Dinesh Mahajan vs Col. Retd. Narinder Sharma

Sunil Hali, J.—Eviction of the petitioner is sought from House No. 2-B/C Gandhi Nagar Jammu, comprising of three bed rooms, two bath

rooms, one drawing room, lobby, kitchen, store, terrace and verandah. The grounds for seeking eviction are as under:--

That major alterations have been made in the premises without express consent of the landlord;

For having become a source of nuisance as the premises in question are being put to commercial use;

The lease having expired by afflux of time;

Defaults committed by the petitioner-defendant.

An application was filed by the petitioner before the trial Court seeking rejection of the suit under Order 7, Rule 11, on the ground that plaintiff-

respondent had filed an application u/s 11-A of the Jammu and Kashmir Houses and Shops Rent Control Act, which has been dismissed and an

appeal stands filed before the appropriate forum. The grounds taken in the application seeking rejection of the plaint are that the present suit cannot

be filed as it provides two remedies to a landlord, which is not permissible under law and secondly, that the grounds taken up in the present suit

should have been taken in the application u/s 11-A, as such, the present suit is hit by Order 7, Rule 11.

In essence, what is being stated is that all the reliefs should have been clubbed in the application u/s 11-A or instead of pursuing the remedy u/s

11-A, a proper suit should have been filed containing all the grounds taken in the present suit.

This application has been rejected by the trial Court. It is under these circumstances that present revision petition has been filed.

It is not in dispute that respondent-plaintiff has retired from army and is the landlord of the premises along with other co-landlords. It is

contended that other co-landlords had granted permission to the plaintiff to occupy the premises before filing application u/s 11-A. After the

dismissal of the application u/s 11-A, the co-landlords have relinquished their share in favour of the respondent-plaintiff.

The Houses and Shops Rent Control Act provides a remedy for a landlord to seek eviction of a tenant on various counts which includes the

ground for personal necessity also. Section 11-A provides special remedy to a person who has retired from the defence forces. It provides that a

retired defence officer can file an application seeking possession of the premises only after satisfying that the said premises are bona fidely required

to be occupied by him. There is no other ground available u/s 11-A for the landlord to seek possession of the premises. So while filing application

under the aforementioned provision, the only ground which can be taken by the landlord is that he is a retired defence personel and requires the

premises for his bona fide occupation. No other ground can be taken in this application. While as in a regular suit under the Houses and Shops

Rent Control Act or Transfer of Property Act, various grounds are available to a landlord.

The plea of the petitioner that since the respondent-plaintiff had not taken the grounds in the application u/s 11-A, as such, present suit was

barred by Order 2, Rule 2 cannot be accepted because the grounds which were available to the plaintiff u/s 11-A were limited, as such, the suit

was not barred by Order 2, Rule 2, as the eviction was sought on grounds which could not be taken in application u/s 11-A. The plea is

misconceived.

Grounds, which can be taken u/s 11-A, cannot become a ground for invoking the provisions of Order 2, Rule 2 in a subsequent suit filed with

respect to the same property on different grounds. The respondent-plaintiff cannot be faulted for having filed an application u/s 11-A by not taking

all the grounds which he has taken in the present suit.

The other contention raised by learned counsel for the petitioner is that instead of filing application u/s 11-A, plaintiff should have filed a regular

suit clubbing all the reliefs he intends to take.

This, in my opinion, is not the correct proposition of law. If the statute provides a remedy, same can be availed by the interested party. Merely

because application u/s 11-A has been resorted to, would not disentitle the respondent to file the subsequent suit by taking all the grounds which

are available to him. Section 11-A is for a specified landlord and if the law has provided two remedies, same cannot be said to be in violation of

any provision.

On both the counts, I do not find merit in this revision petition, which is, accordingly, dismissed.