Jammu & Kashmir High Court
Rajinder Kumar vs Deep Krishen Dutta on 2 March, 1995
Equivalent citations: AIR1995J&K74, AIR 1995 JAMMU AND KASHMIR 74
Author: Bilal Nazki
Bench: Bilal Nazki
ORDER Bilal Nazki, J.
1. The respondent has filed a suit (being No. 84/1993) in the trial Court of Sub Judge, Jammu, against the petitioner herein seeking a decree for ejectment of shop and also a decree for recovery of arrears of rent. During the pendency of the suit, the respondent/plaintiff moved an application Under Section 12(4) of the J & K Houses and Shops Rent Control Act, praying for a direction for payment of Rs. 15,066/- as arrears of rent towards him by the defendant/petitioner, within 15 days. The learned trial Court decided this application vide his order dated 29-10-1994. This order has been challenged by the petitioner/ defendant through the medium of present revision.
2. It is contended by Mr. Sharma appearing for the petitioner that since a suit had been filed for eviction and also for payment of arrears of rent, an application Under Section 12(4) of the J & K Houses and Shops Rent Control Act, was not maintainable.
3. Section 12(4) of the act lays down that when a suit is pending between the tenant and landlord for eviction, the landlord may at any stage of the suit make an application for ordering on the tenant/defendant to deposit rent month to month at a rate which was last paid, and also the arrears of rent, if any.
Section 12(4) of the Act, reads, as under :
"If the tenant contests the suit, as regards claim for ejectment, the plaintiff-landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteen day of the next following month, the Court shall order the defence against ejectment to be struck out and tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so."
4. From a bare perusal of the said Section, it is clear that the landlord can make an application seeking a direction against the tenant to deposit rent month to month at a rate it was last paid and also the arrears of rent. So, there is no doubt about the right of the landlord to make an application before the Court at any time during the pendency of the suit for eviction. But the question which requires consideration by this Court is that if in the main suit for eviction, the arrears of rent have also been claimed and a decree has been sought for recovery of those arrears, whether application Under Section 12(4) of the Act can be made.
5. Counsel for the respondent submits that there is no bar and a landlord can choose both the remedies. I am afraid, it must have not been the intention of the Legislature, The intention of the Legislature becomes clear when Sections 11 and 12 of the Act are read together that it is only in cases where eviction has been sought by a landlord, and the tenant resists such eviction that an application Under Section 12(4) of the Act can be made. This question was raised earlier before a Division Bench of this Court. While deciding this question, it was held by the D.B., as under :
"12. So far as point l(c) is concerned, it relates to such arrears for which a separate suit has already been filed. Obviously if a remedy is sought by the recovery of rent in a separate suit, an application for recovery of rent for the same period for which a civil suit is pending, cannot be made on the principle of two remedies in respect of the same relief are not to be pursued simultaneously. If a landlord has chosen a remedy by way of a suit in a competent court of law for recovery of rent he will not be permitted to seek its recovery under Section 12(4) of the Act in a summary manner. This may amount to abuse of procedure and on that ground also will not be permissible. So it is to be held that for the amount of arrears if a separate suit is pending, the same amount cannot be claimed in a suit for eviction Under Section 12(4) of the Act."
6. The judgment is reported in KL.T 1985 page 148. So, for the reasons given above and in view of the law laid down by the learned Division Bench, no application could have been made for the arrears of rent, for which recovery was sought in the suit. It has also been contended before me by the counsel for the petitioner that in view of the law laid down in the above quoted judgment, no arrears of rent could have been claimed which were time barred, and by the impugned order, the learned trial Court has even ordered payment of the time barred arrears of rent. In terms of Section 12(4) of the Act, arrears of rent are only such arrears, which are not barred by limitation. The arrears of rent which were time barred at the time of filing of the suit and could not be recovered by filing a suit, cannot also be recovered by filing an application Under Section 12(4) of the Act.
7. According to the impugned order, the plaintiff had claimed the arrears of rent from 1-5-1987 to ending July, 1994. Since the suit had been filed in the year, 1993, it appears that some of the arrears of rent were time barred. In my opinion, once a suit is filed for eviction and recovery of arrears of rent, an application Under Section 12(4) of the Act can only be made for recovery of rent which becomes due after the institution of the suit, because the arrears of rent which might have been claimed, must necessarily be pertaining to the period prior to filing of the suit. If in a situation where a suit is filed for eviction and for recovery of arrears of rent, a tenant stops payment of rent after a suit is filed by the landlord, the landlord shall be within his rights to file an application Under Section 12(4) of the Act for seeking a direction against the tenant to pay the rent month to month. Since the trial Court has ordered the payment of arrears of rent, which include the arrears, which have been claimed in the suit also, the order is therefore, liable to be set-aside.
8. It has also been pleaded before me that the trial Court could not order payment of arrears of rent @ 245/ - per month because the tenant had been paying Rs. 225/- P.M. only to the landlord. Since there is a dispute between the parties whether the landlord was entitled to receive Rs. 245/-P.M. or Rs. 225/-Per Month as rent, as according to the landlord, there was an agreement between the parties that the rent initially fixed at Rs. 225/-P.M. will be enhanced to Rs. 245/- P.M. after the expiry of two years. According to the petitioner, the condition in itself was bad. I do not think that Section 12(4) of the J & K Houses and Shops Rent Control Act is so wide that a dispute of this nature can be decided in an enquiry, while deciding an application under this Section. Moreover, Section 12(4) is clear that only the rent at such rate can be ordered by the Court which was last paid by the tenant to the landlord. In the instant case, in the impugned order it is clear that the rent last paid by the tenant to the landlord was only @ Rs. 225/- Per Month, therefore, the learned trial Court was not justified in ordering the payment of @ Rs. 245/- P.M.
9. For the foregoing reasons, this revision petition is allowed, and the impugned order is set aside. However, the respondent/plaintiff shall be at liberty to move an application in terms of Section 12(4) of the Act for payment of arrears of rent which might have become due to him after the filing of the suit, and for recovery whereof, no suit has been filed. A copy of this order shall be sent to the Court below for information.