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2011 DIGILAW 1990 (PNJ)

Poonam Kumari v. Rajinder Kumar

2011-11-07

RAKESH KUMAR GARG

body2011
JUDGMENT Mr. Rakesh Kumar Garg, J.: - This is tenant’s revision challenging the order dated 24.9.2010 of Rent Controller, Hoshiarpur, whereby in an ejectment application filed under section 13-B of the East Punjab Rent Urban Rent Restriction Act (hereinafter referred to as ‘’the Act’’), the prayer of the petitioner seeking leave to contest, has been declined and consequently his eviction has been ordered from the demised premises. 2. Respondent-landlord sought eviction of the petitioner from the demised shop making the averments that he is an NRI and owner of the shop in dispute for a period of more than five years prior to the filing of the eviction application and that he has returned to India and intends to settle in India and pass remaining time at his native place by living there permanently. He wants to run the business in the demised premises and thus his requirement was bona fide for himself and his family members’ need. 3. Upon notice petitioner filed an application seeking leave to defend on the ground that need of the respondent landlord was not bona fide and the very conduct of the landlord shows that he wants to get the shop vacated. In the year 2004, he had attempted to take forcible possession of the shop in dispute by moving false applications to the police and the petitioner had to file civil suit seeking permanent injunction against the respondent wherein the respondent filed written statement undertaking that he would eject the petitioner in accordance with law. Thereafter, the respondent went back to United Kingdom and again came back to India and started harassing the petitioner by again moving false applications and the petitioner had to seek injunction again and thus the said overt act of the respondent landlord attempting to take forcible possession clearly proves that his need is not bona fide and present application under section 13-B of the Act is a pretext to eject him from the shop in dispute and in view of the aforesaid facts established on the record, the petitioner is entitled to leave to defend as he has raised triable issue regarding bona fide need of the respondent landlord and therefore, the impugned order is liable to be set aside. 4. 4. However, the Rent Controller, Hoshiarpur vide impugned order rejected the aforesaid prayer of the petitioner holding that the respondent landlord fully satisfied the ingredients of section 13-B of the Act and there is no merit in the application for leave to contest filed by the petitioner. 5. Challenging the aforesaid order, learned counsel for the petitioner has vehemently contended that the petitioner has specifically denied the averments of the respondent with regard to his personal necessity of the demised premises and thus coupled with the fact of showing past conduct of the respondent/landlord that he is out to evict the petitioner by adopting all kinds of means, the petitioner should have been granted leave to defend the eviction petition. 6. On the other hand, learned counsel for the respondent has pointed out that in the instant case the petitioner has not disputed the fact that respondent is an NRI and owner of the property in dispute for the last more than five years prior to the filing of the instant petition and further has not disputed the fact that respondent wants to settle in India for the remaining life and in view of the aforesaid undisputed facts bona fide need of the respondent-landlord is to be presumed in his favour and there is no evidence on record to rebut the aforesaid presumption in his favour and thus the instant revision petition is liable to be dismissed being without any merit. 7. I have heard the learned counsel for the parties and perused the impugned order as well as other documents placed on the record of this case. 8. 7. I have heard the learned counsel for the parties and perused the impugned order as well as other documents placed on the record of this case. 8. It is useful to refer to the provisions of section 18(A) (4), which reads as follows:- ‘’18-A. Special procedure for disposal of applications under section 13-A or section 13-B,- (1) to (3) xxx xxx xxx (4) The tenant on whom the service of summons has been declared to have been validity made under sub-section (3), shall have no right to contest the prayer for eviction from the residential building or scheduled building and/or non residential building, as the case may be, unless he files on affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the specified landlord or, as the case may be, the widow, widower, child, grandchild or the widowed daughter-in-law of such specified landlord or the owner, who is a non-resident Indian in the application for eviction shall, be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction of the tenant.’’ 9. A perusal of the aforesaid provisions would show that in case a landlord fulfills the conditions of section 13-B of the Act, a presumption is to be drawn in his favour for his bona fide need and thereafter it is for the tenant to make out a strong case in his application for grant of leave to defend. 10. The bona fide need as set up by the landlord reads thus:- ‘’That the petitioner requires the shop in question for running his own business therein, the petitioner is owner of the adjoining commercial property and wants to amalgamate this shop as well as with his father other commercial property to convert it into bigger commercial premises and then he would run his business therein as per his requirements. In case this shop is not amalgamated with the other commercial premises available with the petitioner adjoining the shop in question, then the accommodation available with him is not sufficient for the purpose of running his large scale business. The need of the applicant petitioner is genuine and he bonafidely requires the premises in dispute. In case this shop is not amalgamated with the other commercial premises available with the petitioner adjoining the shop in question, then the accommodation available with him is not sufficient for the purpose of running his large scale business. The need of the applicant petitioner is genuine and he bonafidely requires the premises in dispute. He being NRI is in position to invest the money in running the large scale business by living in India. The petitioner is not keeping good health for the past some time and he intends to pass his remaining time at his native place by living here permanently, and in order to meet his expenses of living of the petitioner and his dependants he wants to run the business at large scale. Thus, the requirement of the petitioner is bonafide for himself and his family members. He along with his family members will control and run the business in the premises in dispute. 11. On the other hand, In his application for leave to defend the petitioner has made out a case that the conduct of the respondent-landlord shows that he wants to harass the petitioner and the ejectment application is only a pretext to get him evicted. However, from the averments made in the civil suit filed by the petitioner and the written statement filed on behalf of the respondent landlord, it is crystal clear that the respondent landlord has denied the allegations of forcible dispossession of the petitioner and has stated that he will take the possession of the demised premises by adopting legal re-course. Since the petitioner has filed the instant revision petition under the provisions of law, it cannot be said that is an attempt to harass him by getting the petitioner evicted for his harassment. There is no evidence on record on the basis of which it can be held that the need of the respondent-landlord is not bona fide. Simply because the petitioner is disputing the need of the respondent landlord is not enough to hold that the petitioner has raised triable issues in his application for leave to contest. Except the allegations of harassment the petitioner has not come out with any plausible defence. The genuiness and veracity of the complaint made by the petitioner before the police authorities can only be determined by the criminal Court and not under provisions of the Rent Act. Except the allegations of harassment the petitioner has not come out with any plausible defence. The genuiness and veracity of the complaint made by the petitioner before the police authorities can only be determined by the criminal Court and not under provisions of the Rent Act. The respondent landlord has taken legal recourse to seek possession of the demised premises from the petitioner. Since the respondent-landlord fulfilled all the ingredients of section 13-B of the Act and there being not an iota of evidence to rebut the presumption of bona fide need in favour of the respondent-landlord, the impugned order needs no interference by this Court. 12. No merit. Dismissed. ————————