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2009 DIGILAW 757 (PNJ)

S. Tarlochan Singh v. Smt. Harbhajan Kaur

2009-04-21

K.KANNAN

body2009
Judgment K.Kannan, J. 1. The tenant who applied for leave to contest under Section 18-A (5) of the East Punjab Urban Rent Restriction Act, 1949 faced an order of dismissal by the Rent Controller and the person aggrieved by the same is the revision petitioner before this Court. 2. In the petition for ejectment filed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 claiming ejectment on the ground of personal necessity of the landlord, the tenant sought to contend that an earlier petition filed for eviction had been dismissed and a fresh petition was not maintainable. The tenant was running a shop and his further contention was that the landlords requirement in respect of non-residential premises held by him was not maintainable. It was his further contention that the premises itself had been let out to him only by the petitioners mother-in-law, Sawarn Kaur and the premises having not been let by the petitioner as landlord, the petition at the instance of the petitioner under Section 13B was not maintainable. As a last point for consideration, the tenant also stated that his wife had entered into an agreement of purchase in respect of half interest in the property from Swarn Kaurs son Tarlochan Singh and the property was in the possession of his wife as a person in part performance of an agreement to sale and hence, the petition for eviction against him was not maintainable. 3. Learned counsel appearing for the petitioner dilates his contentions to more lucid defence by adverting to the contentions raised by him under four heads : (i) the lease had been in favour of a private limited company namely M/s P.K. Golden Goods Transport Limited and the petition filed in the individual capacity against the Director of the company was not maintainable; (ii) property let for non-residential purpose could not be vacated for residential need of the landlord; (iii) the landlord shall be the person, who had himself let the premises and a purchaser from the original landlord was not competent to invoke Section 13B of the Act; (iv) there had been a change in character of possession of a person as a tenant to a person, who was member of the family with his wife put in possession of the property in part performance of an agreement of sale in respect of a half share. 4. 4. Each one of the contentions raised had been suitably considered by the Rent Controller and the reasoning is supported by the counsel for the respondent by pointing out that even in the petition for seeking for grant of leave, there was no specific reference to the fact that the letting had been done in favour of a private limited company and not to the individual and such a contention could not have been raised either at the time of arguments or in the revision. As regards the contention that a non-residential premise could not be vacated for the residential need of the landlord, learned counsel appearing for the respondent points out that Section 13-B of the Act is sweeping and comprehensive in its language that a landlord could seek eviction either for residential or non-residential need regardless of how the property is put in to use by the tenant. The third contention is that the petitioner-landlord, who had not let the premises to a tenant cannot apply under Section 13-B was pointed out by the counsel for the respondent that the purchase was of the year 1998 and the amendment incorporating Section 13-B itself was passed subsequently under Punjab Act 9 of 2001 dated 31.05.2001. He also refers to a decision of this Court in Ravinder Pal Mohindra v. Gurbachan Singh and others, 2006(2) RCR(Rent) 211 : 2006(3) RCR(Civil) 708 (P&H) that even a petitioner, who is a co-owner and who had acquired a right from the original landlord, could maintain a petition under Section 13-B of the Act. As regards the last contention regarding change in character of the property held by the tenant, learned counsels reply was that the tenant himself did not set up any change in character from that of a tenant as such, but only pleaded a case of an agreement of purchase in the name of his wife. 5. Among other contentions, the single contention that merits a deeper consideration appears to be whether 13-B of the East Punjab Urban Rent Restriction Act, 1949 could be invoked for a different user by the landlord. 5. Among other contentions, the single contention that merits a deeper consideration appears to be whether 13-B of the East Punjab Urban Rent Restriction Act, 1949 could be invoked for a different user by the landlord. The Section spells out an owner is a Non-Resident Indian and returns to India and the residential building or scheduled building or non-residential building let out by him is required for his or her own use or for the use of any one ordinarily living with and dependent on him, he or she may apply to the Controller for immediate possession of such building or buildings as the case may be. The Section admits of a proviso that requires the landlord to have acquired ownership at least 5 years prior to the filing of the petition and the sub-section contemplates a right of action by a landlord, who has let out more than one residential building, scheduled building or non-residential building and it shall be open to him or her to make an application in respect of one residential building or one scheduled building or one non-residential building. This Section is at variance with Section 13(3) (i) that sets out the requirement of the landlord for residential purpose and Section 13(3) (ii) that sets out the requirement of the landlord for non-residential building. While distinct provisions are made under Section 13 and the sub-sections themselves make it clear that the respective need of the landlord for residential or non-residential purpose could arise only in respect of residential or non-residential buildings respectively. The question whether the same interpretation could also apply to Section 13-B is a moot point that would require a deeper consideration. I am not finding either way whether such a contention by the tenant is tenable or not. At least, I am satisfied that there is a likelihood of a defence on the issue relating to the maintainability of the petition by the landlord for his residential needs in respect of premises held by a tenant for a shop. The question whether a property held by the tenant was merely a portion of a larger residential house, which may be relevant could still be found out only after due consideration of evidence. The leave to defend ought to have been granted at least for the solitary consideration regarding the maintainability of the petition on this ground. 6. The question whether a property held by the tenant was merely a portion of a larger residential house, which may be relevant could still be found out only after due consideration of evidence. The leave to defend ought to have been granted at least for the solitary consideration regarding the maintainability of the petition on this ground. 6. I may not be understood as having expressed my mind on the merits of the respective contentions raised by the parties but circumstances do exist that the affidavit filed by the tenant discloses enough facts as would disentitle the owner, who is an NRI from obtaining an order of recovery of possession of the disputed premises. The order of the Court below is set aside and the civil revision petition is allowed. The written statement of the tenant shall be received and the petition shall be taken up and disposed of as expeditiously as possible, particularly having regard to the legislative intent for a quick disposal as provided under Section 13-B of the Act. Under the circumstances, I direct that the Rent Controller disposes of the rent petition within a period of six months from the date of making of this order and report to this court about the status.