Babu Ram v. Om Parkash

(1) The short question that falls for determination in this revision petition is : can the court refuse to strike out the defence of the defendant, who in a suit for ejectment has been ordered by it to deposit the rent due or recoverable from him in terms of Sub-section (4) of Section 12 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, but fails to deposit it within the period pres­cribed under the said section, where he shows suffi­cient cause for not depositing it within the said period ?

(2) The petitioner on an application made by the respondent in terms of Section 12 (4) of the Jammu and Kashmir Houses and Shops Rent Cont­rol Act, 1966, hereinafter to be referred to as the Act, was ordered by the trial court of City Judge at Jammu deposit in the court not only the ar­rears of rent amounting to Rs. 160/- due from him but also the monthly rent payable by him. This order was passed on 3-3-1980. He, deposited the arrears on 19-3-1980 and the monthly rent on 5-5-1980. It is common ground that he in terms of the court order read alongwith the provisions of Section 12 (4) had to deposit the arrears by or on 18-3-1980 and the monthly rent by or on 30-3-1980. Ad­mittedly, therefore, the arrears of rent were concerned and it was late by six days in so far as the monthly rent payable by him was concerned. The petitioner's plea that he was prevented on both the occasions from making the deposit within time due to un­avoidable circumstance having failed, his defence was ordered to be struck out by the trial court, hence the revision petition.

(3) Section 12 (4) is mandatory in character and its plain and unambiguous language does not admit of any equivocation. The expression:

"and on the 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 fifteenth day of the next following month, the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim of ejectment"

oc­curring in the section leaves no room for doubt that the court has in such a situation no option but to strike out the defence of the tenant There is no provision in section 12, or even elsewhere in the Act under which the court may exercise discretion not to strike out the defence of the tenant on his failure to make the deposit within the period fixed by the section, even it were to exercise it on being satisfied that the tenant was prevented from making the de­posit due to sufficient cause, or even if it were other wise of the opinion that striking out his defence would in the peculiar circumstances of the case, be against the motion of justice, equity, or good con­science. Section 5 of the Limitation Act too does not apply in terms to an application by a tenant for de­positing rent under Sub-section (4), and nor has this section been made applicable to such applications by the Act itself. The conclusion is, therefore, inesca­pable that the court is bound to strike out the tenant's defence, once it is shown to it that he has failed to deposit the rent within the period pre­scribed by Sub-Section (4); the reason why he failed to do so being always irrelevant. A similar view that Sub-section (4) is mandatory in nature was taken by this Court in Sudesh Kumar Vs. Harjilal, 1980 KU 25 F. B.).

(4) Mr. Sharma, however, argued that keep­ing in view the object behind its enactment. Sub­section (4) should not be construed to be mandatory in nature, and in this view, the word "shall" oc­curring in it should be interpreted to mean "may", giving the court a wide discretion to extend time for making the deposit where to do so it deems necessary for doing complete justice between the landlord and the tenant. The object of the provision, according to the learned counsel, being two fold i. e to ensure regular payment of rent to the landlord during the pendency of the suit or appeal, and at the same time to protect the tenant against eviction at the sweet will of his landlord, the tenant should not be pen­alised for his failure to deposit the rent, where such failure is not shown to be wilful! I am afraid I cannot accept this contention as well. The words used in a section, it is an elementary rule of inter­pretation of a statute, have to be given their plain grammatical meaning to find out the intention of the legislature, and this intention cannot be found out by calling into aid any out side consideration. This rule of interpretation was explained by Das J. in Ramanjaya Singh Baijnath Singh, AIR 1954 SC 749 in these words

"The spirit of the law may well he an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the section "of the Act and the rules matte thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage, the appeal must be to Parliament and not to this court."

(6) Sub-section (4), if given its plain gram­matical meaning, would admit of no equivocation. Keeping in view its plain and distinct language, it is not possible to infer that the legislature intended to give any discretion to the court in striking out the tenant's defence, once he is shown to have commit­ted its breach in depositing the rent. I have no doubt in my mind that its stringent language may more often than not cause extreme hardship to the tenant, but this is something that is to be considered by the legislature and not by the court With a view to avoiding any such hardship or injustice, I can only suggest that the legislature would be well advised in amending Sub section (4) by substituting the word : may" for the word "shall" occurring in it, as that would give a discretion to the court in striking out the tenant's defence, which presently there is none.

(6) Turning now to the two Supreme Court decisions relied upon by Mr. Sharma none of these in my opinion, helps the petitioner. In Shyam-charan Sharma Vs. Dharamdas AIR 1980 SC 517, for instance, sub-section (6) of Sec 13 of the M. P. Accommodation Control Act, 1961, which was the relevant provision under which defence of the tenant could be struck out for non payment of rent, read as under :

"(6) If a tenant fails to deposit or pay any amount as required by this section, the court may order the defence against ev­iction to be struck out and shall proceed with the hearing of the suit."

(7) Likewise, in Miss Santosh Mehta Vs. Om Parkash and others, AIR 1980 S. C. 1664. Sub­section (7) of Sec 15 of the Delhi Rent Control Act, 1958, read as under :

"If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application"

(8) It is abundantly clear that in both these cases, the provision under which defence of the tenant could be struck out for non-payment of rent did not create an indefeasible right in favour of the landlord to have his tenant's defence struck out on his failure to pay the rent, but it gave a discretion to the court, whether or not to strike it out in the peculiar facts and circumstances of a given case.

(9) A feeble attempt was then made to bring into aid the provisions of Section 148 of the Code of Civil Procedure. No assistance can be had from this section as well, for it applies to only those cases, where the court itself fixes the time for doing an act, but not to those cases where such time is fixed by the statute. Fifteen days time to deposit the rent is fixed by Sub-section (4) itself hence Section 148 can have no application in cases arising under this sub-section.

(10) The result, therefore, is that the revi­sion petition fails, which is dismissed accordingly, but in the peculiar circumstances of the case without any order as to costs.