Jammu & Kashmir High Court
Smt. Kanta Rani vs Som Dutt on 1 February, 1988
Equivalent citations: AIR1989J&K71, AIR 1989 JAMMU AND KASHMIR 71
Author: A.S. Anand
Bench: A.S. Anand
ORDER A.S. Anand, C.J.
1. On 5-6-1973. the petitioner filed a suit for ejectment of the respondent from a shop situate at Jain Bazar Jammu on the ground of personal necessity for starting her own business. Her plea did not find favour with the trial court and the suit was dismissed. An appeal against the judgment and decree also failed. The petitioner has, through civil second appeal No. 65/B of 1981, questioned the judgment and decree of Sub Judge (C. J. M.), Jammu, dt/- 5-3-1981, dismissing the appeal filed by her against the judgment and decree of Munsiff Sub Registrar, Jammu, dt. 7th of May, 1987. The civil second appeal was admitted to hearing on 8-7-1981. During the pendency of the appeal, the petitioner filed this application under Section 12(4) of the J & K Houses and Shops Rent Control Act (hereinafter to be referred to as 'the Act'). In the application it was averred that the respondent had not paid any rent to the petitioner for the shop in question for the period following 1st of June, 1973, except for an amount of Rs. 540A. According to the petitioner the total rent payable for the period from 1st of June, 1973, till end of June, 1981, after giving credit of Rs. 540/- already received worked out to Rs. 1400/- @ Rs. 20/-per month and was due to her. She, therefore, prayed for a direction to the respondent to deposit Rs. 1400/- towards the arrears of rent and also to deposit regularly the current rent @ Rs. 20/- per month and prayed that in the event of his failure to comply with the directions, to strike off his defence.
2. In his objections the respondent averred that the fair rent of the shop had since been fixed as Rs. 15A per month, therefore, the application for recovery of arrears of rent or for direction for depositing the future rent @ Rs. 20/- per month is not tenable. It was further maintained that the petitioner sought to recover time barred arrears of rent through the application under Section 12(4) of the Act, which is not permissible in law.
3. The parties did not lead any evidence in support of their respective contentions but appearing before the court, the following facts were admitted by learned counsel for the parties : --
a. That no rent had been paid by the respondent to the petitioner for the period following 1st of June, 1973, except an amount of Rs. 540/-. (The suit was filed in the trial court on 5-6-1973);
b. that the fair rent of the shop in question had been fixed at Rs. 15/- per month.
c. that the arrears of rent, claimed by the petitioner were for the period during which the suit and the appeal of the petitioner were pending in the courts below; and d. that no rent has been paid even during the pendency of the second appeal.
4. Mr. J. P. Singh, learned counsel for the respondent, submitted on the basis of the aforesaid admissions, that rent for a period of 36 months amounting to Rs. 540/- stood already paid and, therefore, excluding that period, the only arrears of rent which could be recovered by the petitioner were such as were not barred by time. He submitted that the respondent was willing to deposit the arrears of rent, which were not barred by time, and to also abide by the directions to deposit the future rent. The right to recover the rent which has accrued during the pendency of the second appeal in this court was also disputed. In support of his submissions, learned counsel relied upon a judgment of this court in Sukhdev Raj v. Harbans LaJ, AIR 1985 J & K 64 to urge fhat time barred arrears of rent could not be recovered through an application under Section 12(4) of the Act.
5. Mr. T. S. Thakur, learned counsel for the petitioner, on the other hand, submitted that an application under Section 12(4) of the Act can be made by the landlord in a suit for ejectment at any stage of the suit and that the right of the landlord to recover rent, which has accrued during the pendency of the suit or the appeal including the second appeal, cannot be defeated on any plea of limitation as long as the application is made at some stage of the suit, an appeal being a continuation of the suit. In support of his submission, learned counsel has relied upon the judgment of this court in Gulchain Singh Charak v. Ram Ditta Sharma, 1982 Srinagar LJ 219.
6. The meaningful question which, therefore, requires consideration is; whether a plea of limitation can be raised against the recovery of rent which has accrued during the pendency of the suit, i.e. during the pendency of the suit or the appeal, through an application under Section 12(4) of the Act ?
7. Section 12(4) of the Act provides that an application under the provision can be made in a suit for ejectment "at any stage of the suit". The prayer in the application can be restricted to seek an order against the tenant to deposit the current and future rent month by month during the pendency of the suit at the stipulated rate and can also be extended to seek an order "for depositing the arrears of rent" if any, which are not time barred.
8. Section 12(4) of the Act was introduced by the legislature in the Act which, primarily, affords protection to the tenants to give some relief to a landlord in respect of recovery of rent of the demised premises. The sub-section contemplates that the tenant shall have the right to oppose landlord's claim for ejectment so long as he pays the admitted rent, past and present, without let or hidrance. The broad principle contained in Section 12 of the Act is that protection against eviction is available to a tenant only if he fulfils his obligation as regards the payment of rent. The principle of subsection manifestly is that, the tenant has the right to oppose the eviction only so long as he pays the current and the arrears of admitted rent. In Gwasha Lal v. Harji Lal, 1980 Kash LJ 25 : (AIR 1980 J & K 36), a Full Bench of this Court considered the ambit and scope of Sub-section (4) of Section 12 of the Act and held that the sub-section applies to the suits for eviction generally, irrespective of the fact whether eviction is claimed solely on the ground of non-payment of rent under clause (i) or on any other ground as mentioned in Clauses (a) to (h) of proviso of Sub-section (i) of Section 11 or any of those grounds in addition to the ground of non-payment of rent. The court also considered the nature and character of the order contemplated by the sub-section and held that an order under Sub-section (4) is intended to be of an interim nature in order to compel the tenant to pay up "current" and "arrears" of rent at the rate even impliedly admitted by the tenant, on the pain of his defence being struck off at any stage, if he commits default in such payment" so long as the suit lasts.'' Thus, the Full Bench in Gwasha Lal's case (supra) clarified the position that whatever be the plea on which ejectment of the tenant is founded, if the tenant wanted to resist his ejectment, he was obliged to carry out the directions as contemplated by Section 12(4) of the Act and that the protection for eviction is available only to a good tenant who carries out the obligation of tenancy and not to a bad tenant. Merely because a suit for ejectment is filed against the tenant, no licence is given to him to stop paying the rent and cause harassment to the landlord. Section 12(4) of the Act was thus intended to compel the tenants to perform their obligation of paying rent while seeking protection under the Act. The basic principle underlying the section, it appears is, "pay and stay".
9. The provisions of Sub-section (4) are in pari meteria to the provisions of Section 11(a), as introduced by an amendment in 1959 to the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, (hereinafter called "the Bihar Act"). The provision of Section 13 (A) of the Bihar Act came up for consideration by a Full Bench of the Patna High Court in Ramnandan Sharma v. Mst. Maya Devi, AIR 1975 Pat 283. The Full Bench interpreted the expression "arrears of rent" occurring in Section 11( A) as to take within its sweep "all arrears of rent" which have "accrued during the pendency of the suit" as also those arrears, the recovery of which was not barred by limitation. The expression "at any stage of the suit" was also considered, and interpreted by the Full Bench to apply to all stages of litigation, whether in the trial court or in the first appellate court or in the second appellate court. It was held that filing of an application under Section 11-A of the Bihar Act, is not circumvented by any period of limitation as regards the arrears of rent "accruing" during the pendency of the suit, which expression in certain circumstances includes the pendency of appeal or appeals.
10. In Shri Gulchain Singh Charak v. Ram Ditta Sharam 1982 Srinagar LJ 219, one of the contentions which was considered by me specifically was the question, as framed above. I held (in para 12) that a claim for recovery of arrears which have accrued at any stage of the litigation whether in the trial court or in the 1st appeal or second appeal or in revision or even appeal to the Supreme Court, could be made through an application under Section 12(4) of the Act so long as the application is made at some stage of the suit, particularly, because so far as the State Act is concerned, the legislature had itself provided in Sub-section (5) of Section 12 of the Act that the provisions of Sub-section (4) shall be applicable to the courts of appeal also. After relying upon certain judgments I opined : --
".....It is thus, manifest that so far as the "arrears of rent" which have accrued during the pendency of a suit for ejectment or appeal, a landlord is at liberty to make an application, 'at any stage' before the final determination of the lis for their recovery and the plea of limitation is not available against him."
In taking this view, I had relied upon the judgment of the Full Bench of the Madhya Pradesh High Court in Sharadchand v. Vishnupant, AIR 1978 Madh Pra 143, where their lordships considered the import of the words" at any stage of the suit" as occurring in Section 11-A of the Bihar Act and held : --
"The words" at any stage of the suit" are undoubtedly comprehensive enough to apply to all stages of the litigation whether in the trial court or in the first appellate court or in the second appellate court or in revisions, or even in appeal to the Supreme Court. In Madhya Pradesh Act, the words "at any stage of the suit" are not there.''
11. Here it would also be profitable to notice the observations of the apex court in Radha Kishan Sao v. Gopal Modi, AIR 1977 SC 1217 where while interpreting the provisions of Section 11-A of the Bihar Act, the court found : --
"It is submitted by the defendant that an order under Section 11-A can be passed only by the trial Court. We are, however, unable to accept this position, since appeal is a continuation of the suit. The advantage which is given to the landlord under Section 11-A for the purpose of realisation of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secured by the landlord at any stage of the litigation, whether in the trial court or in appeals. The penalty of striking out defence for non-compliance of an order under Section 11A has to be kept distinct from the grounds of eviction permitted under Section 11 of the Act."
12. Therefore, it is obvious that arrears which accrue during the pendency of the suit or appeals etc. do not get barred by time" as long as the application for their recovery under Section 12(4) is made at any stage during the pendency of the litigation. It follows, therefore, that plea of limitation cannot be permitted to be raised in respect of the rent which has accrued during the pendency of the litigation where recovery is sought before the conclusion of the litigation.
13. In AIR 1985 J & K 64 (supra) the main question under consideration was; whether the arrears which are barred by limitation could be recovered through an application under Section 12(4) of the Act ? The following questions were referred for decision to the Division Bench by a single Judge : --
"1. What is the ambit, and scope of the words "the arrears of rent" used in Sub-section (4) of Section 12 and, in particular, whether these words include : --
a. the arrears which are barred by limitation on the date of the filing of the suit;
b. the arrears which are barred by limitation on the date of the filing of the application under Section 12;
c. arrears for which a separate suit has been filed;
d. arrears for which relief has been claimed in the suit for ejectment itself;
e. arrears which accrue during the pendency of the suit for ejectment ?
2. What is the ambit and scope of the power conferred on the appellate Court under Sub-section (5) of Section 12 and, in particular --
a. Whether it is discretionary with the Court of appeal to order or not to order recovery of arrears?
b. Whether the court of appeal can order the recovery of arrears which the appellant could claim during the pendency of the suit ?' c. Whether the Court of appeal can order the recovery of the arrears which have fallen due from the date of the decision of the suit for ejectment up to the filing of the appeal ? "
Besides these questions, the correctness or otherwise of my judgment in Gulchain Singh's case, 1982 Srinagar LJ 219 was also referred.
14. While dealing with the judgment in Gulchain Singh's case (1982 Srinagar LJ 219) (supra), the Division Bench observed : --
"...... the points referred to this Bench were not before the learned single Judge, therefore the said authority will not be a guide in so far as the points referred to this Bench are concerned."
The Division Bench, therefore, did not doubt the correctness of that judgment and the judgment continues to be a good law in so far as the points decided in that case are concerned. Question l(e) as referred to Division Bench which, to an extent has some relevance to the question under discussion in this case, was answered thus : --
"That brings us to point 1 (d) and l(e) which we take up jointly. In a suit for ejectment a landlord can claim arrears of rent which are payable to him and which are recoverable from the tenant. Therefore, Section 12(4) of the Act will be attracted in respect of recovery of such arrears. Same will be the case so far as the arrears of rent which accrue to the landlord during the pendency of ejectment sun, me landlord at the time of institution of the suit is entitled to claim arrears of rent which are not barred by limitation. At that stage he cannot anticipate tenant's conduct during the trial of the suit. An honest tenant may keep on paying the rent during the pendency of the suit to the landlord while a bad tenant may stop paying rent which accrues during the pendency of the suit for ejectment. Its deposit is to be made month to month and failure on the part of the tenant to deposit the same will place him in the same position as if he had not defended the claim for ejectment. Language of Section 712(4) of the Act, makes it abundantly clear that the rent pendente lite can be claimed and ordered to be deposited by the Court?"
Again the Division Bench while answering question 2(c) opined : --
"That an appeal J. is continuation of the original lis. Till appeal is settled finally the lis is not concluded. Therefore appellate court shall have the power to determine the question pf deposit of rent under Section 12(4} of the Act for the intervening period also ........"
The Division Bench Judgment, therefore, did not say anything to the contrary to what had been held by me in Gulchain Singh's case (supra). That judgment, therefore, cannot advance the case of Mr. J. P. Singh and is not an authority for the proposition that plea of limitation is available to a tenant even in respect of the arrears which have accrued during the litigation. Such a plea, in any event, would defeat the object of Section 12(4) of the Act and put a premium on the bad tenants and encourage them to stop paying the rent as soon as a suit for eviction is filed against them and would result in harassment to the landlord. The legislature could never have intended that situation.
15. In view of the aforesaid discussions, I answer the question, as formulated above, in the negative and hold that a plea of limitation cannot be raised to defeat the prayer of the landlord under Section 12(4) of the Act for recovery of such arrears of rent as have accrued during the pendency of the suit, which would include appeal or appeals also, so long as the recovery is sought to be made "at any stage of the litigation." Further it is open to the landlord to take recourse to Section 12(4) of the Act to seek such a recovery as also a direction for deposit of the future rent at the stipulated rate during the pendency of the appeals.
16. In the instant case, calculating the rent at the admitted rate of Rs. 15/- p.m. from 1-6-1973 to 1-2-1988 (during the pendency of the suit and appeals) the same works out to Rs. 2640/-, out of which an amount of Rs. 540/- stands already paid to the landlord Therefore, the balance that remains to be paid by the tenant is Rs. 2100/-. The aforesaid amount shall be depoisted by the tenant-respondent within 15 days from the date of this order with the DR and I further direct him to regularly deposit the monthly rent of Rs. 15/- per month by the 15th day of every following month during the pendency of the appeal. There shall, however, be no order as to costs in so far as this application is concerned.