Gurpal Rai, Inderpal Singh and Gurjeet Singh vs Surjit Kaur

G.S. Sazndhawalia J.

Civil Misc. No. 6427-C-II of 2012

Prayer made in the application is for grant of exemption from filing the certified copies of Annexures P-1 to P-5.

In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed.

CR No.1505 of 2012

This order shall dispose of Civil Revision Nos.1505, 1506 and 1510 of 2012 as the said petitions pertain to the same landlady and shops are part of the same building and the question involved is similar in all the three petitions since the ejectment u/s 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Rent Act'') had been ordered by the Rent Controller, Jalandhar after declining the application for leave to contest u/s 18-A of the Rent Act. However, the facts have been extracted from Civil Revision No.1505 of 2012. The landlady filed an application for ejectment from shop no.3, which was part and parcel of House No.69, Street No.2, Preet Nagar, Ladowali Road, Jalandhar as shown red in the site plan which is attached pleading that she was a NRI residing at 547, Fern forest Drive, Brampton, ON, L6R OV9, Canada and was born at Rawalpindi, Pakistan on 1.6.1944 and upon partition of the country she settled in India. The landlady alleged that she became citizen and holder of Canadian Passport bearing No. CAN WS 257399 and passport was issued from Mississauge, Canada and the identity card was also issued by the NRI Sabha, Punjab bearing membership No.JAL/WW/1828. It was accordingly pleaded that the tenant had been inducted vide rent agreement dated 28.2.1989 at a monthly rent of Rs.375/-per month by the landlady through her husband and the rent had been enhanced at Rs.10/-per year and the landlady was owner on the basis of sale deed dated 8.8.1977. The photo copy of the sale deed was attached with the ejectment petition u/s 13-B of the Rent Act. It was contended that after the purchase of the property, the landlady had constructed residential house and five shops which were rented out to different tenants including the petitioner herein and the landlady required five shops including the shop in dispute which was part and parcel of the House No.69, Street No.2, Preet Nagar, Ladowali Road, Jalandhar for her personal use and occupation and she intended to carry out the business of sale of readymade furniture by reconstructing the showroom after demolition of the five shops upon vacation and she also intended to settle in India permanently. It was pleaded that she was entitled to seek immediate possession of the premises for her personal use and the landlady had not earlier got vacated any other property and had no other property within the municipal limits of Jalandhar except the property bearing House No.69, Street No.2, Preet Nagar, Ladowali Road, Jalandhar. It was also mentioned that ejectment petitions against the other four tenants of the aforesaid building were being filed.

On service of summons, the tenant-petitioner herein filed an application for leave to contest on the ground that the landlady was not owner of the property and her husband Harjit Singh was the owner of the property and he had let out the same to the tenant. The sale deed placed on record pertains to some other property in dispute and site plan placed on record was not correct and did not describe the correct position of the site and the alleged sale deed did connect with the property in dispute and the landlady had not shown the entire property and had not shown the area, if any, under her possession. The two portions of the property which fell towards western side of the shop in question were also on rent where two tenants namely Jasvinder Singh and recently Harjit Singh had vacated and premises again had been let out to another tenant. It was also pleaded that the bonafide necessity was missing since the whole family of the landlady had gone to Canada and was settled there including her sons and daughters. It was further pleaded that ingredients of Section 13-B of the Rent Act were not fulfilled and she had not given any undertaking that she would not sell or re-let the premises further after taking possession. The bonafide part was stressed on the ground that the landlady and her husband were of advanced age and hot and humid weather of Punjab did not suit them as the landlady had gone for the last 20 years to Canada in a very congenial atmosphere and she was more than 65 years of age and was unable to move and was not in a position to carry on the business. The details of the business which were to be done had neither been pleaded nor capability of doing the business had been pleaded which were leading factors to hold that the landlady did not require the premises and therefore, triable issues were raised. The petition having been filed long after the enactment showed that the landlady was not willing to settle in India. Lastly, it was alleged that the landlady was owner of the property situated at Kirti Nagar, Jalandhar and list would be submitted showing that the landlady did not require the building.

The application was contested by filing reply by the landlady and it was contended that the sale deed had been placed on record and her husband was not the owner and the site plan attached was correct and pertains to the property in question. The factum of the husband letting out one portion after getting it vacated was denied and it was pleaded that the petition had not been filed with malafide intention and there was bonafide necessity and all the ingredients of Section 13-B of the Rent Act were fulfilled. The age of person was not a bar to start business and it was averred that the landlady used to visit India once a year and used to stay for long period and in the habit of living in this weather and it was incorrect that she is unable to move and carry out her business and was healthy and having sound mind and capable of doing business of the sale of readymade furniture by reconstructing a showroom. The allegations of being owner of any other property at Kirti Nagar, Jalandhar were denied.

The Rent Controller after taking into consideration the pleadings of the parties came to the conclusion that the conditions u/s 13-B of the Rent Act were fulfilled since the landlady was a NRI belonging to Indian origin having been born in Rawalpindi, Pakistan and her date of birth being 1.6.1944 and since at that time partition of India had not taken place, therefore, she was of Indian origin. Photocopy of the sale deed was taken into consideration which showed the building in question was owned by the landlady and not by her husband and she was owner for the last more than five years. The factum of bonafide necessity was also taken into consideration regarding the requirement of five shops for reconstructing the same for the purpose of carrying out business of the sale of readymade furniture and that the intention of the landlady was there to return to India and accordingly, the ejectment order was passed by holding that no triable issue arises.

Resultantly, the present Civil Revision has been filed challenging the said order on the ground that the landlady has been staying abroad for the last 20 years and is aged around 67 years and all her family members were settled abroad and, therefore, her bonafides were missing as she did not want to come back and reside in India and the petition was only filed for the purpose of getting the premises vacated from the tenant. It was, accordingly, contended that the tenant should be given leave to contest to prove the fact that there was no bonafide necessity of the landlady.

The said submission made by the counsel for the tenant are not acceptable since admittedly the conditions laid down in Section 13-B of the Rent Act stand fulfilled. There is no dispute regarding the ownership of the property of the landlady and that sale deed dated 8.8.1977 had also been noticed by the Rent Controller, Jalandhar. Thus, the landlady has been owner of the property for the last more than five years before filing of the petition. The fact that the landlady is a holder of Canadian passport is admitted and the fact that she being of Indian origin also cannot be denied as she was residing in India and only migrated 20 years prior and was born in Rawalpindi, Pakistan before partition. The intention of returning to India to do business has been clearly spelt out in the petition u/s 13-B of the Act and the fact that the five shops are to be demolished and one showroom is to be constructed for running the business of readymade furniture. In reply to the application for leave to contest, it has been categorically stated that the landlady visits India once a year and stays for long period and is in the habit of living in Punjab. All these factors go to show that the intention to return to India is apparent. The Hon''ble Supreme Court in Baldev Singh Bajwa Vs. Monish Saini, has laid down the principle that enquiry for leave to defend has to be confined to Section 13-B of the Rent Act and the tenant would be entitled to leave to contest only if he makes out a case for challenging those grounds and there is a presumption in the landlord''s favour and mere assertion on the part of the tenant would not be strong presumption to rebut the same. Relevant paragraphs of the said judgment read as under:-

When we read Section 13-B along with the definition of the NRI it is apparent that the person who is a permanently residing outside India can also claim possession u/s 13-B of the Act. All that is required u/s 13-B is that a NRI should return to India and claim the premises for his/her use or for the use of any dependent ordinarily living with him. There is no requirement that he has permanently settled in India on his return or he has returned to Indian with an intention to permanently settle in India. A NRI may require the accommodation for expansion of his business which he is carrying on in other country or requires the accommodation for his temporary stay. u/s 13-B, a NRI can also claim ejectment of the tenant from the premises for the purposes of any other person who is dependent on him and is ordinarily living with him, which makes it clear that although a NRI resides permanently in other country, he could get the accommodation vacated for the need of his dependent who ordinarily lives with him and he intends to come to India, choosing it to be his permanent abode. We do not find any substance in the submissions made by the learned counsel that the words ``return to India'''' u/s 13-B of the Act denotes return to India permanently.

On the interpretation given by us and on a plain reading of the provisions, once in a lifetime possession is given to a NRI to get one building vacated in a summary manner. A Non-resident Indian landlord is required to prove that:- (i) he is a NRI; (ii) that he has return to India permanently or for the temporary period; (iii) requirement of the accommodation by him or his dependent is genuine and; (iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenant''s affidavit asking for leave to contest the NRI landlord''s application should confine to the grounds which NRI landlord is required to prove, to get ejectment u/s 13-B of the Act. The Controller''s power to give leave to contest the application filed u/s 13-B circumscribe to the grounds and inquiry to the aspects specified in the Section 13-B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13-B and no other aspect shall be considered by the Controller.

That Hon''ble Supreme Court has also has laid down that there is protection provided u/s 19(2-B) of the Rent Act in the form of penal provision to deter the landlords who do not occupy the building in question for a continuous period of three months from the date of such eviction and who let out the building subsequently from where the tenant was evicted. The Apex Court also referred to the provision of Section 13-B of the Rent Act, which further provides that a tenant has a right of restoration of possession in case the landlord/landlady transfers the building before the expiry of five years from the date of taking possession. Accordingly, it was held that keeping in view the legislative intent with the objects and reasons of the Act the allegations made by the NRI shall be presumed to be genuine and bonafide unless rebutted by the tenant by placement of cogent and material facts. Relevant observations are reproduced below:-

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 u/s 18-A of the Act of 1949 which requires 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 category 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-s. (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 up to 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 property. 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 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 tenant''s right to rebut it but with strong and cogent evidence. In our view, the proceeding taken up u/s 13-B by the NRI landlords for 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 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 landlords'' favour that his requirement of occupation of the premises is real and genuine.

Counsel for the caveat or has contended that no triable issue arises and even if leave is granted, the conditions of Section 13-B of the Rent Act are also fulfilled and it will only delay the ejectment application and the landlady would only depose the facts which have already been mentioned in her petition and there is no such triable issue which arises for consideration as there is no dispute regarding the ownership, the status of the NRI landlady and the intention to come back. Keeping in view the legislative intent and the settled principles of law that the bonafide intention has to be presumed to be correct and in the absence of any triable issue no fault can be found with the order of the Rent Controller in the revisional jurisdiction of this Court as nothing has been brought on record by the tenant to show that the landlady is already in occupation of other commercial properties and her bonafide element is missing. As noticed above, there is sufficient protection provided in the statute itself in case the landlady does not use premises for the purpose for which she gets the eviction order. The Canadian passport showing the status of the landlady is already on record which shows the background of the landlady and thus, no fault can be found with the order of the Rent Controller, Jalandhar Accordingly, the same is upheld and the revision petitions are dismissed. However, since the tenants are doing their business in the shops in question for the last more than two decades, therefore, they are granted three months'' time to vacate the premises in question and the eviction order would not be executed before three months from the date of passing of this judgment. A photocopy of this order be placed on the file of each connected case.