Malkiat Singh vs Indian Overseas Bank and Another

Kanwaljit Singh Ahluwalia, J.—By this common order, all the five revision petitions viz. Civil Revision Nos. 442 to 446 of 2009 shall be

decided together. For reference, facts as enumerated in Civil Revision No. 442 of 2009 are required to be noticed.

Smt. Dharmi, a Non Resident Indian within the meaning of Section 2(dd) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to

be referred as, ''the Act'') filed a petition u/s 13-B of the Act against the tenant. It was pleaded in the eviction petition that she was a Non Resident

Indian being permanent resident of England (U.K.) and she intended to start a Departmental Store at Jalandhar. Therefore, she required non-

residential portion of the Lally Niwas. Lally Niwas was rented out to 15 tenants. Before this Court, five revision petitions are listed which have

been filed against five tenants of the building owned by Smt. Dharmi.

During the pendency of eviction petitions, Smt. Dharmi expired on 24.11.2007 at Royal Victoria Infirmary, Newcastle, leaving behind legal

heirs, namely, Malkiat Singh husband, T.S. Lally son and Smt. Navjit Kaur wife of Paramjit Singh daughter. After the death of Smt. Dharmi, an

application was filed for bringing on record the legal representative of deceased Smt. Dharmi. It was pleaded in the application that Smt. Dharmi

had made a registered will in favour of her husband Malkiat Singh Lally, therefore, on the basis of the will, he became an absolute owner of the

property to the exclusion of his son and daughter. The Rent Controller declined the application for impleadment of legal representative on the

ground that the eviction petition was filed seeking ejectment of the tenant on the ground of personal necessity by Smt. Dharmi. The order whereby

permission to implead the legal representative was declined vide order dated 13.10.2008 and subsequently eviction petition was dismissed has

now been challenged before this Court in five revision petitions.

Mr. Sunil Chadha, counsel for the Petitioner has submitted that impleadment of legal representative could not be declined as an opportunity has

to be afforded to the legal representative to show that personal necessity pleaded by Smt. Dharmi also flows to the legal representative and he has

stepped into the shoes of Smt. Dharmi. Mr. Chadha states that it is another matter that the Court may not accept the prayer of personal necessity

of the legal representative but an opportunity to pursue the eviction petition cannot be denied.

To controvert aforesaid submissions made by Mr. Chadha, Mr. C.S. Pasricha, Mr. Puneet Sharma, Mr. Sudhir Paruthi, Mr. Mandeep S.

Sachdev and Mr. Nakul Sharma, counsel appearing for the Respondents have urged that personal necessity of the landlady for personal

requirement cannot be attributed to the legal representative, when the legal representative is well settled and never intend to return to India. Mr.

Pasricha has further submitted that even legal representative cannot be termed as Non Resident Indians within the definition of Section 2(dd) of the

Act.

In Seshambal (dead) Through L. Rs. v. Chelur Corporation Chelur Building and Ors. 2010 (2) CCC 0056, Hon''ble Apex Court has held that

where deceased landlady had no dependent member of the family the personal necessity pleaded became extinct. It will be apposite here to

reproduce following portion of the judgment:

It is not in dispute that in the eviction petition the owners had pleaded their own requirement for the premises to be occupied by them for

residential as well as commercial purposes. The eviction petition was totally silent about the requirements of any member of the family of the

owners Petitioners leave alone any member of their family who was dependent upon them. That being so the parties went to trial before the Rent

Controller on the basis of the case pleaded in the petition and limited to the requirement of the owners for their personal occupation. Neither

before the Rent Controller nor before the Appellate Authority was it argued that the requirement in question was not only the requirement of the

Petitioner-owners of the premises but also the requirement of any other member of their family whether dependent upon them or otherwise. Not

only that even in the petition filed before this Court the requirement pleaded was that for the deceasedwidowed owner of the demised premises

and not of any member of her family. Super added to all this is the fact that the legal representatives who now claim to be the family members of

the deceased are all married daughters of the deceased couple each one settled in their respective matrimonial homes in different cities and at

different places. That none of them was dependent upon the deceased-Petitioner is also a fact undisputed before us. Even otherwise in the social

milieu to which we are accustomed, daughters happily married have their own families and commitments financial and otherwise. Such being the

position we find it difficult to see how the legal representatives of the deceased-Appellant can be allowed to set up a case which was never set up

before the Courts below so as to bring forth a requirement that was never pleaded at any stage of proceedings. Allowing the legal heirs to do so

would amount to permitting them to introduce a case which is totally different from the one set up before the Rent Controller the Appellate

Authority or even the High Court. The position may indeed have been differentiated if in the original petition the Petitioner-owners had pleaded

their own requirement and the requirement of any member of their family dependent upon them. In such a case the demise of the original Petitioners

or any one of them may have made little difference for the person for whose benefit and bona fide requirement the eviction was sought could

pursue the case to prove and satisfy any such requirement.

In the present case, husband, the legal representative of Smt. Dharmi cannot be said to be her dependent. Therefore, need of personal necessity

due to change of circumstances may have become extinct in the present case also. Ground realities have changed. Therefore, the legal

representative may have become owner by way of succession but whether he required the demised premises for his personal necessity cannot ipso

facto be accepted. However, the legal representative cannot be denied a hearing to present their view point before the Rent Controller. Therefore,

dismissal of the applications for impleadment of legal representative at the outset cannot be held valid. Thus, the orders whereby applications for

impleadment of legal representative were dismissed is set aside and the applications for impleadment of legal representative are allowed. However,

the matter is remitted back to the Rent Controller to decide the eviction petitions in the light of the judgment of Hon''ble Apex Court in Seshambal

(dead) Through L. Rs. ''s case (supra). The parties shall appear before the Rent Controller on 9.9.2010. The Rent Controller shall decide the

eviction petitions within six months from that date.

In view of the above, all the five revision petitions are disposed of.