JUDGMENT
R.P. Sethi, J.
1. Respondent filed a suit for ejectment of appellant from the vacant site measuring 86′ towards North, 79′ towards south, 29′ East and 32′ towards West as detailed in the plaint mainly on the grounds of default in the payment of the rent. The suit of the plaintiff was resisted alleging inter alia that the rent deed executed by him was got executed by fraud and misrepresentation and that plaintiffs 2 to 7 were not the heirs of Nek Ram, the original landlord.
2. On the pleadings of the parties the following issues were framed by the trial court on 19-7-1972:
1. Whether the rent deed dated 10-11-1960 registered on 30-11-1960 executed by Dina Nath in favour of Nek Ram was obtained by way of deceit and fraud ? OPD
2. In case issue No. 1 is proved in affirmative, what is its effect on the suit ? OPD
3. Whether the State is a necessary party in the suit ? OPD
4. Whether the plaintiffs and defendants 2 to 7 are the heirs of Nek Ram deceased ? OPP
5. Whether Nek Ram deceased was not the owner of the suit property ? OPP
6. Whether the notice is in accordance with law ? OPP
7. Whether the gift and relinquishment deeds were executed by defendants 2 to 7 in favour of the plaintiff? OPP
8. Relief. OPP
3. To prove the issues the defendants examined Govind Ram Patwari, Ram Krishen Girdwar and Heam Raj Saddar Qanoongo besides appearing himself as his own witness. The plaintiff examined S/Sh. Shiv Nath, Badri Nath, Dina Nath, Puran Chand, Om Prakash as their witnesses besides Kewal Krishen defendant appeared as his own witness.
4. The trial court passed a decree for ejectment of the defendant No. 1 from the suit property and for recovery of Rs. 800/- on account of the rent and damages, which was confirmed by the first appellate court vide the judgment and decree impugned in this appeal.
5. I have heard the learned counsel for the parties and perused the record.
6. Mr. R.P. Bakshi the learned counsel appearing for the appellant has no objection if the findings of fact arrived at by the courts below with respect to the issues framed in the case except issue No. 6 are upheld. He has, however, submitted that even on proof of issues 1 to 5 and 7, the courts below were not justified in passing the decrees against the appellant. Elaborating his argument he has submitted that the decree of ejectment has been passed on the ground of defaults in the absence of the pleadings and specific issue in this behalf. It is, therefore, held that the appellant executed the rent deed in favour of Nek Ram on his own free will and the same was not obtained by way of deceit and fraud. The State is not necessary party in the suit and the suit has been filed by a proper person. Nek Ram was the owner of the property and that the notice of eviction was served in accordance with the provisions of law.
7. Section 11 of the J & K Houses and Shops Rent Control Act, hereinafter called the Act, provides protection of a tenant against eviction. No decree or order for the recovery of possession of any house or shop can be passed by any court in favour of the landlord against the tenant unless any of the grounds mentioned in the said section is proved to be in existence. Section 11(i) of the Act provides that subject to provisions of Section 12 of the Act, 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 15th day of the month next following that for which the rent is payable or by not having validly deposited in accordance with Section 14 of the Act, the landlord may be entitled to seek the eviction of the tenant. The words, “notwithstanding anything to the contrary in any other Act or law,” used in Section 11 of the Act, restricts the right of the landlords to seek eviction only on the grounds specified therein. The grounds of eviction under the Act are, therefore, not subject to enlargement or curtailment of the right of the landlord to recover possession of any house and shop to which the Act is applicable. While interpreting the provisions of the Rent Control Act it has always to be kept in mind that the enactment is a social welfare legislation meant for regulating the rent and putting restrictions on the right of the landlords to evict the tenant.
8. In the instant case admittedly no issue was framed by the trial court regarding any of the grounds mentioned in Section 11 of the Act justifying eviction of the appellant-tenant. Both the courts below however assumed that the suit was filed on the basis of defaults within the meaning of Section 11(i) of the Act. The plaintiff had alleged in para 5 of the plaint that the defendant had not paid rent with effect from 16-11-1965 for which suits were filed against him and the decrees were passed. On his failure to pay the rent another notice is alleged to have been issued to the defendant directing him to pay the rent within a period of 15 days. The facts alleged in para 5 of the plaint were specifically denied by the defendant in his written statement and it was submitted that the plaintiffs were not entitled to file a suit for ejectment against the defendant. The trial court while deciding issue No. 6 held, “In spite of the notice defendant No. 1 did not pay the rent due from 16-8-1969 therefore he would be deemed to be a bad tenant and he cannot get a benefit of protection against eviction of the tenant. Section 12(3) of the Houses and Shops Rent Control Act does not give the defendant No. 1 the benefit of protection because he did not pay the rent due in spite of receipt of the notice….. Defendant having not paid the arrears of rent is liable to ejectment.” It may be noticed at this stage that issue No. 6 pertained only to the legality of the notice allegedly served. The appellate court also held the defendant to be a bad tenant for not having paid the rent since 16-11-1965 despite two decrees of rental amounts passed against him which remained unsatisfied. The appellate court relied upon a Full Bench Judgment of this Court reported in AIR 1964 J & K 67 and held :–
“There cannot be a better example of habitual and wilful defaulter than the present appellant. He has failed to pay rent, notwithstanding the two courts decrees, since 1965. In his statement he has admitted that two money decrees stand against him and he has got them stayed for the time being. Thus, unless it is definite policy of law to protect those who knock at the process of law, it should be held that the appellant was a ‘bad tenant’ and has committed consecutive three defaults within a period of 18 months, with a single notice for the amount of two months rent legally payable as envisaged by Sections 11 and 12 of the Jammu and Kashmir Houses and Shops Rent Control Act. Perusal of relinquishment deed by Chuni Lal dated 20-8-1971 whereby he has relinquished his interest in his inheritance of deceased Nek Ram shows that he has given up all his rights which had already accrued to him and would accrue to ‘him in favour of Mst. Vidya Devi. This transaction is clearly beyond the mischief of Section 109 Transfer of Property Act and the authority cited by the learned counsel in his behalf, therefore cannot be said to have any bearing on the facts of this case. On this account also the notice cannot be said to be bad in law. This view finds support from 1966 All LJ 36 : (AIR 1966 All 489) (Sic) wherein it has been held “where a notice of termination though signed by one of the joint owners, says that it was being sent on behalf of all of them and subsequently all of them state, in the plaint in the suit for ejectment that they sent a notice of termination it will be presumed that the statement in the notice is correct.” Accordingly it is held to be so and the appellant is held to be liable to ejectment under the Jammu and Kashmir Houses and Shops Rent Control Act.”
9. Faced with the situation that the suit was decreed without framing a specific issue in terms of Section 11(i) of the Act, the learned counsel for the respondents have relied upon AIR 1966 SC 292, AIR 1967 SC 109 (sic) to urge that in view of the evasive replies by the defendants, the facts alleged in the plaint should be deemed to have been admitted. The facts of the case however prove that there was no evasive denial by the defendant. On the contrary the allegations regarding defaults in the payment of the rent were vague and ambiguous which did not justify even the framing of issue by the trial court. The learned counsel has further relied upon AIR 1964 SC 164, AIR 1963 SC 884, AIR 1966 SC 593 (sic) and 1981 (2) RCJ 535 : (AIR 1981 Pat 300) to submit that omission to frame issues is not fatal when the parties know their case. The authorities referred to hereinabove does not in any way advance the case of the landlords in as much as the omission to frame the issue in the circumstances of the present case is fatal in view of the provisions of Section 11 of the Act which makes it mandatory for a landlord to prove the existence of any one of the grounds mentioned under that section. In the absence any of the grounds mentioned under the Act, no court can pass a decree even if the cause is not defended or the proceedings are ex parte. For the application of Clause (i) as a ground of eviction the landlord has to plead and establish that the rent at least of two months was in arrears which was legally payable by the tenant who had paid the same within the time fixed by the contract or in the absence of such contract by 15th day of the month next following that for which the rent is payable or by having not been validly deposited in accordance with Section 14 of the Act. Landlord is further called upon to prove that a notice through post-office under registered cover was served asking the tenant to pay or deposit the arrears of rent within the time specified and the tenant failed to pay or deposit the arrears within that period. The landlord has to further prove that there was no contract or law which debarred him from getting a relief of ejectment. Mere failure to make the payment of the rent or the tenant being a “bad tenant” is not a ground for eviction unless the other conditions as noted hereinabove are proved to be in existence after framing an issue and affording the parties an opportunity of being heard. The landlord has also to prove in such a case that the rent demanded was such rent which was legally payable and was not barred to be recovered under any statute. In the absence of the specific pleadings and the issue in this behalf the courts below were not justified in passing the decree for eviction against the appellant on the ground of his being a “bad tenant”. Section 11 of the Act does not authorise the landlord to seek the eviction of a person merely on the ground that he was a bad tenant. The material particulars of default are to be given in the plaint and the onus lies upon the plaintiff to prove that the defendant was a defaulter strictly in terms of Section 11(i) of the Act and it is not for the defendant to prove that he was not a defaulter.
10. The judgments and decrees of ejectment passed by the Courts below in the instant case are, therefore, without jurisdiction in as much as no ground of eviction as contemplated by Section 11 of the Act was pleaded, made subject-matter of an issue or proved according to law. While upholding the findings of the courts below on other issues, it is held that the plaintiffs respondents failed to prove the legal defaults in the payment of rent within the meaning of Section 11(i) read with Section 12 of the Act. The judgment and decrees of the courts below therefore are set aside and the suit of the plaintiff respondent dismissed with costs throughout. CMP Nos. 34, 41 of 1981 and 269/89 are disposed of.
11. After the judgment was announced Mr. Bhagotra the learned counsel for the respondents made an oral prayer in terms of Rule 49 of the J & K High Court Rules for the issuance of a certificate under Clause 12 of the Letters Patent to file an appeal before the appropriate bench. Mr. Bakshi submits that the prayer cannot be allowed. The learned counsel for the parties seek time to address arguments. List on 14-3-1990. Till then the operation of the judgment passed today shall remain in abeyance.