IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.5547 of 2008
Date of decision: 04.05.2009
M.R.F.Limited and another ...Petitioners
versus
S.Major Singh Purewal ...Respondent
CORAM: HON'BLE MR. JUSTICE K.KANNAN
Present: Mr. Kanwaljit Singh, Senior Advocate with
Mr. Harmanjit Singh, Advocate, for the petitioners.
Mr. Arun K. Bakshi, Advocate for the respondent.
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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 ?
K.Kannan, J.(Oral)
1. The application for grant of leave to defend filed by
the tenant was rejected by the Rent Controller in a petition filed by the
landlord under Section 13-B of the East Punjab Urban Rent Restriction
Act. In the petition for leave to defend, the tenant put several contentions
of which predominant ones that galvanised attention before the Rent
Controller and before me, by the persuasive arguments of the learned
Senior counsel were ; (i) The document of lease in favour of the tenant
allowed for 20 years period with a right of renewal by the tenant and a
liberty given to the tenant for premature determination of tenancy. The
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petition filed before the expiry of the said period was not tenable;
(ii) The landlord was guilty of concealment in that he did not reveal the
existence of other properties which he might have owned and which he
required a further probe. The Rent Controller rejected both these
contentions as not enabling the tenant to have the right of defence and
ordered summary ejectment.
2. The learned Senior counsel appearing for the tenant
states at the outset that the lease deed provides for 20 years commencing
from 1993 and the petition filed before the conclusion of the said period
was not maintainable. He points out that the reliance of the Rent
Controller to the decision of this Court in Paramjit Kaur (Smt.) Versus
Satya Gupta (Smt.) and others-1996(2) RLR 319, was clearly
misplaced since the judgment which relied on a decision of Hon’ble the
Supreme Court in Lakshmi Venkateshwara Enterprises (P) Ltd.
Versus Syeda Vajhiunnissa Begum- 1994(2) RCR 121, dealt with a
different situation where although the petition was filed prior to the
expiry of the period stipulated under the lease, the landlord there was
contending that by violation of the term under the contract there had
been a premature termination of tenancy which the landlord was entitled
to invoke. In this case, according to the learned Senior counsel, no
violation of term of lease had been canvassed by the landlord and when
the 20 years period had not concluded, the petition was not maintainable.
While I will agree with the submission that a petition for eviction even
within the expiry of the period mentioned in a contract would always be
possible if a landlord’s resort to action under the rent control enactment
Civil Revision No.5547 of 2008 -3-
by reference to an eventuality of premature termination, I would still
point out that petition for ejectment could be resisted as not
maintainable, if only the right to remain in possession is protected by
term of the contract. Such a right could legitimately exist by a term of
lease for a certain specified period and when the landlord could be
prevented before the expiry of the period by filing a petition.
3. One does not need to grope too far or too long to say
that such a right does not exist for a tenant in a case where the entry into
possession through an instrument which the law requires shall be
registered but which is unregistered. The requirement of registration
comes through the provisions of the Transfer of Property Act which
states under Section 107 that lease of immovable property from year to
year or a term exceeding one year or reserving an early rent could be
made only by a registered instrument. Section 17(1)(d) of the
Registration Act mandates that the lessee of immovable property from
year to year or for any term exceeding one year or reserving an early rent
shall be required to be compulsory registered. The effect of non-
registration of a document that is compulsorily registerable is contained
through Section 49 of the Act that interdicts that it shall not affect any
immovable property or confer any power to adopt or be received as
evidence of any transaction affecting such property or conferring such
power. It is admitted on all fours that an exception provided under
Section 49 is not attracted to this case. To state the obvious that an
exception which could still be attracted would be a right of a person to
prove the character of possession as a collateral purpose to the lease. It
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would happen in case the status as a tenant itself is denied and then it
shall be permissible for the person affected to show that his possession is
that of a tenant. In this case, the petition is filed admitting the
defendant’s status as a tenant. The term of lease prescribed in the lease
deed on which the tenant relies on is through an instrument dated
01.07.1992 that prescribes 20 years period commencing from the date of
completion of the renovation of the building which the tenant was
authorized to do. Admittedly such renovation had been done and the
contention of the tenant was that he was entitled to continue in
possession for 20 years and that would not occasion before the
completion of 2013.
4. The learned Senior counsel for the petitioner relies on
the decision of this Court in Basant Lal and others Versus Ramji Dass
(deceased) through L.R’s and others- 1990 Civil Court Cases 377
(P&H), that an unregistered deed of partition would not bar a person
from ascertaining the nature of possession. I have already pointed out
that the character of possession is the most outstanding example to the
exception provided under Section 49 of the Registration Act. I have also
held that the respondent’s status as a tenant itself is not denied and that is
the reason why the landlord has invoked the provisions of the Rent Act.
If the term of lease for a period in excess of one year would require
registration and as in this case, the documents spells out a lease period of
20 years, it is not admittedly registered then the inescapable consequence
is that it will not operate affect the immovable property, which he seeks
to transfer by lease. Any more than permissibility of the character of
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possession of the respondent as a tenant, the right of lease shall be seen
only in the context of the tenant having tendered the rent to the landlord
and the landlord having received the rent from the tenant. In such a
situation, the receipt of rent itself constitutes the creation of lease and the
possession held by such a tenant shall be a tenant from month to month.
Here it is not the tenure of lease that protects possession but it is a
statutory right of a tenant to stay in possession under the East Punjab
Urban Rent Restriction Act that comes into operation. If the provisions
of the Act could be invoked by either party, it only means that such a
right is available not under the contract of lease itself, but it is a right that
is invoked under the Act and the trappings of all the provisions will
come into full sway. The landlord’s right to invoke Section 13-B could
not in such a situation be defeated. The defence to the petition as not
maintainable by the reliance on a document which is inadmissible is
under such circumstances not tenable at all.
5. The other defence that the tenant took up was that the
landlord was guilty of suppression of not disclosing other properties
which he was possessed of. According to the learned Senior counsel, the
averment in the petition was only that the landlord was not possessed of
any other similar building. The averments in the petition, inter alia, are
“that the petitioner is not in possession of any other similar premises at
Jalandhar city nor he has vacated any such building within the limits of
Municipal Corporation, Jalandhar after the coming into force of East
Punjab Urban Rent Restrict Act.” The qualifying expression found in
the petition of the petitioner not owning “any other similar premises”.
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According to learned counsel assumes significance that it would only
mean that the landlord concedes that he has other buildings also but
denies availability of similar buildings. If the tenant had in his
application for leave contended that the landlord indeed owns some other
premises, it would obtain some credibility to his defence. On the other
hand, the tenant has adopted a defence that in my view is only a
moonshine. His response to the averments referred to above as contained
in paragraph 4 of his petition seeking for leave is that the ownership
particulars of the landlord of other building would require further probe.
A landlord cannot say anything more than the non-availability of any
other premises. A negative fact could be shown to be false only by a
positive assertion of existence of some property which would dis-entitle
the landlord to invoke the said provisions. In my view, the attribute of a
malafide intent of a landlord could be made if only he is shown to have
any other building. The inference from the statement of the landlord that
he does not own any other similar premises as meaning that he owns
premises but not only similar to the same as in the occupation of the
tenant is an attempt to bring in a needless obfuscation in language and an
attempt to split hair on a matter of syntax in a language that is still
foreign to us. With all its normal understanding that the sentence would
admit of, the landlord must be understood as saying that he has no other
building. The word ‘similar’ is merely an expression in superfluity in the
context that cannot be stretched out beyond logic and beyond what the
sentence normally means.
6. The learned Senior counsel points out to the reasoning
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adopted by the Rent Controller that since the landlord was stated to
be a NRI and he has disclosed by an averment in the petition his need
and further that he came with a qualification of “specified landlord” by
being an owner of the building for more than five years prior to the filing
of the petition, the bona fides shall have to be immediately inferred.
Again, I have no difficulty in accepting the contention of the learned
Senior counsel that the decision of Hon’ble the Supreme Court in Baldev
Singh Bejwa Versus Monish Saini-2006 AIR (SC) 59, puts it up
beyond any pale of controversy that by a proper reading of Section 18(5)
that requires the Rent Controller to exercise his power whether to grant a
leave or not, the Court shall be satisfied that the need of the landlord
clearly existed. The Rent Controller that examines a petition for leave
himself has to be first satisfied that the petitioner has stated in the
petition what entitled him to invoke Section 13-B and that nothing in the
Section that enables the landlord to invoke the said Section is lacking in
the petition in the necessary averments. The Court shall then see
whenever it falls within its ken, any defence that would require an
adjudication by permitting the tenant to file his written statement exists,
it shall go through a process of trial before rendering an adjudication.
The crucial time when the Court would do that exercise is when the Rent
Controller finds that the leave to defend petition discloses that element of
doubt in the contentions of the landlord that would merit consideration
through a full-fledged trial. 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
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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. I have already extracted the defence in relation to
the need in paragraph 4 of the written statement that merely states that it
could require a probe without setting out any tangible information that
could even excite the minimal suspicion about the need. If in such a
situation, the tenant is unable to give any credible information that could
make the Court believe the landlord’s need was not at least prima facie
shown then the decision of this Court and of the Hon’ble Supreme Court
in relation to the presumption that is available comes into operation. If
on the bare statement of the landlord that he requires the premises, the
Court cannot presume the need to be genuine. Such a presumption
becomes available immediately after examining the defence that nothing
is disclosed about the availability of other property or other
circumstances which could rise a cloud of doubt over such a
presumption.
7. For the sake of completion of all the points urged by
the learned Senior counsel, it has to be seen that even the decisions
which he relies on in Mrs. Kushal Takhar Versus Gurinder Singh-
2009(1) RCR (Civil) 629, where the Court held that a leave to defend
shall be granted to a tenant if the landlord was found in occupation of
other accommodation. It is one thing for a tenant to prove or contend
that the landlord owns another property or when the landlord himself
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admitted that he had owned another property but quite another for a
tenant to say that whether the landlord owns any other property would
require a probe to merit a chance for filing his statement after the grant of
leave. I have no doubt in my mind that the statement gives no clue to the
Court that the landlord has any other property to disentitle him to apply
under Section 13-B or doubt his requirement. The decision of Hon’ble
the Supreme Court in Modern Hotel, Gudur, represented by
M.N.Narayanan Versus K.Radhakrishnaiah and others-AIR 1989
Supreme Court 1510, refers to a situation when a contractual tenancy
cannot be put an end to by resort to Rent Control Act even before the
tenure of lease has run itself out. This is not a proposition that would find
its application in this case since the tenure of lease beyond a period of
one year through an unregistered instrument cannot be operative and
hence can not outstrip the requirement of the landlord to apply under
Section 13-B for the reasons that I have enumerated above. The
inadmissibility of the document would render the defence vulnerable and
takeaway the right of the tenant to contend that his right of lease existed
till the completion of 20 years period. The decision of Hon’ble the
Supreme Court in Firm Sardari Lal Vishwa Nath and others Versus
Pritam Singh-AIR 1978 Supreme Court 1518, laying down the law
that in the event of violation of the term of a contract relating to lease,
there is a requirement to issue a notice under Section 106 is not again a
decision that could support the contention of the tenant for the Hon’ble
Supreme Court dealt with a situation of the primacy of a contractual
tenant to hold his tenement till the lease period is completed but it shall
Civil Revision No.5547 of 2008 – 10 –
not avail to the tenant in this case here, since the tenant is only a
statutory tenant and being a amenable to the provisions of Section 13-B.
8. The length of discussion in the judgment shall not be
taken to infer that the tenant’s defence was formidable which could not
be thrown over board and it required to be examined in depth after leave
to defend is granted to the tenant for a full-fledged trial. The elaboration
has been occasioned by elaborate arguments of the learned Senior
counsel. The order of the Rent Controller would require a modification
in that it has ordered eviction summarily by rejecting the leave to defend
petition filed by the tenant. Section 18(4) mandates that the Court on
examination the affidavit stating the ground on which the tenant seems to
contest the application, while still disallowing the leave, is bound to
obtain the statement made by the “specified landlord” in the application
for eviction and then pass an order if ground exists for evicting the
tenant. That is an additional duty of the Court to see all the requirements
under Section 13-B are fully satisfied. The order of the Rent Controller
rejecting the leave to defend is upheld and the matter is remitted to the
Rent Controller only for recording the statement of the landlord and
appraise the petition on its merits as disclosed through the documents
and then pass appropriate orders. The Court shall in such an eventuality
consider the fact that the tenant is purported to have effected substantial
improvements and that he has been running the business for more than
18 years. A plea for consideration of time for eviction which the placed
before me by the learned counsel for the petitioner does not require to be
addressed in the light of the matter being remitted to Rent Controller for
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consideration of the issue of the order of eviction.
9. The Civil Revision is disposed of in the above terms.
(K.KANNAN)
JUDGE
04.05.2009
sanjeev