Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 1533 (PNJ)

Mohinder Ram v. Kewal Krishan

2007-08-23

H.S.BHALLA

body2007
Judgment H.S.Bhalla, J. 1. This revision petition is directed against the order dated 14.3.2007 passed by Rent Controller, Phagwara, whereby application filed by tenant-petitioner for seeking permission to contest the petition filed under Section 13-B of the East Punjab Urban Rent Restriction Act (hereinafter referred to as "the Act"). 2. The facts required to be noticed for the disposal of the petition are that in the petition filed under section 13-B of the Act, the respondent-landlord has averred that he and his brother Surinder Pal and sister Sudesh Kumari are Non Resident Indians. He is owner of the building in question for the last more than five years and the premises in question is required for his own use. It has been averred in the petition that the petitioner is an old man and is a retired person and has come to India permanently. He has got no other residential building. On these premise, the landlord has sought eviction of the respondent from the demised premises. The petition has been resisted by the tenant-petitioner on number of grounds raising pleas therein that he was served with summons on 10.5.2006 and he seeks permission to contest the petition on the grounds that the respondent-landlord is a Canadian citizen and that he has no intention to come back and settle in India. The respondent- landlord is not admitted to be a specified landlord within the definition of Section 13-B of the Act and that the other co-owners of the premises have not been impleaded in the petition as proforma respondents. It has been further pleaded that since the respondent-landlord has demanded arrears of rent and thus, it becomes a regular petition under Section 13 of the Act. The petitioner-tenant has denied the relationship of landlord and tenant between the parties, inasmuch as he was inducted as a tenant by Ram Rattan son of Udho Ram. It has been further averred that the plea of the landlord that the premises in question is required for his personal necessity is wrong. Finally, it has been prayed that the intention of the respondent-landlord is to let out or sell the property by seeking his eviction from the demised premises and therefore, the petition is liable to be dismissed. 3. I have heard the learned counsel appearing for the petitioner and perused the findings recorded by the Rent Controller. 4. Finally, it has been prayed that the intention of the respondent-landlord is to let out or sell the property by seeking his eviction from the demised premises and therefore, the petition is liable to be dismissed. 3. I have heard the learned counsel appearing for the petitioner and perused the findings recorded by the Rent Controller. 4. It is an admitted case of the tenant-petitioner that no affidavit was filed by him, but he contested the petition and knocked the door of the learned Rent Controller through an application for seeking permission to contest the petition filed by the respondent-landlord. The fact of non-filing of an affidavit by the tenant is borne out from the impugned order dated 14.3.2007 passed by the Rent Controller, Phagwara. Even in the grounds of Revision, learned counsel appearing for the petitioner has not taken such a plea that any affidavit was filed by tenant before the Rent Controller in order to controvert the pleas taken up by the landlord in his petition for eviction filed under Section 13-B of the Act before the Rent Controller. In such like circumstances, it can be presumed that the petitioner-tenant did not file an affidavit refuting the pleas taken up by the respondent-landlord. 5. In view of this admitted position that affidavit was not filed by the tenant before the Rent Controller, learned counsel appearing for the petitioner-tenant vehemently argued that the Rent Controller could not decline the prayer of the tenant to contest the petition in the absence of an affidavit, which was merely a procedural formality and no prejudice was caused to the landlord by not filing the affidavit in support of the assertions raised in the application to contest the petition. He further submitted that the grounds taken in the written statement/application for leave to contest could be considered by the Rent Controller in the absence of an affidavit and it was incumbent upon the Rent Controller to grant leave to the tenant to contest the application. 6. I have considered the contention of the learned counsel for the petitioner-tenant and for the reasons to be recorded by me hereinafter, I find that the same is not liable to be accepted. If this contention of the learned counsel is accepted, then the entire scheme of the Act would fall to the ground. 6. I have considered the contention of the learned counsel for the petitioner-tenant and for the reasons to be recorded by me hereinafter, I find that the same is not liable to be accepted. If this contention of the learned counsel is accepted, then the entire scheme of the Act would fall to the ground. The Legislature intended that the Non Resident Indian coming back to his country should be able to get his house vacated from the tenant in order to settle therein in a summary manner. A speedy procedure was prescribed under Sections 13-B and 18-A of the Act, that is, a tenant cannot contest the application without permission of the Court and such a permission can be granted if grounds of contest are submitted on affidavit, proof of which would result in dismissal of the application. To my mind, the filing of the affidavit containing such grounds itself indicates that at the initial stage prima facie evidence was required to be submitted on the basis of which the court could act otherwise merely on the pleas in the written statement the court could not act or take any decision. The averments of the landlord were to be taken as correct. The filing of the affidavit under the law is not merely a procedural formality. At this stage, I would like to reproduce the relevant portion of sub-clause (4) of Section 18-A of the Act, which reads as under : " (4) The tenant on whom the service of summons has been declared to have been validly made under sub-section (3), shall have no right to contest the prayer for eviction from the [residential building or scheduled building and/or non- residential building], as the case may be, unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the specified landlord or, as the case may be, the widow, widower, child, grandchild or the widowed daughter-in-law of such specified landlord [or the owner who is a Non-resident Indian] in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction of the tenant." 7. The above quoted provision clearly spells out that the tenant shall have no right to contest the prayer for eviction from the residential and/or non- residential building, as the case may be, unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction. The filing of an affidavit is a condition precedent for obtaining leave from the Rent Controller to contest the application. In such like circumstances, the onus on the landlord is only to show that he is a Non Resident Indian and he wants to settle himself in India and for that purpose, he requires the premises. Once the landlord is able to specify the conditions mentioned in Section 13-B of the Act, then the Rent Controller has every right to pass an order of ejectment forthwith if permission is not granted to the tenant for contesting the application. As a matter of fact, this provision of law requires the party to produce the evidence though prima facie at the initial stage of the filing of the written statement and if the affidavit in support of his plea is not filed by the tenant, then he has to suffer. In the absence of affidavit, it would be taken that such grounds mentioned in the written statement were merely in the form of pleadings and in the absence of any affidavit containing such grounds, it would be a case of lack of evidence. It is not expected of the Court to call upon the parties to produce evidence in support of their allegations. To my mind, evidence is to be led by the parties themselves at the relevant stage provided in the procedure. The contention of the learned counsel with regard to non-filing of the affidavit containing the grounds of contest or that filing of an affidavit without containing such grounds which could be supplemented at a later stage, cannot be accepted. The very purpose of the amendment of the Act made for summary eviction of the tenant at the instance of the specified landlord for personal requirement of the landlord would stand frustrated. The very purpose of the amendment of the Act made for summary eviction of the tenant at the instance of the specified landlord for personal requirement of the landlord would stand frustrated. In order to get the premises in question vacated in a summary manner from the possession of petitioner-tenant, the landlord-respondent is required to prove that firstly, he is a Non-resident Indian; secondly, he has returned to India permanently or for temporary period; thirdly, requirement of accommodation by him or his dependent is genuine; and fourthly he is owner of the property for the last five years before the institution of the proceedings for ejectment before the Rent Controller. 8. In Baldev Singh Bajwa v. Munish Saini, 2005(4) RCR(Civil) 492 : 2005(2) RCR(Rent) 470 : 2005(4) Law Herald 561 (SC), it has been held by their Lordships of the Apex Court that tenant would be entitled for leave to contest only if he makes out a strong case to challenge those grounds taken by the landlord in his petition and tenant is able to show firstly that landlord is not an NRI; secondly that landlord is not the owner of the premises; thirdly that landlord is not owner of the premises for the last five years before institution of proceedings and fourthly that landlords requirement is not bona fide and is a pretext to get the accommodation vacated. 9. Having gone through the impugned order passed by the Rent Controller, I find that the learned Rent Controller has dealt with each and every requirement of the ingredients, as referred to above, effectively and elaborately giving sound reasoning therein and Rent Controller, after examining each and every aspect of the matter in detail, came to a definite conclusion that the tenant has not been able to fulfill either of the conditions, as referred to above, required to be proved by the petitioner- tenant that the need of the landlord is not genuine and is merely a wish to get the premises in question vacated just to sell out or let out to some body else. In such like circumstances, I am of the firm view that the approach of the learned Rent Controller in holding the application for leave to contest the petition filed by the tenant maintainable as it was filed well within time and at the same time dismissing the same, is justified. In such like circumstances, I am of the firm view that the approach of the learned Rent Controller in holding the application for leave to contest the petition filed by the tenant maintainable as it was filed well within time and at the same time dismissing the same, is justified. Further, approach of the Rent Controller in allowing the petition filed under Section 13-B of the Act by the landlord-respondent and directing the petitioner-tenant to hand over the vacant possession thereof, cannot be said to be bad in law. The findings, to my mind, recorded by the Rent Controller, while passing ejectment order against the petitioner-tenant, are hereby affirmed warranting no interference therein. Learned counsel appearing for the petitioner has not been able to point out any glaring defect in the procedure adopted by the Pent Controller nor any manifest error on the point of law could be pointed out, which has resulted in flagrant miscarriage of justice, which needs to be set right. In the light of what has been discussed above, I see no ambiguity and illegality in the order dated 14.3.2007 passed by Rent Controller. Consequently, revision petition filed by the petitioner-tenant fails and is hereby dismissed in limine. However, petitioner-tenant is directed to get the premises in question vacated and hand over vacant possession thereof, within a period of one month from the date of passing of this order.