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2011 DIGILAW 1709 (PNJ)

Rupinder Kaur v. Surinderjeet Bhatti

2011-09-08

RAKESH KUMAR GARG

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JUDGMENT Mr. Rakesh Kumar Garg, J.: - This judgment shall dispose of 10 civil revision petitions i.e. CR Nos. 2915 to 2923 and 2976 of 2011 which have arisen out of different ejectment petitions filed against the respondents by the petitioner for their ejectment from the building under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short, ‘the Act’) on similar grounds. However, for convenience sake, the facts are being taken from CR No. 2915 of 2011. 2. Brief facts of the case are that the petitioner filed an application under Section 13-B of the Act stating that the demised shop was originally owned by her mother Raghbir Kaur who died on 18.12.2000 and she being the only her legal heir has become owner/landlady of the demised premises. The respondent is a tenant. It has been further averred that the petitioner is an NRI having settled in Canada in the year 1988 after her marriage and is not in occupation of any such premises in the Municipal Limits Gurdaspur. She intends to open a store/mall in the premises in question by joining all the adjoining shops (which are the subject matter of other revision petitions) as well and thus, the respondent was liable to be evicted. 3. Upon notice, the respondent filed an application for leave to contest making averment that the aforesaid ejectment application was not maintainable. The respondent averred that the shop in question was a part of residential house which was let out to him by Smt. Raghbir Kaur at a monthly rent of Rs.600/-. At present, he was paying rent at Rs.964/- per month. The landlord was not permitted to convert residential premises for commercial use without the permission of the rent Controller. The shop in question is situated at Jail road, Gurdaspur which is posh residential area of Gurdaspur, therefore, the demised shops cannot be used/converted into commercial building. The petitioner has filed 10 ejectment application for different shops and thus, the same were not maintainable as under the provisions of law, an NRI-landlord can get only one shop vacated, if he is able to satisfy the other essential ingredients of Section 13-B of the Act. The shop in question is an independent building unit and was separately rented out. The petitioner has not filed any documentary evidence to prove that all the 10 shops are part of one single unit. The shop in question is an independent building unit and was separately rented out. The petitioner has not filed any documentary evidence to prove that all the 10 shops are part of one single unit. The demised area is not suitable for the purpose as mentioned in the ejectment application. The landlord is neither the owner of the demised premises nor is a Non-Resident Indian. Thus, the respondent-tenant is entitled to leave to defend the petition as trivial issues were raised. 4. The application was contested by the petitioner-landlord. It was stated that shop in question and house are separate one and the demised shop is not a part of residential house. The entire shops are single unit having separate entry. The grounds raised by the tenant are flimsy and have no value in the eyes of law and the applications for leave to defend are liable to be dismissed. 5. The Rent Controller, Gurdaspur vide its order dated 6.8.2010, allowed the respondent-tenant to contest the ejectment application. The relevant part of the order reads thus: “I have heard the arguments and have carefully gone through the file and come to the conclusion that the application filed by the tenant deserves to be allowed. First of all, the landlord-applicant does not fulfill the requirement of Section 13 B of the East Punjab Urban Rent Restriction Act. As per provisions of this Act, the owner who is non-resident Indian when returns to India has right to file the ejectment application under this particular Section. The counsel for the landlord has not been able to answer the query put by the Court as to whether the landlord has come to India for this specific purpose. Moreover, in the application for ejectment, she has no where stated that she returned to India for this purpose. No doubt, it is well settled law that the owner need not to settle permanently in India, but as per provisions of the said Act, owner must be in India for getting the orders of ejectment under this particular section. No site plan of the remaining shops adjoining to the demised shops has been filed by the landlord to prove prima facie that the space is sufficient for construction of a Mall. Thus, it appears that the applicant/tenant has good case to contest this application and this application is accordingly allowed. No site plan of the remaining shops adjoining to the demised shops has been filed by the landlord to prove prima facie that the space is sufficient for construction of a Mall. Thus, it appears that the applicant/tenant has good case to contest this application and this application is accordingly allowed. To come up on for filing reply to the main application on 9.9.2010.” 6. Feeling aggrieved from the aforesaid order of the Rent Controller, the petitioner-landlady has filed all these revision petitions. 7. Challenging the impugned order, learned counsel appearing on behalf of the petitioner has vehemently argued that there is no dispute to the fact that the petitioner is the owner of demised premises for the last more than 5 years and is an NRI. The petitioner has also pleaded that she intends to open store/mall in the premises in question by joining the other adjoining shops as well. It is the case of the learned counsel for the petitioner that the petitioner fulfills all the necessary ingredients of Section 13-B of the Act and was thus, entitled to get the demised premises vacated and the respondent-tenants cannot be granted leave to defend, as on fulfilling the conditions required under law a presumption is drawn in favour of the landlord that his need is bona fide as held by the Hon’ble Supreme Court in Baldev Singh Bajwa versus Monish Saini [2005(4) LAW HERALD (P&H) 561 (SC) : 2005(3) ALL INDIA LAND LAWS REPORTER 629] = 2005(2) RCR 470 and in the instant case, the respondent-tenants have failed to make out a strong case in their application for leave to defend to rebut the said presumption in favour of the petitioner-landlord and therefore, the impugned order is liable to be set aside. Sh. Kanwaljit Singh, Senior Advocate representing the petitioner-landlord has further argued that the impugned order suffers from inherent errors as there is no requirement of law for an NRI-landlord to return to India to avail his right to file the ejectment application as held by the Rent Controller. Learned counsel for the petitioner has a so challenged the findings of the Rent Controller to the effect that the landlord has not placed on record site plan of the adjoining shops to prove prima facie that the space was sufficient for construction of a mall, and therefore, the respondent-tenants have a good case to contest the ejectment application. Learned counsel for the petitioner has a so challenged the findings of the Rent Controller to the effect that the landlord has not placed on record site plan of the adjoining shops to prove prima facie that the space was sufficient for construction of a mall, and therefore, the respondent-tenants have a good case to contest the ejectment application. Learned counsel for the petitioner has drawn attention of this Court to the averment made in the ejectment application wherein the landlord has clearly stated that he wants to convert the demised shops into a store by joining them all and that all the shops are part and parcel of one building and is a single unit. 8. On the other hand, learned counsel appearing on behalf of the respondent on the basis of observations of the Hon’ble Supreme Court in para No.26 of the judgment in Baldev Singh Bajwa’s case [2005(3) ALL INDIA LAND LAWS REPORTER 629] (supra) has argued that as per the principles culled out in the aforesaid judgment, it is the requirement of law that for claiming eviction of tenant, an NRI-landlord either has to return to India permanently or for a temporary period and since there is no escape from the aforesaid presumption drawn by the Hon’ble Supreme Court which means that for filing eviction application, a landlord has to come to India may be for a briefing period. Since in the instant case, admittedly, the landlord has not come to India, therefore, the impugned order cannot be found fault with. 9. I have learned counsel for the parties. 10. It may be noticed at this stage that the observations of the Rent Controller that for getting the order of eviction against a tenant NRI-landlord has to be come to India cannot be sustained. There is no such requirement under law that an NRI should first return to India and then apply for eviction of tenant. For the aforesaid view, reliance can be placed upon judgments of this Court in Sham Singh Bisht v. Sushil Bhatia 1992 (1) RCR 688, Surinder Kumar Shori v. Shakuntalal Devi [2007(1) LAW HERALD (P&H) 160] : 2006 (2) RCR (Rent) 373 and Kamlesh Devi alias Keshi v. Chanan Singh 2003 (1) RCR (Rent) 725. For the aforesaid view, reliance can be placed upon judgments of this Court in Sham Singh Bisht v. Sushil Bhatia 1992 (1) RCR 688, Surinder Kumar Shori v. Shakuntalal Devi [2007(1) LAW HERALD (P&H) 160] : 2006 (2) RCR (Rent) 373 and Kamlesh Devi alias Keshi v. Chanan Singh 2003 (1) RCR (Rent) 725. The observations of the Hon’ble Supreme Court in Baldev Singh Bajwa’s case [2005(3) ALL INDIA LAND LAWS REPORTER 629] (supra), were also noticed by this Court in the case of Surinder Kumar Shori’s case (supra) and it was held that there is no requirement that an NRI first return to India and then apply for eviction of tenant. 11. In the present case, leave to defend has been sought on non-existing grounds by making mere assertions. It is well settled that mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord’s favour that his requirement of occupation of the permission is real and genuine. 12. As noticed above, once there is no dispute with regard to factum of petitioner being an NRI and holding the property for more than 5 years before filing of the instant ejectment applications, it was for the respondent-tenants to make out a strong case to establish that the need of the landlord as stated was not bona fide. There is nothing on record on the basis of which such a need of the landlord can be held to be not bona fide. It is well settled that landlord is the best judge of his needs and the tenant cannot dictate his terms. Thus, it is for the petitioner-landlord to make use of the premises in dispute after vacation of the same as per his need and wishes. Thus, no ground is made out in the application for leave to defend filed by the respondent-tenant and thus, the impugned order is set aside and petition filed by the petitioner-landlord is accepted. 13. In view of the aforesaid discussion, the revision petitions are allowed. ------------------