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2014 DIGILAW 1230 (PNJ)

Chaudhary Auto Division v. Ajit Kaur

2014-08-27

BHARAT BHUSHAN PARSOON

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JUDGMENT Dr. Bharat Bhushan Parsoon, J. Mrs. Ajit Kaur, respondent herein had filed a petition before the Rent Controller, Hoshiarpur under Section 13B of the East Punjab Rent Restriction Act, 1949 (hereinafter mentioned as the Act) to seek eviction of tenant M/s Chaudhary Auto Division, Hoshiarpur. In the said petition, an application was moved by the tenant under Section 18A(5) of the Act for obtaining leave of the court to appear and contest the said application for eviction. Dismissing the said application, the petition of the respondent landlady was allowed with costs. These orders of dismissal of the application as also of grant of eviction petition, both of 1.3.2004 passed by the Rent Controller, Hoshiarpur are under challenge in this revision petition. 2. It is claimed by the tenant, the petitioner herein, that neither the landlady was a Non-Resident Indian (NRI) nor had any personal necessity. It is averred that the petition preferred by the landlady was merely a ruse to get the premises vacated by taking recourse to provisions of Section 13B of the Act, whereas earlier petition of eviction against the tenant had been dismissed and the landlord had remained unsuccessful even in the appeal. Civil Revision petition preferred by the landlord in this court had also been dismissed. It is claimed that the respondent landlady Smt. Ajit Kaur had other properties as well but had not disclosed the said fact as also about the properties owned by her husband. 3. The respondent herein though had initially contested the petition through her counsel but never appeared thereafter. Sequelly, arguments of the petitioner tenant alone have been heard while going through the grounds of the revision petition and impugned judgments while appreciating other attending facts and circumstances on the file. 4. Section 13B of the Act is a special provision whereby right to recover immediate possession of residential building or scheduled building or nonresidential building has been given to Non-Resident Indians. For ready reference, the said provision is appended as below: “13B. 4. Section 13B of the Act is a special provision whereby right to recover immediate possession of residential building or scheduled building or nonresidential building has been given to Non-Resident Indians. For ready reference, the said provision is appended as below: “13B. Right to recover immediate possession of residential building or scheduled building and/or nonresidential building to accrue to Nonresident Indian.(1) Where an owner is a Nonresident Indian and returns to India and the residential building or scheduled building and/or nonresidential building, as the case may be, let out by him or her, is required for his or her use, or for the use of any one ordinary living with and dependent on him or her, he or she may apply to the Controller for immediate possession of such building or buildings, as the case may be: Provided that a right to apply in respect of such a building under this section, shall be available only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner. (2) Where the owner referred to in subsection (1), has let out more than one residential building or scheduled building and/or nonresidential building, it shall be open to him or her to make an application under that subsection in respect of only one residential building or one scheduled building and/or one nonresidential building, each chosen by him or her. (3) Where an owner recovers possession of a building under this section, he or she shall not transfer it through sale or any other means or let it out before the expiry of a period of five years from the date of taking possession of the said building, failing which, the evicted tenant may apply to the Controller for an order directing that he shall be restored the possession of the said building and the Controller shall make an order accordingly." 5. It thus, transpires that this special statutory right is available to specified owners landlords for retrieval of possession of the premises in a building from the tenants. This special right is subject to compliance of many conditions. It thus, transpires that this special statutory right is available to specified owners landlords for retrieval of possession of the premises in a building from the tenants. This special right is subject to compliance of many conditions. These are: (i) The specified landlord should be owner of the building for a period of not less than five years; (ii) The landlord should be an NRI as defined in Section 2dd of the Act who is aspiring to come back to India with an intention to settle here; (iii) This right is exercisable only once in lifetime and that too in respect of one building; and, (iv) If possession of a building is retrieved under this provision, such building can neither be sold nor transferred nor let out to anyone for a period of five years from the date of taking of possession thereof. 6. Concedingly, earlier owner landlord Karan Singh died on 30.11.1986, interalia, leaving behind his widow as one of the legal heirs. Plea of the tenant is that Smt. Ajit Kaur cannot be said to be a landlord qua these premises even though after the death of her husband being his widow, she is coowner with her two sons. 7. Merely because her name as owner in the House Tax Assessment Register of Municipal Council, Hoshiarpur was substituted in place of her husband Karan Singh belatedly even though her husband had died on 30.11.1986, is not a circumstance to construe that on the date of filing of the petition under Section 13B of the Act i.e. on 12.4.2002, she was not owner of the building for the last more than five years. Rather, her husband having expired on 30.11.1986 and the petition under Section 13B of the Act having been filed by her on 12.4.2002 is maintainable as more than five years had elapsed after she became a coowner of the premises. Succession never remains in abeyance. Even if municipal record was corrected belatedly, this lapse on the part of the municipal authorities cannot be construed against her. Thus, municipal record of 200102 (Annexures P3 and P4) showing her owner of the building in 200102 though her husband had died on 30.11.1996, would not be taken to the prejudice of the landlady. 8. It is a conceded fact that earlier litigation i.e. Rent Petition No.35 of 8.6.1979 titled “Karan Singh Vs. Thus, municipal record of 200102 (Annexures P3 and P4) showing her owner of the building in 200102 though her husband had died on 30.11.1996, would not be taken to the prejudice of the landlady. 8. It is a conceded fact that earlier litigation i.e. Rent Petition No.35 of 8.6.1979 titled “Karan Singh Vs. M/s Chaudhary Auto Division” for eviction of this tenant was dismissed by the Rent Controller, Hoshiarpur on 22.12.1980. Appeal No.99 of 1982 with the same title was dismsised on 6.11.1982 by the Appellate Authority under the Act. Civil Revision Petition No.222 of 1983 preferred by the landlord was also dismissed by this Court on 12.10.1999. It is evident that having exhausted all his remedies in a regular petition preferred under Section 13 of the Act, wherein the landlord had remained unsuccessful throughout, taking a circuitous route, recourse was taken to the special remedy under Section 13B of the Act. 9. Claim of the tenant is that the petition had been filed with ill motive and design in a clandestine manner merely to seek eviction when true and material facts had been concealed from the Rent Controller. 10. If we glance through the averments of the application (Annexure P2) preferred by the tenant seeking leave to contest the petition, it is evident that a specific plea that the landlady Smt. Ajit Kaur was not an NRI, had been taken. Relevant pleadings to this effect are contained in para 3 (b) of the said application, which for ready reference is reproduced, as below: “(b) That the applicant Ajit Kaur is not an N.R.I. She does not fall within the category of N.R.I. She is holding Indian Passport which has since been expired. As per her passport she visited Canada only once, as a visiter and she was only having visa for six months from 20.6.2000 to 23rd of December, 2000 and thus she cannot be termed as N.R.I. in any manner.” 10. Perusal of the impugned order reveals that bye passing the averments of the tenant that she had visited Canada only once and that too as a visitor and that she had visa only for six months, it has been observed by the Rent Controller that she had visited Kuwait on 22.7.1971 and had visited Egypt on 26.2.1977. Perusal of the impugned order reveals that bye passing the averments of the tenant that she had visited Canada only once and that too as a visitor and that she had visa only for six months, it has been observed by the Rent Controller that she had visited Kuwait on 22.7.1971 and had visited Egypt on 26.2.1977. Whether, mere visit to few countries on tourist visa and that too for a very limited duration would make such landlord owner to be an NRI or not, is a question worth debate and this issue is triable. 11. Plea of the petitioner tenant that such visit of the landlady to overseas countries such as Canada, Egypt, Kuwait and Taiwan for short duration would not make her an NRI was to be tried and adjudicated by the Rent Controller. It would be worth notice that in the impugned order of dismissal of application of the tenant for obtaining leave to appear and contest the petition under Section 13B of the Act, the Rent Controller has relied upon visits of the landlady to Kuwait on 22.7.1971 and then to Taiwan thereafter and her visit to Egypt on 26.2.1977, whereas this period is not relevant. Her husband who was the landlord owner of the building had started litigation with the tenant on 8.6.1979 which was litigated by him upto this Court till 12.10.1999 and he had continuously remained unsuccessful. It was a triable issue as to whether visits made by the present landlady even much before the earlier litigation had been started by her husband would enure for her in support of her claim of eviction under special statutory provision of Section 13B of the Act, where she claims herself to be an NRI? Even on the ground of personal necessity, it was claimed that she was having many more commercial properties and in fact, had no intention to start her business because she was old, infirm and aged lady and had taken no steps to establish herself as a commercial entrepreneur. 12. Even on the ground of personal necessity, it was claimed that she was having many more commercial properties and in fact, had no intention to start her business because she was old, infirm and aged lady and had taken no steps to establish herself as a commercial entrepreneur. 12. From the totality of facts and circumstances, it transpires that summary dismissal of the application of the petitioner tenant and concomitant summary acceptance of the petition of the landlady under Section 13B of the Act vide the impugned orders suffer from inherent defect of bye passing the triable issues which had specifically been brought at the surface by the petitioner tenant and which were required to be adjudicated after allowing the application of the tenant for seeking leave to contest the petition under Section 13B of the Act. 13. There is thus merit in this revision petition of the tenant. Consequently, setting aside both the impugned orders, accepting the application of the tenant for obtaining leave of the Rent Controller to appear and contest the application, the petition under Section 13B of the Act is remitted to the Rent Controller to adjudicate the pleas raised by the tenant in its application to contest and then to consider the same vizaviz the petition of the landlady preferred under Section 13B of the Act for eviction of the tenant from the building in dispute. 14. Sequelly, accepting this petition with the findings as above, the parties are directed to appear before the Rent Controller, Hoshiarpur on 6.10.2014. 15. Since the matter is very old, the Rent Controller would decide the same within three months from the date of receipt of certified copy of this order.