Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 807 (PNJ)

Shubh Ishya Devi v. Bihari Lal

2004-08-02

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This is a petition under Section 18A (8) of the East Punjab Urban Rent Restriction Act, 1949 filed by the landlady-petitioner to challenge the order of the Rent Controller dated 30.10.2003 granting leave to contest to the tenant-respondent. The principal ground for allowing the application for leave to contest is that the tenant-respondent has filed a civil suit for permanent injunction against the landlady-petitioner alleging that she has already entered into an agreement to sell the demised shop to one Khushi Ram. 2. Brief facts of the case as disclosed in the memorandum of petition are that the landlady-petitioner is owner of the demised premises which was rented to the tenant-respondent at the rate of Rs. 250/- per month. The rent was payable in advance every month. According to the assertions made by the landlady-petitioner she is Non Resident Indian and has returned to India for permanent settlement since October, 2001. It has been pleaded that she wishes to run the dispensary in the demised premises. The tenant- respondent filed an application for grant of leave to contest the ejectment petition by pleading that the lady-respondent is not a Non Resident Indian and it was further alleged that she is likely to sell the property at higher price after his ejectment. It was also pleaded that the tenant-petitioner has filed a suit for permanent injunction alleging that the landlady-petitioner has entered into an agreement to sell the demised shop to one Khushi Ram. The Learned Rent Controller accepted the application of the tenant-respondent and granted leave to contest by holding as under :- "4. Before proceeding further, It would like to reiterate the provisions of section 13-B(5) of the East Punjab Urban Rent Restriction Act which read as under: - "The controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of residential building on the ground specified in sub clause (i) of clause (a) of sub Section (3) of Section 13." 5. The Honble Apex Court in case titled as Inderjit Kaur v. Nirpal Singh, 2001(1) R.C.R. 33 while deciding civil appeal arising out of Special Leave Petition under the Delhi Rent Control Act, 1968 observed that:- "A landlord who bonafidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bonafide or untenable and as such entitled to obtain an order of eviction. Hence, the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of Chapter-Ill and in particular having regard to the clear terms and language of Section 258(5)". 6. As an off shot of my above brief discussion, I have arrived at the confirmed and considered conclusion that the contentions raised in the affidavit of the respondent that the petitioner/landlord is not a NRI and has not required the property for her personal use but the same is being vacated in order to sell the same on higher price can only be decided if the tenant/respondent is given opportunity to contest the ejectment petition. As a result, the application moved by the respondent is allowed." 3. Mr. Hitesh Kaplish, learned counsel for the landlady-petitioner has argued that there is an inbuilt mechanism provided by Section 19(2)(d) which could take care of various eventualities which may constitute a basis for an order of ejectment. Referring to the facts of the present case, the learned counsel has submitted that the Rent Controller could not grant leave merely on the ground that the landlord-petitioner is not a Non Resident Indian or that she intends to sell property in pursuance to an agreement to sell. According to the learned counsel, in case the landlady fails to occupy the premises or she sells it off or rent it further, the tenant-respondent is entitled to invoke appropriate remedy for prosecution and re-occupation of the demised premises. The learned counsel has stressed that at the out set, leave to contest cannot be granted merely on the ground that the landlady has already entered into an agreement to sell the demised premises to one Khushi Ram. The learned counsel has stressed that at the out set, leave to contest cannot be granted merely on the ground that the landlady has already entered into an agreement to sell the demised premises to one Khushi Ram. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Sohan Lal v. Swaran Kaur,1 2003(2) R.C.R. 407. 4. Mr. Pardeep Bhandari, learned counsel for the tenant-respondent has argued that once the bonafide of the landlady has become doubtful, the leave to contest has to be granted because it is only at a proper trial that the document like agreement to sell could be tendered in evidence and the intention of the landlady-petitioner could be exposed. In a summary proceeding, as contemplated under Section 18(A) such evidence could not be adduced and the rights of the tenant-respondent would be completely prejudiced. 5. After hearing the learned counsel for the parties. I am of the considered view that the impugned order deserves to be upheld. From the statement of the landlady-petitioner made on 17.12.2003 in the suit filed by the tenant-respondent, it is evident that an agreement to sell has been entered into by her with one Khushi Ram in respect of the demised shop. The aforementioned statement has been read out by the learned counsel for the tenant-respondent which could not be controverted by the learned counsel for the landlady-petitioner. Such an agreement to sell by the landlady-petitioner raised a reasonable doubt on her bonafide necessity to occupy the premises because had she required the premises for her own personal use as provided by Section 18-A of the Act then there was no question of her entering into an agreement to sell. Such a blatant fact has come on record at the threshold of the proceedings. The object of the Act is not to encourage unscrupulous landlord to seek ejectment of a tenant but to ensure that one building under the tenancy becomes available to a Non Resident Indian after he returns to India. There is a specific bar of Section 13(2)(b) of the Act that he cannot transfer through sale or any other means or let it out before the expiry of period of five years from the date of taking possession of the building. There is a specific bar of Section 13(2)(b) of the Act that he cannot transfer through sale or any other means or let it out before the expiry of period of five years from the date of taking possession of the building. If the landlord fails to comply with the aforementioned provision then the tenant has been clothed with the right to apply for restoration of possession. Section 19(2)(b) of the Act provides for a penal action against any lapse of the landlord. 6. The argument that Sections 18(3) and 19(2)(B) of the Act have taken care of an eventuality of a non-occupation of the tenanted premises then the same very plea cannot constitute a basis for grant of leave to contest, cannot be accepted because if at the threshold of the proceedings the bonafide of the landlord are open to serious doubts then it is only at the trial that the tenant could establish the fact of agreement to sell and expose the intention of such a landlord. The fraudulent and frivolous nature of ejectment proceedings could not be substantiated if the Rent Controller has permitted the proceedings in a summary manner. The object of Section 13-B of the Act is not to encourage the frivolous and fanciful litigation by the Non Resident Indian. Therefore, there is no merit in the arguments raised. 7. For the reasons recorded above, this petition is devoid of merit and is accordingly dismissed.