Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 1206 (PNJ)

Davinder Singh v. Kewal Krishan

2007-05-25

SATISH KUMAR MITTAL

body2007
Judgment Satish Kumar Mittal, J. 1. The tenant has filed this revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as `the Act) for setting aside the order dated 14.3.2007 passed by the Rent Controller, Phagwara, whereby the application filed by the petitioner for leave to contest the ejectment application filed by the respondent (a Non-Resident Indian landlord) under Section 13-B of the Act, has been dismissed and consequently the ejectment application filed by the respondent has been allowed and the petitioner is directed to hand over the vacant possession of the demised premises within a period of three months. 2. The respondent sought ejectment of the petitioner under Section 13-B of the Act from the demised premises, which is one room on the first floor of the building situated at Phagwara on the ground that he requires the said room for his personal use. After receiving the summons of that ejectment application, the petitioner filed an application for leave to contest the said application on the ground that the respondent is not an Non Resident Indian, he is not the owner of the demised premises for the last five years; he does not require the room for his bona fide use and occupation, and the present petition filed by the respondent is a second petition filed by him, which is not maintainable. 3. The Rent Controller dismissed the said application after holding that the respondent is an Non-Resident Indian and is the owner of the demised premises for the last more than five years and he requires the demised premises for his bona fide use. It is held that the petitioner has failed to rebut the strong presumption in favour of the NRI landlord by leading cogent evidence to show that the respondent is not an Non-Resident India landlord, he is not the owner of the demised premises for the last five years and his requirement is not genuine and bona fide. 4. Counsel for the petitioner assailed the order passed by the Rent Controller on two grounds. Firstly, that the respondent has not proved his ownership on the building. He submits that as per the judgment and decree dated 4.11.1985, the property in question was in the names of the mother and sister of the respondent. 4. Counsel for the petitioner assailed the order passed by the Rent Controller on two grounds. Firstly, that the respondent has not proved his ownership on the building. He submits that as per the judgment and decree dated 4.11.1985, the property in question was in the names of the mother and sister of the respondent. It is the case of the respondent that before the death of his mother, she had executed a will in his favour. Counsel contends that since the will has not been proved, therefore, the respondent cannot be taken as co- owner of the building. Secondly that the respondent-landlord can seek ejectment under Section 13-B of the Act once in a life time. But in the instant case, he had earlier filed a petition under Section 13-B of the Act regarding the same premises, which was dismissed in default. Therefore, the second petition filed by him is not maintainable. 5. After hearing the counsel for the petitioner and going through the impugned order and the other documents annexed with this petition, I do not find any substance in either of the contentions raised by the counsel for the petitioner. As per the judgment and decree dated 4.11.1985 available on the record, the mother and sister of the respondent became owners of the building in question. The mother of the respondent died on 18.1.1995 and before her death, she had executed a will in favour of the respondent and his brother. Under the said will, the respondent has become co-owner in the building. Even otherwise, the respondent is one of the legal heir of his mother and after her death, he became co-owner in the building. It is well settled that the co- owner of the premises is entitled to evict the tenant as has been held by this Court in Assa Singh v. Charanjiv Singh Gulati, 2004(2) RCR(Rent) 660 : 2005(1) L.A.R. 628. In support of his second contention, the petitioner has placed on record the copy of the order dated 6.5.2004 passed by the Rent Controller, whereby the earlier ejectment application filed by the respondent was dismissed in default. Neither in the grounds of petition nor at the time of arguments, counsel for the petitioner submitted that filing of the second petition is barred under Order 9 Rule 9 CPC. Neither in the grounds of petition nor at the time of arguments, counsel for the petitioner submitted that filing of the second petition is barred under Order 9 Rule 9 CPC. Rather, counsel admits that the earlier ejectment application filed by the respondent was dismissed in default under Order 9 Rule 3 CPC. Therefore, filing of second petition is not barred. However, he submits that under Section 13-B of the Act, the word `apply has been used, therefore, the respondent landlord cannot apply for recovering the possession of the demised premises for his personal use second time though he has not been debarred under Order 9 Rule 9 CPC to file afresh application within limitation. 6. I do not find any substance in the aforesaid contention raised by the counsel for the petitioner. In my opinion, the Non-Resident India landlord has been given one time right in his life to get the rented premises evicted from the tenant for his personal use and occupation. Undisputedly, in this case on earlier occasion, no ejectment order was passed against the petitioner. Only the application filed by the respondent-landlord was dismissed in default prior to issuance of summons to the petitioner. Therefore, merely because the earlier ejectment application was dismissed in default, the filing of the second petition is not barred under the law. The interpretation suggested by the petitioner cannot be accepted as it will go contrary to the main object of the provisions which provides that Non Resident Indian landlord is entitled to evict his tenant once in his life time from the demised premises for his use and occupation. Thus, I do not find any illegality in the impugned order passed by the Rent Controller. 7. Dismissed.