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2010 DIGILAW 2136 (PNJ)

Manvinder Singh v. Sanjay Kumar

2010-07-28

ALOK SINGH

body2010
Judgment Alok Singh, J. 1. Present petition is filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) by the landlord - revisionist challenging the judgement dated 3.10.2008 passed by the Rent Controller, Jalandhar, v/hereby eviction petition moved by the landlord under Section 13B of the Act was dismissed. 2. Brief facts of the present case are that the landlord moved an eviction petition under Section 13B of the Act against the tenant - respondent herein on the ground that the petitioner is an NRI. Respondent along with one Sodhi Ram were tenants under Kewal Singh, father of the petitioner, who had purchased the property vide registered sale deed dated 3.7.1972. Father of the petitioner Kewal Singh expired on 16.8.1989, leaving behind the petitioner, his brother Gurmit Singh and Harbans Kaur, widow as his legal heirs; as per the family settlement/private partition, shop in dispute alongwith shop in occupation of Sodhi Ram, fell into the share of the petitioner and since then the petitioner is landlord and the respondent is tenant under the petitioner; petitioner has bonafide intention to settle in India and required the demise premises under the tenancy of the respondent and another shop under the tenancy of Sodhi Ram; petitioner wants to cany out his business in India in the demise shop. 3. Respondent - tenant sought leave to defend the eviction petition, stating therein that the landlord has no locus-standi to file the present petition; petitioner - landlord wants to pressurise the respondent - tenant to enhance the rent; there was no family partition between the legal heirs of Kewal Singh and the petitioner has never become owner of the property in question and the respondent never became tenant under the petitioner; petitioner has no intention to settle in India and has no bonafide requirement of the shop in question. 4. The Rent Controller in the impugned judgement has held that the petitioner is resident of India and is a holder of passport and has been allowed residence visa of United Arab Emirates; tenant has not denied that the petitioner is residing in Dubai. It is further held by the Rent Controller that the petitioner is an NRI under Section 2(dd) of the Act. It is further held by the Rent Controller that the petitioner is an NRI under Section 2(dd) of the Act. It is further observed by the Rent Controller that even if family settlement/private partition is not admitted, petitioner proves to be co-owner and one co-owner is entitled to seek ejectment under the provisions of Section 13B of the Act. However, the Rent Controller observed that the petitioner could not prove that he requires demise shop for his personal use and occupation, hence dismissed the eviction petition. 5. Learned counsel for the petitioner - landlord vehemently argued that if it is proved on record that the petitioner is an NRI and has intention to shift and settle in India and relationship of landlord and tenant between the parties is established, then bonafide need of the shop in question by the landlord shall be deemed to be true and correct unless rebutted by the tenant. Learned counsel for the revisionist placed reliance on the judgement of the Apex Court rendered in Baldev Singh Bajwa v. Monish Saini, 2005(12) SCC 778. 6. Learned counsel for the respondent - tenant vehemently argued that the finding of the Rent Controller that the petitioner is not in bonafide need of the shop in question, is a finding of fact, which should not be disturbed in a revision petition. Learned counsel for the respondent further argued that petitioner has not disclosed in the petition as to what type of business he intends to start in the demise premises, hence alleged need of the petitioner - landlord cannot be said to be genuine and bonafide. Learned counsel for respondent further argued that there is no question of presumption of bonafide and genuine need of the landlord and the landlord has to prove his bonafide and genuine need beyond doubt. He further stated that there is no burden on the tenant to rebut the alleged presumption of bonafide need in favour of the landlord. 7. In the case of Baldev Singh Bajwa (supra), Honble the Apex Court in paragraphs 19, 21 and 23 has observed as under: - "19. In our view, the proceeding taken up under Section 13-B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlords need pleaded in the petition is genuine and bona fide. In the case of Baldev Singh Bajwa (supra), Honble the Apex Court in paragraphs 19, 21 and 23 has observed as under: - "19. In our view, the proceeding taken up under Section 13-B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlords need pleaded in the petition is genuine and bona fide. But this would not dis- entitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlords favour that his requirement of occupation of the premises is real and genuine. 21. The classified landlords are given the benefit of summary trial under Section 18-A of the Act. The summary trial is in two parts. Sub-s. 4 provides that after the service of summons the tenant has no right to contest the prayer for eviction from the residential building, or schedule building and/or nonresidential 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 provided in Sub-s. 5 of Section 13-B to contest the matter. If the tenant defaults to appear in pursuance of summons or when he does not get leave to contest, the controller shall presume the statements made by the NRI in his petition have been admitted by the tenant and pass an order of eviction. This eventuality is contemplated when a tenant does not appear in pursuance of the summon issued and served or where the leave to contest has not been granted by the Controller. This eventuality is contemplated when a tenant does not appear in pursuance of the summon issued and served or where the leave to contest has not been granted by the Controller. x x x x x x We hold that allegations made by the NRI landlord of his requirement shall be presumed to be genuine and bona fide unless rebutted by the tenant by placement of cogent and material facts and evidence in support thereof at the stage of leave to contest before the Controller. We feel any other interpretation would completely whittled down and deny the tenants right to show and prove that landlord does not in fact, or in law require suit premises. 23. 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" along with 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." 8. From the dictum of the Apex Court judgement in the case of Baldev Singh Bajwa (supra), principle of law which emerges, is that if an NRI landlord wishes to settle in India or wishes to establish a business in India, then it is not necessary that the landlord must permanently settle in India on his return. An NRI may require the premises for expansion/setting of his business without permanently settling India. It also emerges out that if the landlord is proved to be an NRI, owner of the demise property for the last five years before filing of the eviction petition, then need setup by the landlord should be presumed to be true and correct unless rebutted by the tenant. 9. In the opinion of this Court, non-disclosure of the nature of the business is not fatal for the landlord. If landlord establishes that he requires the tenanted portion for his personal use or for his dependants use and occupation, that is sufficient compliance of Section 13B of the Act. In the opinion of this Court, the Rent Controller has committed jurisdictional and illegal error by holding that the landlord has not disclosed the nature of the business, which he intends to start, means landlord has no bonafide need. 10. In the opinion of this Court, the Rent Controller has committed jurisdictional and illegal error by holding that the landlord has not disclosed the nature of the business, which he intends to start, means landlord has no bonafide need. 10. From the perusal of the record, this Court is of the view that the landlord is able to establish his bonafide need because strong presumption is in favour of the landlord and tenant has to rebut the presumption in favour of the landlord, hence order impugned herein cannot stand scrutiny of law. While exercising revisional jurisdiction, if this Court finds that finding of the Rent controller is outcome of jurisdictional or legal error, then of course, this Court can upset finding recorded by the Rent Controller. On the basis of the entire material available on record, this Court is satisfied that the landlord is an NRI and has genuine and bonafide need of the property in dispute. 11. Eviction petition is allowed. Order impugned dated 3.10.2008 is set aside. 12. Tenant - respondent is directed to hand over peaceful and vacant possession of the property in dispute to the landlord within two months from today.