Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 678 (PNJ)

Vijay Parkash v. Manjit Kaur

2008-03-12

AJAY K.MITTAL

body2008
Judgment Ajay Kumar Mittal, J. 1. This revision by the tenant is directed against the order dated 3.8.2004 of the Rent Controller, Nawanshahar, dated 3.8.2004 whereby an application moved by him for grant of leave to contest a petition filed by the respondent-landlady under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short "the Act") for his eviction from the tenanted shop situated at Kothi Road. Nawanshahar was dismissed. As a consequence of dismissal of aforesaid application, ejectment petition was allowed and the petitioner herein was ordered to vacate the premises in dispute and hand over the vacant possession thereof to the respondent-landlady. 2. The facts giving rise to the controversy between the parties are that the landlady filed a petition for ejectment of the tenant-petitioner from the premises in dispute. It was averred that she was a non-Resident Indian and immigrant of England. In her capacity as such, she was a specified landlady as defined under the provisions of Section 13-B of the Act and was legally entitled to seek tenants eviction in summary proceedings. The landlady averred that she was owner of the shop in question by virtue of sale deed 21.5.1968 and the petitioner herein was in possession of the shop in dispute as a tenant at a monthly rent of Rs. 1,000/- along with house tax, for the last 30 years. (The petition was filed in May 2003). 3. The eviction of the tenant was sought on the ground that the shop in question was required for bona fide personal need and occupation of the landlady who wished to construct a show room with modern amenities and intended to start business of ready-made garments. The landlady also pleaded the requisite components in her petition as enshrined in Section 13-B of the Act and specifically stated she had not got vacated any such premises/shop under the aforesaid provisions nor was she in possession of any such premises in the municipal limits of Nawanshahar. The landlady stated that she undertook that she would occupy the shop in question within the statutory period of three months from the date of eviction of the tenant. 4. The petitioner herein (tenant) moved an application for leave of the Court to contest the petition. It was pleaded that the landlady had not yet returned to India and was still putting in there. 4. The petitioner herein (tenant) moved an application for leave of the Court to contest the petition. It was pleaded that the landlady had not yet returned to India and was still putting in there. She has not surrendered her citizenship of England to settle down in India. Even otherwise the landlady is already in possession of 92% area of total premises which she is using for her residence and business purposes and moreover, she wants to sell the premises by dividing it area-wise and have a maximum return there from. The tenant further pleaded that he had never received any notice for vacation of the premises in dispute. The landlady was also blamed for having not come to court with clean hands. Lastly, all that was submitted by the tenant was that the landlady had got many more properties in her name and possession, from where she could achieve her object that she was intending to fulfil from the premises in dispute. 5. The Rent Controller, on consideration of all important aspects arising out of pleadings of the parties, held that the ejectment application was maintainable. It was further held that the need of the landlady qua her requirement of the premises in dispute was quite genuine and bona fide and the same could not be termed merely a wish or desire of her. Dealing with the ardent submission of the tenant that the landlady was already in possession of a major portion of the premises and thus her requirement of the premises in dispute was not bona fide, the Rent Controller out-rightly rejected that plea observing that even if that be so, still it could not have been a logic-based ground or reason to grant leave to the tenant to contest the ejectment petition as it would tantamount to defeating the provisions of Section 13-B of the Act. None of the pleas raised by the tenant in support of his prayer for grant of leave to contest the eviction petition found favour with the Rent Controller and consequently with the dismissal of his application in that regard, an order of eviction was passed against him. 6. The submissions raised by Shri Vikas Bahl, learned Counsel appearing on behalf of the petitioner are four-fold. 6. The submissions raised by Shri Vikas Bahl, learned Counsel appearing on behalf of the petitioner are four-fold. He strenuously submitted that the landlady is not the non-Resident Indian as the passport does not reflect anything en the basis of which it could be established that the essential ingredients of Section 2(dd) of the Act stand fulfilled. He further stated that there is no averment in the petition specifying the period during which the landlady had stayed abroad. 7. Next, advancing his contentions, the counsel argued that there is no averment regarding relationship of landlord and tenant and that the demised building was let out by him or her. According to the learned Counsel, in the absence of the same, on the strength of binding precedent in Nathi Devi v. Radha Devi Gupta 2005(1) R.C.R. (Rent) 218, the ejectment petition was liable to be dismissed. 8. Thirdly the learned Counsel urged that in the absence of correlation of description of property as given in the petition with the description given in the sale deed dated 21.5.1968, no ejectment order could have been passed. 9. Concluding his submission, it was contended that the requirement as claimed by the landlady is that of her husband, who is a British citizen, and under the circumstances the need cannot be termed to be bona fide and, thus, the eviction of the tenant cannot be ordered in the light of the Apex Court judgment in Baldev Singh Bajwa v. Monish Saini. 10. Controverting the submission of the tenant-petitioner, Shri Sarwan Singh, learned Counsel appearing for the landlady referred to para 2 of the application for leave to defend, to demonstrate that there is no specific plea raised regarding the first two limbs of the arguments of the counsel for the petitioner. In the absence of specific plea having been taken by the tenant, the Rent Controller had rightly declined the leave to defend the ejectment petition. 11. The learned Counsel further submitted that the description of the property as narrated in the petition is sufficient to establish that the demised premises are the one as per sale deed dated 21.5.1968 and the requirement of the landlady being bonqfide; in view of Baldev Singh Bajwas case (supra), he prayed for dismissal of the revision petir tion. 12. I have heard learned Counsel for the parties and perused the record with their assistance. 12. I have heard learned Counsel for the parties and perused the record with their assistance. Adverting to the first two submissions of the learned Counsel for the petitioner, it would be of advantage to reproduce para 2 of the application for grant of leave to defend the petition in which the tenant-petitioner had raised various objections for the dismissal of the ejectment petition and for grant of leave to defend. The said para reads thus: 2. That the answering respondent/applicant wants to take the following grounds for the permission to leave to contest the said Petition. a) The Petition is not maintainable in the present form. b) The Petitioner cannot avail the remedy of Section 13-B of the East Punjab Urban Rent Restriction Act, because she has not yet returned to India. The petitioner is still in England and has not surrendered her citizenship to settle in India. c) The petitioner is also misleading the Honble Court, by claiming eviction of a part of a building of which she herself is having major portion in her possession. This fact can also be judged from the heading of the petition, that she has not mentioned the number and area of which the respondent is in possession. Part eviction is never permissible under the quoted Act. d) That the Petitioner has not come with clean hands before the Honble Court. The Petitioner has concealed the material facts and has put up a mischievous story, just to mislead the Honble Court. e) The answering respondent/applicant had never received any notice for vacation of the said premises. f) The petition is also bad due to non-joinders of the necessary parties. 13. A reading of the aforesaid para of the application of the petitioner-tenant for permission to leave to defend would show that he has not laid any foundation regarding the pleas which he has sought to be raised in this revision petition. In the absence of any factual averment in the application" for leave to defend, the tenant-petitioner cannot be permitted to raise such a plea for the first time in this petition as the issue is blended with fact and law. The tenant-petitioner, without laying factual ground in his petition for. leave to defend, cannot raise a plea which is an after-thought and would deprive the landlady to get possession of the premises by delaying the inevitable. The tenant-petitioner, without laying factual ground in his petition for. leave to defend, cannot raise a plea which is an after-thought and would deprive the landlady to get possession of the premises by delaying the inevitable. Still further, the proceedings under Section 13-B of the Act are of summary nature and the provisions of that Section do not envisage service of any prior notice to the tenant as claimed by him. The said contentions are thus, rejected. 14. Now adverting to the third submission, nothing has been shown by the tenant-petitioner that the demised property is different from the one which was taken on rent by him or that the particulars as given in the sale deed do not coincide with the description given in the ejectment petition. The contention is merit-less and has no legal force. 15. With reference to the last submission, the learned Counsel for the parties have relied upon the observations of the Apex Court in Baldev Singh Bajwas case (supra). The Apex Court laid down the para meters for a landlord to be non-resident Indian in the following terms: 21. Definition of "Non-resident Indian" (NRI) under the Act contemplates that any person who is of an Indian origin, and who has settled either permanently or temporarily outside India for taking up employment; or for carrying on a business or vocation outside India; or for any other purpose in such circumstances as would indicate to stay outside India for an uncertain period, would be a Non-resident Indian. Thus, to be an NRI, it is sufficient that a person of an Indian origin establishes that he has permanently or temporarily settled outside India for his business or on account of his employment, or for any other purpose which would indicate his intention to stay outside India for an uncertain period. Therefore, any person who has gone out of India and temporarily settled there for the purposes of undertaking certain course or degree of University would not be an NRI because his stay could not be said to be for an uncertain period. A person to be an NRI first should be of an Indian origin. The phrase "Indian Origin" has not been defined in the Act of 1949. The dictionary and in ordinary parlance phrase "origin" refers to personss parentage or ancestry. A person to be an NRI first should be of an Indian origin. The phrase "Indian Origin" has not been defined in the Act of 1949. The dictionary and in ordinary parlance phrase "origin" refers to personss 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. In the appeals before us, there is no challenge that the landlords are not the NRIs within the meaning of the Act because they do not have the Indian origin. Submission of the learned Counsel for the appellants is to bring the case within the four corners of Sections 2(dd) and 13-B of the Act of 1949, it is necessary that NRI has to return to India permanently. We are unable to agree with the interpretation of Sections 2(dd) and 13-B sought to be placed by the learned Counsel. Return to India could not be read as return to India permanently with an intention to settle in India permanently. If we read the phrase "return to India" alongwith the definition of the "NRI" under Section 2(dd) of the Act, it is clear that the special category of landlords NRI could also be a person who has settled permanently outside India. Thus, permanent resident outside India being NRI can claim ejectment. 16. Further, in order to appreciate the controversy and resolve the same, the observations of the Apex Court in para 22 and 23 of the judgment, relevant in the context, are as under: 22. When we read Section 13-B along with the definition of the NRI it is apparent that the person who is permanently residing outside India can also claim possession under Section 13-B of the Act. All that is required under Section 13-B is that an NRI should return to India and claim the premises for his/her use or for the use of any dependent ordinarily living with him. There is no requirement that he has permanently settled in India on his return or he has returned to India with an intention to permanently settle in India. There is no requirement that he has permanently settled in India on his return or he has returned to India with an intention to permanently settle in India. An NRI may require the accommodation for expansion of his business which he is carrying on in other country or requires the accommodation for this temporary stay. Under Section 13-B, an NRI can also claim ejectment of the tenant from the premises for the purposes of any other person who is dependent on him and is ordinarily living with him, which makes it clear that although an NRI resides permanently in other country, he could get the accommodation vacated for the need of his dependent who ordinarily lives with him and he intends to come to India, choosing it to be his permanent abode. We do not find any substance in the submissions made by the learned Counsel that the words "return to India" under Section 113-B of the Act denote return to India permanently. 23. On the interpretation given by us and on a plain reading of the provisions, once in a life time possession is given to an NRI to get one building vacated in a summary manner. A Non-Resident Indian landlord is required to prove that: (i) he is an NRI; (ii) that he has returned to India permanently or for the temporary period: (iii) requirement of the accommodation by him or his defendant is genuine and; (iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenants affidavit asking for leave to contest the NRI landlords application should confine to the grounds which NRI landlord is required to prove, to get ejectment under Section 13B of the Act. The Controllers power to give leave to contest the application filed under Section 13B circumscribe to the grounds and inquiry to the aspects specified in the Section 13B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13B and no other aspect shall be considered by the Controller. 17. The landlady had produced on record her pass-port along with other documents to establish that she is a non-Resident Indian. This fact has also not been controverted by the tenant-petitioner as well. Inquiry would be confined to Section 13B and no other aspect shall be considered by the Controller. 17. The landlady had produced on record her pass-port along with other documents to establish that she is a non-Resident Indian. This fact has also not been controverted by the tenant-petitioner as well. The landlady, in the ejectment petition and also in the reply to the application of the tenant-petitioner for leave to defend, had specifically averred that she has shifted to India and the shop in question is required for personal need and occupation. It was further averred that she had neither vacated nor was in possession of any such premises within the municipal limits of Nawanshahar. 18. Learned Rent Controller after appreciation of evidence has come to the conclusion that the landlady by providing the copy of sale deed, established that she is owner for the last more than five years and entitled to avail the remedy of eviction under Section 13-B of the Act during her life time and the need of the landlady is genuine and bonafide and the same cannot be termed as desire or wish. No illegality or perversity in the aforesaid finding could be pointed out by the counsel appearing for the petitioner which may warrant interference by this Court. 19. In view of the above, I find no merit in the revision petition and the same is accordingly dismissed, leaving the parties to bear their own costs.