IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No.7201 of 2008 (O&M)
Date of Decision : August 28, 2009
Baghel Singh .....Petitioner
versus
Kotu Kumar Phull .....Respondent
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
Present : Mr.K.S.Dadwal, Advocate, for the petitioner.
Mr.Arun Palli, Senior Advocate, with
Mr.M.M.Mohan, Advocate, for the respondent.
-.-
1. Whether Reporters of Local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
---
ORDER
Surya Kant, J.
This order shall dispose of Civil Revision Nos.7201 of 2008
and 7202 of 2008, as the eviction orders challenged in both these revision
petitions have been passed under Section 13-B of the East Punjab Urban
Rent Restriction Act, 1949 at the instance of the same landlord though
against two different tenants and common questions of law and facts are
involved in both the cases.
For brevity, the facts are being taken from Civil Revision
No.7201 of 2008.
C.R. No.7201 of 2008 (O&M) 2
The respondent-landlord filed the present eviction petition
under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949
(for short “the Act”) for ejectment of the petitioner from the portion within
the letters ABCDEF in the attached site plan, from the residential house
situated in Ward No.3, Mohalla Ralhan, Dasuya, District Hoshiarpur. The
respondent averred that he was born and got education upto the higher
secondary standard at Dasuya and after doing his B.Sc. in Engineering, he
went to U.S.A. and served in the United States Army for over 28 years till
he retired from the rank of Colonel on 30.4.2003. The respondent further
averred that he is a citizen of United States of America and is, thus, Non
Resident Indian in terms of Section 2 (dd) of the Act and being a
“specified landlord”-cum-owner of the demised premises, he is entitled to
seek eviction of the petitioner-tenant summarily under Section 18-A of the
Act.
In order to prove his ownership qua the demised premises, the
respondent explained that the house in question was jointly owned by
Smt.Ram Piyari daughter of Sh.Lachman Dass Phull and the respondent;
Smt.Ram Piyari was respondent’s father’s real sister who used to treat him
like her own son and she died on 31.8.2002 leaving behind the respondent
as her sole legal heir on the basis of a registered Will dated 16.1.1975. In
other words, the respondent averred that he was already a co-owner of the
demised premises alongwith Smt.Ram Piyari and became its sole owner
after the death of Ram Piyari on 31.8.2002.
On receipt of notice as per Schedule-II of the Act, the
C.R. No.7201 of 2008 (O&M) 3
petitioner-tenant sought and was granted leave to contest the ejectment
petition by the Rent Controller, Dasuya vide its order dated 25.2.2004. The
petitioner-tenant thereafter filed his written statement denying the joint
ownership of the respondent and Smt.Ram Piyari as according to him, the
previous Will dated 15.7.1958 produced by the petitioner refers to
different houses owned by different persons. The petitioner-tenant also
disputed the Will dated 16.1.1975 purported to have been executed by
Smt.Ram Piyari bequeathing her share in the subject-house in favour of
the respondent. It was denied that the respondent has any personal
necessity for the house in dispute as he owns a residential house in Delhi
where his other relations and family members are also settled and that he
wants the tenants to be evicted to sell the entire property. The petitioner-
tenant also disputed the site plan and claimed that he is residing in a
different house.
The respondent, on the other hand, reiterated and further
explained that he had been a co-owner of the demised premises since the
death of his grand-father in the year 1959 as his grand-father Lala
Lachman Dass Phull Willed a share of the house in favour of the
respondent vide Will dated 15.7.1958. Thereafter, another co-owner of the
house, namely, Sh.Narender Nath Phull sold his share in the house in
favour of the respondent-landlord vide registered sale deed dated 4.8.1970.
Later on, the remaining half share of the house owned by Smt.Ram Piyari
also stood inherited by the respondent on the basis of the Will dated
16.1.1975, executed by Smt.Ram Piyari and in this manner, he has become
C.R. No.7201 of 2008 (O&M) 4
absolute sole owner of the house in question.
On the basis of the pleadings, the parties went on trial on the
following issues:-
“1) Whether the petitioner is entitled to get the demised
property vacated from the respondent on account of his
bonafide need and occupation? OPP.2) Whether Ram Piyari executed a valid Will in favour of
the petitioner on 15.7.1958 and thus there exists
relationship of landlord and tenant between the parties?
OPA.3) Whether the petitioner is a Non Resident Indian and thus
entitled to get the property in dispute vacated on account
of his bonafide need as prayed for? OPA.4) Relief.”
In order to prove his case, the respondent-“specified landlord”
has produced one Gurdeep Singh, Deed Writer (PW-1), Sh.V.K.Sharma,
Advocate (PW2), Harjinder Singh Sandhu, Draftsman (PW3), Dalip Rai
Behl, Advocate (PW5), Janak Raj (PW6) and himself entered into the
witness box as (PW4) and also produced various documents, a reference
to which is being made in the later part of this order.
The petitioner-tenant, on the other hand, examined his
attorney Satinder Kaur as RW-1 and one Sarwan Kumar as RW-2. His
evidence was closed thereafter.
Before adverting to the evidence on record, a brief reference
to the provisions of the Act may be made.
The East Punjab Urban Rent Restriction Act, 1949 has been
C.R. No.7201 of 2008 (O&M) 5amended by the State of Punjab by way of East Punjab Urban Rent
Restriction (Amendment) Act (9) of 2001, whereby a summary procedure
for ejectment of tenants by the NRI-landlords has been incorporated.
Section 2 (dd) of the Act defines “Non-Resident-Indian” 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; or
(b) for carrying on a business or vocation outside India; or
(c) for any other purpose, in such circumstances, as would
indicate his intention to stay outside India for a
uncertain period.”Section 13-B enables a “Non Resident Indian/Specified
Landlord”, who has returned or intends to return to India, to recover
immediate possession of a residential/scheduled or non-residential
building occupied by his tenant, provided that such an NRI is owner of
such building for a period of atleast 5 years before filing of the eviction
petition. Section 13-B reads as follows:-
“13-B. Right to recover immediate possession of
residential building or scheduled building and/or non-
residential building to accrue to Non-resident Indian:–
(1) Where an owner is a Non-Resident Indian and returns to
Indian and the residential building or scheduled building
and/or non-residential buildlng, 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 ordinarily living with an 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
C.R. No.7201 of 2008 (O&M) 6building under this Section, shall be available to 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 sub-section (1) has let
out more than one residential building or scheduled building
and/or non-resident building, it shall be open to him or her to
make an application under that sub-section in respect of only
one residential building or one scheduled building and/or one
non-residential 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.”Section 18-A of the Act provides special procedure for
disposal of an eviction petition filed under Section 13-B of the Act and the
relevant part thereof reads as follows:
“18-A. Special procedure for disposal of applications
under (Section 13-A or Section 13-B) –(1) Every application under (Section 13-A or Section
13-B) shall be dealt with in accordance with the
procedure specified in this Section.(2) After an application under Section 13-A or 13-B
is received, the Controller shall issue summons for
service on the tenant in the form specified in Schedule-
II.
(3) (a) the summons issued under sub-section (2) shall
C.R. No.7201 of 2008 (O&M) 7be served on the tenant as far as may be in accordance
with the provisions of Order V of the First Schedule of
the Code of Civil Procedure, 1908. The Controller shall
in addition direct that a copy of the summons be also
simultaneously sent by registered post acknowledgment
due addressed to the tenant or his agent empowered to
accept the service at the place where the tenant or his
agent actually and voluntarily resides or carries on
business or personally works for gain and that another
copy of the summons be affixed at some conspicuous
part of the building in respect whereof the application
under Section 13-A or Section 13-B has been made.
(b) When an acknowledgment purporting to be signed
by the tenant or his agent is received by the Controller
or the registered article containing the summons is
received back with an endorsement purporting to have
been made by a postal employee to the effect that the
tenant or his agent has refused to take delivery of the
registered article and an endorsement is made by a
process server to the effect that a copy of the summons
has been affixed as directed by the Controller on a
conspicuous part of building and the Controller after
such enquiry as he deems fit, is satisfied about the
correctness of the endorsement, he may declare that
there has been a valid service of the summons on the
tenant.
(4) The tenant on whom the service of summons has
been declared to have been validly made under sub-
section (3), shall have no right to contest the prayer for
eviction from the residential building or scheduled
building and/or non-residential building, as the case
C.R. No.7201 of 2008 (O&M) 8may be, unless he files an affidavit stating the grounds
on which he seeks to contest the application for eviction
and obtains leave from the Controller as hereinafter
provided, and in default of his appearance in pursuance
of the summons or his obtaining such leave, the
statement made by the specified landlord or, as the case
may be, the widow, widower, child, grandchild or the
widowed daughter-in-law of such specified landlord or
the owner, who is a non-resident Indian in the
application for eviction shall be deemed to be admitted
by the tenant and the applicant shall be entitled to an
order for eviction of the tenant……..”
The above reproduced legislative scheme establishes beyond
any pale of doubt that a “NRI-Specified-Landlord” is entitled to seek
eviction of his tenant summarily from the residential/scheduled/
commercial building if he requires such building for his own use and
occupation or for his family, provided that the building is owned by him
atleast for a period of 5 years prior to filing of the eviction petition.
Since the respondent in the instant case sought eviction of the
petitioner under Section 13-B of the Act claiming himself to be a
“Specified-Landlord”, he was also required to prove that (i) he is owner of
the demised premises for a period not less than 5 years before the filing of
the eviction petition; (ii) he is a Non Resident Indian within the meaning
of Section 2 (dd) of the Act; and (iii) he requires the premises for his own
use and occupation or for his family.
In order to prove that the demised premises is owned by him,
the respondent-landlord has brought on record plethora of documentary
C.R. No.7201 of 2008 (O&M) 9
evidence including the Will dated 16.1.1975 (Ex.P-3) whereby Smt.Ram
Piyari bequeathed half of her share in the demised premises in his favour.
He has also produced the death certificate (Ex.P-4) of Smt.Ram Piyari who
died on 31.8.2002. The respondent has also produced the record from the
office of Sub-Registrar to prove the execution of Will dated 16.1.1975
(Ex.P-5), besides producing the sale deed dated 4.8.1970 (Ex.P-6),
whereby another co-sharer/co-owner, namely, Narinder Nath Phull had
sold his share in the premises in favour of the respondent. The respondent
has also proved on record the site plan (Ex.P6/B) in order to co-relate the
title documents with the demised premises occupied by the petitioner and
other tenants. Not only this, the respondent has further proved on record
the Will dated 15.7.1958 (Ex.P-7), whereby his grand-father Lal Lachman
Dass Phull had Willed a share of the demised premises in favour of the
respondent. The General Power of Attorney dated 29.8.1978 (Ex.P-8),
whereby the respondent had authorized his father’s sister Smt.Ram Piyari
to let out the premises on his behalf and whereupon she inducted the
petitioner as a tenant, has also been got exhibited.
Similarly, the respondent has brought on record his own birth
certificate (Ex.P-10), followed by the certificate (Ex.P-11) of his having
passed the higher secondary examination from D.A.V. Higher Secondary
School, Dasuya, in March, 1962, in order to prove that he was born in
Dasuya, District Hoshiapur on 5.7.1947 and was brought up there and is,
thus, of Indian origin.
C.R. No.7201 of 2008 (O&M) 10
Likewise, the respondent has proved on record the certificate
of citizenship of the United States of America (Ex.P-13) as well as the
certificate of his retirement from the Armed Forces of the United States of
America (Ex.P-14). The respondent has further proved on record the
passport issued by the United States of America (Ex.P-17 & P-18). In
addition, the respondent has also brought on record a copy of the
registration of his Overseas Citizen of India issued by the Consulate
General of India at New York (Ex.P-19), to establish beyond any doubt
that he is a ‘Non-Resident-Indian’.
Relying upon the aforestated documentary evidence, duly
supported by the oral version of the respondent-landlord and other
witnesses, the Rent Controller has passed an eviction order against the
petitioner, giving rise to this revision petition.
I have heard learned counsel for the parties at some length,
perused the impugned order as well as the original records of the Rent
Controller.
Three fold contentions have been raised on behalf of the
petitioner-tenant. Firstly, it is urged that the Will dated 16.1.1975,
executed by Smt.Ram Piyari became operative after her death on
31.8.2002 and, thus, the respondent become owner of the property on
31.8.2002 only, whereas, the eviction petition has been filed by him in the
year 2003 i.e. beyond the expiry of the minimum statutory period of 5
years provided under Section 13-B of the Act. Secondly, it is argued that
the respondent-landlord owns a big house in Delhi which was also owned
C.R. No.7201 of 2008 (O&M) 11
by Smt.Ram Piyari and, thus, the demised premises is not required by him
for his own use and occupation or for his family. Thirdly, the respondent
has led no evidence to prove that he is a NRI and that he has sufficient
accommodation of 8-9 rooms in his possession in the same premises.
Having given my thoughtful consideration to the rival
contentions, I do not find any merit in this revision petition. It stands
established that the respondent-landlord became a co-owner in the demised
premises way back in the year 1959 when his grand-father expired and
who had already Willed a share of the demised premises in favour of the
respondent vide Will dated 15.7.1958. The respondent further improved
his status as a co-owner when he purchased share of Narinder Nath Phull
in the demised premises vide sale deed dated 4.8.1970. Thus, even in the
absence of the Will dated 16.1.1975 executed by Smt.Ram Piarai
bequeathing the remaining portion of the demised premises in his favour,
the respondent was a co-owner for a period of more than 5 years prior to
the filing of the eviction petition and was fully competent to seek the
petitioner’s eviction under Section 13-B of the Act in that capacity, as
ruled by the Hon’ble Supreme Court in “Baldev Singh Bajwa versus
Monish Saini, (2005) 12 SCC 778”, that “even if the landlord was not the
sole owner of the property in dispute, there is no bar for him to take up the
proceedings under Section 13-B of the Act.”
As regards the second plea that the respondent owns a house
in Delhi or that he does not require the demised premises for his own use
and occupation or that sufficient accommodation comprising 8-9 rooms is
C.R. No.7201 of 2008 (O&M) 12
already in his possession in the demised premises, the contention appears
to be wholly misconceived and misplaced. The respondent has spent better
half of his life in U.S.A. Going by his standards of living, there is nothing
unreasonable if he wants to demolish the old premises and reconstruct the
house fully equipped with the modern basic amenities. The site plan on
record suggests that there is only one toilet in the entire house located
outside. The premises is admittedly an old one existing even before the
year 1958. The fact that the respondent has returned to India is not in
dispute though his children and other family members might still be living
in U.S.A. In the later years of his life, the respondent’s desire to spend time
at a place where he was born and brought up, is quite natural. It will be
too far fetched to assume at this stage that he has sought eviction of the
petitioner in order to sell the demised premises at a better price. In any
case, the Act has provided safe guard against such like mis-use of the
eviction order as it prohibits the landlord from disposing of the vacated
property for a period of 5 years. Though it was pointed out during the
course of the hearing that the house in Delhi is also not in possession of
the respondent-landlord and some litigation pertaining thereto is pending
in the Courts at Delhi, yet I am of the considered view that the availability
of house in Delhi has no bearing on the requirement of the respondent-
landlord to spend his retired life in the house where he was born and
brought up. The remedy added provisions of the Act duly recognize such a
right of a NRI/Specified-Landlord.
C.R. No.7201 of 2008 (O&M) 13
For the reasons aforestated, I do not find any merit in both
these revision petitions which are dismissed with costs of Rs.2500/- each.
28-08-2009 (SURYA KANT) Mohinder JUDGE