The interpretation of the proviso to Clause (i) of Section 11(1) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, regarding the requirement to mention the period of thirty days for payment or deposit of the rent in the notice, and the Court's analysis of the plaintiff's genuine requirement for the shop and the completion of the first default in rent payment were central to the judgment.

Janak Raj Kotwal, J.

This Civil Second Appeal has been filed by the plaintiff against the judgment and decree dated 31-12-2009 rendered by the learned Principal District Judge, Samba in a Civil 1st Appeal filed by defendant, whereby the judgment and decree of the learned Sub-Judge, Samba dated 29-10-2005 in a suit for ejectment filed by the plaintiff has been set aside to the extent of the ejectment of the defendant from the suit shop.

2. The subject-matter of the suit filed by the plaintiff (hereinafter to be referred as the appellant) is a shop situate in the main bazaar, Samba, which was under the tenancy of the defendant-Parshotam Kumar Sethi (hereinafter to be referred as the original respondent). In the suit filed by the appellant the ejectment of the original respondent from the suit shop was sought on two grounds, namely, default in payment of rent by the original respondent under Clause (i) of the proviso to Section 11(1) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (for short the Act) and the personal requirement of the appellant under Clause (h). It was contended in the plaint in a nutshell that the original respondent had not paid rent of the suit shop since August, 1999 in spite of notice and had committed three successive defaults of two months each in payment of rent. Further it was contended that the suit shop is urgently required by the appellant for his personal necessity as he was serving in the shop of his father and his son after completing graduation was unemployed so he was desirous to run his own business in karyana stores-along with his son as he has to settle his son in business. He has ample experience to deal in karyana business as he has been serving in the shop of his father. Besides, the appellant alleged that condition of the suit shop has deteriorated due to negligence of the original respondent. The appellant, besides seeking decree for ejectment, also sought decree for recovery of Rs. 7200/- as arrears of rent against the original respondent.

3. Original respondent contested the suit on both the counts. He denied any default in payment of rent and contended that the rent has been regularly paid by him. He denied the requirement of the appellant. It was stated in the written statement that the appellant is settled in Karyana business in a big shop, which comprises of two big shops with two shutters situate in the main market. He contended also that the father of the appellant was an old man more than 85, who has virtually retired from business and is unable to do any business independently. The appellant was the sole proprietor of the said business. He contended also that the son of the appellant was technically qualified in Electrical Engineering and his qualification was not compatible with the karyana business and in any case he can get adjusted in the business of his father.

4. Learned trial Court framed following issues in the suit:

1. Whether the defendant is a bad paymaster and has not paid the rent to the plaintiff since August, 1990 till date? OPP

2. Whether the suit shop is reasonably and urgently required by the plaintiff for his personal necessity for doing karyana business for himself and his son? OPP

3. Whether the condition of the suit shop has been deteriorated due to negligence of the defendant? OPP

4. Whether defendant has committed three successive defaults in payment of rent of two months each and as such is liable to be ejected? OPP

5. Whether partial eviction of defendant can serve the need of plaintiff? O.P. Parties.

6. Whether the comparative requirement of the defendant with regard to the suit shop is much more than that of the plaintiff? O.P.D.

7. Whether no valid and genuine cause of action under law has been put forth by the plaintiff and the suit is liable to be dismissed? O.P.D.

5. Both the sides adduced evidence in support of their respective cases before the trial Court. Learned trial Court, while taking up issues 1 and 4 together, decided both