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2006 DIGILAW 245 (PNJ)

Karnail Singh v. Surinder Singh @ Chhinda

2006-02-01

HEMANT GUPTA

body2006
Judgment Hemant Gupta, J. 1. The challenge in the present petition is to the order dated 9.10.2003 passed by the learned Rent Controller, whereby the respondent was granted leave to contest the ejectment petition field by the petitioner under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act). 2. The petitioner has sought the ejectment of the respondent in terms of the provisions of Section 13-B of the Act on the ground that the father of the petitioner has inducted the respondent as tenant about 20 years back at the rent of Rs. 200/- per month. The father of the petitioner died on 17.9.1997 and thus, he has succeeded the estate along with his other brothers and sons of his pre-deceased brother. It has been further pleaded that he is a Non-Resident Indian and has returned to India, therefore, he is entitled to immediate possession of the shop in dispute. 3. The respondents sought leave to contest the petition primarily on the ground that the petitioner is not the sole owner of the premises in dispute and the rate of rent is Rs. 450/- per month. The petitioner has no authority on behalf of the other co-owners to move the present petition. The petitioner as a co-owner can file the ejectment petition only with the express authority and consent of the other co-owners. It has been also pleaded that the petitioner is not a Non Resident Indian as he was born in Malaysia and has obtained British citizenship. The petitioner has never been an Indian citizen and thus, the petitioner is not entitled to seek eviction of the respondent under the provisions of Section 13-B of the Act. 4. The learned Rent Controller granted leave to defend the ejectment petition on. the ground that the petitioner has not joined the other co-owners as party to the petition and, therefore, it is required to be examined whether the petition is maintainable without the consent of the other co-owners. It has been further found that the petitioner is a British passport holder but the passport does not show the origin of the petitioner and, therefore, the triable issues are and thus, granted the permission to the respondent to contest the petition. 5. It has been further found that the petitioner is a British passport holder but the passport does not show the origin of the petitioner and, therefore, the triable issues are and thus, granted the permission to the respondent to contest the petition. 5. Learned Counsel for the petitioner has argued that the petitioner as a co-owner is competent to seek ejectment of the tenant in the proceedings under Section 13-B of the Act. It is not necessary for the petitioner to obtain express authority or consent of the other co-owners. Reference is made to the judgment of the Hon ble Supreme Court reported as 2004(1) Civil Court Cases 412 M/s India Umbrella Manufacturing Co. and Ors. v. Bhagahandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla, wherein the Hon ble Supreme Court while placing reliance on its earlier judgment reported as Shri Ram Pasricha v. Jagannath and Ors. and Dhannalal v. Kalawatibai and Ors., has held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owner is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. As a matter of fact the said question came up for adjudication before this Court in Civil Revision No. 6938 of 2005 (Kewal Krishan v. Mohan Singh, decided on 9.1.2005). Relying upon the judgment of the Honble Supreme Court in the case of Dhannalal v. Kalawatibai and Ors., it has been held that one of the co-owners is competent to seek eviction of the tenant in terms of the provisions of Section 13-B of the Act. Relying upon the judgment of the Honble Supreme Court in the case of Dhannalal v. Kalawatibai and Ors., it has been held that one of the co-owners is competent to seek eviction of the tenant in terms of the provisions of Section 13-B of the Act. In Dhannalals case (supra), the Hon ble Supreme Court observed as under:- It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath ; Kanta Goel v. B.P. Pathak and Pal Singh v. Sunder Singh, that one of the co-owners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. When the property forming the subject-matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object.... 6. The reasoning given by the learned Rent Controller that the petitioner is a British citizen and there is nothing in the passport to reflect that he is a person of Indian origin, is again devoid of merit in view of the judgment of the Hon ble Supreme Court in Baldev Singh Bajwa v. Monish Saini 2005(2) R.C.R 470, wherein it has been held that the person, whose parents, grand parents or great grand parents were bom in India and permanently resided in India, would be a Non Resident Indian for the purposes of the Act. The relevant extract from the said judgment are reproduced as under:- ...The phrase "Indian Origin" has not been defined in the Act of 1949. The dictionary and in ordinary parlance phrase "origin" refers to persons parentage or ancestry. The person whose parent, grand-parents, or great-grand parents were born in India and permanently resided in India would be an NRI for the purposes of the Act of 1949. The dictionary and in ordinary parlance phrase "origin" refers to persons parentage or ancestry. The person whose parent, grand-parents, or great-grand parents were born in India and permanently resided in India would be an NRI for the purposes of the Act of 1949. It is not necessary that the person should be a citizen of India and shifted to the foreign country or that because he holds foreign passport he would not be NRI. 7. In view of the above said pronouncements, the reasoning given by the learned Rent Controller is not sustainable in law. In the absence of any other triable issue, I do not find that granting leave to defend is sustainable in law. 8. No other point is urged. 9. Consequently, the present revision petition is allowed. The impugned order dated 9.10.2003 passed by the learned Rent Controller, is set aside.