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2013 DIGILAW 1513 (PNJ)

Gurdial Singh v. Rajinder Kumar

2013-11-19

RAKESH KUMAR GARG

body2013
JUDGMENT Rakesh Kumar Garg, J. This judgment shall dispose of CR No.3184 to 3196 of 2013 as identical questions of law have been raised in all these petitions filed on behalf of the tenants on the basis of similar facts and against one common respondent, who had filed the eviction petitions under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949, (for short 'the Act)' against the petitioners for their ejectment wherein vide impugned order leave to defend has been declined to the petitioners and their eviction has been ordered. The respondent-landlord in the eviction petitions filed under Section 13-B of the Act, claiming himself an NRI and co-owner of the demised premises for a period of more than 5 years prior to filing of these petitions stated that he is a Non-Resident Indian and he is residing in Norway and now he has arrived in India permanently and the shops in dispute as detailed in the eviction petitions are required by him for his own use as he intends to open a departmental store. Upon notice of these applications, the petitioners put in appearance within the period as stipulated under law and filed respective applications seeking leave to defend the eviction petitions. The leave to defend was sought by the petitioners on the ground that the respondent has wrongly claimed himself to be a Non-Resident Indian and he does not fall within the ambit of Section 13-B of the Act. He was not the sole owner of the property in dispute and his need was not bona fide. He does not intend to start departmental store and in fact has no intention to settle in India and he wants to evict the petitioners so that he could fetch higher returns/sale price for the demised premises which he intends to sell or give on higher rent. The respondent-landlord has not placed on record any evidence to show his intention to settle in India for temporary or on permanent basis. Moreover, he never visited India and is well settled in Norway. Moreover, sufficient accommodation is in possession of the co-owners and thus, the present petition was liable to be dismissed on the sole ground that the need of the respondent was not bona fide. Moreover, he never visited India and is well settled in Norway. Moreover, sufficient accommodation is in possession of the co-owners and thus, the present petition was liable to be dismissed on the sole ground that the need of the respondent was not bona fide. On the basis of the aforesaid averments, it was argued that the petitioners had raised triable issues before the Rent Controller and therefore, the impugned order whereby their prayer for grant of leave to defend has been rejected and further eviction has been ordered, is erroneous, illegal and liable to be set aside. Challenging the impugned orders, counsel for the petitioners has vehemently argued that there is sufficient material placed on record which establishes that various triable issues were raised before the Rent Controller. However, the same have been ignored and even the settled principles of law have not been followed and thus, the impugned orders are liable to be set aside. Elaborating further, counsel for the petitioners has referred to an averment made by one of the petitioners in his application for leave to contest to the effect that co-owner Satish Kumar had tried to purchase the shop in dispute through the mediation of a property dealer but on failure to accept the offer by him, the petition has been got filed by said Satish Kumar through the petitioner under Section 13-B of the Act and thus, the present petition has been filed with an ulterior motive to make the misuse of the provisions. Learned counsel for the petitioners has further argued that the respondent-landlord had rented out some shops in the year 2009 on enhanced rent. It is the case of one of the petitioners that a tenant of shop No.6 was paying rent directly to the brother of the respondent as the said shop had fallen to his exclusive share and thus, the respondent's eviction petitions were liable to be dismissed on the ground that he was not his landlord and further was not the exclusive owner of the property. It has been further argued that the respondent has never visited India and is well settled in Norway and has no intention to return to India. It has been further argued that the respondent has never visited India and is well settled in Norway and has no intention to return to India. Moreover, sufficient accommodation is in possession of the co-owners as it has been proved on record that half of the total property owned by the respondent is under occupation of the co-owners and thus, the need of the respondent-landlord is not bona fide and genuine. Further argument has been raised that the property in question has been mutated in the name of the respondent recently and thus, he is not the owner of the suit property for a period of more than 5 years prior to filing of the instant petition and thus, various triable issues have been raised and the impugned orders whereby leave to defend has been declined, are liable to the set aside. However, on the other hand, learned counsel for the respondent, has supported the impugned order passed by the Rent Controller. He has also brought to the notice of this Court that as per the judgment of the Hon'ble Supreme Court in the case of Baldev Singh Bajwa vs. Monish Saini AIR 2006 SC 59 , there is no requirement of law that an NRI landlord for the purpose of availing of the remedy under the Act, should first return to India and then only he can apply for eviction of the tenant and the plea raised in this regard will not give rise to any triable issue in the matter. He has further argued that there is no restriction upon an NRI landlord seeking eviction of different tenants from different shops in respect of a complete building and since all the shops tenanted to the petitioners form part of the same building, the respondent-landlord was well within his rights to seek eviction of all the petitioners as held by a Bench of this Court in Bhandari General Store and another Vs. Makhan Singh Grewal 2006(1) RCR 306 which has been upheld by the Hon'ble Supreme Court. Counsel for the respondent has also relied upon a Division Bench judgment of this Court in the case of Smt. Bachan Kaur & ors. v. Kabal Singh & Anr. 2011(1) RCR (Rent) 368, wherein it has been held that a co-owner NRI can seek eviction of the tenant in building though the tenant was not inducted by such an NRI. Counsel for the respondent has also relied upon a Division Bench judgment of this Court in the case of Smt. Bachan Kaur & ors. v. Kabal Singh & Anr. 2011(1) RCR (Rent) 368, wherein it has been held that a co-owner NRI can seek eviction of the tenant in building though the tenant was not inducted by such an NRI. It has been further argued on behalf of the respondent-landlord that once an NRI landlord proves the necessary ingredients of Section 13-B of the Act, a presumption has to be drawn in his favour with regard to his need presuming the same to be genuine and bona fide one and the same cannot be contested by merely stating that need of the landlord is not bona fide as he is well settled abroad. In the instant case, admittedly, father of the respondent was owner of the entire building compromising the demised premises, who had died in the year 2005. The mother of the respondent had also died on 2.2.2004 and after their death, all of their LRs including the respondent had become co-owners of the suit property in the year 2005, as inheritance cannot be kept in abeyance. Therefore, merely because respondent has moved application for mutation of inheritance at a later stage will not disentitle him of NRI status on the ground that the suit property is not in his name for a period of five years prior to filing of the petition. Counsel for the petitioner further could not dispute the law settled by a Division Bench of this Court that an NRI co-owner of the tenanted premises can maintain an eviction petition. Neither the counsel for the petitioners could dispute the law as settled by the Hon'ble Supreme Court in Baldev Singh Bajwa's case (supra) holding that a landlord should first return to India and then only he can apply for eviction of the tenant. It may further be noticed that the fact regarding the enhancement of rent is proved does not mean that the respondent has no intention to settle in India. It may further be noticed that the fact regarding the enhancement of rent is proved does not mean that the respondent has no intention to settle in India. There is no force in the arguments raised that the real intention of the respondent is to sell the property for higher returns and the application for eviction is aimed at getting the premises vacated by misusing and abusing the provisions of law, thus, his need was not bona fide as sufficient safeguards have been provided in the Act in the event of misuse of the special provisions by such landlord/owner as in the event of a landlord not occupying the premises, would entail penal consequences. At this stage, it is relevant to mention that once an NRI landlord fulfills all the necessary ingredients of Section 13-B of the Act, a presumption of genuineness and bona fide of his need has to be presumed and the same can be rebutted only by placing on record material facts which are missing in this case. Even otherwise, the bona fide need of a landlord is to be judged from his view point and tenant cannot dictate his terms with regard to sufficiency or suitability of the accommodation. Thus, the argument raised in this regard is also rejected. Faced with this, counsel for the petitioners has submitted that the interpretation of definition of NRI is pending before the Hon'ble Supreme Court in SLP No.189 of 2011 and therefore, in view of the aforesaid position, the petitions be kept 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 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. 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 petitioners to the impugned order on the basis of the argument, as noticed above, is also liable to be rejected. In view of the discussion, no triable issue has been raised on behalf of the petitioners and thus, no fault can be found with the impugned orders. Dismissed.