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2013 DIGILAW 1275 (PNJ)

Jagdev Singh v. Jarnail Singh Grewal

2013-09-20

RAKESH KUMAR GARG

body2013
Judgment Rakesh Kumar Garg, J. This is tenant's revision petition challenging the order dated 9.2.2011 of the Rent Controller, Ludhiana whereby in a petition filed under Section 13B of the East Punjab Rent Restriction Act, 1949 (in short “the Rent Act”), his prayer for leave to defend has been declined and he has been ordered to be evicted from the demised premises. The respondent-landlord filed the ejectment petition claiming himself to be NRI and owner of the property No.3723, Model Town Road, Near Bharat Nagar, Ludhiana and further submitting that the petitioner is tenant under him in one shop out of the said property on a monthly rent of Rs.200/besides house tax and other charges and he had permanently settled at abroad and has returned to India and wants to settle in Ludhiana. The petitioner is liable to be ejected from the shop in dispute and he requires the property in question for his personal use and occupation. In the petition, the respondent further mentioned that there were three shops in property No.3723, Model Town Road, Near Bharat Nagar, Ludhiana. Two of the shops were on rent with another tenant, namely, Dalbir Singh son of Baldev Singh and the third shop was under tenancy with the petitioner. It was also averred that the respondent-landlord does not possess any other nonresidential building except the property bearing Khata No.123/135, Khasra No.159/678, measuring 0B2B8B as entered in the jamabandi for the year 198889 situated at village Taraf Burara, H.B. 168, Tehsil and Distt. Ludhiana bearing Wasika No.9957 in the year 1990 at the backside of the property No.3723, Model Town Road, Near Bharat Nagar, Ludhiana lying mortgaged in favour of Ashok Kumar son of Krishan Lal Juneja son of Diwan Chand, resident of 3722, Model Towan Road, Ludhiana and he has not vacated the same or any other such property within limits of Municipal Council, Ludhiana without any sufficient cause after the commencement of the Rent Act. Upon notice, the petitioner-tenant appeared and filed an application for granting leave to contest submitting that there was no relationship of landlord and tenant between the parties as respondent was not the owner of the property in dispute and the shop in dispute was taken on rent by the firm, namely, M/s. Nirankar Furniture Palace, whereas the petition has been filed against the petitioner who is the proprietor of the aforesaid firm. Earlier Baldev Singh used to receive the rent against the receipts @ Rs.100/per month and rent is being paid to said Sh.Baldev Singh @ Rs.100/per month. Baldev Singh has received rent upto 31.12.2004. The petitioner further disputed the status of the respondent as NRI. It was further stated that the respondent has another property of village Gujjarwal, Tehsil and Distt. Ludhiana besides yet another property at Model Town Road, near Bharat Nagar Chowk, Ludiana approximately 1000 square yards and the same has been rented out to one Saw Mills and also to other tenants Ashok Kumar Diwan Chand, etc. and these facts have not been disclosed by the respondent-landlord in his petition. The respondent has come to India and has already entered into an agreement to sell his property in dispute and also the property in dispute. The respondent is more than 70 years of age. Hence, question of bonafidely intending to start his business in the demised premises does not arise. In fact, the respondent has no intention to settle in India permanently and he just wants to get the property in dispute vacated from the petitioner. On the aforesaid assertions, it was prayed that the petitioner be granted leave to defend. The said application was contested by the respondent-landlord. The Rent Controller Ludhiana, vide impugned order dated 9.2.2011, rejected the prayer of the petitioner in the following terms: “Perusal of the file shows that the petitioner has placed on file copy of the passport showing to be NRI and returned to India to settle here, copy of sale deed vide which he has purchased the property in the year 1986 and he is owner for the last 25 years and has not moved any other application except the present petition. Nirankar furniture is the sole proprietorship of the respondent Jagdev and there is no bar to file the petition against the sole proprietorship instead of a firm and it is also discretion of the petitioner to file eviction petition against the tenant whose premises is most suitable for the business to be carried out. Nirankar furniture is the sole proprietorship of the respondent Jagdev and there is no bar to file the petition against the sole proprietorship instead of a firm and it is also discretion of the petitioner to file eviction petition against the tenant whose premises is most suitable for the business to be carried out. As such, application filed by the respondent/applicant is declined being no merits and eviction order is hereby passed and respondent is directed to vacate the demised premises and handed over the possession to the petitioner failing which petitioner is entitled to get the possession through the process of the court.” Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the petitioner is not an NRI as he does not fulfill the conditions for getting the benefit of Section 13B of the Rent Act. However, it could not be disputed by the learned counsel for the petitioner that the respondent is permanently settled abroad and is owner of the suit property for more than 5 years. Even it could not be disputed before this Court that the respondent is the landlord of the demised premises. Learned counsel for the petitioner further could not dispute that the respondent is an NRI as per the provisions of the Rent Act as interpreted by the Hon'ble Supreme Court in the case of Baldev Singh Bajwa vs. Monish Saini AIR 2006 SC 59 . However, counsel for the petitioner has submitted that the interpretation of definition of NRI is pending before the Hon'ble Supreme Court in SLP No.189 of 2011 and many other similar petitions have been adjourned by this Court and therefore, in view of the aforesaid position, the question is still pending. At this stage, it may be noticed that this Court in CR No.7630 of 2012 (Rakesh Rishi Versus Bakhshish Kaur) decided on 5.8.2013, has already taken note of the pendency of SLP No.189 of 2011 before the Hon'ble Apex Court and has observed in the following manner: “.......The pendency of SLP No.189 of 2011 on a similar issue before the Hon’ble Supreme Court will not make any effect for deciding the instant case, as such a question was raised before this Court in the case of ‘Ranjit Puri v. Dr. Mohinder Paul Singh’ (2012-13) Vol.CLXVII PLR 309 which was negated by this court holding that the Hon’ble Apex Court, in different SLPs, has stayed eviction which are peculiar to the said cases and it is not acceptable that Rent Controllers will be barred from proceeding with the trial of cases under Section 13B of the Act on account of the fact that the tenants are setting up fresh challenge to the definition of NRI landlord.” Similarly in CR No.4525 of 2013 (Bansal Trading and another Versus Dr. Viranmol Singh Toor and others) decided on 3.9.2013, this Court has observed as under: “It may further be noticed that operation of the law cannot be put to stop in view of pendency of the matters before Hon'ble the Supreme Court or High Court in the absence of any interim order. I find support from the judgments of this Court in ‘Ranjit Puri v. Dr.Mohinder Paul Singh’ (2012-13) Vol. CLXVII PLR 309; ‘Harjinder Singh v. Baljit Kaur’ 2012 (1) RCR (Civil) 184; and Civil Revision No.1571 of 2010 titled as ‘Padam Nabh and sons v. Yash Pal’ decided on 8.12.2011.” Thus, the challenge of the petitioner to the impugned order on the basis of the argument, as noticed above, is liable to be rejected. Learned counsel for the petitioner has further argued that need of the respondent-landlord in the instant case is not genuine as it is not possible for him to settle in India and start any business as he is more than 73 years of age. However, it is well settled that landlord is the best judge of his needs and it is his view point which is to be taken into consideration and not the dictates of the tenant. It has been further argued that the petition has been filed malafidely as the respondent-landlord has not come to the Court with his hands clean as he has failed to disclose about the other shops which are in his possession. It is the allegation of the petitioner that landlord is having another property at Model Town Bharat Nagar, Ludhiana approximately 1,000 square yards and the same has been rented out to one Saw Mills and other tenants, namely Ashok Kumar, Diwan Chand and Parveen etc. However, the argument raised is not substantiated from any record. It is the allegation of the petitioner that landlord is having another property at Model Town Bharat Nagar, Ludhiana approximately 1,000 square yards and the same has been rented out to one Saw Mills and other tenants, namely Ashok Kumar, Diwan Chand and Parveen etc. However, the argument raised is not substantiated from any record. In fact, a perusal of the eviction petition would show that the petitioner has clearly stated that in addition to the shop in dispute he further owns two shops and also land measuring 2 biswa 8 biswasis just adjoining the aforesaid property and has been mortgaged in favour of Ashok Kumar Juneja son of Krishan Lal Juneja. and thus, the averment made in the application for leave to defend was without any substance and does not raise any triable issue. It may further be noticed that once an NRI landlord fulfills the conditions of being NRI landlord and owner of the property in dispute for the last more than 5 years, a presumption is to be drawn in his favour to the effect that he requires the demised property for his personal bonafide need and such presumption can only be rebutted by making out a strong case by placing on record material to support his averment along with his application for leave to defend. Except allegations as made in the application, there is nothing on record to support the aforesaid averments. In view thereof, this Court is of the view that no interference is warranted in the impugned order. Dismissed.