Civil Revision No. 1397 of 2007 {1}
In the High Court of Punjab and Haryana at Chandigarh
Civil Revision No. 1397 of 2007
Date of Decision:November 10, 2009
Nelson Christopher
---Petitioner
versus
Pritam Singh
---Respondent
Coram: HONBLE MR. JUSTICE GURDEV SINGH
***
Present: Mr. Kanwaljit Singh, Senior Advocate,
with Ms. Prachi Sharma, Advocate
for the petitioner
Mr.Sushil Kumar Saini, Advocate,
for the respondent.
***
GURDEV SINGH, J. (Oral)
Petitioner-tenant has preferred this revision petition against
orders dated 17.2.2007 passed by Shri Tarsem Mangla, Rent Controller,
Ludhiana, vide which he dismissed the application filed by the petitioner
under Section 18-A of the East Punjab Urban Rent Restriction Act, 1949
(hereinafter referred to as “the Act”) seeking leave to contest the petition
filed by the respondent-landlord under Section 13-B of the Act for his
ejectment from the premises in dispute and ordered his ejectment from that
premises after refusing that application, on the ground that he is Non-
Civil Revision No. 1397 of 2007 {2}
resident Indian and his ownership regarding the demised premises matured
more than five years back and he wanted to occupy the same for personal
use and occupation.
The facts are that the respondent-landlord filed an application
under Section 13-B of the Act for the ejectment of the petitioner-tenant on
the ground that he is Non-resident Indian as defined under Section 2 (dd) of
the Act. The petitioner is tenant under him though the rent is being
collected on his behalf by his wife. He acquired ownership of this premises
more than five years back and bona fide requires the same for his personal
use and occupation. After service, the petitioner put in appearance before
the learned Rent Controller and filed an application for leave to contest the
ejectment application on various grounds. According to him the relation of
landlord and tenant does not exist between him and the respondent and only
Hardeep Kaur is his landlord/landlady. The respondent has suppressed the
material fact regarding that relationship. The ejectment application is for
partial ejectment and the same is not maintainable on that ground itself. He
is not a Non-resident Indian and does not require the demised premises bone
fide for his personal necessity. He owns and possesses another house
bearing No. 317, situated in Bharat Nagar Chowk, Ludhiana. That
application for leave to contest was contested by the respondent. In his
reply, he denied all the contentions raised by the petitioner. He reiterated
his averments as made in the ejectment application. The learned Rent
Controller did not accept the contentions raised by the petitioner and
resultantly dismissed his application and passed the ejectment order in
favour of the respondent.
I have heard learned counsel for the parties and have carefully
Civil Revision No. 1397 of 2007 {3}
gone through the case file.
It was submitted by learned counsel for the petitioner that
learned Rent Controller failed to appreciate the fact that the respondent
owns an possesses another house in the same urban area and as such cannot
be said to be in bona fide need of the demised premises for his personal use
and occupation. The petitioner in his affidavit specifically pleaded that the
respondent and his wife own and possess House No. 317, situated in Bharat
Nagar Chowk, Ludhiana and the respondent was not able to controvert that
contention. The learned Rent Controller in his order incorporated the
statement of the Advocate for the petitioner that he was not the owner and
in possession of that house. That statement could not have been made the
basis for concluding that no such house is owned and possessed by the
respondent. From the affidavit of the petitioner it becomes clear that the
respondent is not entitled to get the demised premises vacated on the ground
of personal necessity. In these circumstances, leave to contest should have
been granted to the petitioner and the ejectment application should have
been decided on merits. In support of his contentions he has placed
reliance on Inderjeet Kaur v. Nirpal Singh 2001(1) R.C.R.(Rent) 33,
M.R.F. Limited and another v. S. Major Singh Purewal 2009(3)RCR
(Civil) 196 and Baldev Singh Bajwa v. Monish Saini, 2005(2) RCR 470.
He prayed that the revision be accepted and the application filed by the
petitioner for leave to contest the original ejectment application be allowed.
The ejectment order be set aside and the ejectment application be decided
on merits.
On the other hand, it was submitted by the learned counsel for
the respondent that all the contentions raised by the petitioner in his
Civil Revision No. 1397 of 2007 {4}
application/affidavit for leave to contest were duly considered by the
learned rent Controller and he negatived all those contentions. The
respondent was able to prove that he required the building for his own use.
Therefore, it cannot be said that the order passed by the learned Rent
Controller suffers from any such illegality. In support, he has placed
reliance on Prem Kumar Patel v. Inderjit Singh Grewal (2002-3) Punjab
Law Reporter 829. He prayed for dismissal of the revision petition.
According to Section 18-B(5) of the Act, which contains the
procedure for dealing with the application filed under Section 13-B of the
Act, the Controller may give to the tenant leave to contest the application if
the affidavit filed by the tenant discloses such facts as would dis-entitle the
Non-resident Indian landlord from obtaining an order for the recovery of
possession of the residential building under Section 13-B of the Act.
Therefore, in order to succeed in the application for leave to contest, the
petitioner was required to prove that the respondent was not entitled to an
order for the recovery of possession of the demised premises. As per sub
Section 9 of that Section, the procedure for the disposal, after such leave is
granted, is the same as for the disposal of the application by the Controller.
Learned Rent Controller was to reach the conclusion, on the basis of the
pleadings and affidavits of the parties, that the respondent bona fide
requires the demised premises for his use and occupation and that he is not
in possession of any such residential building in the urban area concerned
and has not vacated any such building without sufficient cause since the
commencement of the Act. No doubt, he recorded a finding to that effect.
The question to be decided for the decision of the present revision is
whether that finding is perverse and has been recorded without sufficient
Civil Revision No. 1397 of 2007 {5}
material on the record.
It was held by the Apex Court in the case of Baldev Singh
Bajwa’s case (supra) that ” in the proceedings taken up under Section 13-
B by the Non-resident Indian in the ejectment of the tenant, the Court shall
presume that landlord’s need pleaded in the petition is genuine and bona
fide. But this would not dis-entitle 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 and 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.”
It has been held by the this Court in M.R.F. Limited’s case
(supra) as under:-
” In this context, the need of the landlord is not merely to be
presumed at all times but if the issue whether the requirement
of the accommodation of the landlord or his dependent is
genuine or not it shall be examined in the context of what is
stated in the written statement. The need could be shown as
such but not merely a desire or a mere wish to secure eviction if
it was pointed out that the landlord did in fact own other
premises and there was no justification for applying for
eviction.”
Civil Revision No. 1397 of 2007 {6}
In order to succeed in the application, heavy burden was upon
the petitioner to prove that the requirement of the respondent was not
genuine. He specifically deposed in his affidavit that the respondent owns
and possesses another house in the same urban area. Learned Rent
Controller recorded a finding that the said house belongs to the wife of the
respondent. It is pertinent to note that it was also recorded by him in his
order that even the rent of the demised premises is being collected by the
wife of the respondent.
Learned counsel for the respondent has heavily relied on Prem
Kumar Patel’s case (supra) and on the basis thereof tried to contend that
the ownership and possession of other suitable accommodation in the same
urban area is no bar to Non-resident Indian to get one building of his choice
vacated. Relevant portion of that judgment is reproduced below:-
“As against this, Section 13-B merely requires a claim that the
property is required by the landlord for his own use or for the
use of his dependents. The requirements of building can be for
any purpose and not necessarily for his permanent residence.
Unlike section 13-A, the ownership or possession of other
suitable accommodation in the same area is no bar on a Non-
resident Indian to get one building of his choice vacated under
Section 13-B. It is also significant to note that section 13-B
provides for recovery of possession of one entire building.
Once it is claimed by the Non-resident Indian that he requires it
for his own use, the objection that a portion of the building is
sufficient for his requirement is of no consequence. He would
still be entitled to the possession of one whole building.”
Civil Revision No. 1397 of 2007 {7}
In the present case, the respondent has tried to suppress the fact
that he owns and possesses another house in the urban area concerned. He
has come out with a plea that the said house is owned and possessed by him
and still he requires the demised premises for his use and occupation. In
these circumstances, he is not entitled to the benefit of the observation
made in the above said judgment.
In the case of Inderjeet Kaur’s case (Supra), it was held by
the Apex Court that “assertions and counter assertions in the affidavits of
the parties may not afford safe and acceptable evidence so as to arrive at an
affirmative conclusion unless there is strong and acceptable evidence
available to show that facts disclosed in the application filed by tenant
seeking leave to defend were either frivolous, untenable or most
unreasonable. At the stage of granting leave, real test should be whether
facts disclosed in the application/affidavit seeking leave to defend prima
facie show that land lord would be dis-entitled from obtaining an order of
eviction and not whether at the end the defence may fail.”
Therefore, from the affidavit of the petitioner, it was to be seen
whether the respondent was dis-entitled from getting the possession of the
demised premises. In order to succeed, he was to prove that he bona fide
required that premises for his use and occupation. It stands proved from
the facts that the respondent owns and possesses another house in the same
urban area and nothing was said by the respondent as to what was the
ground of preference for getting the demised premises vacated. From the
affidavit of the tenant it prime facie stands proved that the respondent shall
be dis-entitled to the recovery of the possession of the demised premises on
the ground taken by him in the application under Section 13-B of the Act.
Civil Revision No. 1397 of 2007 {8}
Therefore, the finding recorded by the Rent Controller cannot be sustained
and is liable to be set aside.
Accordingly, the revision petition is hereby accepted. Orders
dated 17.2.2007 passed by the learned Rent Controller are set aside. The
application filed by the petitioner for leave to contest is allowed. Rent
Controller, Ludhiana, shall proceed in accordance with the provisions
contained in Section 18-A (6)of the Act.
Parties are directed to appear before the Rent Controller,
Ludhiana on 14.12.2009.
(GURDEV SINGH)
JUDGE
November 10, 2009
PARAMJIT