Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 483 (PNJ)

Narinder Kumar v. Chandrup Singh

2013-04-11

K.Kannan

body2013
JUDGMENT Mr. K. Kannan, J.:- All the civil revisions are at the instance of the respective tenants of property owned by the same landlord. The grounds of eviction are the same and the decision in one applies to the decisions for the other two cases as well, namely, of cases in Civil Revision Nos.2893 and 2894 of 2008 only. The petitions for eviction against the tenant-Vijay Kumar is dealt with separately in Civil Revision No.2895 of 2008 since a previous petition filed by the landlord was on a different ground. The facts set out hereunder immediately are the consideration of the respective contentions as regards the landlord’s requirement under Section 13-B of the East Punjab Rent Restriction Act (for short, ‘the Act’). 2. The landlord claimed himself to be a NRI and the petitions were filed through a power of attorney. The eviction was sought on the alleged personal necessity for the landlord. The Rent Controller has ordered eviction and it is contended that the petitions ought to have been dismissed since (i) the principal had not been examined and the evidence tendered by the power of attorney was not sufficient; (ii) the landlord owned other property which was vacant and the requirement was not bona fide; (iii) the evidence revealed that the landlord had intention to sell the property and the evidence as spelt out was therefore not genuine; (iv) the landlord had earlier filed a petition on the same ground and it was dismissed. The present petition was barred by res judicata. 3. As regards the legal bar for institution of fresh petition when an earlier petition was said to have been dismissed, it is seen that earlier the landlord had filed a petition under Section 13 of the Act. In the earlier petition, there was a cryptic statement that the property was required for personal necessity and the earlier petition was disposed of not on merits. The petition was allowed to be withdrawn and the present petition was under Section 13-B of the Act. 4. The learned counsel for the landlord contends that the petition under Sections 13 and 13-B of the Act operate under different fields. The petition was allowed to be withdrawn and the present petition was under Section 13-B of the Act. 4. The learned counsel for the landlord contends that the petition under Sections 13 and 13-B of the Act operate under different fields. The earlier petition had not spelt out the need of the principal of the family, while the subsequent petition under Section 13-B of the Act had required the property for the members of the landlord’s family, who were dependent on the NRI landlord. The withdrawal of the earlier petition cannot attract the bar under Section 11, since Section 11 would be attracted only in cases, when decision had been rendered on merits between the same parties on the same ground. Since the new ground was on a different cause of action, namely, of the requirement of the members of the family, the petition will not also suffer the bar under Order 23 Rule 1 CPC. The learned counsel for the landlord refers to the judgment in Baldev Singh Bajwa Versus Monish Saini, [2005(4) Law Herald (P&H) 561 (SC)] : 2005(2) RCR 470, as laying down the relevant factors to be considered. The relevant para of the judgment is reproduced as under:- “26. On the interpretation given by us and on a plain reading of the provisions, once in a life-time possession is given to a NRI to get one building vacated in a summary manner. A Non-resident Indian landlord is required to prove that:-(i) he is a NRI; (ii) that he has returned to India permanently or for the temporary period; (iii) requirement of the accommodation by him or his dependent is genuine; and (iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenant’s affidavit asking for leave to contest the NRI landlord’s application should confine to the grounds which NRI landlord is required to prove, to get ejectment under Section 13-B of the Act. The Controller’s power to give leave to contest the application filed under Section 13-B circumscribe to the grounds and inquiry to the aspects specified in the Section 13-B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. The Controller’s power to give leave to contest the application filed under Section 13-B circumscribe to the grounds and inquiry to the aspects specified in the Section 13-B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13-B and no other aspect shall be considered by the Controller.” The learned counsel would argue that unlike in a petition under Section 13 where the landlord would require to prove the bona fides on a contest by the tenant, Section 13-B is entitled to succeed on an averment regarding the personal necessity and the tenant shall not be allowed to even contest unless specific leave is granted. At least to this extent, the burden becomes less onerous for a landlord under Section 13-B. This surely does not take away the need for a Court to examine whether the bona fides exist or not, but the dismissal of the petition under Section 13 cannot exclude the scope of Rent Controller to examine the need spelt out under Section 13-B. If, in this case, a leave to defend has been granted, then the only point that has to be seen is whether there are sufficient averments in the petition that allow for the Court to infer that the landlord’s requirement was genuine and whether the evidence brought before it support the plea. If in an earlier petition, the landlord had contended for his own need, but in a subsequent petition, he was spelling out the need for the members of his family who were dependent on him, it is surely a different ground on a different cause of action. The petition withdrawing the earlier petition cannot therefore constitute res judicata. It would also not amount to an abandonment in the manner contemplated under Order 23. In N.R. Narayan Swamy Versus B. Francis Jagan-2001(2) RCR 169, the Court was considering a case of dismissal of an earlier petition filed on personal requirement under Karnataka Rent Control Act of 1961. The Supreme Court had held that in eviction proceedings under the Rent Act, a fresh suit on the ground of bona fide requirement when the genuine need arose in future, a suit withdrawn without permission to file a fresh suit was maintainable even if no permission had been granted. The Supreme Court had held that in eviction proceedings under the Rent Act, a fresh suit on the ground of bona fide requirement when the genuine need arose in future, a suit withdrawn without permission to file a fresh suit was maintainable even if no permission had been granted. I accept the contention of the landlord and hold that there was no bar against the institution of a fresh petition. The dismissal of an earlier petition cannot constitute a res judicata, for, it operates on a different principle, namely, of a party being vexed with the same cause of action on the same ground. The earlier decision must have been also on merits. The Supreme Court in M/s British Motor Car Co. Versus Madan Lal Saggi (D) and another-2004(2) RCR 693 held that a dismissal of eviction petition under the East Punjab Rent Restriction Act of 1949 could not debar the landlord from moving a petition for eviction based on subsequent events affording him a fresh cause of action. Sections 13 and 13-B themselves spell out different circumstances. The criteria for consideration are also different. This Court has even held in Parminder Singh Versus Jatinder Singh Grewal and others-2012(3) PLR 845, that even a simultaneous proceedings under two provisions are possible. The same point has also been reiterated in another judgment of this Court in Dalip Singh Versus Gurdip Singh, [2012(1) Law Herald (P&H) 445] : 2011(2) RCR (Rent) 411. 5. The most crucial event is only whether the landlord’s need had been established and whether it could be taken even in the absence of examination of the principal. The counsel appearing on behalf of the tenant points out that the evidence given by the son admitted to the fact that the petition had been filed at the instance of the father and he had not conferred with his father before filing the petition. In this case, the contention of the landlord is that he intended to return to India and commence a restaurant along with his son. When the requirement is said to be for his son and the son was also examined, there is no need for the landlord also to be examined. The only issue is whether the son was dependent on the father and I find that nothing is elicited in the evidence that he was not dependent on his father. When the requirement is said to be for his son and the son was also examined, there is no need for the landlord also to be examined. The only issue is whether the son was dependent on the father and I find that nothing is elicited in the evidence that he was not dependent on his father. It is brought out in his evidence that his father was in Canada and he had given a power of attorney under P2 which was later ratified by him under P5. 6. The learned counsel for the tenant relies on a judgment of the Supreme Court in State of Karnataka Versus Adimurthy alias B. Moorthy- (1983) 3 SCC 268 that the meaning of the expression “at the instance of” while dealing with the competency of a person to lodge a complaint under the Electricity Act, 1910. The Court was considering the case of the validity of a complaint prosecuted by a Supervisor on the direction of the Assistant Engineer. The trial magistrate and the High Court dismissed the complaint and acquitted the accused on the ground that there was lack of authority for the Assistant Engineer or the Supervisor to lodge a complaint since the authority was not notified in the official gazette. The Supreme Court held that the expression “at the instance of” ought to be understood as “at the behest of” or “at the solicitation of” and does not imply the same degree of obligation to obey “as does command”. Where therefore a person acting for on behalf of the Board lodges a complaint with the police, prosecution must be taken as instituted at the instance of the Board. The Court was holding that the evidence led by the prosecution was sufficient to raise an inference as authority of the complainant and the guilt against the respondent. I do not understand as to how this judgment helps the tenant in any way, for, if at all, this judgment only makes possible a wider interpretation for an expression “at the instance of” and does not require even a command of the principal. I do not understand as to how this judgment helps the tenant in any way, for, if at all, this judgment only makes possible a wider interpretation for an expression “at the instance of” and does not require even a command of the principal. If the son was therefore contending that the petition had been filed at the instance of his father, it was good enough to make an inference that there was no need for a command and it was filed on behalf of his father in his capacity as a power of attorney. 7. All that would be necessary was only whether the petition could be sustained under Section 13-B and the landlord conformed to the status of a NRI as defined under the Act. The Court has examined the original certificate regarding the passport of Chandroop Singh as Ex.P3; the original visa endorsement under P4; and the original permanent resident card at Canada as Ex.P5. The status as a NRI was well established and the landlord had established the need in the manner required by law. 8. I do not find any lack in authority to file the petition and the evidence of the son was sufficient to support the case of the principal-the father, for, the requirements as pleaded by the landlord was the association of the son in the business and such association and need were capable of being spoken to by the son and indeed spoken by the son through his evidence. 9. The eviction has been correctly ordered and the revisions in Civil Revision Nos.2892 to 2894 of 2008 would, therefore, require to be dismissed. 10. The Civil Revision No.2895 of 2008 is at the instance of the tenant, who has been ordered to be ejected on the same grounds urged as in other cases, referred to above. The only difference, in this case, is against this tenant, there had been earlier an application filed by the landlord under Section 13 of the Act and the earlier petition had not been dismissed as withdrawn as was done in other cases, but went through a fully contested trial. The grounds urged by the landlord were that the tenant had been guilty of causing diminution of the value and utility of the building. This contention has been earlier rejected and the landlord’s petition failed. The grounds urged by the landlord were that the tenant had been guilty of causing diminution of the value and utility of the building. This contention has been earlier rejected and the landlord’s petition failed. The present petition is wholly on a different ground under Section 13-B of the Act. 11. The ground taken as established for landlord to order ejectment ought to prevail for his need against this tenant also. The defences available to the tenant for a plea under Order 23 or Section 11 CPC are not attracted to this case. The ejectment ordered against this tenant is also to be justified for the very same reasons which have been examined in the above cases. 12. The eviction ordered in all the cases will have to be supported and all the civil revisions are required to be dismissed and accordingly, dismissed. --------0.B.S.0------------