(1) This revision petition raises interesting points of law regarding interpretation of Section 12 of the J and K Houses and Shops Rent Control Act, 1966 (hereinafter referred to as 'the Act'). The brief facts which have given rise to this petition are:

(2) The counter-petitioner brought a suit for ejectment and recovery of arrears rent against the petitioner on the solitary ground of three defaults in payment of rent within the meaning of proviso to Subsection (3) of Sec 12 of the Act, alleged to have been committed by the petitioner. According to the counter-petitioner the tenancy commenced from 1-10-1974, which was a month to month tenancy; the rent fixed being Rs. 50/- per month, Only one month's rent i.e. for the month of October, 1974 was paid by the petitioner and a sum of Rs. 1550/-was thus due from him for a period of 31 months till 31-5-1977. This suit was brought on 6-6-1977. The petitioner in his written statement did not dispute the rate of rent, but pleaded, that rent for a total period of 18 months only was due from him. He, for the reasons stated in the written statement, denied that he was guilty of committing any default in payment of rent; much less three such defaults. In this background he prayed that a decree for arrears of rent may be passed against him, but the suit so far as it related to ejectment may be dismissed. Thereafter, the counter-petitioner made two applications. In the earlier one, which was made on 10-1-1978, he prayed, that the petitioner may be directed to deposit the suit amount as well as the rent due from 1-6-1977 till the date of appli­cation, and he be further directed to deposit the rent which fell due every month thereafter, and on his failure to comply with the order of the court, his defence to the suit may be struck of. In the later application made on 9th March 1978 he prayed, that the petitioner having admitted the claim of arrears of rent, a decree to that extent may be passed against him under the provisions of order 12 Rule 6 of the Code of Civil Procedure. But these applications were contested by the petitioner on a variety of grounds. By a common order, the trial court dis­missed the application filed on 9th March, 1972 but allowed the one filed on 10th January, 1978, and directed the petitioner to deposit the arrears of rent claimed in the suit, as well as rent due from 1-6-77 till the date of application and further directed him to deposit the rent falling due every month there­after. It was, however, held that there was only one default in payment of rent and not three as al­leged by the counter-petitioner. It is this order, which has been challenged in this revision petition.

(3) Mr Gupta, appearing for the petitioner has raised two grounds in support of the petition. One, that the trial court was bound to determine the exact figure of the entire rent due till the date of the impugned order on taking evidence of the par ties and two, that it having found that only one default was proved, the trial court ought to have made a direction in its order in terms of Sub-section (3) of Sec 12 of the Act that on the rent being de­posited the suit shall stand dismissed. It is common ground that the suit is governed by the provisions of the Act. There is also no challenge to the finding of the trial court that only one default within the meaning of Cl. (i) of the proviso to Sub-secsion (i) of Section 11 of the Act is proved. Even a single de­fault in payment of rent could entitled a landlord to seek ejectment of his tenant under Cl. (i) provided the procedure laid down in Section 12 has been followed. Cl. (i) of the proviso to sub section (1) of Section 11 reads thus -.

"(i) subject to the provisions of section 12, where the amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid with­in the time fixed by contract, or in the absence of such contract, by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with section 14.

Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through Post Office under a re­gistered cover on the tenant to pay or de­posit the arrears within a period of thirty days from the date of the receipt of such notice and the tenant fails to pay or deposit the said arrears within the specified period."

(4) on its plain terms a landlord before he can ask for a decree of eviction against his tenant has to show that two months rent legally payable by tenant is due from him which he has failed to pay or deposit with the Rent Controller within thirty days from the date he was served with a notice sent to him by the landlord through Post Office under registe­red cover after the same had fallen due. The opening words of this clause indicate that a decree is not bound to follow on mere proof of default in payment of rent envisaged by it. Such a decree is always subject to the provisions of Section 12 of the Act which reads thus:

"12. When a tenant can get the benefit of protection against eviction.- (1) If in a suit for recovery of possession of any house or shop from the tenant the land­lord would not get a decree for possession but for clause (i) of the proviso to sub­section (1) of Section 11 the Court shall determine the amount of rent legally pay­able by the tenant and which is in arrears taking into consideration any order made under sub-section"

(4) and effect thereof upto the date of the order men­tioned thereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and three eighths per centum per annum from the day when the rents became arrears upto such date, to­gether with the amount of such cost of the suit as if fairly allowable to the plaintiff-landlord and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed, in the order.

(2) Such date fixed for payment shall be the fifteenth day from the date of the order, excluding the day of the order.

(3) If, within the time fixed in the order under sub-section (1), the tenant deposits in the Court the sum specified in the said order, the suit, so far as it is a suit for recovery of possession of the house or shop, shall be dismissed by the Court. In default of such payment the Court shall-proceed with the hearing of the suit:

Provided that the tenant shall not be entitled to the benefits of protection against eviction under this section, if notwithstanding the receipt of notice under proviso to clause (i) of the proviso to sub­section (1) of section (11) he makes a default in the payment of the rent referred to in clause (i) of the proviso to sub­section (1) of Section 11 on three occasions within a period of eighteen months.

(4) 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 which it was last paid and also the arrear rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate month by month, and the arrears 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 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 it 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.

(5) The power given under sub section (4) may be exercised by Courts of appeal with necessary adaptation."

(5) A tenant against whom a suit for eject­ment is brought under Clause (i) 'of the proviso to Sub-Section (1) of Sec 11 of the Act may raise one or more of the following defences to it:

(i) that the rate of rent is not correct;

(ii) that he has already paid the rent claimed in whole or in part;

(iii) that the period for which the rent is claimed, is not correct; and

(iv) that no notice in terms of the proviso to clause (i) has been served upon him.

He may not raise any such defence and may still contest the suit as regards the claim for ejectment on other grounds, e. g. non-service of the notice on him u/s 106 of the Transfer of Property Act, or the derivative title of the landlord. Again, he may raise no defence to such a suit at all but may yet be unwilling to suffer a decree for ejectment against him A question which, therefore, falls for deter­mination is what shall the court do when no defence is raised in such a suit for ejectment, and yet the tenant says that he should not be ejected 1 shall the Court pass a decree for his ejectment straightaway ?

(6) The answer to this question is provided in Section 12 Sub-section (1) of Section 12 lays down that where ejectment of the tenant is not possible except on the ground mentioned in Cl. (i) of the proviso to Sub-Section (1) of Section 11 the Court shall provide him before passing a decree for ejectment against him, an opportunity to clear the arrears of rent which have fallen due till the date it passes the order along-with interest at the rate mentioned in the Sub­section within a time to be fixed by the Court, under which sub-section (2) shall neither be less nor more than 15 days from the date of the order after excluding the day on which the said order is passed. The court shall have to specify in its order the aggregate sum comprising such arrears and interest before calling upon the tenant to deposit the same in the Court. It shall not only determine the mode of calculating the rent or interest but shall also work out the figure of the total sum thus due. In case the defendant deposits the said sum within the time fixed, the court shall dismiss the suit. There is, however, no provision in Sub-section (1) of Section 12 requiring the court to pass a conditional decree at the time of making its order under the said sub­section. There is, therefore, no force in the contention of Mr. Gupta, that the trial court ought to have stated in the impugned order itself, that in case the sum was deposited in the court within the time fixed, the suit shall stand dismissed. But, what would happen where the tenant fails to comply with the orders of the Court? Here I cannot help observing that Sub-section (3) of section 12 of the Act is not happily worded, inasmuch as it only says that "in default of such payment the Court shall proceed with the hearing of the suit". What purpose would be served by further hearing of such a suit where the parties are not at issue on any point ? The Court in such a case would have no option but to pass a decree for ejectment against the tenant, as also for arrears of rent, provided a decree for recovery of the same is also claimed in the suit- The expression ''hearing of the suit,' used in Sub-section (3) shall in the context merely imply hearing for the purpose of passing the decree prayed for.

(7) Where, however, the tenant contests his ejectment on any such ground provisions of Sub­section (4) of Section 12 would at once come into play. The Court shall not pass an order calling upon the tenant to deposit the arrears of rent or monthly rent at the rate at which it was last paid without hearing the parties. The court shall be bound to take evidence where either the rate of rent or the service of notice under proviso to Clause (i) of the proviso to Sub-Section (1) of Section 11 is dis­puted before determining the exact amount of ar­rears of rent or the monthly rent payable as the case may be. Unlike sub-section (1) where these words are missing there is a clear mention in Sub-Section (4) that before finding out the sum due from the tenant as arrears of rent or the monthly rent payable, the Court shall be bound to hear the par­ties. The expression "after giving an opportunity to the parties to be heard" must necessarily include an opportunity to lead evidence also. Sub-section (1) envisages a situation where there is no contest to either the rate of rent, the quantum of rent or the service of notice under proviso to clause (i) of section 11 and the ejectment is possible only on the ground mentioned in clause (i). The moment a dis­pute in regard to any one of these matters is raised by the tenant, the litigation shall have to enter the arena of Sub-section (4). The other question which incidentally falls for determination is what is the scope of sub-section (4) of Section 12 of the Act?

(8) A combined reading of all the sub-sections of section 12 reveals that sub-section (4) is much wider in its scope and would apply to all suits for ejectment irrespective of We grounds on which ejectment of the tenant is sought. The legislature has advisedly used the expression "the landlord would not get a decree for possession but for Cl. (i) of the proviso to sub section (1) of Section 11 with the object of not limiting the scope of the suit in so far as the grounds on which it is based are concerned. Had the intention of the legislature been to restrict the suit to the ground of a single default in payment of rent envisaged by Cl. (i) then the legislature would have used the expression "if any suit for recovery of possession of any house or shop from the tenant is based upon Cl. (i) of proviso to Sub­section (1) of Section 11. The words "would not get a decree but for Cl. (i) clearly indicate that de­cree for ejectment is possible only on the ground mentioned in Cl. (i) but these words do not imly that the suit, is based upon the solitary ground mentioned in Cl. (i).

(9) The opening words of sub-section (4) "if the tenant" cannot, therefore, imply that tenant alone, against whom the suit is brought under Cl. (i) of the proviso, to Sub-Section (1) of Section 11. The tenant under this clause means a tenant against whom a suit for recovery of possession has been brought irres­pective of the grounds upon which his ejectment is claimed. A landlord may claim ejectment of his tenant on rnore than one ground including the ground of default under Cl. (i) of the proviso to Sub-Section (1) of Section 11. Sub-section (1) of Section 12 would under such circumstances be attracted only in that case all grounds other, than the ground of single default under Cl. (i) either fail pr are given up. In any case, therefore, where the solitary ground of default under Cl. (i) succeeds on contest or on concession, the tenant has to, be given 15 days time to deposit the arrears, alongwith interest and, costs of the suit before an order for his ejectment may be passed. The court is powerless to pass a decree for ejectment against a tenant without giving such time.

(10) There is another reason why such a nar­row construction is not possible. There is provision for awarding interest under sub-section(1) but no interest can be awarded under sub-section (4). Nevertheless Sub-section, (1) provides that in case of ejectment of a tenant on fine solitary ground of single default within the meaning of Cl. (1) to proviso to sub-section (i) of section 11 where this ground is the only ground pleaded, or where it is the ground which alone succeeds out of the many grounds which have been pleaded, the tenant shall be bound to pay the interest as well, ever if this ground succeeds after a contest. This is amply borne out from the expression "taking into consideration any order made under sub-section (4) occurring in sub-section (1) of section 12. Whereas, order under Sub-section (1) has been made subject to any order that made eventually passed under sub-section (4) to contest, no such rider has beep placed on the order under sub section (4). A conjoint reading of these two sub-sections will lead to the conclusion that even though the court may direct the tenant under sub-section (4) to deposit the arrears of rent and or the month to month rent, as the case may be, yet interest would not be payable by him except in a case in which the only ground on which he is liable to be evicted is the one contained in Cl. (i) to the proviso to Sub­section (1) of Section 11. Had the intention of the legislature been to limit the application of Sub-sec­tions (1) and s. 4) to only one category of suits, i.e. suits based on the ground of single default contem­plated by Cl. (i) of the proviso to Sub-Section (1) of Section 11, then there would be no point in making two different provisions for determining the arrears of rent. Could it be imagined that the legis­lature intended to burden an honest tenant with interest who frankly admitted his liability to pay the same but wanted to be exempted from payment of interest but not a dishonest tenant who contested the liability to pay the arrears but failed?

(11) The purpose behind enacting Section 12 appears to be twofold, i. e. not to visit upon a tenant the penalty of ejectment where the only lapse on his part is a tingle default in payment of the rent which he is willing to cover even after the suit has been filed for his ejectment, and at the same time to compel a tenant to abide by his promise of using the lease-hold only on payment of agreed rent what­ever may be the merits of other controversy involved in the litigation. Whereas the provisions contained in Sub-section (1) is for the benefit of the tenant, the provision contained in sub-section (4) is for the benefit of the landlord. It does not stand to reason that a landlord who has only one ground i. e. of default in payment of rent under Cl (i) should be entitled to this benefit, but not the one who has besides this ground many other grounds for ejecting the tenant. Looking at it from another angle, a tenant who has not only committed default in pay­ment of rent, but has also damaged the lease-hold and whose behaviour too has been one of annoyance to his landlord or other neighbours will not by dint of his many fold lapses incur the risk of his defence being struck of, but the risk would be there for the one whose only fault is non-payment of rent. Fur­thermore, the words "also the arrears of rent if any" used in sub-section (3) are significant. Such arrears are bound to be there in case the suit is based upon non-payment of rent, but not necessarily when the suit is based upon other grounds e. e. personal occupation by the landlord, rebuilding etc. etc. This clearly implies that the legislature used these words as it also contemplated suits other than those based upon the solitary ground of single default in payment of rent while enacting Sub-section (4). All this shows that Sub-section (4) is wider in scope and the tenant may be ordered to pay the monthly rent to his landlord and also deposit the arrears, if any, in a suit during its trial, irrespective of the grounds on which his ejectment is sought. Such an order cannot be, however, passed by the court except on an application made by the landlord

(12) The above discussion therefore, leads to the following conclusions:

(1) A plaintiff landlord may make an appli­cation irrespective of the ground or grounds on which the ejectment of the defendant tenant is sought, that the defendant may be ordered to de­posit the monthly rent at the rate at which it was last paid as also the arrears of rent, if any.

(2) If the defendant tenant does not admit his liability to deposit the arrears of rent or the monthly rent payable, the court is bound to determine such amount itself, but only after hearing the par­ties and recording evidence, if any, led by them.

(3) After the amount is so determined, the Court shall by its order give not less than.15 days time from the date of its order to the defendant-tenant to deposit the arrears of rent in the Court which have fallen due till the date of the order, after excluding the day on which the said order is passed and also deposit the 'monthly rent by the 15th day of the next following month for which it is payable.

(4) The defendant -tenant shall be further liable to deposit the costs of the suit alongwith the arrears of rent and interest and monthly rent in a case in which the only ground pleaded for his eject­ment, or where more such grounds have been plea­ded, the only ground which ultimately succeeds is that of default in payment of rent envisaged by Cl. (i) of the proviso to Sub-Section (1) of Section 11, and on the tenant's depositing the same within the time fixed shall dismiss the plaintiff's suit so far as his claim for ejectment is concerned.

(5) In case the defendant fails to make the deposit within the 'time fixed and there is also no other defence to the claim for ejectment in a suit eventually succeeding on the solitary ground of de­fault in payment of rent under Cl. (i) of the proviso to Sub-Section (1) of Section 11, the Court shall forthwith pass the decree prayed for in favour of the plaintiff landlord.

(6) In all other suits wherein the defendant-tenant is liable to'; be ejected on other, grounds or grounds in addition to or other than the ground of default in payment of rent under Cl. (i) of the pro­viso to Sub-Section (1) of Section 11, his defence shall be struck of on his failure to make the deposit within the time fixed by the court.

(13) In the present case the trial court has held that the petitioner-tenant had admitted his liability to pay the rent and 'has proceeded to pass the impugned order on this assumption. The assum­ption made by the trial court does not appear to be correct. The petitioner in his written statement has not denied only the quantum "of arrears of' rent claimed by the Respondent but has also denied the service of notice' alleged to have been sent to him in terms of the proviso to Cl. (i) of the proviso to1 sub­section (1) of Section 11: The order passed by the trial court is clearly based upon the misreading of written statement. Furthermore, the order of the trial court does not satisfy the mandatory require­ment of sub section (1) of section 12 that the Court must specify the aggregate amount of arrears of rent, interest chargeable thereon that the costs of the suit. The impugned order is, therefore, liable to be set aside. The petition is therefore, allowed and the order impugned in it is set aside. The case is sent back to the trial court to proceed further in the matter in the light of the observations made above. There will be however, no order as to costs.