CR No. 1064 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No. 1064 of 2008
Vijay Kumar
....Petitioner.
VERSUS
Arun Chopra
....Respondent
CR No.1065 of 2008
Ram Murti
….Petitioner
VERSUS
Arun Chopra
….Respondent
CR No. 1182 of 2008
Pankaj Kapoor
….Petitioner
VERSUS
Arun Chopra
….Respondent
Decided on : 22-12-2008
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. Sanjiv Bansal, Advocate for the petitioners
in CR No. 1064 and 1065 of 2008
Mr. Hemant Saini, Advocate for the petitioner
in CR No. 1182 of 2008
Mr. S.S.Deol, Advocate for the respondent.
MAHESH GROVER, J
This order will dispose of three revision petitions bearing CR
Nos. 1064 of 2008, 1065 of 2008 and 1182 of 2008 which have been
directed against the order of the learned Rent Controller vide which the
prayer for leave to contest made by the petitioners was declined.
The respondent-landlord initiated proceedings under the
CR No. 1064 of 2008 2
provisions of Section 13-B of the East Punjab Urban Rent Restriction Act
seeking eviction of the petitioners from the premises in question by
claiming that he is a Non Resident Indian and requires the premises for his
bona fide use and occupation.
The petitioners resisted the petition and filed their respective
applications for leave to defend and took up the plea that the respondent-
landlord is not the owner of the shop in question and the premises are not
required for his bona fide use and occupation.
The respondent alleged that he was landlord and owner of the
shops in question upon which the present petitioners are tenants. He
pleaded that he was a Non Resident Indian who had migrated to Australia in
the year 1995 and the shops are required for his personal use and for the use
of his family for setting up business therein. He pleaded that he intends to
start a business of marketing of goods and that he had requisite experience
in that field. He pleaded further that he did not have any other commercial
property except the shops in dispute.
The petitioners in their respective applications for leave to
contest denied the averments made in the rent petition. It was pleaded by
the petitioners that the respondent-landlord had not returned to India and is
residing abroad and has come to India only for a short trip and that he is not
a Non Resident Indian and that he has another commercial building within
the municipal limits of Ropar which was earlier tenanted to State Bank of
Patiala, Rupnagar and is lying vacant for the last 10 years and same has
been sold by the respondent-landlord vide sale deed dated 4.5.2007 only a
day prior to the filing of the present petition. It was thus pleaded that the
respondent-landlord has sufficient accommodation where he can start his
CR No. 1064 of 2008 3
own business and the petitions were the result of mala fide. It was also
pleaded that previously Banke Ram, grandfather of the respondent-landlord
has filed the eviction petition against the petitioners which was dismissed
on 26.6.1971 and the appeal against this was also dismissed. Thereafter,
another ejectment petition was filed by Banke Ram which was also
dismissed on 27.7.1982 and the appeal against this was also dismissed. It
was thus pleaded that having failed to get the petitioners evicted from the
property the present respondent is taking undue advantage of the provisions
of Section 13 B of the Act.
The respondent-landlord contested the application and
submitted that he fulfilled all the conditions which are required of him
under the statute and therefore, the leave to defend ought not to be allowed.
Learned Rent Controller declined the prayer of the petitioners
and hence the present petition.
It was contended by the learned counsel for the petitioners that
the impugned orders are erroneous for the reasons that the respondent has
failed to establish before the Court that he was the owner of the premises for
the last five years and further that the respondent is actually employed in
the Police Department in Australia and has no intention of returning to India
as has been claimed by him. It was further contended that the need as
expressed by the respondent is not bona fide and that there is a serious
dispute regarding the ownership of the respondent.
In this view of the matter, learned counsel for the petitioners
contended that the leave to defend should have been allowed to the
petitioners and they ought to have been permitted to contest the
proceedings.
CR No. 1064 of 2008 4
On the other hand, learned counsel for the respondent
contended that the impugned order is perfectly justified and that the plea as
raised by the petitioners in the present revision petitions that the respondent
landlord was serving in the Police Department in Australia is totally un-
substantiated and without any basis and it was never pleaded before the
learned Rent Controller.
Reliance was placed on case titled as ‘Charan Dass Duggal
versus Brahma Nand’ 1983 (1) SCC 301, ‘Kaki Nanda versus Nand Lal’
2007 (2) PLR 250, ‘Kundan Singh versus Lal Singh’ 2004(3) PLR 530,
‘Adarsh Kumar Kanda versus Gurcharan Singh Bedi’ 2007 (4) PLR 233 and
‘K.D.Dewan versus Harbhajan S. Parihar’ 2002 (1) SCC 119 to contend
that where triable issues are involved, leave to defend should be granted.
After hearing learned counsel for the parties, I am of the
considered opinion that the revision petitions deserve to be dismissed.
It is for the first time that the petitioners have raised this plea
that the respondent is serving in the Police Department in Australia and has
no intention of coming to India. No such prayer was raised by them in their
applications for leave to defend.
In an application for leave to defend, the tenant who is facing
proceedings under Section 13 of the Act is required to bring cogent material
before the Rent Controller in order to make out a case for the grant of leave
to contest the proceedings. In the absence of any such material, the Rent
Controller is not under a bounden duty to grant leave to contest on flimsy or
irrelevant pleadings or material.
The landlord on the contrary has to satisfy the Rent Controller
of the following points:-
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1) that he is a Non Resident Indian
2) that he is owner of the property for the last five years
3) that he requires the premises for his own use and occupation.
These being settled parameters in which the respondent has to
bring his case, this Court now proceed to examine the material to see
whether the aforesaid ingredients were satisfied before the Rent Controller
or not.
In so far as respondent-landlord being a resident of Australia is
concerned, it is not being denied by the petitioners. He has also proved this
fact by producing his Australian passport. In so far as second ingredient
regarding ownership is concerned, it was not disputed by the petitioners that
the original owner of the premises was Banke Ram, grandfather of the
present respondent. The respondent is grand son of Banke Ram. There is
on record certified copy of judgement and decree in civil suit no. 194 of
4.6.2007 titled as ‘Raj Kumar versus Lala Banke Ram’ conferring
ownership upon Raj Kumar, father of the respondent. Raj Kumar had also
executed a Will dated 10.3.1998 which is on record. A family settlement
arrived at between legal heirs of Raj Kumar is also on record, which has
been acted upon, as a mutation of inheritance of Raj Kumar has been made
on the basis of the family settlement and not on the basis of Will.
Sanctioned mutation is in favour of the respondent. Learned Rent
Controller was therefore right in observing that there was sufficient material
to suggest that the respondent was the owner of the suit property as even by
virtue of succession after the death of Raj Kumar, the petitioner would have
succeeded to the property and in any eventuality there is family settlement
to suggest the same. The material on record shows that Raj Kumar had died
CR No. 1064 of 2008 6
on 6.6.2000 and mutation of inheritance was sanctioned thereafter thereto
implying thereby that the respondent is the owner of the property for the last
more than 5 years. There is, thus, little hesitation to hold that finding
recorded by the Rent Controller on this aspect of the matter is correct.
In so far as bona fide need is concerned, Hon’ble Supreme
Court in case titled as ‘Baldev Singh Bajwa versus Monish Saini’ 2005(4)
RCR (civil ) 492 Hon’ble Supreme Court has observed as under:-
“19. From the aforesaid decisions the requirement of the
landlord of the suit accommodation is to be established as genuine
need and not a pretext to get the accommodation vacated. The
provisions of Sections 18-A(4) and (5) concede to the tenant’s
right to defend the proceedings initiated under Section 13-B
showing that the requirement of the landlord is not genuine or
bona fide. The legislative intent for setting up of a special
procedure for NRI landlords is obvious from the legislative intent
which has been deliberately designed making distinction between
the ordinary landlords and special category of landlords. The
Controller’s power to give leave to contest the application filed
under Section 13-B is restricted by the condition that the affidavit
filed by the tenant discloses such fact as would disentitle the
landlord from obtaining an order for recovery of possession. It is
needless to say that in the summary proceedings the tenant’s right
to contest the application would be restricted to the parameters of
Section 13-B of the Act. He cannot widen the scope of his
defence by relying on any other fact which does not fall within the
parameters of Section 13-B. The tenant’s defence is restricted and
CR No. 1064 of 2008 7cannot go beyond the scope of the provisions of the Act
applicable to the NRI landlord. Under Section 13-B the landlord
is entitled for eviction if he requires the suit accommodation for
his or her use or t he use of the dependent, (who) ordinarily lives
with him or her. The requirement would necessarily 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 it can be said that in no
circumstances the tenant will not be (will 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 NRI landlord; that he is
not the owner 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.
20. The legislative intent of expeditious disposal of the
application for ejectment of the tenant filed by the NRI landlord is
reflected from the summary procedure prescribed under Section 18-A
of the Act of 1949 which require the Controller to take up the matter
on day to day basis till the conclusion of the hearing of an application.
The Legislature wants the decision of the Controller to be final and
does not provide any appeal or second appeal against the order of
eviction, it is only the High Court which can exercise the power of
consideration of the case, whether the decision of the Controller is in
accordance with law. Section 13-B gives right of ejectment to special
CR No. 1064 of 2008 8category of landlord who is NRI (Non-Resident Indian); and owner of
the premises for five years before action is commenced. Such a
landlord is permitted to file an application for ejectment only once
during his life time. Sub-section (3) of Section 13-B imposes a
restriction that he shall not transfer through sale or any other means or
lease out the ejected premises before the expiry of the period of five
years from the date of taking possession of the said building. Not
only that, if there is a breach of any of the conditions of sub-section
(3) of Section 13-B, the tenant is given a right of restoration of
possession of the said building. Under sub-section (2-B) of Section
19 the landlord has to take possession and keep it for a continuous
period of three months and he is prohibited from letting out the whole
or any part of such building to any other person, except the evicted
tenant and any contravention thereof, he shall be liable for
punishment of imprisonment to the term which can be extended upto
six months. These restrictions and conditions inculcate inbuilt strong
presumption that the need of the landlord is genuine. Landlord, after
the decree for possession, is bound to possess the accommodation.
Landlord is prohibited from transferring it or letting it out for a period
of five years. Virtually conditions and restrictions imposed on the
NRI landlord makes it improbable for any NRI landlord to approach
the Court for ejectment of a tenant unless his need is bona fide. No
unscrupulous landlord probably, under this section, would approach
the Court for ejectment of the tenant considering the onerous
conditions imposed on him by which practically he is deprived of his
right in the property not only as a lessor but also as the owner of the
CR No. 1064 of 2008 9property. There is a restriction imposed even on the transfer of the
property by sale or any other manner. The restriction imposed on the
landlord by all probability points to the genuine requirement of the
landlord. In our view, there ar 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……..”( Emphasis supplied)”
A strong presumption arises in favour of the respondent-
landlord, who has stated that he requires the premises for marketing
business for which he has requisite expertise. The finding on this aspect can
also not be faulted with.
In so far as the contentions of the learned counsel for the
petitioner that another property had been sold just a day prior to the filing of
the present petitions is concerned that contention is totally mis-placed. It is
not the requirement of Section 13-B of the Act that if the person has
disposed of the property in the same municipal limits, then the proceedings
under Section 13-B qua the building which the respondent-landlord intends
to get vacated for his own personal use is debarred. Landlord is very well
within his rights to choose a property regarding which he intends to invoke
the provisions of Section 13-B and in case he has disposed of some
property, will not make any difference to the proceedings which he initiates
subsequent thereto.
There is thus, no infirmity in the findings recorded by the Rent
Controller and the petitions being devoid of any merit are hereby dismissed.
December 22 , 2008 (Mahesh Grover) rekha Judge