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2014 DIGILAW 1286 (SC)

Devinder Kumar v. Nachhattar Singh

2014-11-25

MADAN B.LOKUR, R.BANUMATHI

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Judgment : R. BANUMATHI, J. Leave granted. 2. This appeal is directed against the judgment dated 6.2.2014 in Civil Revision No. 5461/2012 (O&M), in and by, which, the High Court of Punjab and Haryana dismissed the revision petition filed by the appellant-tenant confirming the eviction order passed by the Rent Controller, Ludhiana and declining leave to defend the eviction petition filed by the respondent-landlord under the provisions of Section 13-B of the East Punjab Urban Rent Restriction Act, 1949. 3. The demised premises is a shop on the front portion of property No.B IX-1342, Haibowal Khurd, Ludhiana, let out to the appellant by the erstwhile owner vide a rent note dated 18.7.1990 where the appellant is running a barber shop since 1990. The respondent-landlord, a Non-Resident of India, purchased the suit premises in 1995. An eviction petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short ' the Act’) was filed by the respondent stating that he bona fidely requires the shop as he wants to reconstruct the property No. B XIX -1342 including the demised shop to have residence on the ground floor. The appellant-tenant filed an application under Section 18-A of the Act seeking leave to defend the eviction petition on the ground that there is no bona fide requirement of the landlord. The Rent Controller dismissed the application holding that no triable issue is made out by the tenant to contest the ejectment petition and ordered eviction and granted two months time to the appellant to vacate the same. Aggrieved, the appellant filed Civil Revision before the High Court of Punjab and Haryana and the High Court dismissed the revision. Being aggrieved, unsuccessful tenant has filed this appeal by way of special leave. 4. We have heard learned counsel for the appearing parties at considerable length. The short question falling for consideration is whether the appellant has a fair and reasonable defence and whether leave to defend is to be granted. 5. Right to eject the tenant under Section 13-B of the East Punjab Urban Rent Restriction Act is available to the landlord who has a particular legal status that he is a Non-Resident of India and he is the owner of the suit building for five years before he availed of that right. Landlord has also to prove his requirement in respect of that building. Landlord has also to prove his requirement in respect of that building. The right under Section 13-B of immediate possession could be availed of only once during the lifetime of such an owner-NRI landlord. Section 13-B stipulates various restrictions which are not germane for the present appeal. 6. The application of the NRI-landlord for eviction of a tenant on the ground of his requirement under Section 13-B is to be disposed of in the manner indicated in Section 18-A of the Act. Provisions of the Act and the procedure thereon show that when an ejectment petition is made to the Rent Controller and the summons issued on the tenant, the tenant cannot contest the eviction petition of the landlord unless he obtains leave to contest the application under sub-section (5) of Section 18-A of the Act. In terms of sub-sections (4) and (5) of Section 18-A, in order to obtain leave to contest the application of the landlord, the tenant has to file an affidavit stating the grounds on which he wants to contest that petition. If the affidavit filed by the tenant discloses such facts as would disentitle the landlord or his dependent from obtaining an order for the recovery of immediate possession, the Controller would grant leave to tenant to contest the landlord’s petition for eviction. 7. In Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778 this Court considered the issue relating to standard of proof required by NRI landlord to prove his requirement of the accommodation from which ejectment is asked for. Observing that NRI-landlord’s desire for possession must have an objective element of ' bona fide need' this Court held as under: '18. ...Under Section 13-B the landlord is entitled to eviction if he requires the suit accommodation for his or her use or the use of the dependant, who ordinarily lives with him or her. The requirement would necessarily have to be genuine or bona fide requirement and it cannot be said that although the requirement is not genuine or bona fide, he would be entitled to the ejectment of the tenant nor can it be said that in no circumstances will the tenant not be allowed to prove that the requirement of the landlord is not genuine or bona fide. A tenant’s right to defend the claim of the landlord under Section 13-B for ejectment would arise if the tenant could be able to show that the landlord in the proceedings is not an NRI landlord; that he is not the ovmer thereof or that his ownership is not for the required period of five years before the institution of proceedings and that the landlord’s requirement is not bona fide. 19. ...In our view there are inbuilt protections in the relevant provisions for the tenants that whenever the landlord would approach the court he would approach when his need is genuine and bona fide. It is, of course, subject to the tenant’s right to rebut it but with strong and cogent evidence. In our view, in the proceeding taken up under Section 13-B by the NRI landlords for the ejectment of the tenant, the court shall presume that the landlord’s need pleaded in the petition is genuine and bona fide. But this would not disentitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord’s favour that his requirement of occupation of the premises is real and genuine.' 8. In the light of the above principles enunciated in Baldev Singh Bajwa’s case, we have considered the case at hand. Perusal of the application seeking leave to defend indicates that the appellant has averred myriad of facts to contest the eviction petition including the fact that he has already deposited the rent which he was unable to pay to the landlord as the respondent was not present in India. The appellant has raised the question challenging the bona fide requirement of the respondent stating that till date three eviction petitions filed by erstwhile owner Surjit Singh and by the respondent were dismissed. The appellant has raised the question challenging the bona fide requirement of the respondent stating that till date three eviction petitions filed by erstwhile owner Surjit Singh and by the respondent were dismissed. Application seeking leave to defend also refers to a suit for mandatory injunction filed by the appellant and registration of FIR against the respondent for the alleged damage caused to the shutter of the shop in question. Having regard to the averments made in the application and considering the grounds raised by the appellant, in our view, there is a fair dispute to be tried as to the bona fide requirement of the landlord and leave to defend is to be granted. 9. In the result, impugned order passed by the High Court is set aside and the appeal is allowed. Leave to contest the eviction petition is granted to the appellant-tenant on condition that he should pay all the arrears of rent and shall pay rent at the rate of Rs.1500/- per month from November, 2014 and the matter is remitted back to the Rent Controller for disposal in accordance with law. It is made clear that we have expressed no opinion on the merits of the rival contentions of the parties. No costs. 10. Pursuant to the order dated 27.3.2014 of this Court, appellant has deposited Rs. 1,20,000/- as arrears of rent. The respondent-landlord (Nachhattar Singh) is entitled to withdraw the same.