HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU CM(M) No. 90/2025 c/w CM(M) No. 91/2025 Reserved on: 10.07.2025 Pronounced on 16 .07.2025. Jatinder Koul ….petitioners Through :- Mr. Sahil Koul Advocate. V/s Ajay Mahajan and others Through :- Mr. K.S.Johal Sr. Advocate with Mr. Supreet S Johal Advocate. CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1 By this common judgment, I propose to dispose of two petitions filed under Article 227 of the Constitution of India challenging the orders dated 28.02.2025 and 17.03.2025 passed by the learned Principal District Judge, Jammu (‘trial Court’ in short), in Suit Nos. 2046/2020 and 2047/2020 titled Ajay Mahajan and others vs. Jatinder Koul. The orders impugned pertain to (i) the direction to deposit arrears of rent by the petitioner/defendant and (ii) striking off the defence of the petitioner for non-compliance. Factual Matrix: 2 The respondents/plaintiffs filed two suits seeking ejectment and recovery of arrears of rent in respect of property situated at 32 A/C, Gandhi 2 Nagar, Jammu, one pertaining to the ground floor and the other to the first floor. Vide common order dated 27.05.2023, the Court of 1st Additional District Judge, Jammu allowed the respondents’ application under Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, and directed the petitioner to deposit Rs.9,49,495 in each suit. The trial Court simultaneously dismissed the petitioner’ applications under Order 7 Rule 11 CPC, Section 35-A CPC, and Section 94(e) read with Section 151 CPC.Upon non-compliance with the order dated 27.05.2023, the defence of the petitioner was struck off on 15.06.2023. These orders were challenged in CR Nos. 27/2023 and 28/2023 before this Court and were set aside vide order dated 29.11.2024, thereby restoring the defence of the petitioner with liberty to the respondents/plaintiffs to file fresh applications for recovery of arrears from April 2020 onwards.The respondents accordingly filed applications under Order 39 Rule 10 CPC seeking deposit of arrears for the period from April 2020 to December 2024. The petitioner sought time to file objections, citing pendency of related proceedings before the Special Excise Mobile Magistrate, Jammu. The trial Court, however, rejected the request on 30.01.2025, observing that pendency of another case was no ground to delay the present suits. On the next date of hearing i.e., 28.02.2025, although the petitioner appeared in person and submitted adjournment slips supported by medical records of his counsel, the Court, due to repeated delays, directed deposit of arrears within 15 days, failing which defence would be struck off.Thereafter, vide order dated 17.03.2025, the petitioner’s application under Section 94(e) CPC was dismissed and his defence was struck off. These orders i.e order dated 28.02.2025 and 17.03.2025 are now assailed in the present petitions. 3 3 Learned counsel for the respondents has raised a preliminary objection regarding maintainability of the petitions, submitting that the petitioner has an efficacious remedy of appeal under Order 43 Rule 1-A CPC, and therefore, the invocation of supervisory jurisdiction under Article 227 of the Constitution is unwarranted. 4 Heard learned counsel for the parties and perused the material on record. 5 In Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329, the Supreme Court has held that exercise of power under Article 227 is not to be invoked merely for correcting errors, especially in private landlord-tenant disputes where an alternative remedy is available. Paragraphs (61), (62),& (83) of the judgment reinforce that supervisory jurisdiction should be confined to cases of patent perversity, jurisdictional error, or gross violation of natural justice and, thus, are reproduced hereinbelow: “61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been 4 framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court. 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just 5 because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. 83. For the reasons aforesaid, it is held that the High Court committed an error in entertaining the writ petition in a dispute between landlord and tenant and where the only respondent is a private landlord. The course adopted by the High Court cannot be approved. Of course, High Court's order of non- interference in view of concurrent findings of facts is unexceptionable. Consequently, the appeal is dismissed”. 6 In light of the above, the objection raised by the learned counsel for the respondents merits consideration. However, given the petitioner’s allegation of procedural irregularity and violation of natural justice, I deem it appropriate to examine the matter on merits, though within the limited scope of supervisory jurisdiction. 7 To appreciate the merits of the case, it is necessary to reproduce the trial court's order dated 28.02.2025 and 17.03.2025, which read as follows: “Order dated 28.02.2025: Defendant though was under orders to file objections to the application filed by the plaintiff for directions to the defendant 6 to pay the arrears of rent but he has not filed objections and instead has come with a motion for adjournment on the ground that his counsel is not well. Consequent upon the order of the Hon‟ble High Court in civil revision dated 29.11.2024, against the order of the trial court whereby the plaintiff was given liberty to make the interim application for recovery of arrears of rent/charges of user and occupation w.e.f April 2020 onwards as well as this Court was directed to consider such application if made most expeditiously, plaintiff came to file an application for recovery of Rs.10,09,495 along with interest @ 12% per annum on 21.12.2024, a copy whereof was furnished to the other side for filing objections. Thereafter defendant has taken five opportunities but has not filed objections till date. Order 17 Rule 1 CPC allows the civil court to grant a maximum of three adjournments upon sufficient cause being shown and after recording reasons. However defendant has already taken five opportunities spread over the period of two months, still has chosen not to file objections. It amply demonstrates that defendant has no objection to make but his only interest is in dragging the proceedings. Even otherwise, it is not in dispute that defendant has not paid the rent of the suit premises after March 2020 as has been observed by the Hon‟ble High Court as well. So his application for adjournment is rejected and his right to file objections is also closed. Since the application has remained uncontested, so it is allowed and defendant is directed to deposit the arrears of rent as on date altogether with interest at the agreed rate up till date as stipulated in para 9 of the application, within 15 days failing which his defence shall be struck off. Besides, entailing all other consequences for will disobedience of the order”. Order dated 17.03.2025 "Mr. Johal, learned counsel for the plaintiffs has submitted that the defendant has failed to pay/deposit the arrears of rent as per the last order and as such his defence may be struck out for wilful defiance of the Court order. Mr. Sahil, learned counsel for the defendant, has come up with an application for deferring the matter sine die on the ground that he has challenged the order of this Court before the Hon‟ble High Court by way of revision petition. 7 Perusal of the record reveals that the defendant has been in arrears of rent since the date of the filing of the suit though according to the plaintiffs, he is in arrears from much earlier. It is pertinent to mention here that earliest also court had struck out the defence of the defendant for non payment of arrears of rent due however, defendant went in revision before Hon‟ble High Court which was allowed partly and while disposing of the revision by the Hon‟ble Court clearly observed that the defendant was in arrears of rent from the date of filing of suit, whereas the arrears of the period prior to that were disputed and as such were subjected to proof at trial. It was further directed that in case the plaintiff files an application for the arrears of rent for the admitted period, this Court would dispose off that application expeditiously. In furtherance to the orders of Hon‟ble High Court plaintiff came to file an application claiming arrears of rent on 10.01.2025 itself. Defendant took time and as many as five opportunities for filing objections but failed to do so and upon the failure of the defendant to file objeciotns, his right ws closed vide order dated 28.02.2025. By same order defendant was ordered to pay/deposit the arears of rent within fifteen days failing which his defence wo9uld be struck out which he has gain observed in breach. In circumstances defendant has no equities having proven consistently himself to be a bad tenant by continuing to hold over and enjoy the suit property for years together and not paying the rent to the landlords/owners thereof who have been made to suffer for no reason. Therefore the application of the defendant for deferring the matter sine die is rejected since no stay has been granted by the Hon‟ble High Court and mere filing of revision petition is not enough to lay hands in the given circumstances. Moreover, defendant has not made his bona fides clear by depositing the rent with the court before seeking deferment of the proceedings. The defendant cannot approbate and reprobate at the same time. The application is, therefore, rejected and defence of the defendant is struck out”. 8 This Court, vide order dated 29.11.2024 passed in the revision petitions earlier filed by the petitioner set aside the trial Court's order dated 27.05.2023 whereby a direction had been issued to the petitioner to deposit arrears of rent. Consequently, the impugned orders dated 15.06.2023 passed 8 in the present two suits, whereby the defence of the petitioner had been struck off, were also set aside. However, this Court made it clear that if and when an interim application for recovery of arrears of rent from April 2020 onwards is filed by the respondents/plaintiffs, the same shall be considered by the trial court most expeditiously in accordance with law. For facility of reference, the relevant portion of the order dated 29.11.2024 passed by this Court in Civil Revision Nos. 27/2023 and 28/2023 is reproduced hereunder: “For what has been discussed hereinabove, the petitions are partly allowed and the impugned orders dated 27.05.2023 passed in the two suits to the extent of directing recovery of arrears of rent from the petitioner are set aside. Consequently, the impugned orders dated 15.06.2023 passed in the two suits whereby defence of the defendant has been struck off, are also set side. However, the order dated 27.05.2023 to the extent of rejecting the three applications of the defendant is upheld. It is further made clear that plaintiffs are at liberty to make an interim application for recovery of arrears of rent/occupation charges from April 2020 onwards before the trial Court and if and when such an application is made, the same shall be considered by the trial Court most expeditiously in accordance with the principles discussed hereinabove”. 9 From a perusal of order dated 28.02.2025 passed by the trial Court, it is evident that although the defendant was directed to file objections to the application filed by the plaintiffs seeking direction for payment of arrears of rent, he failed to do so. Instead, he moved an application for adjournment on the ground that his counsel was unwell. Pursuant to the order dated 29.11.2024 passed by this Court in the civil revision petitions, whereby liberty was granted to the plaintiffs to move an application for recovery of arrears of rent w.e.f. April 2020 onwards and the trial Court was directed to consider such application most expeditiously, the plaintiffs filed the said application on 21.12.2024, claiming a sum of Rs.10,09,495 along with interest @ 12% per annum. A copy of the said application was duly served upon the 9 petitioner/defendant for filing objections. Thereafter, the defendant sought and was granted five opportunities spread over a period of two months but he failed to file objections. As per the mandate of Order XVII Rule 1 CPC, the trial Court is empowered to grant a maximum of three adjournments upon sufficient cause being shown and after recording reasons. The petitioner/defendant, having already availed more than the permissible number of adjournments, and still having failed to file objections, has demonstrated lack of bona fides. This conduct clearly suggests that the defendant was not interested in contesting the application on merits but was merely attempting to delay the proceedings. Even otherwise, it is not in dispute that the petitioner/defendant has not paid rent for the suit premises after March 2020, as also noted by this Court vide order dated 29.11.2024 passed in CRs No. 27/2023 & 28/2023. Consequently, the application for adjournment was rejected by the trial Court, and the petitioner/defendant’s right to file objections was closed. 10 From a perusal of order dated 17.03.2025, it further emerges that the petitioner/defendant has been in arrears of rent at least from the date of filing of the suit, though the plaintiffs assert that the arrears pertain to an earlier period as well. It is pertinent to note that on an earlier occasion, the defence of the petitioner/defendant had been struck off for non-payment of arrears by the trial Court vide order dated 15.06.2023, which order had been set aside by this Court vide order dated 29.11.2024. While disposing of the revision petitions, this Court vide order dated 29.11.2024 observed that the petitioner/defendant was admittedly in arrears of rent from the date of filing of the suit, while the arrears for the period prior thereto were disputed and left to be established at trial. This Court also directed that in the event, the 10 respondents/plaintiffs moved an application for recovery of arrears for the admitted period, the same be disposed of most expeditiously. 11 In compliance with the aforesaid directions, the respondents/plaintiffs filed an application on 21.10.2024. Despite being granted as many as five opportunities, the petitioner/defendant failed to file objections, resulting in closure of his right to do so vide order dated 28.02.2025. In the said order, the trial Court directed the petitioner/defendant to deposit the arrears within fifteen days, failing which his defence would be struck off. The petitioner/defendant, however, failed to comply with the said direction. 12 In the given circumstances, the petitioner/defendant has disentitled himself to any equitable relief, having consistently defaulted in payment of rent and continued to unlawfully enjoying possession of the suit property to the prejudice of the plaintiffs, who are the rightful landlords. Since there was no stay order passed by this Court on the date of passing the order dated 17.03.2025 by the trial Court, the defendant's plea for sine die adjournment based on pendency of revision petition is not tenable, as has been held by the trial Court also. The application has been, therefore, rightly rejected by the trial Court, and the defence of the petitioner/defendant is accordingly struck off. A litigant cannot approbate and reprobate at the same time. Further, it must be noted that the trial Court’s order dated 28.02.2025 was in compliance with the earlier order passed by this Court in revision petitions bearing CRs No. 27/2023 & 28/2023, wherein a clear direction had been issued that if and when the plaintiffs/respondents file an application seeking arrears of rent for the admitted period, the trial Court shall dispose of such application most expeditiously. The trial court acted accordingly and 11 passed the order dated 28.02.2025, directing the defendant to deposit the arrears within fifteen days. The defendant failed to comply with this direction, which led to the passing of impugned order dated 17.03.2025. The said order dated 17.03.2025 is a consequential order arising out of the earlier order dated 28.02.2025. 13 The Supreme Court in Asha Rani Gupta v. Vineet Kumar, 2022 SCC OnLine SC 829, has held that in cases disclosing deliberate defiance and wilful non-performance on the part of the tenant, the inevitable consequence in law is that the defence of such a tenant is liable to be struck off. The Supreme Court further held that the conduct of the tenant amounted to volitional non-performance and defiance, and that his continued failure to pay rent despite being in occupation of the suit premises left no room for doubt as to his intention. Consequently, the Court held that there was no reason for the High Court to interfere with the concurrent findings of the Courts below. The relevant paragraphs of the said judgment, which are relevant to the context, are reproduced as under: “15. Taking the facts of the present case, it is at once clear that the defendant-respondent, by his assertions and conduct, has left nothing to doubt that he has been steadfast in not making payment of rent/damages, despite being lessee of the suit shop. The present one has clearly been the case of volitional non- performance with nothing left to guess about the defendant‟s mood of defiance. Nothing of any fact or any circumstance is existing on record to find even a remote reason for extending any latitude or relaxation in operation of Order XV Rule 5 CPC to the present case. It shall be apposite at this juncture to also observe that the contentions on behalf of the defendant- respondent to the effect that he had made payment of rent to the alleged erstwhile landlord Smt. Sudha Sharma and contra submissions on behalf of the appellant that even in the year 1990, the defendant-respondent admitted the said Shri Rajiv Kant Sharma as the owner of the property as also the factors co- related with these submissions, do not call for adjudication in this appeal. This is for two simple reasons: One, that so far as the fact of volitional non-performance by the defendant- 12 respondent is concerned, with no cogent evidence of lawful payment of rent, the findings of fact by the Trial Court and the Revisional Court against the defendant-respondent stand final and have not been disturbed even by the High Court. There appears no reason for this Court to enter into any factual inquiry as regards payment of rent to Smt. Sudha Sharma or otherwise, now in this appeal. Secondly, so far as any affidavit filed by the defendant-respondent in the year 1990, allegedly admitting Shri Rajiv Kant Sharma as owner of property is concerned, it may be a matter of adjudication by the Trial Court but would not be a matter of consideration in this appeal. Suffice it to observe that the present one is a case very near and akin to that of Hisamul Islam Siddiqui (supra) wherein, the learned Single Judge of the same High Court has approved the order striking off the defence after finding want of deposit of the amount of rent, despite the defendant having not denied his status as tenant. 16. In the totality of facts and circumstances, we are clearly of the view that there was absolutely no reason for the High Court to have interfered in the present case, where the Trial Court had struck off the defence after finding that there was no evidence on record to show the payment or deposit of rent in favour of the plaintiff by the defendant- respondent. The Revisional Court had also approved the order of the Trial Court on relevant considerations. Even the High Court did not find the pleas taken by the defendant-respondent to be of bonafide character, particularly when survey number of the shop let out to him was clearly stated in the sale deed executed in favour of the plaintiff. We find it rather intriguing that, despite having not found any cogent reason for which discretion under Rule 5 of Order XV CPC could have been exercised in favour of the defendant- respondent, the High Court, in the last line of paragraph 45 of the order impugned, abruptly stated its conclusion that: „yet the defendant/tenant deserves some indulgence‟. 17. With respect, the said conclusion of the High Court could only be said to be an assumptive one, being not supported by any reason. In paragraph 44, of course, the High Court observed with reference to the decisions of this Court that the discretionary power must be exercised with great circumspection but, such enunciation by this Court cannot be read to mean that whatever may be the fault and want of bonafide in the defendant/tenant, he would be readily given the so-called „indulgence‟ of not striking off defence. Such an approach is neither envisaged by thestatutory provisions nor by the referred decisions. In fact, such an approach would simply render the relevant provisions of law rather nugatory. The expected circumspection would require the Court to be cautious of all the relevant facts and the material on record and not to strike off the defence as a matter of routine. However, when a case of the present nature is before the Court, disclosing deliberate defiance and volitional/elective non-performance, the consequence of law 13 remains inevitable, that the defence of such a defendant would be struck off”. 14 In the present case, the trial Court has acted in accordance with law, afforded sufficient opportunities and passed reasoned orders based on the petitioner’s admitted failure to comply with the directions. No perversity, jurisdictional error, or violation of natural justice is made out. 15 In view of the foregoing analysis, I find no ground to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Orders dated 28.02.2025 and 17.03.2025 passed by the Court of learned Principal District Judge, Jammu are well-reasoned, legally sustainable, and passed after affording adequate opportunity to the petitioner/defendant. Accordingly, both the petitions are dismissed. The said Court shall proceed with the trial of the suits expeditiously and in accordance with law. It is clarified that any observations made herein shall not prejudice or influence the Court in adjudicating the pending suits on merits. (MOKSHA KHAJURIA KAZMI) JUDGE Jammu 16 .07.2025 Sanjeev Whether approved for judgment: Yes/No