Smt. Savitri Devi Vs. Bhushan Chander Jain - Court Judgment

R.P. Sethi, J.

1. Ejectment of the respondent-tenant from a house situated in the City of Jammu was sought by the plaintiff-appellant on the ground of her personal requirement and the three legal defaults in the payment of rent within the meaning of provisions of J & K Houses and Shops Rent Control Act, 'hereinafter called the Act'. It was pleaded by the plaintiff that the suit house was leased out to the defendant-respondent vide rent deed dated 27-12-1965 on a monthly rent of Rs. 135/~ with effect from 8-11-1965. The defendant did not pay the rent for a period of more than 3 years with the result that a notice was served upon him demanding the payment of the arrears of rent within the statutory period. The defendant-tenant did not pay any rent to the plaintiff despite notice. The suit premises were also claimed to be required by the plaintiff for her personal use and occupation as she was intending to marry her son and daughter for which she required the additional accommodation. It was submitted that defendant owned his own house in the vicinity and was not vacating the premises with the object of harassing the plaintiff. The suit of the plaintiff was resisted by the respondent-defendant on the ground that the plaintiff was not entitled to the grant of any relief and the demand of rent for more than three years was incorrect and insufficient within the meaning of Section 11 of the Act. It was submitted that the rent deed produced by the plaintiff did not consist of full stamp papers as at the time of execution of the rent deed the stamp papers worth Rs. 20/- were attached. It was submitted that the one leaf of the stamp paper was withheld deliberately by the plaintiff to suppress the evidence regarding the payment of the rent by the defendant up to the date of the notice. It is submitted that the defendant had very cordial relations with the plaintiff and her husband and son who used to come to his shop and collect the rent monthly without giving him any receipt. It is submitted that when the plaintiff asked the defendant to repair her T. V, set for which the defendant asked her to pay the fixed payment, she felt annoyed and filed the present suit. The reasonable requirement of the plaintiff was denied. It was submitted that the registered notice alleged to 'have been served upon the defendant was illegal and factually wrong.

2. On the basis of the pleadings of the parties, the trial Court framed the following issues:

1. Whether the defendant is not a good tenant and he has committed more than three defaults of two months duration each within a period of last 18 months?OPP

2. Whether suit house is required by the plaintiff for her personal use and occupation and the necessity of the plaintiff is comparatively more than that of the defendant?OPP

3. Whether notice served upon the defendant is not according to law, if so what is its effect on the suit?OPD

4. Whether the arrears of rent and compensation for use and occupation amounting to Rs. 4,660/- is due from the defendant? OPP

5. Whether no cause of action has accrued to the plaintiff against the defendant?OPD

6. Whether the rent deed produced by the plaintiff is complete, if so, what is its effect on the suit?OPD

7. Relief.

3. After appreciating the evidence led and keeping in view the facts and circumstances of the case, the trial Court returned its finding on issues 1 and 4 in favour of the plaintiff-appellant and decreed the suit in her favour. A decree for the recovery of Rs. 4,860/- on account of rent and compensation for use and occupation of the suit house up to 7th August, 1975 was also passed against the respondent-defendant. In appeal the judgment and decree of the trial Court was set aside against which the present second appeal has been filed in this Court.

4. The appeal was admitted on 25-11-1986 and the points of law formulated in para 7 of the memo of appeal were held to be substantial questions of law requiring consideration of this this Court.

5. I have heard the learned counsel for the parties and have perused the record.

6. While deciding issue No. I, the trial Court found that the defendant had not paid the rent amounting to Rs. 4,860/ - for a period of three years computed from the date of the notice and failed to pay the same for a period of four months thereafter which were held amounting to be three legal defaults within the meaning of Section 11(i) of the Act. It was held that the tenancy between the parties was a month to month tenancy commencing from 8th day of each English calendar month. The notice served upon the defendant dated 26th May, 1975 demanding the payment of rent of Rs. 4.860/- for a period of last three years was held to be a demand made for the arrears of rent payable up to 7th of May, 1975. It was further held that the rent for the month of May, 1975 was payable on 22-6-1975 and four months of June, July, and August, 1975 became payable on 22-7-1975, 22nd September, 1975 respectively. As no rent was paid during this period and the suit was filed on 23rd September, 1975, the three defaults in the payment of rent were held to be complete in terms of the judgment of this Court reported in 1979 Kash LJ 15. In appeal the appellate Court held that the notice demanding the payment of rent was properly served upon the tenant and that the same was in accordance with the provisions of law. The first appellate Court however on appreciation of the evidence came to the conclusion that the plaintiff had failed to prove the commission of three legal defaults within the meaning of Section 11(1) of the Act. It was held that the one leaf of the rent deed had deliberately been detached by the plaintiff in her bid to show that the defendant was in arrears of rent. It was further held that no witness of the plaintiff had stated that the appellant-defendant had not paid the rent to the plaintiff. As the plaintiff failed to discharge the onus of proof of issue No. 1, in the opinion of the first appellate Court it was held that three legal defaults of the payment of the rent had not been proved in the instant case. It was observed that at no place in the plaint had it specifically made averred that the defendant had made three legal defaults within a period of 18 months, as envisaged under the provisions of Sub-section (3)of Section 12, read with Clause (i) of Sub-section (1) of Section 11 of the Act and that the plaintiff had harped on the tune that the rent for a period of more than three years was outstanding against the defendant which he had failed despite issuance of the notice to him.

7. The Act which is a welfare legislation was intended to give protection and stability of tenure to tenants to prevent them by capricious attempt at ejectment by landlords and to prevent the landlords from increasing rent at their whims. The object was to provide protection to the bona fide tenants and was never intended to perpetuate lawlessness and definance of the authority of law. The protection was intended to preserve social harmony and promote social justice by safeguarding the interests of the tenants and protecting the legitimate interests of the landlords. The Courts while adjudicating the cases governed by the provisions of the Act had to keep in mind the aims and objects of the legislation and draw a balance between the legitimate interests of the landlord and the protection guaranteed to the tenants genuinely in occupation of the premises. With this object in view a provision was made in the Act for the regular payment of rents by the genuine and bona fide tenants and to put a restraint upon the fanciful thoughts of the landlords of fabricating grounds of eviction, a condition was prescribed of the service of notice affording a tenant an opportunity to make the payment of rent within the statutory period. A Full Bench of this Court in Kewal Krishen v. Harish Kumar, reported in AIR 1964 Ker 67, while dealing with the scope of Section 11(i) and Section 12 of the Act held that the object and ambit of the aforesaid proviso was wholly different. While interpreting Clause (i) of proviso to Section 11(1) and proviso to Section 12 of the Act together it was held that:

1. A landlord can bring a suit for ejectment in case of a single default if he proves that the tenant had defaulted in payment of two months rent which is due of which notice as provided by proviso to Sub-section (1) of Section 11 has been given. But such a suit will be subject to the provisions of sub-sees. (1), (2) and (3) of Section 12 of the Act.

2. Where even one notice as contemplated by the proviso to Sub-section (i) of Section 11 has been given and three successive defaults have been committed despite the said single notice, the landlord has an absolute right to eject the tenant and on proof of these circumstances, the tenant will not be entitled to the protection given to him by Section 12(1), (2) and (3). In such case, the application of provisions of Section 12(1), (2) and (3) would be completely excluded.

3. The amended proviso to Sec. 12(1) of the Act does not contemplate the giving of notice on each successive default and the provisions of this proviso would be complied with if the notice for the first default has been given by the landlord.'

8. A Division Bench of this Court in Sikandar Pal Jain v. Gurcharan Singh, 1979 Kash LJ 15 while interpreting the scope of the aforesaid provisions of the Act held:

'On the plain terms of the aforesaid provisions a landlord acquires an indefeasible right to eject a tenant provided :

(i) at least two months rent legally payable by the tenant has fallen due in accordance with the terms of the contract of tenancy;

(ii) such rent shall be deemed to have fallen due on the date fixed by the parties for its payment in the contract of tenancy' and where no such date is fixed, then on the 15th day of the next following month;

(iii) no such rent shall be deemed to be legally payable where the same has in fact been paid by the tenant to the landlord or deposited by him with the Rent Controller by following the procedure laid down in Section 14 of the Act;

(iv) on two months rent falling due, but not earlier to it, the landlord serves a notice in writing on the tenant through Post Office and under a registered cover calling upon him to either pay to him the rent due or deposit the same with the Rent Controller in terms of Section 14 within a period of 15th days from he receives the notice; and

(v) despite the receipt of the notice, the tenant commits three defaults of two months each, in payment of rent, within a period of 18 months, the period to be reckoned from the date the notice for the first default as contemplted by the proviso to Clause (1) of the proviso to Sub-section (1) of Section 11 has been received by the tenant.'

The view taken by this Court with respect to interpretation of Sections 11 and 12 of the Act in Dewan Chand v. Davinder Kumar, reported in 1971 Kash LJ 325 was overruled.

9. The facts and circumstances of this case would show that notice dated 26th May, 1975 demanding the payment of arrears of rent amounting to Rs. 4860/- being the rent for the last three years was served upon the defendant-respondent as held by both the Courts below. I am in agreement with the finding of the trial Court that such amount demanded was calculated up to 7th of May, 1975 and on the failure of the defendant-respondent to make the payment of the arrears of rent, the first default in the payment of the rent despite notice was complete on 22nd of May, 1975 and the next two defaults of two months each were complete on 22nd Sept., 1975, one day earlier when the suit was filed. Mr. Jamwal has argued that the notice had not been properly served upon the defendant-tenant and that the notice was vague and ambiguous. In view of the concurrent finding of fact regarding the service of notice I am not inclined to accept the plea of the learned counsel. There was no speicfic denial regarding receipt of the notice in the written statement filed on behalf of the defendant wherein he had only submitted: 'registered notice is illegal and factually wrong therefore no reliance could be put upon it.' I do not agree with the argument of the learned counsel'for the defendant that the reference to the notice in para 5 of the written statement was with respect to the notice attached with the copy of the plaint and not received by the tenant. The record of the Court below shows that the copy of the notice was produced in the trial Court only on 29-4-1976 whereas the written statement was filed by the defendant on 3-3-1976. The argument in this behalf is an afterthought and misconceived.

10. Mr. Jamwal the learned counsel has then relied upon a judgment of Delhi High Court in Hari Mohan v. Rameshwar Dayal, AIR 1980 Delhi 291 to submit that the notice served upon the defendant was illegal being vague and ambiguous. It was held in that case that a demand for arrears of rent must come from the proper quarter and that the demand must be a demand for a definite sum alleged to be due on account of arrears of rent from the tenant of the landlord. The period for which the rent has fallen due must be stated. It was further held that no particular form of demand is prescribed. In that case the notice made a omnibus demand wherein a lump sum was stated to be due up to Oct., 1975 without giving details or particulars of the amount due, in the ejectment application. It was held in that case that as the tenant was misled, his eviction could not be directed. It is true that there should be a good demand to create a legal liability but that does not mean that the Courts should adopt a hypertechnical approach in construing the notice. The Courts have to put a liberal construction upon a notice which is served with the purposes of intimating the tenant to either pay the rent or vacate the premises! In this case however the plaintiff-appellant notified to the tenant that the monthly rent payable by him was Rs. 135/- and the tenancy commenced from 8-11-1965. The tenant was informed that a total rent of Rs. 4860/- payable for the last three years from the date of the service of the notice was due to be paid and the specific statutory period was mentioned in the notice for making the payment. It has not been the case of the defendant-tenant that he was misled on account of the alleged vagueness of the notice to deposit the arrears of rent which according to him were not ascertained. Any prudent man would calculate three years from the date of the service of the notice particularly when the date of commencement of the tenancy and the rate of rent has been specified therein. The defendant cannot be allowed to blow hot and cold in the same breath. He has denied the receipt of the notice on the one hand and has alleged that the notice served was vague and ambiguous, on the other. The notice in the instant case cannot be held to be vague and ambiguous, causing any confusion in the mind of the tenant or misleading him as has been argued at this stage.

11. It is next contended by the learned counsel for the respondent that the notice should be held to be illegal as it demanded the payment of the rent after the determination of the tenancy. It is submitted that after the determination of the tenancy of the defendant with effect from 8th July, 1975 no demand could be made from the defendant for the payment of the rent and his failure to pay the rent after the determination of tenancy could not be held to be ground for eviction under Section 11(i) of the Act. Elaborating his argument the learned counsel has submitted that before determination of the tenancy, three legal defaults in the payment of the rent must be complete and acomposite notice determining the tenancy as also making the payment of the rent cannot impose a liability of eviction upon the tenant on his failure to pay the rent after determination of the tenancy. The learned counsel has relied upon a judgment of Delhi High Court reported as 1976 Ren CJ 422 : (AIR 1976 Delhi 256). The reliance of the learned counsel is misplaced. In that case the notice for making the payment had used the expression damages instead of arrears of rent which was held to be notice within the meaning of the provisions of Section 14 of the Delhi Rent Control Act.

12. Rent has not been defined under theAct. However tenant as defined under the Actand means any person by whom or on whoseaccount rent or any money liable to be paidfor use of house or shop is or but for a specialcontract would be payable for any suchpremises including a person whose tenancyhas been terminated. The definition of thetenant under the Act is wider and includesboth a contractual as well as statutory tenantwithin its ambit. The word rent in the legalsense of the term means a compensation paidby the tenant to the landlord for the exclusivepossession of the premises occupied by him.In its generic sense the word rent may also beused without importing a legal significanceaforesaid compensation of use and occupation. For the purposes of Section 11 and Section 12 of theAct dealing with the defaults in the paymentof the rent, the term arrears of rent andcompensation for use and occupation beforethe filing of the suit carry the same meaning insubstance. Giving different meaning as suggested by Mr. Jamwal would amount tofrustrate the provision of law inasmuch as inno case the tenant could be held to be guiltyfor the defaults in the payment of the rentwithin the meaning of Section 11 and Section 12 of theAct. As a tenant who continues to remain inoccupation despite determination of tenancyis deemed to be a tenant within the meaning ofthe Act, he cannot be absolved of his liabilityto make the payment of rent, by whatevernomenclature he may be known.

13. The first appellate Court appears to have ignored the statement of the defendant-tenant dated 23-5-1979 where in his examination-in-chief he did not make any mention about the so-called entries made on the reverse of the rent deed or on the alleged leaf missing. It was however stated by the defendant in his cross-examination that whatever rent was paid by him, the same was recorded on the reverse of the rent deed and he admitted the entries made by him and his signature on the reverse of the said rent deed. It was nowhere stated by the defendant that any leaf of the rent deed was missing but was presumed by the first appellate Court to be missing on the basis of the arguments advanced. The defendant had admitted that despite the service of notice he had not paid or deposited any rent before the date of the filing of the suit. He has admitted that in 1974 he had received a registered letter which was empty giving him belief that the plaintiff was bent upon evicting him from the leased premises. He has further submitted that the rent up to the date of the receipt of the empty registered letter was recorded on the reverse of the lease deed but not thereafter. It may be pointed out that the said registered letter is stated to have been received by the defendant in the year 1974 admittedly more than two months before the date of the issue of the notice in the year 1975 making him liable to make the payment of the rent at least of one default. He has admitted that the plaintiff did not receive any rent from him thereafter nor did he deposit the same in the office of the Rent Controller. He has further admitted that he did not send any rent to the landlady by money order either. The first appellate Court therefore was not justified in reversing the finding of the trial Court with respect to issues 1 and 4.

14. In view of the legal position as stated hereinabove and the admitted facts of the case, the substantial question of law formulated in para 7-A of the memo of appeal is decided by holding that the District Judge being the first appellate Court was not justified to hold that the defendant had not committed three legal defaults in the payment of the rent within the period of 18 months despite notice an envisaged under the provisions of Section 11 read with Section 12 of the Act. The finding of the trial Court on issues 1 and 4 is upheld.

15. In view of the decision on the point of law formulated in para 7-A of the memo of appeal, there is no necessity of deciding the other points raised therein.

16. The result is that the judgment and decree of the first appellte Court is set aside and in proof of issues 1 and 4 the judgment and decree of the trial Court is upheld. Accordingly the decree of ejectment is passed in favour of the appellant-plaintiff and against the defendant-respondent with respect to the suit house. The defendant is also held liable to pay Rs. 4860/- to the plaintiff on account of rent and compensation for use and occupation of the suit house up to 7th Aug., 1975. The plaintiff-appellant is held entitled to the costs of the litigation throughout.

17. However, keeping in view the fact that the respondent-defendant has no accommodation available with him, it is directed that the decree of ejectment passed against the defendant-respondent shall not be executed till 31st of Dec., 1989. If by that time the defendant does not vacate and handover the possession of the leased premises to the appellant, she will be at liberty to execute the decree of eviction against him.