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2008 DIGILAW 2177 (PNJ)

Vijay Kumar v. Arun Chopra

2008-12-22

MAHESH GROVER

body2008
Judgment Mahesh Grover, J. 1. This order will dispose of three revision petitions bearing CR Nos. 1064 of 2008, 1065 of 2008 and 1182 of 2008 which have been directed against the order of the learned Rent Controller vide which the prayer for leave to contest made by the petitioners was declined. 2. The respondent-landlord initiated proceedings under the provisions of Section 13-B of the East Punjab Urban Rent Restriction Act seeking eviction of the petitioners from the premises in question by claiming that he is a Non Resident Indian and requires the premises for his bona fide use and occupation. 3. The petitioners resisted the petition and filed their respective applications for leave to defend and took up the plea that the respondent- landlord is not the owner of the shop in question and the premises are not required for his bona fide use and occupation. 4. The respondent alleged that he was landlord and owner of the shops in question upon which the present petitioners are tenants. He pleaded that he was a Non Resident Indian who had migrated to Australia in the year 1995 and the shops are required for his personal use and for the use of his family for setting up business therein. He pleaded that he intends to start a business of marketing of goods and that he had requisite experience in that field. He pleaded further that he did not have any other commercial property except the shops in dispute. 5. The petitioners in their respective applications for leave to contest denied the averments made in the rent petition. It was pleaded by the petitioners that the respondent-landlord had not returned to India and is residing abroad and has come to India only for a short trip and that he is not a Non Resident Indian and that he has another commercial building within the municipal limits of Ropar which was earlier tenanted to State Bank of Patiala, Rupnagar and is lying vacant for the last 10 years and same has been sold by the respondent-landlord vide sale deed dated 4.5.2007 only a day prior to the filing of the present petition. It was thus pleaded that the respondent- landlord has sufficient accommodation where he can start his own business and the petitions were the result of mala fide. It was thus pleaded that the respondent- landlord has sufficient accommodation where he can start his own business and the petitions were the result of mala fide. It was also pleaded that previously Banke Ram, grandfather of the respondent-landlord has filed the eviction petition against the petitioners which was dismissed on 26.6.1971 and the appeal against this was also dismissed. Thereafter, another ejectment petition was filed by Banke Ram which was also dismissed on 27.7.1982 and the appeal against this was also dismissed. It was thus pleaded that having failed to get the petitioners evicted from the property the present respondent is taking undue advantage of the provisions of Section 13 B of the Act. The respondent-landlord contested the application and submitted that he fulfilled all the conditions which are required of him under the statute and therefore, the leave to defend ought not to be allowed. 6. Learned Rent Controller declined the prayer of the petitioners and hence the present petition. It was contended by the learned counsel for the petitioners that the impugned orders are erroneous for the reasons that the respondent has failed to establish before the Court that he was the owner of the premises for the last five years and further that the respondent is actually employed in the Police Department in Australia and has no intention of returning to India as has been claimed by him. It was further contended that the need as expressed by the respondent is not bona fide and that there is a serious dispute regarding the ownership of the respondent. 7. In this view of the matter, learned counsel for the petitioners contended that the leave to defend should have been allowed to the petitioners and they ought to have been permitted to contest the proceedings. 8. On the other hand, learned counsel for the respondent contended that the impugned order is perfectly justified and that the plea as raised by the petitioners in the present revision petitions that the respondent landlord was serving in the Police Department in Australia is totally unsubstantiated and without any basis and it was never pleaded before the learned Rent Controller. 9. Reliance was placed on case titled as Charan Dass Duggal v. Brahma Nand. 9. Reliance was placed on case titled as Charan Dass Duggal v. Brahma Nand. 1983(1) SCC 301, Kaki Nanda v. Nand Lal, 2006(2) RCR(Rent) 410 : 2007(2) PLR 250, Kundan Singh v. Lal Singh, 2005(1) RCR(Rent) 194 : 2004(3) PLR 530, Adarsh Kumar Kanda v. Gurcharan Singh Bedi, 2007(2) RCR(Rent) 107 : 2007(4) PLR 233 and K.D. Dewan v. Harbhajan S. Parihar, 2002(1) RCR(Rent) 214 : 2002(1) SCC 119 to contend that where triable issues are involved, leave to defend should be granted. 10. After hearing learned counsel for the parties, I am of the considered opinion that the revision petitions deserve to be dismissed. It is for the first time that the petitioners have raised this plea that the respondent is serving in the Police Department in Australia and has no intention of coming to India. No such prayer was raised by them in their applications for leave to defend. 11. In an application for leave to defend, the tenant who is facing proceedings under Section 13 of the Act is required to bring cogent material before the Rent Controller in order to make out a case for the grant of leave to contest the proceedings. In the absence of any such material, the Rent Controller is not under a bounden duty to grant leave to contest on flimsy or irrelevant pleadings or material. 12. The landlord on the contrary has to satisfy the Rent Controller of the following points :- 1) that he is a Non Resident Indian 2) that he is owner of the property for the last five years 3) that he requires the premises for his own use and occupation. These being settled parameters in which the respondent has to bring his case, this Court now proceed to examine the material to see whether the aforesaid ingredients were satisfied before the Rent Controller or not. In so far as respondent-landlord being a resident of Australia is concerned, it is not being denied by the petitioners. He has also proved this fact by producing his Australian passport. In so far as second ingredient regarding ownership is concerned, it was not disputed by the petitioners that the original owner of the premises was Banke Ram, grandfather of the present respondent. The respondent is grand son of Banke Ram. There is on record certified copy of judgment and decree in civil suit no. In so far as second ingredient regarding ownership is concerned, it was not disputed by the petitioners that the original owner of the premises was Banke Ram, grandfather of the present respondent. The respondent is grand son of Banke Ram. There is on record certified copy of judgment and decree in civil suit no. 194 of 4.6.2007 titled as Raj Kumar v. Lala Banke Ram conferring ownership upon Raj Kumar, father of the respondent. Raj Kumar had also executed a Will dated 10.3.1998 which is on record. A family settlement arrived at between legal heirs of Raj Kumar is also on record, which has been acted upon, as a mutation of inheritance of Raj Kumar has been made on the basis of the family settlement and not on the basis of Will. Sanctioned mutation is in favour of the respondent. Learned Rent Controller was therefore right in observing that there was sufficient material to suggest that the respondent was the owner of the suit property as even by virtue of succession after the death of Raj Kumar, the petitioner would have succeeded to the property and in any eventuality there is family settlement to suggest the same. The material on record shows that Raj Kumar had died on 6.6.2000 and mutation of inheritance was sanctioned thereafter thereto implying thereby that the respondent is the owner of the property for the last more than 5 years. There is, thus, little hesitation to hold that finding recorded by the Rent Controller on this aspect of the matter is correct. 13. In so far as bona fide need is concerned, Honble Supreme Court in case titled as Baldev Singh Bajwa v. Monish Saini, 2005(4) RCR(Civil) 492 : 2005(2) RCR(Rent) 470 Honble Supreme Court has observed as under :- "19. From the aforesaid decisions the requirement of the landlord of the suit accommodation is to be established as genuine need and not a pretext to get the accommodation vacated. The provisions of Sections 18-A(4) and (5) concede to the tenants right to defend the proceedings initiated under Section 13-B showing that the requirement of the landlord is not genuine or bona fide. The legislative intent for setting up of a special procedure for NRI landlords is obvious from the legislative intent which has been deliberately designed making distinction between the ordinary landlords and special category of landlords. The legislative intent for setting up of a special procedure for NRI landlords is obvious from the legislative intent which has been deliberately designed making distinction between the ordinary landlords and special category of landlords. The Controllers power to give leave to contest the application filed under Section 13-B is restricted by the condition that the affidavit filed by the tenant discloses such fact as would disentitle the landlord from obtaining an order for recovery of possession. It is needless to say that in the summary proceedings the tenants right to contest the application would be restricted to the parameters of Section 13-B of the Act. He cannot widen the scope of his defence by relying on any other fact which does not fall within the parameters of Section 13-B. The tenants defence is restricted and cannot go beyond the scope of the provisions of the Act applicable to the NRI landlord. Under Section 13-B the landlord is entitled for eviction if he requires the suit accommodation for his or her use or t he use of the dependent, (who) ordinarily lives with him or her. The requirement would necessarily to be genuine or bona fide requirement and it cannot be said that although the requirement is not genuine or bona fide, he would be entitled to the ejectment of the tenant nor it can be said that in no circumstances the tenant will not be (will be ?) allowed to prove that the requirement of the landlord is not genuine or bona fide. A tenants right to defend the claim of the landlord under Section 13- B for ejectment would arise if the tenant could be able to show that the landlord in the proceedings is not NRI landlord; that he is not the owner thereof or that his ownership is not for the required period of five years before the institution of proceedings and that the landlords requirement is not bona fide. 20. The legislative intent of expeditious disposal of the application for ejectment of the tenant filed by the NRI landlord is reflected from the summary procedure prescribed under Section 18-A of the Act of 1949 which require the Controller to take up the matter on day to day basis till the conclusion of the hearing of an application. 20. The legislative intent of expeditious disposal of the application for ejectment of the tenant filed by the NRI landlord is reflected from the summary procedure prescribed under Section 18-A of the Act of 1949 which require the Controller to take up the matter on day to day basis till the conclusion of the hearing of an application. The Legislature wants the decision of the Controller to be final and does not provide any appeal or second appeal against the order of eviction, it is only the High Court which can exercise the power of consideration of the case, whether the decision of the Controller is in accordance with law. Section 13-B gives right of ejectment to special category of landlord who is NRI (Non-Resident Indian); and owner of the premises for five years before action is commenced. Such a landlord is permitted to file an application for ejectment only once during his life time. Sub-section (3) of Section 13-B imposes a restriction that he shall not transfer through sale or any other means or lease out the ejected premises before the expiry of the period of five years from the date of taking possession of the said building. Not only that, if there is a breach of any of the conditions of sub-section (3) of Section 13-B, the tenant is given a right of restoration of possession of the said building. Under sub-section (2-B) of Section 19 the landlord has to take possession and keep it for a continuous period of three months and he is prohibited from letting out the whole or any part of such building to any other person, except the evicted tenant and any contravention thereof, he shall be liable for punishment of imprisonment to the term which can be extended upto six months. These restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine. Landlord, after the decree for possession, is bound to possess the accommodation. Landlord is prohibited from transferring it or letting it out for a period of five years. Virtually conditions and restrictions imposed on the NRI landlord makes it improbable for any NRI landlord to approach the Court for ejectment of a tenant unless his need is bona fide. Landlord, after the decree for possession, is bound to possess the accommodation. Landlord is prohibited from transferring it or letting it out for a period of five years. Virtually conditions and restrictions imposed on the NRI landlord makes it improbable for any NRI landlord to approach the Court for ejectment of a tenant unless his need is bona fide. No unscrupulous landlord probably, under this section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which practically he is deprived of his right in the property not only as a lessor but also as the owner of the property. There is a restriction imposed even on the transfer of the property by sale or any other manner. The restriction imposed on the landlord by all probability points to the genuine requirement of the landlord. In our view, there are inbuilt protections in the relevant provisions, for the tenants that whenever the landlord would approach the Court he would approach when his need is genuine and bona fide........" (Emphasis supplied)" 14. A strong presumption arises in favour of the respondent-landlord, who has stated that he requires the premises for marketing business for which he has requisite expertise. The finding on this aspect can also not be faulted with. 15. In so far as the contentions of the learned counsel for the petitioner that another property had been sold just a day prior to the filing of the present petitions is concerned that contention is totally mis-placed. It is not the requirement of Section 13-B of the Act that if the person has disposed of the property in the same municipal limits, then the proceedings under Section 13-B qua the building which the respondent-landlord intends to get vacated for his own personal use is debarred. Landlord is very well within his rights to choose a property regarding which he intends to invoke the provisions of Section 13-B and in case he has disposed of some property, will not make any difference to the proceedings which he initiates subsequent thereto. There is thus, no infirmity in the findings recorded by the Rent Controller and the petitions being devoid of any merit are hereby dismissed.