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) 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 these issues in favour of appellant holding that the original respondent having committed three defaults within a period of eighteen months, indefeasible right has accrued to the appellant to claim ejectment of the original respondent. Learned trial Court decided issues 2 and 6 in favour of appellant too holding, firstly, that the appellant has been able to prove that there is requirement of suit shop for the plaintiff himself and for the benefit of his son, Sanjeev Kumar-and secondly, that requirement of appellant is more than that of the respondent. In regard to issue No. 5, learned trial Court notice common ground of both the sides that bifurcation of the suit shop cannot serve the purpose of the either of them. Issue No. 3 was decided against appellant and issue No. 7 against original respondent. Learned trial Court, in view of the decision in issue Nos. 1, 2, 4 and 6, decreed the suit for ejectment of the original respondent from the suit shop on both the grounds as also for recovery of Rs. 7200/- as arrears of rent.

6. In the 1st appeal filed by the original respondent, learned 1st appellate Court concurred with the decision of the learned trial Court in issue No. 1 holding that the original respondent had not paid the arrears of the rent and did not pay the same, even despite the receipt of notice. Learned 1st appellate Court, however, after having regard to the notice for payment of rent issued by the appellant, decided issue No. 4 against the appellant holding that the thirty days - period as contemplated under proviso to Clause (i) of the proviso to Section 11(1) of thewas not mentioned in the said notice so the notice was invalid and the 1st default as contemplated under the said provision was not constituted.

7. Learned 1st appellate Court did not concur with the decision of learned trial Court in issue No. 2 holding that the requirement of plaintiff for the suit premises is not proved-and that the Court below has committed error in deciding issue No. 2. Learned 1st appellate Court, therefore, set aside the judgment and decree of the trial Court to the extent of ejectment of the original respondent, however, upholding the same to the extent of the recovery of the arrears of the rent. Hence, this civil second appeal.

8. This second appeal has been admitted to hearing on the following substantial questions of law proposed by the appellant:

1. Whether it is mandatory that the period of thirty days i.e. the statutory period to make the payment of arrears from the receipt of the notice is required to be mentioned in the notice and non-mention of the same is fatal to the suit

2. Whether the law required to be pleaded in the notice when it is the settled position that ignorance of law is not excuse

3. That when in spite of notice of demand for arrears of rent, the defendant does not make payment of arrears of rent within thirty days (the statutory period) and the suit is filed after the expiry of the statutory period and defendant pleads non-receipt of the notice in the written statement can defendant say that the notice is illegal

4. Whether the defendant who denies the receipt of the notice in the written statement can take benefit of the omission of the statutory period in the notice within which the rent is to be paid

5. When the suit was filed for the necessity of two persons i.e. father and non-consideration and non-returning of finding on the need of the son has vitiated the judgment of the 1st appellate Court

6. Whether the judgment of the 1st appellate Court is erroneous because of non-consideration of material evidence of defendant having an alternative shop

7. Whether the judgment of the 1st appellate Court is perverse as the same is based on misreading of the evidence

9. Questions 1 to 4 revolve around a common fulcrum and are taken up together. The basic question of law rather is comprised in question No. 1, which is:

whether in a notice for payment of the arrears of rent required to be issued by the landlord to the tenant in terms of proviso to Clause (i) of the proviso to Section 11(1) of the Act, it is mandatory to mention the period of thirty days-for payment or deposit of the rent

10. Contextually, the notice dated 7-3-1995 issued by the appellant to the original respondent is noticed, which has been noticed by both the Courts below too. Paras 2, 3 and 4 of this notice, which are relevant, read:

2. That my client requires the shop for his personal use for the reasons that his son Sanjeev Kumar Gupta, who has qualified Electrician Diploma, have grown up and he was to settle in the business. Besides this, my client has been serving in the shop of his father and intends to separate from his father to run his own business in owned shop along with his son.

3. That besides the above fact you are a bad tenant who have not paid the rent from August, 1990 till date amounting to Rs. 11000/- for 55 months till Feb., 1999 on which ground alone your tenancy is liable to be terminated.

4. That, therefore, my client gives this notice to you requiring you to kindly vacate, the shop in Main Bazar Samba by 15th of April, 1995 by 12 p.m. midnight, or on such other date, which you consider to be the day of which the month of your tenancy ends and also to pay the arrears of rent amounting Rs. 11,000/-, failing which my client shall institute a suit for ejectment against you before the competent Court along with the suit for recovery of the arrears of rent and which procedure shall burden you with costs.

(Underlining by me)

11. The notice served by the appellant (landlord) on its plain reading would show that it called upon the original respondent (tenant), firstly, to vacate the shop by the midnight, the 15th April, 1995, or on such other date, which he considered to be the day the month of his tenancy ends and secondly, to pay the arrears of rent amounting to Rs. 11000/-. The notice, however, did not specify any period within which the arrears of the rent were to be paid to the appellant or deposited before the Rent Controller by the original respondent.

12. Mr. L.K. Sharma, learned senior Advocate, appearing on behalf of the appellant would say that mentioning of the period of thirty days for payment of rent in the notice cannot be taken as a mandatory requirement for the reason that tenant is in know of the fact that he is in arrears, particularly in a case, where in the written statement receipt of notice is denied by the tenant. Learned senior Advocate further submitted that the proviso to Clause (i) of the proviso to Section 11(1) of thecasts a duty on the tenant to deposit the rent within thirty days of the receipt of the notice by him and no tenant can succeed by pleading ignorance of law before the Court. Learned senior Advocate relied upon a Kerala High Court judgment in Ayisabeevi v. Aboobacker, AIR 1971 Ker 231 [LQ/KerHC/1970/294] . Mr. Sharma further argued that since the suit was filed after committing three defaults so benefit under Section 12 of thewas not available to the respondent.

13. Per contra, Mr. Sunil Dutt Sharma, appearing on behalf of the original respondent, argued that giving the tenant clear thirty days-time for payment of arrears of rent is mandatory requirement of the said proviso and unless that is done the notice is not legal and no default can be said to have been committed by the tenant and cause of action for filing the suit for ejectment on that score does not arise.

14. In order to deal with the question so arising, I would have first to analyze briefly the scheme under Section 11 of theread with Section 12 in regard to the default in payment of rent as a ground for ejectment of the tenant.

15. Section 11(1) of theprovides complete protection to a tenant against his ejectment from the demised premises. It provides that notwithstanding anything to the contrary in any other Act or Law, no order or decree for recovery of possession of any house or shop shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired. Proviso to Section 11(1), however, excludes certain situations in which such protection is not available to the tenant. It can be said that various clauses of the proviso to Section 11(1) of thein effect lay down the grounds on which a landlord can file a suit for ejectment against his tenant.

16. Under Clause (i) of the proviso to Section 11(1) of thethe default in payment of rent by the tenant has been provided as a ground for seeking his ejectment from the demised premises. Clause (i) reads:

(i) subject to the provisions of Section 12, where the amount of two months-rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed for contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with Section 14:

Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through Post Office under a registered cover on the tenant to pay or deposit the arrears within a period of (thirty) days from the date of the receipt of such notice and the tenant fails to pay or deposit the said arrears within the specified period.

(Underlining by me)

17. Under Clause (i) of the proviso to Section 11(1), if a tenant fails to pay the rent of the demised premises to the landlord continuously for two months within the time for payment of rent fixed by the contract between them or, if there is no such contract, within fifteen days of the next following month, a ground accrues to the landlord for filing suit for ejectment against the tenant. But accrual of the ground on this score is governed by the proviso to the said clause. What the landlord is required to do before filing the suit is to serve a notice in writing through Post Office under registered cover on the tenant to pay or deposit the said arrears of the rent within a period of thirty days from the date of the receipt of such notice and the suit for ejectment on the ground of default can be filed only if the tenant fails to pay or deposit the same within the said specified period of thirty days. If, however, the tenant pays or deposits the arrears within the specified period of thirty days the ground so accrued ceases to exist and the suit on this score would not lie.

18. The intention of the legislature is primarily to be gathered from the language and used in the statute. It is well settled principle of law that a plain meaning should be attributed to a provision incorporated in a statute. The language used in the proviso to Clause (i) of the proviso to Section 11(1) of theis too clear and unambiguous to entertain scope for any interpretation other than what it plainly conveys. The proviso makes it mandatory for the landlord on tenants failure in payment of two months-rent to serve a notice on the tenant asking him to pay or deposit the arrears within a period of thirty days from the date of receipt of such notice. The default in payment of the rent for the purpose of filing the suit for ejectment on that ground is constituted only if the arrears of rent are not paid or deposited within the specified period of thirty days.

19. The default in payment/deposit of two months-rent in terms of Clause (i) of proviso to Section 11(1) of the Act, which in context of Section 12 of thecan be called as the single or the first default, is completed only on the expiry of the thirty days-period after the date of receipt of the notice under proviso to the said clause by the tenant. Such a single default in payment/deposit of the arrears of the rent in itself is a sufficient ground for filing the suit for ejectment under Clause (i) of proviso to Section 11(1) of the. A landlord can file a suit for ejectment on the basis of the single default in payment of rent by the tenant but such a single default will not create absolute right in favour of the landlord in view of Section 12 of the. Such a suit is likely to be defeated if the tenant deposits the rent in the Court in terms of Section 12 of the. Absolute right, however, is created if landlord does not file suit for ejectment immediately after the completion of the single default and waits for completion of three such defaults before filing of the suit. This aspect has been explained in detail by the learned Division Bench of this Court in Sikandar Pal Jain v. S. Gurcharan Singh, 1978 JKLR 598.

20. The completion of the first default in terms of Clause (i) of the proviso to Section 11(1) of the Act, therefore, is the sine quo non for filing a suit for ejectment on the ground of default in payment of rent. Such a default is constituted only after completion of thirty days time to be provided by the landlord by virtue of the notice issued in terms of the proviso to Clause (i). It is, thus, mandatory for the landlord to specify the thirty days period for payment or deposit of the arrears of the rent in the notice issued by him in terms of the said proviso. The argument of learned counsel for the appellant cannot be adjusted within the scheme of the law because of thirty days-period for payment/deposit of the arrears of the rent is not mentioned in the notice, it shall remain open for the tenant to pay/deposit the arrears at any time of his choosing and default for the purpose of filing the suit for ejectment on that ground will never be constituted. There is no indication in the proviso to the effect that the service of notice on the tenant without specifying the said period of thirty days casts an obligation on him to pay or deposit the rent within thirty days thereafter. The duty rather is cast on the landlord to ask the tenant by virtue of the notice to pay or deposit the arrears within thirty days of the receipt of notice by him.

21. No error, therefore, can be said to have been committed by the learned 1st appellate Court in holding that the notice issued by the appellant to the original respondent was invalid for the failure in mentioning therein the thirty days-period for payment or deposit of the arrears of the rent and the first default as contemplated under Clause (i) of the proviso to Section 11(1) of thewas not constituted. The impugned judgment and decree, therefore, does not call for any interference on this score.

22. The judgment of Kerala High Court in Ayisabeevi (AIR 1971 Ker 231 [LQ/KerHC/1970/294] ) (supra) does not apply and is of no benefit to the appellants case for the simple reason that the same relates to the requirement of a notice to quit in terms of section 106 of the Transfer of Property Act.

23. The questions 5, 6 and 7 relate to the personal requirement of the appellant (landlord). As noticed above, case set up by the appellant in his plaint read with the amended plaint before the trial Court was that the suit shop was required by him for establishing his own business in Karyana Stores as also to settle his son, Sanjeev Kumar Gupta, who had come of age and was unemployed after academic qualification. It was contended also that the appellant was serving in the shop of his father and has ample experience of business in Karyana stores and had arranged money for running his independent business. Original respondents reply in this regard was that appellant was well settled in Karyana business in a shop comprising of two shops with two shutters in the main market, Samba having two shutters. His father was an ailing person of 85 years who virtually had retired from the business and the appellant was sole proprietor of the said business. In regard to the son of the appellant, it was contended by the original respondent that he was technically qualified in electrical engineering and his qualification was neither compatible with Kerayana business nor in consonance with his aptitude. It was contended also that in any case appellants son could be easily adjusted in the big shop from where the appellant was running his business. It was contended also that appellants family was having seven ancestral shops in the main market two of which were lying vacant. It was contended also that requirement of original respondent of the demised shop was much greater than that of the appellant.

24. The learned trial Court after appreciation of the evidence led by the parties arrived at a conclusion that the appellant was able to prove that he had the requirement of the suit shop for himself and for the benefit of his son, Sanjeev Kumar and that appellants requirement was more than that of the original respondent. Learned 1st appellate Court, however, did not concur with the finding arrived at by the trial Court and held that the requirement of the appellant of the suit shop was not proved.

25. The analysis of the impugned judgment rendered by the 1st appellate Court would show that the evidence in support of the fact that the appellant was working on the shop of his father as his employee did not find favour of the learned Court. Learned Court, while noticing that the father of the appellant had stated in his deposition before the trial Court that the salary being paid by him to the appellant used to be adjusted in the accounts, took the view that this fact could have been proved by producing the best evidence. Besides, the 1st appellate Court noticed that the contention that the shop where the appellant was working has fallen to the share of his brother, who wants to return from Delhi to Samba and start his business from that shop, was not spelled out in the plaint. The evidence to the effect that the brother of the appellant intends to return to Samba seems not to have found favour of the 1st appellate Court for the reason that the person, who could have proved this fact, was the brother of the appellant but he was not produced as witness. Contextually, learned 1st appellate Court noticed that it was not stated as to when the brother of the appellant was returning back and starting his business and that there was nothing to show that he had asked the appellant to vacate the shop or issued any oral or written notice to his father in this regard. The appellants requirement of the suit shop for establishing his son in the Kerayana business seems not to have found favour of the learned 1st appellate Court as the learned Court held in this regard that the best person to depose that the son of the appellant wants to start the business with the appellant and has the aptitude of doing the business was the son of the appellant but he was not produced by the appellant. Learned trial Court also noticed the subsequent development caused due to the death of appellants-father somewhere in the year 1999, observing that appellant had been working in the same shop even after death of his father.

26. Mr. Sharma, learned senior Advocate appearing on behalf of the appellant, argued that there was no rebuttal to appellants evidence that the appellant was working at the shop of his father as his paid employee or that the shop where the appellant is working has fallen to the share of his brother, Ravinder Kumar, who is presently residing at Delhi and intends to return back and start his business at Samba. In absence of any rebuttal, learned trial Court has committed error of law in rejecting the evidence rendered by the appellant and his father PW-Parmanand. Learned senior Advocate pointed out that at one stage in the impugned judgment the learned 1st appellate Court has noticed that the business at which appellant was working was owned by his father so rejection of appellants evidence was illegal. Mr. Sharma argued further that the requirement of the appellant comprised of his personal necessity as well as the necessity for establishing his son in business but the learned 1st appellate Court has committed grave error of law in taking the view that son of the appellant was an important witness to prove his requirement and thereby ignoring appellants requirement on that score. Learned counsel would say that appellant was a competent witness to prove his requirement for establishing his son. Learned counsel relied upon a judgment of Madras High Court in S. Mariappan v. Kadar Beevi, 1998 (1) Ren CR 181 : (1997 AIHC 3386 (Mad)).

27. Per contra, Mr. Sunil Dutt Sharma, learned counsel for the respondents supported the impugned judgment. Learned counsel urged that the factum of personal requirement of the appellant has not been proved from the evidence led by him. Learned counsel argued that the appellant admittedly is running a karyana store at Samba and evidence led by him did not show that the said store is owned by his father and he was working only as paid employee.

28. It is important to note that the 1st appellate Court has not recorded any finding that the karyana business being run from the shop at Samba, where the appellant is presently working, was owned by the appellant. Learned Court has rather noticed and emphasised with approval the evidence of PW-Taramani that father of the appellant is the exclusive owner of the business being run in the said shop and the similar evidence rendered by PW-Parmanand, that is, father of the appellant. This, however, has been done by the learned 1st appellate Court in order to reject the appellants apprehension that he would be rendered unemployed in the event of his brother returning from Delhi and starting business at Samba.

29. It is noticed that the evidence led by the appellant through his own deposition and the deposition of his father, PW Permanend, to the effect that the shop at Samba where the appellant is working as an employee of his father has fallen to the share of his brother, Ravinder Kumar and that his brother intends to return to Samba and start his business from the said shop has not found favour of the learned 1st appellate Court for the reason that best evidence in this regard could have been rendered by producing said Ravinder Kumar as a witness. Learned Court seems to have rejected appellants evidence to this effect also for the reason that such a plea was not taken in the plaint. Learned Court, however, seems to have ignored that there was no rebuttal to the appellants evidence to this effect and has not recorded any reason as to how the un-rebutted evidence rendered by the appellant and his father was not sufficient to prove these facts. Learned Court has certainly fallen in error by rejecting the un-rebutted evidence of the appellant without recording any reason. In civil cases the principle of proof beyond reasonable doubt does not apply. For deciding a civil case or a fact or facts involved in a civil case, preponderance of probability, that is, greater weight of evidence led by a party as compared to the evidence of the opposite party is sufficient enough to incline the Court to one side of the issue.

30. The 1st appellate Court after having found favour with the appellants evidence that the business being run from the shop at Samba, where he has been working, was owned by his father, should not have drawn adverse inference against the appellants case even if in the opinion of the Court it was not proved that the appellant had been working as an employee of his father or it was not proved that the said shop had fallen to the share of his brother. There being sufficient evidence to the effect that the business run from the said shop was owned by the father of the appellant and there being no evidence to show that the said business was inherited by the appellant after the death of his father during pendency of ejectment proceedings, no doubt could have been entertained about the bona fide of the personal requirement of the appellant for starting his own business from the suit shop, which undisputedly is owned by him. In denying the landlords personal requirement, it is not open for the tenant to expect the landlord to continue working in a business which is not owned by him.

31. Another aspect of this case is that the requirement of the appellant has the element of duality, that is, requirement for starting business for himself and for establishing his son. Both these aspects were required to be given equal weightage. Learned 1st appellate Court has fallen in error of law by rejecting the appellants necessity for establishing his son for the simple reason that the said son was not produced as witness to state that he wanted to start business along with his father and has the aptitude of doing such a business. Under Clause (h) of the proviso to Section 11(1) of the Act, a reasonable requirement of a landlord comprises of the requirement for his own occupation as well as the requirement for occupation of any person for whose benefit the house or shop is held. There is no settled principle of law that requirement of demised premises for occupation of a person other than the landlord himself, like son of the landlord, should be established by producing the said person as witness. What is required is that the requirement on either score must be bona fide and it is rather well settled that landlord himself is a competent witness to prove the requirement for himself or for any other person for whose benefit the shop is held.

32. In Gulraj Singh Grewal v. Dr. Harbans Singh, AIR 1993 SC 1574 [LQ/SC/1993/28] , eviction of the tenant was sought for the requirement of the son of the landlord. The son was also joined as a petitioner but was not examined before the Court. Only the landlord was examined. An argument was taken before the Supreme Court that non-examination of the son is a material circumstance to show lack of good faith. In paragraph 8 of the reporting, their Lordships considered the point and held thus:

Learned counsel for the appellant submitted that the personal need found proved is only of respondent No. 2, son of respondent No. 1, who did not enter the witness-box and, as stated in an affidavit filed in this Court, even he is carrying on his profession at a place about 25 kms., away from Ludhiana. In our opinion, this finding of fact is unassailable. The High Court has clearly observed that no meaningful argument could be advanced on behalf of the appellant to challenge this finding of the appellate authority. Respondent No. 1 who is the father of respondent No. 2, has supported and proved the need of respondent No. 2, who also is a landlord. The fact that for want of suitable accommodation in the city of Ludhiana, respondent No. 2 is at present carrying on his profession at some distance from Ludhiana is not sufficient to negative the landlords need. In these circumstances, the non-examination of respondent No. 2 also, when respondent No. 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter relating only to appreciation of evidence, on which ground this finding of fact cannot be reopened........

33. I would, thus, hold that the learned 1st appellate Court has fallen in error of law by rejecting the appellants personal requirement and has further committed grave error by ignoring appellants - requirement for starting the business for his son in the suit shop.

34. Viewed, thus, this appeal is partially allowed. The judgment and decree of the 1st appellate Court to the extent it sets aside the eviction of the original respondent from suit shop on the ground of the personal requirement of the appellant is set aside. In the result, judgment and decree of learned trial Court to the extent of eviction of the original respondent (now his L.Rs.) on the basis of personal requirement of the appellant and recovery of the arrears of rent shall prevail.

35. In the circumstances of the case, the parties are left to bear their own costs. Registry shall draw the decree sheet accordingly.

36. Disposed of.

Final Result : Partly Allowed