Madan Lal vs Paras Ram

(1) In a suit for ejectment on the ground of default in the payment of rent, pending in the court of Munsiff, Jammu the plaintiff made an application

that the defendant may be directed to pay the rent from month to month as also the amount of rent in arrears. The defendant pleaded in reply to

this application that nothing was due from him and that he had paid the whole amount. The parties led evidence on this question. The Munsiff

ultimately vide his order dated 21174 found that the rent was in arrears and accordingly directed the defendant to deposit the same in the court

within fifteen days failing which his defence would be struck. The amount which the court called upon the defendant to deposit was not however

specified. Subsequently the defendant made an application to the court below that as the order dated 21174 did not specify the amount the same n

ay be specified. The court below rejected the application and has refused to specify the amount vide its order 15274. The defendant has applied

for the revision of both the orders.

(2) I have heard the counsel for the parties and perused the orders of the court below. I am of the view that both the orders are defective and

therefore should stand revised.

(3) It is a case where the plaintiff says the amount of rent is in arrear, the defendant pleads that he has paid the amount and nothing was due the

plaintiff and the court holds an enquiry and comes to the conclusion that the defendant is in arrears but does not specify the amount which the

defendant has to deposit. When the court ordered the defendant to deposit the rent, the defendant was entitled to be told what the amount to be

paid by him particularly when be had denied the existence of arears,

(4) It has to be noted that the failure to deposit the rent within the time fixed by the court is followed by a penal consequence of striking out the

defence of the defendant Such a consequence therefore can be made to follow only when the direction of the court is capable of being complied

with. Supposing for the sake of argument the defendant deposits some amount and says that this was the only amount in arrears The court can not

say in such a case that, the whole amount has not been deposited, therefore the penal consequence must follow as the court never told the

defendant what was the amount tote deposited by him.

(5) Mr. Gurdeeu Singh appearing for the respondent however, submitted that even though there is no specific mention in' the .application made by

the plaintiff regarding the amount in arrears the plaintiff had explained the whole thing and stated that no amount had been paid to the plaintiff after

the date when the decree for 630/was passed against him. It is true that there is some material to suggest as to what was the amount in fact payable

but that was only a material to enable the court to come to a finding regarding the amount which was in arrears and which the defendanttenant was

required to deposit. The defendant was not to make a roving enquiry into the records to find out what is demand made by the plaintiff, so as to

enable him to determine the amount to be deposited by him. Further, it was not possible to speculate and predicate as to whether the court bed

believed the whole statement of the plaintiff or hot. There is therefore, no escape from the conclusion that the court below was patently in error, in

referring to determine the amount even when the defendant invited a finding on the question.

(6) Mr Jaipal Singh appearing for the defendant tenant has brought to my notice a judgment of the Hon'ble Chief Justice in Ramesh Kumar Khanna

Vs. Shrimari Inder Kour, Civil Revision No. 7 of 1970. This Judgment fully supports the view which I have taken in this case.

(7) In the result the revision succeeds and is allowed. The orders of Munsiff, Jammu dated 2141974 and 1521971 are set aside. On the material

already brought before him the Munsiff shall dispose of the application under Section 12 (4) of the Houses and Shops Rent Control Act in the light

of the observations made above. The penal consequence of striking out of the defence of the defendant can follow only on the failure of the

defendant to deposit the amount of rent pursuant to the order which the court below shall pass afresh on the applications U/s 12 (4) of the Houses

and Shops Rent Control Act. The parties shall appear before the Court below on 121074.