in two different parts of the same provision prima facie it would appear that the legislature manifested its intention to make one part directory and another mandatory. But that by itself is not decisive. The power of the court still to ascertain the real intention of the Legislature by carefully examining the scope of the statute to find out whether the provision is director or mandatory remains unimpaired even where both the words are used in the same provision. In Govindlal Chagganlal Patel v. Agricultural produce Market Committee, Godhra (1976) I SCR 451: (AIR 1976 SC 263) Chandrachud, C.J., speaking for the Court approved the following passed in Crawford on `Statutory Construction (Ed. 1940 Art. 261, p. 516): "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. 1940 Art. 261, p. 516): "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also while considering its nature, its design and the consequences which would follow from construing it the one way or the other." Applying this well recognized canon of construction the conclusion is inescapable that the word `shall used in the provision is directory and not mandatory and must be read as `may." 11. In view of the judgment of Honble Supreme Court of India, the view taken by learned trial Court that the provisions of Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act are mandatory, would not sustain. The trial Court should have thus, treating the provisions of Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act to be directory, considered the explanation tendered by the petitioner in not complying with the terms of Order dated 3-04-2007 because of his sickness which had disabled him to deposit rent within the time fixed by the Court. Keeping in view the facts and circumstances of the case and accepting the explanation of the petitioner in not depositing the rent because of his sickness, I would, accordingly, extend the time for compliance of Order dated 3-04-2007 by another one month, if not already complied with. 12. For all what has been said above, Civil Revision No.67/2007 succeeds and is, accordingly, allowed and Order dated 14-05-2007 is set aside. 13. There being no merit in Civil Revision No. 68/2007, it shall stand, accordingly, dismissed. 14. The grievance of the respondent regarding delay in final disposal of the ejectment suit, filed about 8 years ago, is found to be justified and warrants issuance of directions so that parties to the lis may be able to know the fate of their rival claims at the earliest. Mr. Rajesh Kohli, the plaintiff was accordingly asked as to how much time would he need in the trial court to complete his evidence. He stated that he would complete his evidence within a period of two months. 15. Mr. Mr. Rajesh Kohli, the plaintiff was accordingly asked as to how much time would he need in the trial court to complete his evidence. He stated that he would complete his evidence within a period of two months. 15. Mr. Sharma appearing for the petitioner/defendant, prayed for four months time thereafter to conclude the evidence which he would lead in the case. 16. Keeping in view the statements made by the plaintiff and learned counsel for the defendant, I would direct the trial Court not to allow more than two months time to the plaintiff and four months time to the defendant to conclude their evidence in the case. In order to ensure early final disposal of the Suit, the trial Court may take up the case every week, so as to ensure that the suit was finally concluded within a period of twelve months. 17. These Revision Petitions are, accordingly, disposed of on above terms.