Raj Kumar vs Major Gurmitinder Singh

P.C. Pandit, J.—This is a petition u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act filed by the tenant against the decision of the Appellate Authority confirming on appeal the order of the Rent Controller evicting him from the premises in dispute.

On 30th of May, 1967, Major Gurmitinder Singh Grewal filed an application u/s 13 of the Act for the eviction of his tenant, Raj Kumar, from a residential house situate on College Road in Ludhiana. His allegations were that he had let out the house to Raj Kumar on a monthly rent of Rs. 90/- for a period of six months by means of a rent note dated 18th of June, 1965 The tenancy expired on 30th of November, 1985 and thereafter the tenant had been asked several times to vacate the premises. The landlord was a member of the armed forces of the Indian Union and was serving under war conditions and the house was required for occupation by his family. The refusal by the tenant to vacate the house had resulted in great hardship and inconvenience to the family of the landlord.

This application was contested by the tenant who pleaded that the house in dispute belonged to Devinder Singh, father of Major Gurmitinder Singh. It was he who had put Raj Kumar in possession of the house. The first receipt for rent that the tenant had with him was, however, issued by Sardarni Bhagwan Kaur, mother of Devinder Singh. Thereafter, according to the tenant, Sardarni Bhagwan Kaur, Devinder Singh, Birinder Singh (brother of Major Gurmitinder Singh) and the Major himself had been dealing with him as landlords. The relationship of landlord and tenant between the parties was however, admitted. It was also admitted that the Major was in the army, but it was denied that he was serving under special or war conditions. The Major''s father, according to the tenant, had settled at Patiala, where they had a very big house. The Major was still joint with him. The allegation that the Major was married just three or four months back and required the house for the occupation by his family was not correct. Devinder Singh was interested in selling the house. A number of letters had been written by Birinder Singh to the tenant in that connection. The real purpose for getting the house vacated was to sell the same. The present application was, therefore not bona fide.

On the pleadings of the parties, only one issue was framed in the case, namely whether the respondent (tenant) was liable to be evicted on the grounds mentioned in paragraph Nos. 2 to 5 of the application. Both the Rent Controller and the Appellate Authority have accepted the application and ordered the ejectment of the tenant. The tenant has, consequently, come here in revision. After discussing the evidence, both oral and documentary, the Appellate Authority has come to the conclusion that the respondent had recently married and he genuinely needed the house for the residence of his wife. The wife of the landlord had no independent accommodation for living and under those circumstances, the claim of the landlord for the eviction of the tenant was bona fide. The learned Judge has further found that in the beginning, the father of the respondent was the landlord, but subsequently it appeared that the house came to the share of the respondent in some family arrangement and that is why the tenant accepted him as landlord in June, l965. It was true that the brother of the respondent had corresponded with the tenant on behalf of the landlord in 1963 that he wanted to sell the house if a good offer was received, but the respondent became the landlord in 1965 and thereafter when he was going to get married he wrote a letter, Exhibit P-5, to the tenant that the latter would have to vacate the house for the accommodation of his wife and that he did not want to sell the same. The certificate of the Commanding Officer to the effect that the respondent was serving under war conditions in the army as required under the Act, was also duly produced by the respondent.

The first contention raised by the Learned Counsel for the petitioner was that the Appellate Authority was in error in holding that the respondent was the landlord of the petitioner. There is obviously no merit in this contention, when the tenant, in his written statement, had clearly admitted that there was the relationship of landlord and tenant between the parties and Rs. 90/- per mensem was the rent fixed between them.

It was then submitted that even if the petitioner was the tenant, the application for ejectment filed by the respondent was not bona fide. This submission again is without any substance. The Appellate Authority, as I have mentioned above, came to a firm finding, after discussing the entire evidence produced in the case, that the respondent genuinely needed the house for his wife. This finding, which is primarily one of fact, is based on good evidence. Even if the father of the respondent possessed a house at Patiala or the respondent''s father-in law could arrange for the accommodation of his daughter who was the respondent''s wife, I see no reason why the respondent should look up to either of them for that purpose. He was well within his rights to get the house in dispute, which belonged him, vacated for the accommodation of his wife whom he had recently married. If he had no other house of his own for this purpose, he could, under the law, file the present application for the ejectment of the petitioner. Learned Counsel for the petitioner could not point out as to how this finding of fact was either wrong or vitiated by any error of law. i, therefore, see no reason to take a different view about this matter from the one adopted by the Rent Controller and the Appellate Authority If once it is held that the respondent genuinely needed the house for his wife, as has been found in the instant case, it is somewhat difficult to imagine that it could be, at the same time, held that the application for ejectment was not bona fide It is true that the respondent''s father may be desirous of selling the house when he was its owner, but later on when the house became the property of the respondent, it was his need and desire that had to be looked to.

In the present case, there is nothing on the record to show that he was anxious to sell it On the other hand, letter, Exhibit P-5, written by the respondent on 19th of November, 1965, clearly showed that he was anxious to get the house vacated, since he would be needing it soon after his marriage. No ground whatsoever has been made out by the Learned Counsel for the petitioner for disturbing this finding of the Courts below. I would, therefore, affirm the finding of the Appellate Authority that the application made by the respondent for the ejectment of the petitioner was bona fide

The next argument of the Learned Counsel was that the certificate, Exhibit P-1, of the Commanding Officer produced by the respondent was not in order and, consequently, the landlord could not take advantage of the provisions of law by which the Act had been amended in 1966 to provide for accommodation for the families of the members of the armed forces of the Union of India. By virtue of the amendment made in the Act by the East Punjab Urban Rent Restriction Amendment Act, 1966, the following subparagraph was inserted after sub-paragraph (i) of paragraph (a) in subsection (3) of section 13 of the Act-

(i-a) in the case of a residential building, if the landlord is a member of the aimed forces of the Union of India and requires it for the occupation of his family and if he produces a certificate of the prescribed authority, referred to in section 7 of the Indian Soldiers (Litigation) Act, 1925, that he is serving under special conditions within the meaning of section 3 of that Act.

Explanation :- For the purposes of this sub paragraph -

(1) the certificate of the prescribed authority shall be conclusive evidence that the landlord is serving under special conditions: and

(2) "family" means such relations of the landlord as ordinarily live with him and are dependent upon him.

From a reading of this newly inserted provision, it would be clear that if the landlord was a member of the armed forces of the Union of India and required the residential building belonging to him for the occupation of his family, then he could get the same vacated, if he produced a certificate of the prescribed authority referred to in section 7 of the Indian Soldiers (Litigation) Act, 1925, that he was serving under special conditions within the meaning of section 3 of that Act. It was further made clear in the Act that the certificate of the prescribed authority would be conclusive evidence that the landlord was serving under special conditions. In the present case, it was not disputed that the respondent was a member of the armed forces of the Union of India. It was also conceded that the respondent''s wife would be covered by the word "family" occurring in this newly inserted sub-paragraph, because the explanation thereto had defined the word as meaning "such relations of the landlord as ordinarily live with him and are dependent upon him." The only argument raised by the Learned Counsel was that the certificate, Exhibit P-1, did not fulfill the conditions laid down in the sub paragraph, inasmuch as it had to state that the respondent was serving under special conditions within the meaning of section 3 of the Indian Soldiers (Litigation) Act, 1925, and the certificate in the present case merely said that the respondent was serving under war conditions. Exhibit P-l, which is signed by the Officer Commanding, runs thus:

Certificate. (Under Indian Soldier''s Litigation Act, 1925).

Certified that IC-14796 Major Gurmeet Inder Singh Grewal S/o S. Devinder Singh Grewal is serving in the 5th Bn Brigade of the Guards under war conditions.

It is to be seen whether from this certificate it could be said that the respondent was serving under special conditions within the meaning of section 3 of the Indian Soldiers (Litigation) Act, 1925. The said section reads as under:

For the purposes of this Act, an Indian Soldier shall be deemed to be or, as the case may be, to have been serving,

(a) under special conditions when he is or has been serving under war conditions, or over-seas or at any place beyond India.

(b) under war conditions when he is or has been, at any time during the continuance of any hostilities declared by the Central Government by notification in the Official Gazette to constitute a state of war for the purposes of this Act or at any time during a period of six months thereafter -

(i) serving out of India,

(ii) under orders to proceed on field service,

(iii) serving with any unit which is for the time being mobilised, or

(iv) serving under conditions which, in the opinion of the prescribed authority, preclude him from obtaining leave of absence to enable him to attend a Court as a party to any proceeding, or when be is or has been at any other time serving under conditions service under which has been declared by the Central Government by notification in the Official Gazette to be service under war conditions; and

(c) * * *

According to this section, an Indian soldier would be deemed to be or to have been serving under special conditions when he was or had been serving under war conditions. Exhibit P-l says that the respondent was serving under war conditions. Consequently, he would be deemed to be serving under special conditions. It was contended by the Learned Counsel for the petitioner that there were no war conditions in India at the time when the certificate was issued, inasmuch as there was no declaration of war by the Central Government published in the Gazette and he referred to the provisions of clause (b) of section 3 in that behalf. This argument ignores the explanation added to the subparagraph in section of the Act, which laid down that the certificate of the prescribed authority would be conclusive evidence that the landlord was serving under special conditions. It was not suggested that the certificate in the instant case was not issued by the prescribed authority or was not a genuine one. That being so, the said certificate had to be taken as conclusive evidence of the fact that the respondent was serving under special conditions This argument also, therefore, fails.

The last contention of the Learned Counsel was that the tenancy in the instant case could not be terminated without serving a notice u/s 106 of the Transfer of Property Act and unless that was done, the Rent Controller could not order the ejectment of the petitioner by accepting the respondent''s application u/s 13 of the Act.

In the first place, no such plea was taken by the petitioner in his written statement and consequently, no issue was struck on the point. This is obviously not a pure law point, but its decision would involve determination of some questions of fact as to whether a notice had in fact been issued or not and if so, whether that was a valid one. It is true that the petitioner did make an application before the Appellate Authority that he might be allowed to amend his written statement so as to include this plea. The reason for making this prayer at that stage was that the Supreme Court had recently decided that no application under He Rent Act was maintainable, without terminating the tenancy by serving a notice u/s 106 of the Transfer of Property Act. This prayer was, however, refused by the Appellate Authority on a number of grounds. Firstly, it was said that the parties were expected to be vigilant from the very start meaning thereby that they had to be conversant with the connect position of law from the very beginning. Secondly, that it was because of that very vague position of law that the landlord did not choose to give a notice u/s 106 of the Transfer of Property Act, before filing the application for ejectment and the tenant also did not raise any objection in that behalf. By allowing the amendment at that stage, the claim of the landlord was liable to be prejudiced. Thirdly, this plea could not be allowed to be introduced for the first time in appeal and it would be taken that the tenant had waived his right to be served with a notice to quit u/s 106 of the Transfer of Property Act, Fourthly, by the new amendment in the Act, the legislature had desired that the claim of such a landlord should be decided within one month one way or the other. If the amendment was allowed, it would mean the re-opening of the case and further delay in the taking of possession of the house, even if the landlord succeeded in his claim. Under these circumstances, it could not be said that the Appellate Authority had exercised its discretion in rejecting the prayer for amendment in an injudicious or perverse manner. The Appellate Authority had given valid reasons for not granting the prayer of the petitioner. He had also taken into consideration the policy and the purpose of the Act in introducing this new ground for eviction in the Rent Act.

In the second place, it had not been shown by the Learned Counsel for the petitioner that if no notice u/s 103 of the Transfer of Property Act was issued in the instant case, the Rent Controller had no jurisdiction to pass an order of eviction against the petitioner. Learned Counsel referred to three decisions of the Supreme Court in Abasbkai v. Gulamnabi A I R. 1960 s.C. 1341 Mangilal Vs. Suganchand Rathi, and Manujendra Dutt Vs. Purendu Prosad Roy Chowdhury and Others, but he could not point out from any of these authorities that an order passed by the Rent Controller under the East Punjab Urban Rent Restriction Act, 1949, would be without jurisdiction if the tenancy had not been terminated by serving a notice u/s 106 of the Transfer of Property Act, before making an application u/s 13 of the Act. On the other hand, a Division Bench of this Court consisting of Falshaw and Kapur, JJ. in Bawa Singh and others v. Kundan Lal (1952) 54 P.L.R. 358, had held that the East Punjab Urban Rent Restriction Act, 1949, was a complete code by itself and j its provisions superseded the provisions of the Transfer of Property Act, Consequently the liability to ejectment was governed by ''the provisions of the former Act and not by those of the latter one. Therefore, no notice terminating the tenancy u/s 106 of the Transfer of Property Act was necessary. Sifting singly I am bound by this decision.

Thirdly, since if. had not been shown that in the absence of the notice u/s 106 of the Transfer of Property Act, the order of the Rent Controller would be without jurisdiction, it has to be held that if the tenant did not take up that plea in the written statement in answer to the application for ejectment filed by the landlord, then he had waived it, and if subsequently the decision of the Rent Controller had gone against him, he cannot be heard to say that the whole case should be tried afresh and he be permitted to take up that plea. from the start. Fourthly, the tenancy in the instant case was admittedly for a fixed term of six months beginning from 1st of June, 1905 and it there-lore, ended on 30th November, 1965 by efflux of time. It is true that thereafter rent was being accepted by the landlord and this was perhaps due to the fact that, the tenant was protected by the provisions of the East Punjab Urban Rent Restriction Act 1949 with the result that he could not be evicted and the landlord, therefore, had perforce to accept the rent from aim, otherwise he would have to enter into a new litigation for the recovery of that rent. Under these circumstances, it cannot be held that the landlord was accepting the rent of his own choice in order to create a new tenancy within the meaning of section 116 of the Transfer of Property Act. That being so, the provisions of section 106 of the Transfer of Property Act, would not be attracted and no notice under that section would be necessary to be issued to the tenant in the instant case. It was held by a Division Bench consisting of M.C. Chagla and Gajendragadkar, JJ. in Baldeodas Mahavir Prasad v. G.P. Sonavalla AIR 1948 Bom. 385.

Where a tenant of certain premises to which Bombay Act 7 (VII) of 1944 applies continues in possession after the termination of his tenancy by notice to quit, ha becomes a statutory tenant whom the landlord cannot eject so long as the tenant carries out the conditions laid down in S. 9 of that Act. If the landlord accepts rent from such tenant, the acceptance is either attributable to the fact that in law the tenant has become a statutory tenant and that he cannot get possession from him or to his agreeing to a new tenancy coming into existence The mere acceptance of rent is not by itself sufficient to bring into existence a new tenancy as contemplated by S. 118, T. P. Act as it used to be prior to the passing of the Rent Restriction Act. Therefore, in order to show that a new tenancy his been created u/s 116, T.P. Act, it must be shown that the acceptance of rent by the landlord was attributable to his assenting to a new tenancy coming into force.

In the present case, it has not been proved by the tenant that the ac-acceptance of rent by the landlord was attributable to his assenting to a new tenancy coming into force.

In view of what I have said above, no case has been made out for interference with the order of the Appellate Authority. The result is that this petition fails and is dismissed. The petitioner is, however, allowed 15 days to vacate the premises. In the circumstances of this case, the parties will bear their own costs throughout.