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2013 DIGILAW 1343 (PNJ)

Amarjit Singh v. Gurcharan Singh Minhas

2013-10-04

RAKESH KUMAR GARG

body2013
Judgment Rakesh Kumar Garg, J. This is tenant’s revision petition challenging the impugned order dated 22.2.2013 of the Rent Controller, Jalandhar whereby his application for grant of leave to defend has been rejected in a petition filed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short 'the Act') by the respondent-landlord. The respondent claiming himself a non-resident Indian and landlord of the demised premises sought eviction of the petitioner under Section 13-B of the Act submitting that he fulfills all the necessary ingredients to get benefit under the aforesaid provisions. Upon service, the petitioner and proforma respondents No.2 to 6 appeared before the Rent Controller and filed an application seeking grant of leave to defend alleging that the respondent-landlord was not entitled to the benefits of Section 13-B of the Act as he did not fulfill the conditions as prescribed under the law being a Canadian citizen. It was further submitted that the respondent-landlord has filed another petition under Section 13-B of the Act earlier also and therefore, the present petition was not maintainable. A further ground was taken that one single petition regarding two independent tenancies is not maintainable as only one shop was rented out to Dr. Diwan Singh (predecessor in interest of the petitioner) whereas other shop was independently let out to one Amarjit Singh vide separate lease deed. It was also submitted that the respondent-landlord did not require the demised premises for his personal use and occupation as he has no intention to settle in India and therefore, the need of the respondent-landlord was not bona fide. A further submission was made that the demised premises consist of very small area and will be of no use to the respondent-landlord as he will not be able to utilize the same for his business. The said application was contested by the respondent-landlord and vide impugned order dated 22.2.2013, the same has been rejected. Feeling aggrieved from the aforesaid order, the petitioner-tenant has filed the instant revision petition challenging the aforesaid order. I have heard learned counsel for the parties and perused the impugned order. In support of his case, counsel for the petitioner has vehemently argued that the respondent is not an NRI as he holds a Canadian passport and thus, is a foreigner. I have heard learned counsel for the parties and perused the impugned order. In support of his case, counsel for the petitioner has vehemently argued that the respondent is not an NRI as he holds a Canadian passport and thus, is a foreigner. It has been further argued on behalf of the petitioner that though issue with regard to the definition of NRI has been interpreted by the Hon’ble Supreme Court in the case of Baldev Singh Bajwa vs. Monish Saini AIR 2006 SC 59 yet the issue as raised in this petition is still pending before the Hon’ble Supreme Court in SLP No.189 of 2011 and thus, the petitioner has raised a triable issue and the Rent Controller has erred at law while declining to leave to defend the petition. 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 13-B 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. 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. At this stage, it may be noticed that the petitioner has not otherwise disputed the status of the respondent as an NRI except as noticed above. Faced with this, learned counsel for the petitioner has further argued that the respondent-landlord had earlier filed an eviction petition against the petitioner under Section 13-B of the Act wherein vide order dated 13.8.2009 leave to defend was granted to him and thus, the impugned order is liable to be set aside. According to the counsel for the petitioner, the prayer of the petitioner should have been allowed on the same analogy/reasoning as adopted by the Rent Controller in the earlier petition while granting leave to defend vide order dated 13.8.2009. Moreover, according to the petitioner, once the respondent has availed the benefit under Section 13-B of the Act, the instant petition was not maintainable. The argument as raised is without any merit and is liable to be rejected. It is a matter of record that the aforesaid order dated 13.8.2009 of the Rent Controller was subject matter of Civil Revision No.835 of 2010 before this Court wherein vide order dated 20.8.2010, on the request of the respondent-landlord, the main eviction petition filed by him under Section 13-B of the Act, before the Rent Controller, was allowed to be withdrawn with liberty to file fresh petition on the same cause of action. Order dated 20.8.2010 was passed by this Court in CR No.835 of 2010 in the presence of counsel for the petitioner. In view of the aforesaid fact, the argument as raised cannot be sustained as the order dated 13.8.2009 is nonest and the earlier petition filed under Section 13-B of the Act was allowed to be withdrawn with liberty to file fresh one. In view of the aforesaid fact, the argument as raised cannot be sustained as the order dated 13.8.2009 is nonest and the earlier petition filed under Section 13-B of the Act was allowed to be withdrawn with liberty to file fresh one. The objection raised on behalf of the petitioner that the demised premises consists of the tenancy of the petitioner alone or also that of a son as a separate tenant does not arise at all as in the eviction petition the respondent-landlord has sought eviction of the petitioner alone from the premises in dispute specifically pleading that earlier Dr. Diwan Singh was the tenant and after him, the same is occupied by the petitioner. This brings us to the last argument of the petitioner to the effect that need of the respondent is not bona fide as he will not be able to set up his business in the demised premises which consists of a small area, it is well settled that the landlord is the best judge of his needs and tenant cannot dictate his terms with regard to suitability and adjustment of the accommodation. It may further be noticed that in a petition under Section 13-B of the Act on fulfilling the conditions of being NRI, a presumption is to be drawn in favour of the landlord with regard to his bona fide need and such a presumption can be dispelled only by making a strong case by placing relevant material on record along with the application for leave to defend. There is no such material on record to controvert the presumption of bona fide need in favour of the respondent-landlord. No other argument was raised. In view thereof, this Court finds no merit in this petition. Dismissed.