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2010 DIGILAW 421 (JK)

Ab. Samad v. Ab. Aziz Ahangar

2010-07-29

Hasnain Massodi

body2010
1. The petitioner on 21.5.2009 instituted a suit for ejectment against the respondent, in the court of Sub Judge Bandipora, pleading therein that the petitioner was owner of a shop situated at Gulshan Chowk, Main Bazar, Bandipora let out to the respondent for a period of 11 months commencing 11.4.2003 and that the period of tenancy having come to an end the respondent was under obligation to handover vacant possession of the suit shop to the petitioner. The petitioner complained that the respondent despite repeated requests and registered notice dated 7.2.2009 failed to handover possession of the suit shop to the petitioner, leaving no option for the petitioner but to institute the suit, seek eviction of the respondent and also an amount of Rs.1000/- per day as damages/compensation for illegal occupation of the shop by the respondent. 2. The respondent entered appearance in the suit and filed an application under Order 7 Rule 11 CPC asking for rejection of the plaint. 3. The case set up by the respondent was that Jammu & Kashmir Houses and Shops Rent Control Act 1966, being applicable to the place where suit shop was situated, the suit was barred under section 11 of the Act and the plaint was liable to be rejected in terms of Order 7 Rule 11 CPC. The application was resisted by the petitioner on the grounds that order 7 Rule 11 CPC had no application to the matter in controversy and was intended to prolong the proceedings. The petitioner insisted that the petitioner had cause of action to file the suit against the respondents in as much as the respondent was in un authorized occupation of the suit shop and no notice was required to be served, on the respondent under J&K Houses and Shops Rent Control Act, prior to institution of the suit. 4. Ld. Trial Court on consideration of the matter held the suit to be expressly barred under section 11(1) of the House and Shops Rent Control Act and the plaint liable to be rejected under Order 7 Rule 11 clause (d) CPC. The Trial Court to arrive at said conclusion placed reliance on the law laid down in Three Star Enterprises v. State of J&K and others 2009 (I) SLJ 106 : 2009 (2) JKJ 257 [HC]. 5. The Trial Court to arrive at said conclusion placed reliance on the law laid down in Three Star Enterprises v. State of J&K and others 2009 (I) SLJ 106 : 2009 (2) JKJ 257 [HC]. 5. The Trial Court order dated 30.3.2010 is questioned in the present Civil Revision on the grounds that the impugned order is in derogation of law and facts and liable to be set aside. The Trial Court according to the petitioner failed to appreciate the requirements of Order 7 Rule 11 CPC and erroneously placed reliance on section 11 J&K Houses and Shops Rent Control Act. The Trial Court is said to have failed to spell out the reasons in support of the impugned order. 6. Heard and considered. 7. The petitioner admits to have on 3.4.2003 inducted the respondent as a tenant in the suit shop owned by the petitioner. The petitioner's case is that the term of tenancy viz. 11 month having come to an end, the status of the petitioner beyond the date the tenancy expired by efflux of time, was nothing more than that of a trespasser and there being no relationship of landlord and tenant after the said date. The petitioner had a right to claim possession of the suit shop and the respondent was duty bound to handover such possession to the plaintiff. 8. There is no dispute that the J&K Houses and Shops Rent Control Act is applicable to the place where the suit shop is situated. The relationship between the parties qua suit shop is thus to be regulated not by the Transfer of Property Act but J&K Houses and Shops Rent Control Act, holding the field. 9. Section 11 J&K House and Shops Rent Control Act sub section (1) bars suit for eviction by a landlord against his tenant. Proviso to section 11 (1), however, carves out an exception to the General Rule and enumerates grounds in which a landlord may seek eviction of a tenant from the rented out premises. The circumstances find place in clauses (a) to (h) of Proviso to section 11 (1) of the Act. It follows that a landlord to file and maintain a suit for eviction has to bring out his case within one or more of the grounds set out in section 11 (1) proviso clauses (a) to (h) of the Act. The circumstances find place in clauses (a) to (h) of Proviso to section 11 (1) of the Act. It follows that a landlord to file and maintain a suit for eviction has to bring out his case within one or more of the grounds set out in section 11 (1) proviso clauses (a) to (h) of the Act. Section 11(1) proviso does not recognize expiry of period of tenancy as a ground for eviction. Resultantly a landlord cannot maintain a suit for eviction against the tenant on the ground that the period of tenancy has come to an end. The tenant after the period of tenancy comes to an end assumes status of statutory tenant and is entitled to same protection under section 11 of the Act as is available to a contractual tenant whose term is yet to come to an end. The object of the section 11 of the Act is to give protection to all types of tenants and to permit a suit for eviction only on legislatively recognized grounds. The petitioner's suit filed not within ambit of any of the clauses (a) to (h) to proviso to section 11 (1) J&K Houses and Shops Rent Control Act, the suit obviously was barred under section 11 (1) of J&K Houses and Shops Rent Control Act and Ld. Trial Judge was right in rejecting the plaint under order 7 Rule 11 (d) CPC. The order impugned in Revision Petition thus does not amount to irregular exercise of jurisdiction by the Trial Court or result in failure of justice. Resultantly the Civil Revision is destined to fail and is hereby dismissed. The record be sent down. Dismissed.