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2013 DIGILAW 512 (PNJ)

Mangwinder Chahal v. Ramesh Kumar Sudera

2013-04-22

K.KANNAN

body2013
JUDGMENT K. KANNAN, J. 1. The revision petition is against the refusal of grant of leave to defend, brought at the instance of the tenant in an application filed by the landlord under Section 13-B of the East Punjab Rent Restriction Act, 1949 as applicable to Chandigarh. The landlord's plea was that he has been a person of Indian origin and a citizen of U.K. but he wanted to return to India and permanently reside at Chandigarh where the demised property is situated. The tenant took up several defences in the application for grant of leave, they are:- (i) The landlord has contended that the tenant is in default of rent which is a ground available under Section 13 and not under Section 13-B. (ii) He is a permanent resident of U.K. and unless he secures an Indian visa he cannot return to India and occupy the premises. (iii) The bona fides of the landlord are themselves suspect. In as much as the building of which the demised property is a part comprised of ground plus two floors, of which the ground floor was in occupation of yet another tenant, the first floor had been retained by the landlord himself and the second floor had alone been rented out to him. As far as the ground floor was concerned the landlord had actually evicted a tenant who was already there and he has let out to a fresh tenant. He has no requirement to vacate the tenant only at the second floor and if he was really interested in coming back, he would not have rented out the ground floor. 2. As regards the contention that the petition suffers from a fundamental technical defect in joining also a ground of default of rent admissible under Section 13, I would take the petition itself as founded under Section 13-B and look for answers of whether there is any tenable defence that could allow for a consideration for leave to defend and additional ground which may be irrelevant under Section 13-B need not deter the consideration of whether the defence disclosed contains anything prima facie for the grant of leave. I therefore proceed to consider whether there is any defect in the petition in the manner urged by the learned counsel. 3. I therefore proceed to consider whether there is any defect in the petition in the manner urged by the learned counsel. 3. As regards the contention that the landlord who is a permanent resident of U.K. cannot think of going back to India to settle permanently, the requirement in law is that he shall be:- Non Resident Indian as defined under Section 2 (dd) of the East Punjab Rent Restriction Act, which is reproduced as under. The Section reads as follows:- "2.(dd) Non-resident Indian means a person of Indian origin, who is either permanently or temporarily settled outside India in either case:- (a) For or on taking up employment outside India. (b) For carrying on a business or vocation outside India. (c) For any other purpose, in such circumstances, as would indicate his intention to stay outside India for a uncertain period." 4. A person who is residing outside India whether permanently or temporarily qualifies for the definition as Non Resident Indian and there is no bar for a person who is permanently residing outside India to seek for ejectment. Learned counsel would contend that even a copy of the passport filed only has three pages and pages in the back of the passport issued by U.K. are not produced. I think such a contention is wholly irrelevant and if the document produced before the Court showed that the petitioner had been of Indian origin and he had been a permanent resident outside India, the fact that other pages in the passport had not been produced cannot advance the case of the tenant any better. 5. As regards the contention that the landlord had actually rented out the ground floor to yet another person and if he had been bona fide he would not have rented out the ground floor and would have retained the same for himself is also not a ground which can be accepted, for, a landlord has joined the issue in the tenant's application for grant of leave that he desired to occupy only the second floor and not the ground floor. The tenant shall not dictate to the landlord which floor of the building he should occupy. This point is too well established a position that the tenant may not be able to dictate to the landlord what would be appropriate for him. The tenant shall not dictate to the landlord which floor of the building he should occupy. This point is too well established a position that the tenant may not be able to dictate to the landlord what would be appropriate for him. It is clearly for the landlord to decide what is appropriate and adequate for him. 6. There is also a contention made that the petition filed before the Court was not properly filed in the sense that only the first and the last pages contain the attestation by a Notary public and the competence of such a person to attest is not clearly known. I find this argument to be wholly without any substance, for there is not even a requirement in law that the petition filed in Court should obtain an attestation from a Notary public. If there is ever a doubt that there is impersonation, it shall be so pleaded. Further there is no basis for that the Notary public was not shown to be competent to Notarize the pleadings. The other contention which is raised is that the landlord has lucrative business in U.K. and that he need not come back to India. If he has lucrative business elsewhere in U.K. it does not mean that his riches must be confined only to U.K. and cannot be allowed his prosper is his homeland. The plea is also without substance. 7. The Court that rejects a leave to defend has to still see and exercise its judicial mind to properly consider whether the ground for eviction is made and the landlord should require his bona fides to be established. Such a power has to be exercised in the manner contemplated under Section 18-A of the Act. The Rent Controller will address himself properly to this legal position before the landlord is allowed the benefit of the claim made in the petition of ejectment. As of now the petition sought to be brought at the instance of the tenant seeking leave to defend cannot obtain any favourable consideration. Consequently, the revision petition is dismissed.