Jammu & Kashmir High Court
Jeet Singh vs . Bodh Raj on 2 April, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
OWP 2704/2018, IA No. 01/2018
Date of order: 02.04.2019
Jeet Singh vs. Bodh Raj
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner (s) : Mr. V. R. Wazir, Sr. Advocate with
Mr. Neeraj Mangotra, Advocate
For respondent(s) : Mr. R. P. Sharma, Advocate
i) Whether approved for reporting in Yes/No Law Journals etc.:
ii) Whether approved for publication in Press: Yes/No
1. The petitioner has filed the present petition under Section 104 of the Constitution of Jammu and Kashmir read with Article 227 of the Constitution of India against the order dated 30.11.2018, passed by the learned Sub-Judge (CJM), Kathua by virtue of which respondent/tenant has been directed to repair the wall of the suit shop within a period of one month from the date of passing of the order.
2. The only ground taken in the petition is that petitioner being the landlord he has filed a suit and has sought for eviction of respondent-
tenant from the suit shop situated at Kathua on the ground of building/re- building; that respondent- tenant filed an application under Section 27 of J&K Houses and Shops Rent Control Act for making necessary repairs in one of the suit shops before Court of Sub-Judge, Kathua and in the said application impugned order dated 30.11.2018 has been passed; that application under Section 27 is a separate litigation and it has to be filed OWP No. 2704/2018 Page 1 before the Rent Controller and so court below was not competent to pass the impugned order;
3. I have heard rival contentions of learned counsel for the parties and gone through the material on record.
4. Concluding part of the impugned order reads as under:-
I have perused the application and the main file and heard ld counsel for the parties at bar.
Sec 27 of Houses and Shops Rent Control Act provides for making of repairs and taking of measures for the maintenance of essential services by the tenant on the failure or neglect of the landlord to do so. Sec 27 (1) reads as"
"The controller shall, on application may to him in his behalf by any tenant in possession of any house or shop, cause a notice to be served in the prescribed manner on the landlord there of requiring him to make any repairs which such landlord is bound to make to the house or shop or to take any measures for the due maintenance of any essential supply or service, such as the maintenance of the supply of water or electricity, the maintenance of conservancy or sanitary service and the maintenance of any lift, which such landlord is bound to maintain in the house or shop under the condition of the tenancy or according to local usage.
(2) if after the serves of such notice. The landlord fails to show proper cause or neglects to make such repairs or to take within reasonable time such measures as the case may be, the tenant may submit to the controller and estimate of the caused of such repairs or measures and may applied to him for permission to make such repairs or to take such measures himself and there upon the controller may, after giving the landlord and opportunity of being heard and after considering such estimate of cost and making such inquiries as he may considered necessary by an order in writing, permit tenant to make such repairs or to take such measure, as the case may be, at a cost not exceeding such amount as may be specified in the order and it shall their after the law full for the tenant to make such repairs or to take such measure and to deduct the cause thereof, be shall in no case exceed the amount so specified from the rent or otherwise recovered it form the landlord."
OWP No. 2704/2018 Page 2 The plaintiff admittedly has filed the suit for rejectment of the defendant from the suit shops on the ground of default for payment of rent personal necessity and building and rebuilding. However till the disposal of main suit which is at the stage of defendant's evidence as yet, the necessary repairs in the suit shop, the wall of which as per application defendant has collapsed, needs to be repaired in order to make it habitable and usable till the disposal of main suit.
Ld counsel for the plaintiff admitted in the open court that plaintiff is ready to make the necessary repairs viz-a-viz the collapsed wall of suit shop. Therefore, plaintiff is directed to repairs the collapsed wall within period of one month from today on his own expenses. The application is accordingly disposed of and shall form part of main file."
5. From the bare perusal of the order impugned, it is evident that the above said order has been passed with the consent of the parties. Any order passed with the consent of the parties is not amendable to challenge before the higher forum. Further learned Sub Judge (CJM), Kathua is also holding the post of Controller under J&K Houses and Shops Rent Control Act. Therefore, the plea taken that court below could not pass the impugned order is not tenable. The second ground taken in the present petition that application under Section 27 of J&K Houses and Shops Rent Control Act has to be decided separately is also not tenable, because from the perusal of the order impugned, it is evident that though it has been written in the order that this application has been filed during the pendency of the suit of the ejectment, but from bare perusal of the order impugned it is evident that it has been separately dealt by the court below and a separate order has been passed that too on the admission of the counsel for the petitioner herein.
5. In view of the above, this petition is not maintainable and the same is dismissed.
(Sanjay Kumar Gupta) Judge Jammu:
02.04.2019 Bir* OWP No. 2704/2018 Page 3 BIR BAHADUR SINGH 2019.04.05 18:52 I attest to the accuracy and integrity of this document OWP No. 2704/2018 Page 4