Hans Raj vs Malkiat Kaur

Surya Kant, J.—This revision petition is directed by the tenant against the order dated 17.12.2007 passed by the Rent Controller, Nawanshahr whereby in an eviction petition filed u/s 13B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), leave to contest has been declined and consequential eviction order has been passed.

The eviction petition has been filed by the respondent-landlady claiming herself to be a ''Non-Resident-Indian'' who is owner of the demised premises for over 5 years prior to filing of the eviction petition and requires the demised premises for her own use and occupation. It is averred that all the ingredients of Section 13B of the Act stand satisfied.

On receipt of the notice, the petitioner-tenant moved an application for grant of leave to contest, inter-alia, questioning the respondent''s plea regarding requirement of the demised premises for her own use and occupation. The petitioner- tenant averred that earlier the respondent-landlady had filed the eviction application No.39/1997 dated 06.05.1997 u/s 13 of the Act for his eviction from the demised premises and one of the ground taken was her bona fide personal necessity for the shop in dispute. The Rent Controller had framed Issue No.1 to the effect, as to whether the demised premises was required by the respondent- landlady for her own use and occupation?. The said eviction petition was dismissed by the Rent Controller vide order dated 24.07.2002 and Issue No.1 was also decided against the respondent-landlady. The petitioner-tenant further pleaded that no change in circumstances has taken place from 24.07.2002 till 09.03.2004 when the eviction petition u/s 13B of the Act has been filed.

The aforesaid plea did not find favour with the Rent Controller on the premise that dismissal of the petition u/s 13 of the Act does not bar the maintainability of an eviction petition u/s 13B of the Act, Consequently, the leave to defend has been declined and eviction order passed.

I have heard learned counsel for the parties at some length and perused the impugned order.

It is Well settled that in order to seek immediate eviction of a tenant through the summary procedure as provided u/s 18A of the Act, a NRI- Specified Landlord is required to fulfill the statutory conditions laid down u/s 13B of the Act viz. (i) he/she should be the owner of the premises for a period of at least 5 years before filing the eviction petition and (ii) he/she requires the premises for his/her own use and occupation or for a person dependent on him/her.

If a tenant questions the credibility of any of these ingredients and his plea is supported with some cogent material, in my considered view, it would Constitute a triable issue and justify the grant of leave to contest. Suffice it to observe that the statutory presumption that the need of the Specified Landlord for the demised premises is genuine and bonafide, is rebuttable. The objection taken by the petitioner-tenant on the basis of previous judgment dated 24.07.2002 gives rise to a triable issue, therefore, the Rent Controller ought to have granted leave to contest on that count.

For the reasons aforesaid, this revision petition is allowed; the impugned order dated 17.12.2007 is set-aside and the application of the petitioner-tenant for leave to contest is allowed.

The parties are directed to appear before the Rent Controller, Nawanshahr on 26.10.2009.

The petitioner shall be required to file his written statement on the above fixed date before the Rent Controller, Nawanshahr and no further opportunity shall be granted to him. The Rent Controller shall, thereafter, having regard to the legislative intent behind Section 18A(vi) of the Act, shall take up the eviction petition out of turn and dispose of the same as early as possible by granting not more than three opportunities each to the parties to lead their respective evidence. The Rent Controller, Nawanshahr, shall decide the eviction petition, preferably within 8 months.

The observations made herein above are tentative in nature and shall have no bearing on the merits of the case. Dasti.