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2019 Supreme(J&K) 517
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SINDHU SHARMA, J.
Rattan Lal - Appellant
Versus
Krishan Lal - Respondent
OW104 No. 108 of 2014
Decided On : 04-06-2019
For the Appellant :Vikas Magotra, Advocate.
For the Respondents:P.R. Sharma, Advocate.
The executing court had the jurisdiction to fix fair rent as it was part of the decree and did not require separate adjudication. There can be no waiver or estoppel against a statute, and the market rate of rent was mandatory under Section 13(3) of the Act.
Headnote:
Ejectment - Fair Rent Fixation - Jammu and Kashmir Houses and Shops Rent Control Act, 1966 - Section 13(3), Section 8 - The court discussed the provisions of Section 13(3) and its proviso, which ruled out the application of Section 8 for fixing fair rent. The court held that the executing court had the jurisdiction to fix fair rent as it was part of the decree and did not require separate adjudication. The court also emphasized that there can be no waiver or estoppel against a statute, and the market rate of rent was mandatory under Section 13(3) of the Act.
Fact of the Case:
The landlord sought fair rent fixation after ejecting the tenant and reconstructing the shop. The tenant objected to the fair rent application, arguing that the executing court had no jurisdiction to determine fair rent.
Finding of the Court:
The court found that the executing court had the jurisdiction to fix fair rent as it was part of the decree and did not require separate adjudication. The court also held that there can be no waiver or estoppel against a statute, and the market rate of rent was mandatory under Section 13(3) of the Act.
Issues: The main issue was the jurisdiction of the executing court to determine fair rent after ejectment and reconstruction of the shop.
Ratio Decidendi: The executing court had the jurisdiction to fix fair rent as it was part of the decree and did not require separate adjudication. There can be no waiver or estoppel against a statute, and the market rate of rent was mandatory under Section 13(3) of the Act.
Final Decision: The petition was dismissed as it had no merit and was considered an abuse of the court's process.
JUDGMENT :
Sindhu Sharma, J.
1. A decree for ejectment was passed in the suit titled "Krishan Lal v. Rattan Lal" on 31.12.1997. However, the decree became final only when the Civil Second Appeal filed by the tenant was dismissed by this Court on 26.02.2009.
2. After reconstruction of the shop by the landlord, possession was handed over to the tenant sometimes on 04.08.2010. This is reflected in the order of this Court dated 20.03.2013 passed in Civil Revision No. 107/2010 titled "Krishan Lal v. Rattan Lal". While deciding this petition, the Court observed that the possession of the shop has been handed over to the respondent w.e.f. 04.08.2010, this petition is, thus, rendered infructuous. However, it is made clear that any observation made by the executing court in the impugned orders will not affect the right of the petitioner/landlord in the execution application titled "Krishan Lal v. Rattan Lal" already filed by him in the court of learned Sub-Judge, Reasi to seek fixation of market rent regarding the property in question."
3. Landlord filed an application for fixation of fair rent on 22.02.2012 with the prayer that the judgment debtor may be directed to execute the Rent Deed fixing monthly rent at Rs. 4500/- from the date of delivery of possession of the shop which is 04.08.2010.
4. The objections to this application were filed by the judgment debtor on 26.08.2012 after seeking the number of adjournments. During this period, the decree-holder examined Mohd. Rafiq and Gautam Kumar as witnesses, besides his own statement (Annexure J).
5. The maintainability of the proceedings before the Executing Court has been challenged inter alia on the ground that decree of ejectment was only on the ground of rebuilding, as such, the Executing Court cannot go beyond the mandate of the decree.
6. The Executing Court had exceeded its jurisdiction adversely affecting the rights of the petitioner by acting with material irregularity against the mandate of the Statute. In the copy of the objections filed by the judgment debtor enclosed as Annexure H to this petition, it is pleaded that the Execution Petition is not maintainable in the present form and the execution proceedings are hit by the provisions of the Civil Procedure Code and the Court has no jurisdiction in the matter regarding fixation of fair rent.
7. The proceedings of the Executing Court, however, under Section 8 of the Act, which empower the Controller to fix the fair rent has no application to the premises.
8. In view of Section 13(3) read with its proviso rules out the application of Section 8. Section 13(3) reads as under:
"13(3) Where the landlord obtains a decree for ejectment in terms of clause (h) of sub-section (1) of section 11 and the tenant is ejected on the ground that the house or shop is required by him for building or rebuilding, the tenant thereof shall have first right to tenancy:
Provided that the tenant shall pay the rent at market rates notwithstanding anything contained in section 8."
9. Learned counsel for the respondent has argued that the fair rent could only be fixed under the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 and not under these proceedings.
10. So the argument that the fair rent had to be determined under Section 8 is not tenable in view of the proviso to Section 13(3). Whether the fair rent can be fixed by the Executing Court. It is not disputed by the parties that the powers of the Rent Controller are exercised by the Sub-Judge, Reasi, who is also the Executing Court. There is no separate post of Rent Controller under the Jammu and Kashmir Houses and Shops Rent Control Act. Since Section 8 is not applicable as noticed above, it is the Executing Court which has to fix the fair rent also. Although the decree should have contained this mandate of law but this omission is only technical and does not take the power to fix the fair rent to avoid multiplicity of litigation. Thus, the objection regarding jurisdiction being exerc
