Holding

The tenant is not entitled to protection under Section 12(3) as the part payment constitutes a default, resulting in three defaults within eighteen months, and the eviction decree is upheld.

Summary

The landlord, Janak Raj, filed a suit for eviction against his tenant, Paradeep Kumar, under the Jammu & Kashmir Houses and Shops Rent Control Act, 1966. The tenant had failed to pay rent for the period January 1984 to January 1985, making a partial payment of Rs.6,000 against a due of Rs.6,500, and subsequently defaulted on rent for February‑March 1985 and April‑May 1985. The Supreme Court examined whether the tenant could claim protection under Section 12(3) of the Act, which bars protection if a tenant defaults three times within eighteen months. It held that part payment constitutes a default and must be first applied to the earliest arrears, leaving a shortfall of Rs.500 and thereby creating a first default, followed by the two later defaults, totalling three defaults. Consequently, the tenant was not entitled to the protection of Section 12 and the eviction decree of the trial court was upheld. The appeal was allowed, setting aside the High Court and First Appellate Court orders and directing the tenant to vacate the premises.

Issues considered

Whether a part payment of rent can be treated as a default under Section 12(3) of the Jammu & Kashmir Houses and Shops Rent Control Act, 1966.
Whether the tenant committed three defaults within eighteen months, thereby losing protection against eviction.
How the part payment should be applied to successive defaults for the purpose of determining protection under the Act.

Subjects

evictionrent controldefaultpart paymentprotection against evictionJammu & KashmirSection 12Section 11Houses and Shops Rent Control Act

Judgment

(

A JANAK RAJ "
v.
PARDEEP KUMAR

NOVEMBER 27, 2007
B
[A.K. MATHUR AND MARKANDEY KATJU, JJ.)

Rent Control and Eviction:

c Jammu and Kashmir Houses and Shops Rent Control Act, 1966:
ss. 11 (l)(i) and 12(3), proviso-Eviction oftenant for default in
payment ofrent-Three defaults committed by tenant within a period
ofeighteen months-HELD: Tenant not entitled to protection u/s 12-
Part payment ofrent makes the tenant a defaulter, for he has to make
D full payment-On/acts, tenant is.firstly supposed to clear first default
i.e. from 1984 to 1985, t/:len second default of February and March,
1985 and then third default ofApril and May, 1985-0ne has proceed
chronologically in matter-The total sum ofRs. 6,0001- deposited by
tenant has to be first treated as part payment against rentfrom January,
E 1984 to January, 1985 as the same is short of total rent due for this
period by Rs. 5001- Therefore, it will be treated to be a default-
Consequently, this default, coupled with the defaults ofFebruary and
-...
March, 1985 and April, 1985 and May, 1985 will constitute three
defaults-As such the view taken by both the courts below cannot be
F countenanced-Consequently, judgment and order of High Court as
also order ofFirst appellate court are set aside and the decree granted
by the trial court for eviction is maintained-Tenant would hand over
vacant possession ofpremises to landlord as directed in the order.

G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7080 of
2001. ,..
From the final Judgment and Order dated 9.11.2000 of the High

H 596
(

J'
JANAK RAJ v. PARDEEP KUMAR 597

Court of Jammu & Kashmir at Jammu in Civil Second Appeal No. 4 of A
1995.

P.S. Patwalia and Purnima Bhat for the Appellant.

Subramonium Prasad for the Respondent. B
The following Order of the Court was delivered

ORDER

We have heard learned counsel for the parties. c
This appeal by special leave is directed against the impugned
judgment and order of the learned Single Judge of the High Court of Jammu
& Kashmir at Jammu dated 9th November, 2000 in Civil Second Appeal
No.4of1995 whereby the learned Single Judge upheld the finding of the D
First Appellate Court and dismissed the suit of the plaintiff (appellant
herein.)

The brief facts which are necessary for the disposal of the appeal
are that a suit was filed by the landlord (appellant herein) for eviction of E
the tenant-respondent. The landlord claimed the rent for January, 1984
to January, 1985 by sending a notice dated 27.2.1985 to the tenant.
Thereafter the tenant committed a second default of payment of rent for
February, 1985 and March, 1985. The third default was committed in
April, 1985 and May, 1985. The total amount deposited by the tenant F
on 25.5.1985 was Rs.6,000/-.

Section 11 (1) (i) of the Jammu & Kashmir Houses and Shops Rent
Control Act, 1966 provides that if two months rent is not paid by the
tenant within the period specified therein the tenant will be liable for G
eviction, provides that the landlord has served a notice on the tenant calling
upon him to pay the arrears of rent, and the arrears are not paid within
30 days of service of the notice.

Section 11 (I )(i) is however subject to Section 12 of the Act which H
(

598 SUPREME COURT REPORTS [2007] 12 S.C.R.

A reads as under:-

"12. When a tenant can get the benefit of protection against
eviction.-(!) If in a suit for recovery of possession of any houses
or shop from the tenant the landlord would not get a decree for
B possession but for clause (i) of the proviso to sub-section (I) of
Section 11, the Court shall determine the amount ofrent legally
payable by the tenant and which is in arrears taking into
consideration any order made under sub-section (4) and effect
thereof up to the date of the order mentioned hereafter, as also
c the amount of interest on such arrears of rent calculated at the rate
of nine and three eights per centum per annum from the day when
the rent became arrears up to 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
D 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.
E
(3) If, within the time fixed in the order under sub-section (I), 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
houses or shop, shall be dismissed by the Court. In default of
F such payment the Court shall proceed with the hearing of the
suit

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

H In our opinion, in view of the proviso to Section 12 (3) referred to
\)

JANAK RAJ v. PARDEEP KUMAR 599

above, the respondent-tenant cannot get the benefit of Section 12. A

In the present case, it is the admitted position that the rent was Rs.
5001- per month. The respondent-tenant was in default in not paying the
rent from January, 1984 to January, 1985 (inclusive) but he is alleged to
have deposited a sum of Rs. 6,000/- on 25.5.1985 whereas the rent for B
this period was Rs. 6,500/- i.e. the rent paid was short by Rs. 500/-. As
such, in our opinion be is a defaulter for this period. Part payment of rent
in our opinion makes the tenant a defaulter, for be has to make full payment
The second default committed by the respondent-tenant was in February,
1985 and March, 1985, and the third default committed by him was in C
April, 1985 and May, 1985. Therefore, he is a defaulter three times during
the period of eighteen months. As such, he is not entitled to the protection
of Section 12.

Unfortunately, the Courts below have taken the amount of Rs. 6, D
0001- deposited by the respondent-tenant as rent towards February, 1985
and March, 1985; and April, 1985 and May, 1985 to take him out of
the defaulters clause but this view taken by the Courts below cannot be
countenanced. As a matter of fact he had deposited a sum of Rs. 6,000/
- for the aforesaid three defaults. That sum cannot be adjusted against E
the second and third defaults as has been done by the Courts below.

The tenant is firstly supposed to clear the first default i.e., from 1984
to 1985, then the second default of February and March, 1985 and then
_, the third default of April and May, 1985. One has to proceed F
chronologically in the matter. The sum of Rs. 6,000/- has to be first treated
as part payment against the rent from January, 1984 to January, 1985.
However, for the rent from January, 1984 to January, 1985 the total
amount deposited by the tenant was Rs. 6,000/- which is short of the
total rent due for this period by Rs. 500/-. Therefore, it will also be treated G
to be a default. Consequently, this default, coupled with the defaults of
February and March, 1985 and April, 1985 will constitute three defaults.
As such the view taken by both the Courts below cannot be
countenanced.
H
600 SUPREME COURT REPORTS [2007] 12 S.C.R.

A Consequently, the judgment and order of the High Court as also the
order of the First Appellate Court are set aside and the decree granted
by the Trial Court for eviction is maintained.

The appeal is accordingly, allowed.
B
However, the respondent-tenant is directed to handover the vacant
possession of the premises in question to the appellant-landlord by 31st
August, 2008. The respondent shall file the usual undertaking to this effect
within four weeks from today in this Court.
c It is submitted by learned counsel for the respondent that the entire
arrears of rent have already been paid. He shall continue to pay the rent
till 31st August, 2008.

D RP. Appeal allowed.