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2004 DIGILAW 1162 (PNJ)

Assa Singh v. Charanjiv Singh Gulati

2004-10-12

ASHUTOSH MOHUNTA

body2004
Judgment Ashutosh Mohunta, J. 1. The tenant has filed this petition to challenge the order dated 23.12.2003 passed by the Rent Controller, Patiala, whereby the petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short `the Act) filed by the respondent-landlord for ejectment of the tenant from the demised premises has been allowed and the application filed by the tenant under Section 18-A of the Act has been dismissed. 2. Assa Singh tenant was inducted as a tenant in the shop in dispute by Mann Singh, deceased father of the respondent-landlord vide rent note dated 16.3.1971. After the death of his father, Assa Singh landlord filed the ejectment petition under Section 13-B of the Act on the ground of his being a Non-Resident Indian (for short `NRI) as he was a Green Card Holder in U.S.A. and he wanted the demised shop situated in Patiala to be vacated from the tenant as he wanted to settle in India. The tenant filed an application under Section 18-A of the Act with the prayer to contest the petition filed by Charanjiv Singh Gulati landlord on the ground that Charanjiv Singh was not the exclusive landlord of the demised shop and that he was not a Non-Resident Indian and is not covered by the definition given under Section 2(dd) of the Act. After hearing the counsel for the parties, the Rent Controller, Patiala, vide judgment dated 23.12.2003 allowed the petition for ejectment filed by the landlord and dismissed the application under Section 18-A of the Act filed by the tenant. Now Assa Singh tenant has filed the present revision petition to challenge the judgment delivered by the Rent Controller. 3. The primary contention raised by Mr. Sarjit Singh, learned Senior Advocate, appearing for the tenant-petitioner, is that Charanjiv Singh Gulati respondent is not covered under the definition of `Non-Resident Indian as given in Section 2(dd) of the Act and also that he had not proved himself to be owner of the demised shop and it was not let out by him but by his deceased father. On this ground it has been contended by Mr. Sarjit Singh that Charanjiv Singh was not competent to file the petition under Section 13-B of the Act for the eviction of the tenant from the shop in dispute. On this ground it has been contended by Mr. Sarjit Singh that Charanjiv Singh was not competent to file the petition under Section 13-B of the Act for the eviction of the tenant from the shop in dispute. Lastly it has been contended by the learned counsel for the petitioner that the Rent Controller had erred in dismissing the application under Section 18-A of the Act filed by the tenant and the plea of collusive decree passed in the favour of the landlord in earlier proceedings could be raised even in a later proceeding also. In support of his contention Mr. Sarjit Singh, learned Senior Advocate has placed reliance on Gram Panchayat of Village Naulakha v. Ujagar Singh and others, AIR 2000 Supreme Court 3772. 4. The contentions raised by Mr. Sarjit Singh have been controverted by Mr. Arun Jain, learned counsel for the respondent-landlord. It has been contended by Mr. Arun Jain, learned counsel for the respondent-landlord, that Charanjiv Singh Gulati is fully covered under the definition of `Non-Resident Indian as given in Section 2(dd) of the Act and he has also proved himself to be the landlord of the demised shop for the purpose of filing a petition under Section 13-B of the Act. In support of his contention he has placed reliance on the Civil Court decree dated 28.4.1995. Mr. Jain has also relied on Jagdish Lal v. Devi Dayal Sharma, 2004(2) Rent Control Reporter 97; Sohan Lal v. Swaran Kaur, 2003(2) Rent Control Reporter 407; Prem Kumar Patel v. Inderjit Singh Grewal and others, 2002(2) RCR(Rent) 203 (P&H) : 2002(3) PLR 829 and Smt. Kanta Goel v. Shri B.P. Pathak etc., 1977 Current Law Journal (Civil) 299 : 1777(2) RCR(Rent) 103 (Delhi). After hearing the learned counsel for the parties and on going through the case-law on the point cited by them, I am of the considered opinion that the present revision petition deserves to be rejected being without any merit. 5. For adjudication of the present controversy two points are required to be settled :- 1. Whether the respondent is covered under the definition of `Non- resident Indian as given in Section 2(dd) of the Act ? 2. Whether the respondent is the landlord and is competent to file a petition for ejectment under Section 13-B of the Act ? 5. For adjudication of the present controversy two points are required to be settled :- 1. Whether the respondent is covered under the definition of `Non- resident Indian as given in Section 2(dd) of the Act ? 2. Whether the respondent is the landlord and is competent to file a petition for ejectment under Section 13-B of the Act ? As per the definition given in Section 2(dd) of the Act a `Non-Resident Indian is a person of Indian origin, who is either permanently or temporarily settled outside India in either case- (a) for or on taking up employment outside India; or (b) for carrying on a business or vocation outside India; or (c) for any other purpose, in such circumstances, as would indicate his intention to stay outside India for an uncertain period. 6. The main objection of the tenant-petitioner is that Charanjiv Singh Gulati has nowhere pleaded in his petition that he had taken up employment in U.S.A. or that he was carrying on business or vocation thereat. Even if the landlord has not taken any plea in this regard, it does not preclude him out of the purview of NRI. As per clause (c) of Section 2(dd), the intention to stay outside India for an uncertain period is sufficient for a person to contend that he was an NRI. In the present case the landlord-respondent has been issued passport with B-1 and B-2 permits. B-1 permit is issued to those who intend to do business in U.S.A. and B-2 permit is meant for roaming around. The validity of the passport issued to landlord is for 10 years. Not only this, the landlord is also a Green Card Holder, which is also called Permanent Resident Card. This card was statedly issued to him on 11.10.2002. The possession of all these documents by the landlord leaves no manner of doubt that the landlord had the intention to live outside India for an uncertain period. This fact amply brings the landlord within the ambit of clause (c) of Section 2(dd) of the Act. Thus, it is proved beyond any shadow of doubt that the landlord-respondent was a Non-Resident Indian. This fact amply brings the landlord within the ambit of clause (c) of Section 2(dd) of the Act. Thus, it is proved beyond any shadow of doubt that the landlord-respondent was a Non-Resident Indian. In this regard, I am supported by the judgment of this Court reported as Sohan Lal v. Swaran Kaur, 2003(2) RCR(Rent) 407 (P&H), wherein it has been held that "....the definition of expression NRI cannot be confined to only those who are holding Indian Passport and continue to be the Indian citizens. The definition in fact embraces all those categories of Indians living abroad whether citizens or non-citizens, whether born in India or abroad, whether carrying Indian or foreign passport. It appears that as long as he is owner of a property in the State of Punjab, Legislature has intentionally used a wider expression to include large number of categories of NRIs." 7. Now the question arises whether he was the owner/landlord of the demised premises or not to enable him to file a petition under Section 13-B of the Act ? The undisputed facts in the present case are that Shri Mann Singh, father of Charanjiv Singh Gulati, died about 20 years prior to the filing of the petition under Section 13-B of the Act by the respondent-landlord. It has been contended by Mr. Sarjit Singh, learned Senior Advocate, that judgment and decree dated 28.4.1995 passed by the Civil Court whereby the landlord has been declared to be the exclusive owner of the shop in question was a collusive decree and could not operate as res judicata against the petitioner-tenant for debarring him from contesting the petition for ejectment filed by the landlord. For the sake of argument, even if it is assumed that the decree dated 28.4.1995 was a collusive decree and would not operate as res judicata against the petitioner-tenant in the present proceedings, but it is the admitted fact that the shop in question was inherited by the landlord- respondent along with his brother and four sisters by way of natural succession after the death of his father Mann Singh about 20 years back. In this way, admittedly, Charanjiv Singh Gulati was proved to be the co-owner thereof to the extent of one-sixth share. In this way, admittedly, Charanjiv Singh Gulati was proved to be the co-owner thereof to the extent of one-sixth share. In Smt. Kanta Goels case (supra) it has been held by their Lordships of the Supreme Court that co-owner is as much an owner of the entire property as any sole owner of the property is. It is not correct to say that a co-owner of a property is not its owner. It cannot be said that he is only a part owner or a fractional owner thereof. On the same analogy it can safely be contended that the landlord-respondent in the present case was the owner of the shop in question and was competent to move an application under Section 13-B of the Act to seek eviction of the tenant- petitioner. The relevant caluse of Section 13-B of the Act is reproduced below for ready reference :- "(1) Where an owner is a Non-Resident Indian and returns to India and the residential building or scheduled building and/or non-residential building, as the case may be, let out by him or her, is required for his or her use, or for the use of any one ordinarily living with and dependent on him or her, he or she may apply to the Controller for immediate possession of such building or buildings, as the case may be : Provided that a right to apply in respect of such a building under this section, shall be available only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner. xx xx xx xx" 8. Admittedly, in the present case the father of the landlord-respondent died about 20 years prior to the filing of the present petition under Section 13-B of the Act. It means that Charanjiv Singh Gulati became the owner or co-owner thereof immediately after his death by way of natural succession about 20 years back. The only condition precedent is that the right to file an application under Section 13-B is available to a Non-Resident Indian only "after a period of five years from the date of becoming the owner of such a building....." The said condition stands complied with in the present case. 9. The next argument raised by Mr. The only condition precedent is that the right to file an application under Section 13-B is available to a Non-Resident Indian only "after a period of five years from the date of becoming the owner of such a building....." The said condition stands complied with in the present case. 9. The next argument raised by Mr. Sarjit Singh, learned Senior Advocate, that the shop in dispute was let out by the father of Charanjiv Singh Gulati respondent and not by the latter. On the basis it has been contended that the respondent was not competent to file the present ejectment petition under Section 13-B of the Act. 10. The argument raised by Mr. Sarjit Singh has no merit in view of the admitted position that Charanjiv Singh Gulati succeeded by way of natural succession to the property left behind by his father Mann Singh, who died about 20 years prior to the filing of the present petition. In Smt. Kanta Goels case (supra) the premises were rented out to a tenant by the owner- landlord. After the death of the landlord, his son got the property by inheritance. The question arose whether the son should be deemed as the landlord or not ? Their Lordships of the Supreme Court answered the question in the affirmative and held that the "son steps into the shoes of his father as an heir and is entitled to sue as landlord." In view of this dictum of their Lordships of the Supreme Court, the argument raised by Mr. Sarjit Singh, learned Senior Advocate, is without any force and is thus, rejected. 11. The argument raised on behalf of the petitioner that the landlord had another shop at Patiala is also without any force in view of the judgment of this Court in Prem Kumar Patel v. Inderjit Singh Grewal and others, 2002(3) Punjab Law Reporter 829, wherein it has been held that the ownership or possession of other suitable accommodation in the same area is no bar on a Non-Residential Indian to get one building of his choice vacated under Section 13-B of the Act. 12. No other point has been raised. In the light of the above discussion, I do not find any infirmity in the judgment dated 23.12.2003 passed by the Rent Controller, Patiala. Consequently, there is no merit in the present revision petition. It is, accordingly, dismissed. 12. No other point has been raised. In the light of the above discussion, I do not find any infirmity in the judgment dated 23.12.2003 passed by the Rent Controller, Patiala. Consequently, there is no merit in the present revision petition. It is, accordingly, dismissed. However, I leave the parties to bear their own costs. The tenant is directed to hand over the vacant possession of the shop in question to the landlord within two months from the date of receipt of a certified copy of this order. The stay order passed by this Court on 5.3.2004 stands vacated. Copy of the order be given dasti. Petition dismissed.