The main legal point established in the judgment is the requirement for a petition to be maintainable under Article 104 of the Constitution of Jammu & Kashmir, which necessitates a showing that the lower court acted without or in excess of jurisdiction, or that the order resulted in a serious miscarriage of justice.

1. Petitioner, Tej Swaroop Abrol, has filed this petition under Article 104 of the Constitution of State of Jammu and Kashmir, seeking quashment of interim order dated 18.02.2010 passed by the Sub Judge (C.J.M.), Jammu (hereinafter referred to as "Trial Court"), whereby Trial Court, while allowing application filed by respondent herein, under Section 12(4) of the J&K Houses & Shops Rent Control Act, directed petitioner to clear the arrears of rent immediately and the matter was directed to be listed on 15th March, 2010. Feeling aggrieved, petitioner has come up with present petition.

2. The facts in short are that petitioner herein is tenant of respondent with respect to a Shop situated at Janipur, Jammu, which he took on rent in the month of June, 2007. As per the averments made in the writ petition, the agreed monthly rent was Rs.4400/-. When petitioner failed to pay the rent regularly, respondent-landlord filed an application before Trial Court in the month of April 2009, seeking a direction to petitioner-tenant to clear the arrears of rent and also to pay the rent regularly. Meanwhile, petitioner-tenant also filed an application before the Trial Court under Section 27 of the Houses and Shops Rent Control Act, 1966, seeking a direction to respondent-landlord to make repairs in the rented premises. Before the Trial Court could decide the application to clear the arrears of rent, the petitioner-tenant in order to counter the claim of respondent-landlord also filed an application, seeking fixation of `fair rent' in the month of August 2009. The petitioner-tenant claimed before the trial court that as per his estimation the approximate `fair rent' of the rented out premises was Rs.1500/- per month. He, accordingly, prayed before the trial court to fix the `fair rent' in respect of the rented out premises. The trial court pending disposal of the application for fixation of `fair rent' as also the application seeking repairs of the rented out premises, vide interim order dated 18.02.2010 directed the petitioner-tenant to clear the arrears of rent immediately and directed for listing of the case on 15.03.2010. The petitioner-tenant was also directed to file estimate of the repairs duly prepared by the Assistant Engineer of PWD with certificate of necessity. It is this order which is the bone of contention in the present petition filed under Section 104 of the Constitution of Jammu & Kashmir.

3. It is contended that the order, impugned herein, has been passed by the trial court without jurisdiction and without applying application of mind because the trial court without deciding the main issue as regards fixation of `fair rent, directed the petitioner-tenant to clear the arrears of rent, which amounts to deciding the main matter. Therefore, as per the averments made in the petition, the trial court while directing the petitioner-tenant to clear the arrears of rent has deviated from the main issue.

4. It is worthwhile to mention here that before filing the present petition, petitioner-tenant also filed a Civil Revision before this Court, bearing No.21/2010 seeking revision of the order, impugned herein. This Court vide order dated 09.09.2011 while dismissing the Civil Revision, being not maintainable, held that in view of amendment to Section 115 of the Code of Civil Procedure, revision against the order made in a suit or other proceedings is not maintainable; the same is maintainable only, in case the order if passed would end the suit or other proceedings. Since the same was not the position, therefore, the revision was held to be not maintainable. However, it was provided that dismissal order would not stand in the way of petitioner in working out his remedy. Thus, it is how the present petition has been filed by the petitioner.

5. Now, before deciding the controversy raised in the present petition, the question for consideration would be whether the present petition filed under Article 104 of the Constitution of State of Jammu & Kas

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