1. This letters patent appeal is directed against the Judgement of a learned Single Judge on this Court (Honble the Chief Justice V. Khalid as his Lordship then was) dated 23.3.84, where by he has dismissed the writ petition of the appellant.

2. The contention raised in the writ Petition as also in this letters patent appeal is that Sub-Section (4) of Sec. 12 of the J&K Houses and Shops Rent Control Act 1966, hereafter to be referred to as the Act, is invalid and that the word Shall occuring in that Sub Section shall be interpretted to mean as may. The learned Single Judge as in his detailed Judgment rejected both the contentions raised by the petitioner. He has discussed the provisions of the act as also sec 11A of the Bihar Act, on which reliance was placed by appellant. A full bench authority of the Patna High Court reported in AIR 1981 Pat. I was also considered by the Single Bench of this Court.

3. It has rightly been observed by the Single Bench that sec. 11-A of the Bihar Act was not examined by the Full Bench of the Patna High Court from the appeallant wants us to examine Sec 12(4) of the act in this appeal .The Judgement given by the Full Bench of the Patna High Court has mainly processed on the question of waiver and it has not considered the validity of Sec. 11-A of the Bihar Act. Since the landlord in that case had withdrawn the amount deposited by the legal representative of the tenant, though in violation of the directions given by the rent controller therefore the mandatory nature of the second part of Sec. 1l-A could not be acted upon in view of the conduct of the landlord .It is well settled that a party deriving benefit of a court order cannot approbate and reportable, on the one hand the landlord in that case was benefited by withdrawl of the rent and on the other he could not be heard to say that defence of the tenant was liable to be struck off. Striking off the defence of the tenant was intended to benefit the landlord was otherwise benifitted, therefore, by his conduct he has waived the right to ask for striking of the defence of the defendant tenant .This was the majority view in Full Bench case of Patna. S.P. Sinha J has dissented from the majority view. In his opinion the court was empowered to strike off the defence independent of any application having been made by the landlord for striking off the defence once it was established that mandate of Sec 11-A of the Bihar Act was violated, However, in a Full Bench case of this court in Ghasha Lal Vs. Harjee Lal and anr, reported in 1980 K L J 25 the ambit and scope of sec. 12(4) of the Act has been discussed at Length. No fault was found with sec. 12(4) of Act. In a Single Bench case of this court also mandate of sec, 12(4) of the Act is upheld. The consistant view of this court has been that sec. 12(4) is valid and the word shall occuring in the said sub-section is mandatory This court therefore, cannot construct meaning of word shall as directory in the said sub-section. When the learned counsel for the appellant was asked to explain as to what grounds he was challenging the vires of sec. 12(4) of the Act, and wanted us to assign different meaning to the word shall in the said Sub-Section. The Rent Control Legislation is not puntive legislation. It does not intenant to give benefit landlord at the cost of tenant or to the tenant at the cost of landlord. It only controls litigation coming under the Rent Control Act

4. The Supreme Court in Baga Bibi Vs. Abdul Ahad and Ors reported in 1979 S. C. 272 has made it clear that the whole object of the Rent Control Act is to provide for Control of rents and evictions etc. Therefore, the contention of the learned counsel for the appeallant that Sec. 12(4) of the Act seeks to penalise the tenant cannot be accepted. He has given certain hypothetical examples to make his point clear. We are afraid that we cannot agree with his contention. A rent Controller will definitly use common sense and prudence while striking o

Click Here to Read the rest of this document