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2008 DIGILAW 110 (JK)

S. Mohinder Singh v. Chander Shekhar

2008-04-07

J.P.SINGH

body2008
1. Aggrieved by Sub-Judge (Chief Judicial Magistrate) Udhampurs Order of December 15, 2005 striking out petitioners defence to respondents claim of petitioners ejectment from the premises in question as also by April 27, 2006 order rejecting his prayer for reviewing December 15, 2005 order, the petitioner has approached this Court for setting aside the orders impugned in this revision petition. 2. Facts necessary for the disposal of this petition may be stated thus:- Respondents application, seeking an order under Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 against the petitioner to deposit arrears of rent and monthly rent during the pendency of suit was allowed on November 05, 2003 by Munsiff (District Mobile Magistrate) Udhampur, who was then in seisin of the case, directing the petitioner to deposit in the court, the arrears of rent accrued until ending October, 2003 and monthly rent regularly at the rate of Rs.250/- per month by 15th of next following month. 3. The petitioner had cleared the arrears of rent in terms of the order of the Court, but had opted not to pay the arrears of the rent which would accrue every month during the pendency of the suit. 4. The respondents had, therefore, sought striking out of petitioners defence to the suit. The petitioner contested this application on the ground that he was not liable to pay rent as he had attorned to the new owner. 5. Learned Sub-Judge (Chief Judicial Magistrate) Udhampur rejected petitioners contention and resultantly struck out his defence to the respondents claim for his ejectment from the premises in question vide his order of April 27, 2006. This order had been passed by the learned Judge during the pendency of petitioners civil revision no. 15/2004 preferred against trial Courts order of November 05, 2003. 6. Petitioners revision petition no. 15/2004 appears to have been dismissed on November 30, 2006, and while rejecting the revision petition, this Court had noticed about rejection of petitioners earlier civil revision no.222/2001 on March 04, 2002 whereby the petitioner had questioned the trial courts order of refusing him permission to amend his written statement to introduce the plea of his attorning to the new owner. 7. 7. According to the Learned counsel appearing for the petitioner, the trial Court was required to stay its hands in the matter until final conclusion of the Civil Revision and its passing the impugned order, during the pendency of the revision petition, was nothing but an attempt to over reach the Superior Court. The impugned order of April 27, 2006 was thus illegal besides being unwarranted. He next contended that the trial Court had not appreciated the law laid down in Om Parkash Gupta v. Ranbir B.Goyal, reported as AIR 2002 SC 665 and had erroneously rejected petitioners contention in this behalf. He lastly contended that the provisions of Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Control Act, were not mandatory, and rather than striking out his defence, the petitioner was required to be provided yet another opportunity to clear the arrears of rent which had fallen due during the pendency of the suit. 8. Learned counsel for the respondents, on the other hand, submitted that the issues raised by the petitioner in the revision petition were irrelevant in view of the decision of this court in petitioners civil revision nos. 222/2001 & 15/2004. Learned counsel had placed on records, the interim order passed in petitioners civil revision no. 15/2004 on September 05, 2005 in terms whereof the trial Court had been directed to proceed with the trial of the suit regardless of the pendency of the civil revision. According to the respondents counsel, the petitioner had not projected any genuine difficulty or cause which had prevented him from depositing in the Court, the monthly arrears of rent, and in that view of the matter he was not entitled to invoke the discretion of the Court for yet another opportunity to pay the arrears of monthly payable rent. Learned counsel thus justified the orders impugned in the revision petition. 9. I have considered the submissions of learned counsel for the parties and gone through the orders of this Court in civil revision nos. 15/2004 & 222/2001 as also the interim order passed during the currency of civil revision no. 15/2004. 10. Pendency of a civil revision, may not, as of course, operate as stay of proceedings before the subordinate court unless however the High Court, in its discretion, either sends for the records, or stays the operation of the order impugned in the revision petition. 15/2004. 10. Pendency of a civil revision, may not, as of course, operate as stay of proceedings before the subordinate court unless however the High Court, in its discretion, either sends for the records, or stays the operation of the order impugned in the revision petition. An almost similar view had been taken by this Court in Shri Ram Ganga Ram Vs. Suresh Kumar, Civil Revision no.52 of 1984 where the then Lord Chief Justice, had observed as follows:- "This is a revision against an order passed by the Sub Judge, CJM, Jammu, dated 13-3-1984. Counsel for the petitioner is not present. A request is made on his behalf for adjournment. The revision shall stand adjourned to 1st of May 1984, for admission. I understand that there is a practice amongst the litigants to apply for a certificate from the Registry of this court showing that a party has moved this court against an interlocutory order in a pending proceedings before the subordinate courts and to produce the certificate so obtained in the court before whom the matter is pending. It appears that the subordinate courts invariably suspend all proceedings pending before it when such a certificate is produced, even in the absence of an order of Court. This practice has to be dis--continued I direct that the proceedings pending in the court below shall proceed and will not be withheld only for the reason that the revision is pending in the Court. A copy of this order shall be sent to the Registrar to be communicated to the Deputy Registrars of both the wings of the High Court." 11. I, therefore, do not find any substance in the submission of learned counsel for the petitioner that the trial Court should have stayed its hands during the pendency of civil revision no. 15/2004 and the order passed by it on December 15, 2005 was in any way irregular or illegal. There is another reason of my taking this view because during the pendency of civil revision no. 15/2004, this Court had passed an interim order on September 05, 2005 giving liberty to the trial Court to proceed with the trial of the Suit regardless of the pendency of Civil Revision in this Court and in that view of the matter, the trial Court was not required to stay its hands in the case during the pendency of the revision petition. This order for facility of reference, is reproduced hereunder:- "None appears for the petitioner. The case is adjourned. Pendency of this revision will not prevent the trial court from proceeding with the trial. Let the lower court record be sent down. Jammu Dated: 5.9.2005" 12. Petitioners contention that the trial Court should have stayed its hands until the revision petition was concluded, is thus without any substance. It is accordingly rejected. 13. Petitioners next contention that the trial Court had erred in not reviewing its December 15, 2005s order in view of the law laid down in the judgment cited by him too is unsustainable, because petitioners plea that he could deny the title of his landlord because of his attorning to the new owner had been declined by the trial Court as also by this Court while rejecting his civil revision no.222/2001. 14. Petitioners next contention that the trial Court had erred in striking out his defence by not providing him yet another opportunity to pay the monthly arrears of the rent, too is untenable because even after the dismissal of his revision petition no. 15/2004 upholding trial courts order of November 05, 2003, the petitioner had not taken any steps to deposit even a single penny towards the arrears of rent which had become due from 1st November, 2003 during the pendency of the suit and he had been ordered to deposit these arrears of rent in the Court during the pendency of respondents civil suit against the petitioner seeking his eviction from the premises in his occupation. 15. Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, no doubt, is a beneficial legislation providing protection to the tenants against their eviction, unless however such eviction was sought on the grounds contemplated by Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, yet this protection may be availed of by only those who prove themselves to be good tenants. A tenant who does not pay rent for his using the premises and opts to be recalcitrant in avoiding to deposit the arrears of rent despite his having been called upon by a specific Court order to do so cannot be said to be a good tenant and his default in complying with the Court order would deprive him of the statutory protection available to him against his ejectment and in turn entitle the landlord to seek his eviction in accordance with law. 16. I, therefore, do not find any substance in petitioners counsels this submission too that the trial Court should have provided him another opportunity to deposit the rent rather than striking out his defence. The conduct of the petitioner during the pendency of the litigation speaks volumes about his refractory attitude of avoiding the orders of the court and depositing rent for the use and occupation of the premises in his possession, in the Court. 17. The trial Court had rejected petitioners request for reviewing its order of December 05, 2005 by giving good reasons therefor and no interference is warranted in the impugned order. 18. For all what has been said above, I do not find any error of law or jurisdiction in the orders passed by the trial Court. This revision petition, therefore, lacks substance and is, accordingly, dismissed.