Excelsior Correspondent
JAMMU, Dec 21: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekri has clarified that the eviction suits against the tenants can be filed and continued before the civil courts.
This significant order has been passed in an application filed by Lt Col L K Gupta seeking clarification of order dated 13.12.2012. The grievance of the petitioner in the PIL is primarily with regard to the transfer of the disputes under the Residential and Commercial Tenancy Act, 2012 and the bar of the jurisdiction of civil courts, inasmuch, as even the suits or cases already pending before civil courts were also transferred to revenue courts constituted under the Act of 2012.
“This court as an interim measure vide order dated 12.09.2012 stayed the operation of J&K Residential and Commercial Tenancy Act, 2012. Subsequently vide order dated 13.12.2012, the order dated 12.09.2012 was modified providing that the mechanism postulated under the old Act shall continue and the suits and appeals which were pending or which have been withdrawn by virtue of the provisions of Section 42 (4) of the Act of 2012 shall continue to be adjudicated by the Rent Controller or Appellate Rent Controller who had been earlier clothed with the power”, the DB said, adding “the withdrawal of the earlier suits or appeals would be deemed to be restored to the board of the court of competent jurisdiction on filing of appropriate application by the party concerned”.
Senior Advocate Pranav Kohli appearing for the applicant sought clarification of the order dated 13.12.2012 on the ground that the eviction suits which have been filed under the provisions of Act of 2012 after the repeal of Houses and Shops and Rent Control Act, 1966, the tenants are filing the application under Order 7 Rule 11 CPC for rejection of the plaints on the ground that amended Act has been stayed by the Division Bench and, therefore, no adjudication can take place under the new Act.
He further submitted that the applicant has also filed the civil suit for eviction against the tenant before the Civil Court (Sub Judge Court) under the provisions of Act of 2012, under which an application came to be filed by the tenant under Order 7 Rule 11 CPC for rejection of the plaint on the premise that the Act of 2012 has been stayed by this court in the PIL in hand. He said that the court of the Sub Judge rejected the application of the tenant/ defendant.
The Defenant/tenant has filed a Civil Revision before this court bearing Civil Revision No. 04/17 titled as, “Suresh Chowdhary Vs. Lt. Col. L.K. Gupta” in which the interpretation of the orders passed by this court has been called in question. It is thus, imperative and inevitable that the order passed by this court dated 13.12.2012 is required to be clarified on the two points–whether the operation of the Residential and Commercial Tenancy Act, 2012 has been stayed in terms of order dated 13.12.2012 and Whether the civil courts can try and adjudicate the tenancy disputes under the Residential and Commercial Tenancy Act, 2012 or the same have to be tried under the repealed Act i.e., House and Shops and Rent Control Act, 1966.
Accordingly, DB clarified that the operation of the Residential and Commercial Tenancy Act, 2012 was stayed by virtue of order dated 12.09.2012 and the said order, as a matter of fact, came to be modified in terms of order dated 13.12.2012, by virtue of which, the suits and appeals which were pending or which were withdrawn by virtue of the provisions of Section 42(4) of Act of 2012 were directed to be continued to be adjudicated by the Rent Controller or Appellate Rent Tribunal, who had been earlier clothed with the power.
The said order also provided that the withdrawal of earlier suits or appeals would be deemed to be restored to the board of the court of competent jurisdiction on filing of appropriate motion by the party concerned and it is manifest from the modification order dated 13.12.2012 that the concerned Rent Controllers or Appellate Rent Tribunals earlier clothed with the power are continued to be vested with the powers to adjudicate the suits and appeals respectively, already pending before the said authorities, which came to be withdrawn in terms of Section 42(4) of the Act of 2012, however, with the assistance of the mechanism/procedure postulated under the old act.
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