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2018 DIGILAW 630 (JK)

Mohammad Shafi Bhat v. Muneer Ahmad Munshi

2018-08-13

M.K.HANJURA

body2018
ORDER : M.K. Hanjura, J. 1. The respondent in this petition filed an application under Section 14 of Jammu & Kashmir Houses and Shops Rent Control Act, 1966, (herein called the Act), before the Rent Controller, that is, the learned Chief Judicial Magistrate, Srinagar, for depositing the arrears of the rent for the period commencing from August, 20, 2008 to January, 2009 in lieu of the occupation of shop No. 3 measuring 11x20.6 feet situate at Tankipora, Srinagar, at a monthly rent of Rs. 450/-. In the said application, the respondent herein pleaded that he tendered the rent due to the landlord (petitioner herein) at the appropriate time, but he did not accept the same for the reasons best known to him. He has proceeded to state that on the 2nd of January, 2009, in yet another attempt, he tendered the rent to the petitioner herein through a money order, but the same was returned back and, therefore, he is facing difficulty in paying the rent to the landlord and seeks the assistance of the Court for its deposit. The learned Rent Controller issued notice to the petitioner herein for filing the objections. The petitioner filed the objections, stating therein that the application is not maintainable as the applicant/respondent herein has suppressed the material facts before this Court. He has not been paying the rent due to be paid despite requests, which forced and coerced him to serve a legal notice upon him through registered post for the payment of the arrears of the rent calculated at Rs. 2250/- upto November 2008 and the mesne profits for holding the shop illegally. However, to his dismay, the respondent herein did not act upon the notice and continued to be in arrears of rent. He never offered the rent to him which constrained him to file a suit for eviction, permanent injunction, recovery of rent and mesne profits on 18.12.2008 against him, which is sub-judice in the Court of the learned City Munsiff, Srinagar. In the end, the petitioner herein has urged that the application under Section 14 of Houses and Shops Rent Control Act, be dismissed. 2. The Rent Controller did not find favour with the contentions of the petitioner herein as propounded by him in his objections and held that Section 14 of the Act, has a limited purpose. In the end, the petitioner herein has urged that the application under Section 14 of Houses and Shops Rent Control Act, be dismissed. 2. The Rent Controller did not find favour with the contentions of the petitioner herein as propounded by him in his objections and held that Section 14 of the Act, has a limited purpose. It provides a forum to the tenant who faces genuine difficulty in paying the rent to the landlord when the same is tendered to him. The question as to whether the tenant is holding the possession without payment of the rent or, whether he is in arrears and if so, what are its consequences are the questions that have to be decided in the civil proceedings and, accordingly, permitted the applicant (respondent herein) to deposit the rent for the period w.e.f. 20th August, 2008 to January, 2009 at the rate of Rs. 450/- per month amounting to Rs. 2700/- with respect to the shop with a further stipulation that the non-applicant, i.e., petitioner herein this petition shall be at liberty to withdraw the same. 3. Aggrieved by this order of the Rent Controller, the petitioner herein this petition filed an appeal in the Court of the learned 3rd Additional District Judge, Srinagar, and the learned 3rd Additional District Judge, Srinagar, came to the conclusion that the order of the Rent Controller is in line and in tune with the mandate of law laid down on the subject and, accordingly, dismissed the appeal. 4. Dissatisfied with the order of the Courts below, the petitioner herein has assailed them in this revision filed before this Court on the grounds, inter alia, that the orders passed by the Rent Controller and the 3rd Additional District Judge, Srinagar, are not in tune with the mandate of law laid down in Section 14 of the Act, and, therefore, these are bad, perverse and illegal and require to be set aside. 5. Heard and considered. 6. It needs must be said at the very outset that the respondent has been served with a notice but he has chosen not to appear before this Court as a consequence of which he has been placed under ex-parte. 7. 5. Heard and considered. 6. It needs must be said at the very outset that the respondent has been served with a notice but he has chosen not to appear before this Court as a consequence of which he has been placed under ex-parte. 7. Section 14 of the Houses and Shops Rent Control Act, 1966, which is relevant in the context of the decision of the instant petition reads as follows: Deposit of rent by the tenant:- (1) Where the landlord does not accept any rent tendered by the tenant, or the tenant experiences difficulty in paying the rent to the landlord of the house or shop, he may deposit such rent with the Controller in the prescribed manner. (2) The deposit shall be accompanied by an application supported by an affidavit from the tenant stating- (a) the house or shop for which the rent is deposited, with description sufficient for identifying the house or shop; (b) the period for which the rent is being deposited; (c) the name and address of the landlord; and (d) the reasons and circumstances which led him to deposit the rent: Provided that no affidavit in support of an application shall be required in case of a deposit made subsequent to the first deposit if the reasons and circumstances which led the tenant to make the first deposit remain the same. (3) The application shall be accompanied by a correct copy of the application and the prescribed fee for sending to the landlord or to person or persons mentioned in sub-section (4), the notice of the deposit, accompanied by a copy of the application by registered post with acknowledgement due. (4) When the reason for making the deposit is doubt as to the person or persons entitled to receive the rent, the tenant shall state in his application, if possible, the name and the address of the person or persons, who, to his best information and belief, is the landlord entitled to receive the rent, and in case there are more such persons than one the application shall be accompanied by as many copies as there are such persons. (5) The Controller on receipt of the deposit, the prescribed fee, the application and its copy or copies shall, within fifteen days of such receipt, send to the landlord or to the person or each of the persons referred to in sub-section (4), if any such person or persons have been named with address in the application, a notice of deposit in the prescribed manner as also a copy of the application, authenticated by the seal of his office and his signature or the signature of some person authorised by him, by registered post with acknowledgement due. A copy so authenticated shall be evidence in a Court of law without further proof of the contents of the original application made to the Controller. (6) If the landlord named in the application asks by a petition for payment to him of the rent deposited, the Controller, on being satisfied that the landlord named in the application is the petitioner, shall pay the amount to him in the prescribed manner. (7) If the person or persons named in the application according to sub-section (4), asks or ask by a petition for payment to him or to them of the rent deposited, stating that he or they is or are the landlord or landlords entitled to receive the rent, or asking for payment to them keeping open the question of disputed land lord ship, or agreeing that some one or more amongst them should receive payment, the Controller, on being satisfied that the person or persons named in the application is or are the petitioner or petitioners shall pay the amount to him or them in the prescribed manner. (8) If the amount of rent deposited is not withdrawn by the landlord or person or persons mentioned in sub-section (4) before expiration of five years from the (Lite of the posting of notice of the deposit, it shall, subject to any order of any Court, forfeited to Government. (8) If the amount of rent deposited is not withdrawn by the landlord or person or persons mentioned in sub-section (4) before expiration of five years from the (Lite of the posting of notice of the deposit, it shall, subject to any order of any Court, forfeited to Government. (9) If, at the time of filing the petition mentioned in sub-section (6) or (7) but not after the expiry of thirty days from receiving the notice of deposit, the landlord or the person or persons mentioned in sub-section (4) complain to the Controller that the statements in the tenant's application of the reasons and circumstances which led him to deposit the rent are untrue, the Controller, after giving the tenant opportunity of being heard, may levy a fine on him which may extend to five hundred rupees if he is satisfied that the said statements were materially untrue and that there was no difficulty in paying the rent direct to landlord as alleged in the tenant's application, he may levy the rent, and may order that a sum out of the fine realised be paid to the landlord as compensation. But if on hearing the matter the Controller is satisfied that the said statements were substantially correct and there was difficulty in the way of the tenant paying the rent direct to the landlord as alleged in the tenant's application, he may levy a fine on the complainant which may extend to five hundred rupees, and may order that a sum out of the fine realised be paid to the tenant as compensation. Explanation.- If, after such complaint, the complainant does not desire or neglects to proceed with the hearing of his complaint, the matter may be heard anon order made at the instance of the tenant". 8. Section 14 of the Act extracted above provides and postulates that the rent shall be deposited at the moment when the application is filed by the tenant before the Rent Controller. It also envisions that such an application should be buttressed with an affidavit, if the deposit is the first one. Section 14 of the Act admits of no exception. When the law prescribes that a particular mode has to be followed in making the deposit of the rent, it cannot be allowed to be tinkered with by adopting an altogether different course not prescribed by it. Section 14 of the Act admits of no exception. When the law prescribes that a particular mode has to be followed in making the deposit of the rent, it cannot be allowed to be tinkered with by adopting an altogether different course not prescribed by it. In the case on hand, the applicant, that is the respondent herein this petition filed an application before the Rent Controller in which notice was issued and the objections were invited. After filing the objections, the matter was heard and determined by the Rent Controller and the tenant was asked to make the deposit which goes against the very scheme of Section 14 of the Act. Such a situation cannot be countenanced in law. In this view of the matter, I am fortified by a judgment of a Coordinate Bench of this Court delivered on 19th July, 1994 in Civil Revision bearing No. 49 of 1994 titled Ghulam Mohammad Ganai v. Ghulam Qadir Khan, the relevant excerpts of which are extracted below: "I have heard learned counsel and examined the order impugned. Petitioner's case stands rejected by the Court below on the ground that he had failed to deposit the rent before the Rent Controller as mandated by Sec. 14. The relevant section postulates making a deposit with an application. Therefore, when no such deposit is made, requirements of Sec. 14 are not satisfied. Viewed thus, the petitioner's appeal has been rightly rejected and I find no ground to interfere. This petition is consequently dismissed". 9. Viewed in the context of all that has been said and done above, the revision is allowed, as a corollary to which, the impugned orders dated 14.07.2015 passed by 3rd Additional District Judge, Srinagar, and the order dated 29.03.2010, passed by the Rent Controller (CJM), Srinagar, are set aside.