Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 375 (PNJ)

Amrita Pal Johal v. Baldev Raj

2013-03-21

K.Kannan

body2013
JUDGMENT Mr. K. Kannan J. (Oral):- The revision petition is at the instance of the representatives of the landlord, who prosecuted a petition filed by one Gurcharan Kaur. She was NRI and her petition was founded on an averment that she wanted to establish a business in electronic goods with the assistance of her sons and grandsons. She would make a specific averment that she wanted to settle his sons and grandsons in electronic business. The petitioner died during the pendency of the suit and therefore her legal representatives were added. Leave to defend had been granted to the defendant to deny that the petitioner fulfilled the status as NRI and also as regards the contention that the petitioner’s and her sons’ need was not established. It was specifically contended that the averment in the petition do not fulfill the requirement in law, for it was not averred anywhere that her sons or grandsons were living along with her and were dependent on her. The Rent Controller accepted the defence and dismissed the petition. 2. Learned counsel for the petitioner contends that rejection of the petitioner’s status as NRI was erroneous since the passport which was valid till the year 2004 was exhibited as evidence in Court but it had not been relied on. A petition has been filed under Order 41 Rule 27 to receive the passport issued in the subsequent period in 2004 also that would show her NRI status. The counsel would contend that the provision of Order 41 Rule 27 CPC would apply to revision proceedings as well. The counsel appearing on behalf of the respondent would contest the petitioner’s claim and state the objection that there is no justification for non-production of the document and it cannot be received as additional evidence. 3. To my mind, there will be no difficulty in receiving even the document as additional evidence, considering the fact that photocopy of the passport which was valid upto 2004 was also on record although the Rent Controller assumed that there was no document. It was an admitted case sworn through an affidavit that the petitioner had died during the pendency of the case in England and her sons were prosecuting the case. The fact that she was a person of Indian origin owning property was brought through the production of the sale deed pertaining to the property. It was an admitted case sworn through an affidavit that the petitioner had died during the pendency of the case in England and her sons were prosecuting the case. The fact that she was a person of Indian origin owning property was brought through the production of the sale deed pertaining to the property. If the son was prosecuting the case on plea that his mother died in UK, I would hold that there was proof of her NRI status. 4. The Court also found that the description of property had not been properly established. Learned counsel appearing for the revision petitioner points out to the boundaries of site and points out as to how there is a congruity of the description of the property as mentioned in the petition. However, misdescription as found by the Rent Controller was that the shop immediately adjoining the demised property was a shop while the boundary given in the sale deed was with reference to the entire property including all the three shops. The eastern boundary was therefore not shown as shop No.2 but the adjoining owner’s name was shown. I have no difficulty in observing that the sale deed produced before the Court made reference only to the demised property and therefore, the finding that the petitioner had not established her ownership was also erroneous. 5. All this is merely to set down the necessary platform to examine whether the case could be maintained on the averments and the proof adduced before the Court for maintaining the action under Section 13B. This is particularly so in view of a singular contention raised with vehemence by the counsel appearing for the tenant that the petition must be taken as not competent for the only fact that it fails to disclose and prove what is a fundamental norm to file a petition under Section 13B of the East Punjab Urban Rent Restriction Act, 1948. Section 13B is a special provision that allows for fast tracking the proceedings without a contest unless leave to defend is granted by the Court. A summary ejectment is contemplated in law to make possible for a Non Resident Indian to secure immediate possession of the property if the need is disclosed in the petition even without having to go through a full-fledged trial. A summary ejectment is contemplated in law to make possible for a Non Resident Indian to secure immediate possession of the property if the need is disclosed in the petition even without having to go through a full-fledged trial. If a leave to defend is not granted, the requirement under Section 13B is that the property is required for his or her use or for the use of any one ordinarily living with and dependent on him or......... The requirement must, therefore, be of the need of the person, who is NRI. In this case the exact averment in the petition would require to be reproduced to see whether the legal requirement is satisfied. “That the petitioner wants this whole unit comprising of properties No.1 to 4 for her own use and for setting up business in electronics with the help of her sons and grand son who are to have after coming to India in their native village. The petitioner has two sons namely Rajinder Singh, Amritpal Singh and two daughters namely Daljit Kaur and Rajwinder Kaur. Rajinder Singh is unmarried. Amritpal Singh has one son Amrinder Singh and one daughter Pawantpreet. Amrinder Singh is going to complete his education. Now the petitioner wants to settle his sons and grand son in electronics business in India and the petitioner has personal necessity of the property in dispute....” 6. The averment in the petition definitely discloses the personal requirement in such a way that the petitioner who had been living in foreign country, who was looking towards her sons and grandsons, who while coming back to India to the native village would support her. Elsewhere, in the same petition, it is also stated that she wanted to settle her sons and grandsons in electronic business. If the property was required for her own need without reference to her grandsons and sons, then the fact that she died during the pendency of the petition even without putting the property for a particular purpose which she disclosed makes inapplicable the first portion of the requirement. Learned counsel appearing on behalf of the revision petitioner cites before me several decisions of various Rent Control Acts as to how the death of person pleading for personal requirement may not take away the need of the landlord. Learned counsel appearing on behalf of the revision petitioner cites before me several decisions of various Rent Control Acts as to how the death of person pleading for personal requirement may not take away the need of the landlord. I will rest my attention only to judgments which are specifically brought under Section 13B and discard judgments, which are with reference to other enactments. This is so because Section 13B is a State enactment which sets out a distinct need and the requirement under this Section cannot be understood through a requirement under any other provision. Of the decisions cited, one is Onkar Singh Vs. Dilbagh Rai and another 2012(1) RCR (Rent) 135 where the court was considering, inter alia, a petition filed by the owner of the property, who inducted the tenant and who was an NRI. In that case, the landlord had returned to India before the initiation of proceedings. The need was sought to be proved by the fact that the petition had been filed by the landlord along with yet another person and his son and the case was prosecuted by a plea that the other person, who had died along with the landlord and his son continue to require the property. In this case, the petition was filed only at the instance of the lady, who required the property for her own need. If the petition could be prosecuted by a legal representative, it must be by a person, who was ordinarily living with and dependent on her. Consequently, if the original landlord himself or herself was not alive to prosecute the case and the property was required for the purpose of the person ordinarily living with him or dependent on him, both factors would require to be proved: (i) that the person who was prosecuting the case was a person who was ordinarily residing with the NRI and (ii) he was dependent on him. We have already extracted the averment in the petition and I have also gone through the affidavit. There is no statement anywhere that the son or the grandson was dependent on the landlady. The petition must fail for what the statute expressly requires and what it fails to brings out. We have already extracted the averment in the petition and I have also gone through the affidavit. There is no statement anywhere that the son or the grandson was dependent on the landlady. The petition must fail for what the statute expressly requires and what it fails to brings out. The argument that the sons or the grandsons were prepared to surrender the citizenship and come back to India or they were intending to start a business could probably give rise to an independent cause of action but on the averment in the petition which was continued at the instance of the legal representatives, the requirement must be confined to the landlady’s requirement as set out under the Section or shall be at the instance of a representative who resided with the landlady and who was dependent on the landlady. This issue of the dependence and the joint residence with the NRI landlord was expressly put forth decided in the judgment in Onkar Singh’s case referred to above. I am afraid, therefore, it cannot really state the law of what is now argued before this Court. The landlord’s requirement cannot be taken as established in the above circumstances and the dismissal of the petition was, therefore, perfectly justified. The revision petition is therefore dismissed. 7. The other connected revision petition in C.R. No.2832 of 2009 for another property adjoining the property dealt with in the above case would also require to be dismissed and accordingly dismissed. ---------0.B.S.0------------