Punjab-Haryana High Court
M/S Firm Sohan Singh & Sons & Ors vs Ritu Sharma & Anr on 6 February, 2015
Author: Surinder Gupta
Bench: Surinder Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
C.M. No.1468-CII of 2015 in/and
Civil Revision No.5645 of 2014 (O&M)
Date of Decision: February 06, 2015.
M/s Firm Sohan Singh and others
......PETITIONER(s).
VERSUS
Ritu Sharma and another
....RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Ashish Aggarwal, Advocate
for the petitioner (s).
*******
SURINDER GUPTA, J.
CM-1468-CII-2015 Application has been filed for preponing the date in the revision petition, which has been fixed for 19.03.2015.
Heard.
In view of facts mentioned in the application, the same is allowed. The date in the revision petition is preponed and is taken up today.
CR-5645-2014 The revision petitioners assailed the order dated 12.05.2014 passed by Rent Controller, Amritsar whereby petition filed by respondent No.1 under Section 13-B of East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Rent Act) was allowed and the application SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -2- filed by the revision petitioners seeksing leave to defend was declined.
Respondent No.1 sought ejectment of the revision petitioners from the demised premises which is a shop bearing private no.2-A forming part of building No.379, White Tower, Madan Mohan Malviya Road, Amritsar. As per the petitioners, she is a non-resident Indian, presently residing in England for the last more than five years before filing of the petition (petition was filed in the year 2009). She was born and brought up in India and earlier residing at house No.462-B/VI, Hukam Singh Road, Amritsar and shifted to England in the year 2004. The suit property was purchased by her along with Smt. Rajiv Bains, respondent No.2 vide sale deed dated 20.07.1998. Revision petitioner No.2 for revision petitioner No.1 M/s Sohan Singh and Sons had taken a shop on rent from the previous owner but after the sale deed dated 20.07.1998, they attorned the tenancy in favour of respondents. The entire property bearing No.379 is measuring 159.33 square yards. There are other tenants also in the different portions of the entire building and the petitions under Section 13-B of the Rent Act had been filed against other tenants as well. Respondent No.1 required the demised premises for her own use and occupation and for the use and occupation of her family members for starting her own business. The plea of personal bona fide necessity as pleaded in para 4 of the petition reads as follows:-
"That the respondents no.1 to 3 are liable to be ejectment on the following grounds:-
(i) That the property in question is bonafide required by the petitioner for her own use and occupation and also for use and occupation of her other family SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -3- members. The petitioner intends to return to India and wants to reside in India and to start her own business in the property in question and in the other portions of the complete building which portions are in the possession of different tenants as per details already submitted above and which portions and the property in question forms part of the same building i.e. building No.379, situated at Madan Mohan Malviya Road, Amritsar. The petitioner is a Non-
Resident Indian (NRI) and she was born in India and earlier was residing in India but later on shifted to England and is settled there for the last more than five years and at present is residing at the address given in the title of the petition but now she wants to return to India and as such complete building of which the disputed property is a part, is bonafide required by the petitioner for her own use and occupation and for her own business and for the business of her family members. The property in question was purchased by the petitioner in the year 1998 as per the details already submitted above. The petitioner is entitled to be put into possession of the complete building inclusive of the property in dispute and the ejectment petitions against other tenants have also been filed. The respondent No.1 to 3 by making payment of rent to her has admitted the petitioner to be the landlady. The petitioner has neither earlier filed any ejectment petition under Section 13-B of the Rent Act, as amended upto date, against the respondent No.1 to 3 and other tenants before filing the present petition nor any ejectment order has ever been passed in favour of the petitioner regarding any such property. The present grounds of ejectment SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -4- under Section 13-B of the Act No.III of 1949 as amended upto date became available to the petitioner after the amendment and after the introduction of the said grounds in the Act No.III of 1949 and as such the present petition is being filed. In short this is the first petition between the parties."
The revision petitioners contested the petition taking objections as follows:-
(i) Respondent No.1 does not fall within the definition of Non-
Resident Indian and has not come to India, as such, the petition was not maintainable.
(ii) She had purchased the suit property along with Smt. Rajiv Bains, respondent No.2 on 28.07.1998 and was not competent to file the present petition.
(iii) The purpose of respondent No.1 is only to get rent of the premises enhanced as the rent of another tenant Kartar Singh in one of the shop in the building was enhanced with term of further increase @ 5% every year. The revision petitioners are tenant in two shops @ `500 and `200 respectively. They were asked to enhanced the rent @ `2000 and `1500 per month but they did not yield under the pressure of respondents.
(iv) The revision petitioners are tenants in the shops for the last 30 years. The respondents have purchased the suit property with mala fide intention and they had been pressurizing the revision petitioners to enhance the rate of rent as the rent in the locality has considerably increased.
(v) In the building of which demised premises is part, a tenant M/s Wardrobe was inducted at the rate of rent as `1 lac per month.
(vi) The respondents had also installed one tower on the building and getting `10,000 to `15,000 per month for that tower. SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -5-
(vii) The premises now in possession of M/s Wardrobe was earlier in possession of Sagar Ratna Restaurant.
(viii) About 4-5 days back, the respondents got vacated one shop in possession of Som Nath, tenant.
(ix) The purchase of property in the name of respondent No.1 was benami.
(x) Another property known as 'Majithia Complex' was also purchased benami in the name of respondents.
(xi) In the basement of that building, there is a tenant known as 'Samson Communic' and that property also belongs to respondent No.1 Ritu Sharma.
(xii) The attorney of petitioner has no locus standi to file the present petition.
(xiii) The requirement of the demised premises by respondent No.1 is not bona fide.
In reply, respondent No.1-landlady reiterated her averments in the petition and contested, controverted and denied the averments made in the application filed by the revision petitioners seeking leave to defend. It was denied that the revision petitioners were ever pressurized to enhance the rent. A rent note was executed by the revision petitioners in favour of previous landlady and they have also executed a rent note in favour of respondent No.1. The rate of rent of the demised shop was `250 per month and not `200 per month. The revision petitioners have tried to confuse the matter unnecessarily by clubbing the facts of two separate petitions and separate premises. It was also denied that M/s Wardrobe is a tenant in the building @ `1 lac per month. Two storey were added in the building in the year 2002-03 and not in the year 2004-05. No new SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -6- tenant was inducted in the building after 2004. Sagar Ratna Restaurant was tenant in the building in the year 2001 and had vacated the same. A petition was also filed against another tenant namely Som Nath son of Wasava Ram under Section 13-B of the Rent Act. He admitted the status of respondent No.1-landlady as NRI and vacated the shop in his occupation on 28.12.2009. He also admitted her claim qua her need of the complete building of which demised premises is a part. The averments to the effect that the purchase of the suit property and other properties in the name of respondent No.1- landlady as benami, were also contested, controverted and denied. The plea of the revision petitioners that respondent No.1-landlady owns other property also in the city of Amritsar, has been denied inter alia pleading that Shri Ramesh Chander Sharma left a Will in favour of Ritesh Sharma, his son. As per the Will, Ritesh Sharma became owner of the estate left by Shri Ramesh Chander Sharma and respondent No.1 has no concern with 'Majithia Complex' or owns any property at Kennedy Avenue, Amritsar. She is married and has her own family and her claim could not be clubbed with her parental family after her marriage.
I have heard learned counsel for the revision petitioners and have perused the paper book with his assistance.
The first argument of learned counsel for the revision petitioners is that respondent No.1-landlady is not a Non-Resident Indian. As such, petition under Section 13-B of the Rent Act is not maintainable. This plea was also raised before the Rent Controller, SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -7- but was turned down on appraisal of the documents on record with the observations as follows:-
"10. .............................. But all this pleas raised by the respondent no.1 to 3 are not sustainable in the eyes of law. In order to establish that applicant is Non-Resident Indian, she has placed on record photostat copy of her passport issued by Government of India, photostat copy of her residence permit issued by Government of United Kingdom, photostat copy of payment of subscription amount towards the Employee Insurance Policy by her as employees of Palfrey Girls School Queen Mary St. Walsall, West Midlands, photostat copy of letter issued by Head of Payment Virgin Media Payment Ltd to her. These documents placed on record have not been specifically denied by the respondent no.1 in his application for leave to defend or to the rejoinder filed to the reply of applicant. Nor he has challenged the genuineness of these documents. So, from this document, status of applicant as Non-Resident Indian stands proved. The reliance can be made on the judgment of Hon'ble Punjab and Haryana High Court given in case titled as "Lakhwinder Kaur versus Pavittar Kaur (dead through LRs) 2010(1) RCR, (Rent) 588. In this case it has been held that where an NRI landlady placed on record copy of passport issued by Government of United Kingdom and also identity card/certificate issued by Non-Resident Indian Sabha, Punjab to that effect, nothing more is required to be pleaded and shown by the said landlady to prove his status as Non-Resident Indian. So, in the present case in the aforesaid document placed on record by the applicant, it has been proved that she is Non-SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -8-
Resident Indian and is competent to file the present application under section 13(B) of the Act."
The reference to the documents placed on file by the Rent Controller gives no room for the argument advanced by learned counsel for the revision petitioners to allege that respondent-landlady is not a Non-Resident Indian. The conclusion arrived by the Rent Controller is based on facts and calls for no interference.
The other arguments advanced by learned counsel for the revision petitioners are that this petition has been filed to pressurise the respondent-landlady to increase the rate of rent which is `200 for the demised shop and `500 for the another shop. They are tenant in the shops for the last 30 years and the respondent-landlady pressurised them to increase the rent to `1500 and `2000 per month. He has further argued that the purchase of the suit property in the name of respondent No.1-landlady is benami and this fact could be proved only by leading evidence. She had let out first and second floor of the building to M/s Wardrobe on the monthly rent of `1 lac which depict that she had no genuine bona fide need of the suit property. She also owns other properties at Amritsar and this fact could also be proved if the leave to defend had been allowed.
The submission made by learned counsel for the revision petitioners made out no ground to allow leave to defend. The plea is usually raised by the tenants that the ejectment petition had been filed by the landlady/landlord after the efforts to increase the rent failed. Respondent No.1-landlady has admitted the rate of rent of the SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -9- demised premises as `250 per month. This fact is admitted by the parties that a similar petition under Section 13-B of the Rent Act was filed against another tenant Som Nath and that shop was vacated and possession was delivered to respondent No.1-landlady. This shows that respondent No.1-landlady has not singled out the revision petitioners by filing the ejectment petition under Section 13-B of the Rent Act against them only. Admittedly, another petition under Section 13-B of the Rent Act was also filed with regard to the second shop in possession of the revision petitioners as tenant. This shows the attempt being made by respondent No.1-landlady to get her entire building vacated to start her business. Much emphasis has been laid on the fact that first and second floor of the building was let out to M/s Wardrobe at monthly rent of `1 lac. However, this plea is not supported by any document on record. The revision petitioners tried to support this plea with an entry of `20,358 in the account of M/s Wardrobe to respondent No.1 Ritu Sharma. This entry, in no manner, proves the tenancy of the portion of building in favour of M/s Wardrobe. Even otherwise, Non-Resident Indian is competent to choose any portion of building for his/her bona fide necessity. Even if, the plea raised by the revision petitioners be believed that there is a tenant on the first and second floor, this in no manner, dilute her bona fide necessity for the premises on the ground floor.
The plea that the purchase of the suit property in the name of respondent No.1-landlady was just benami, is not available to the revision petitioners. The premises had been purchased by Ritu SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -10- Sharma, respondent No.1 in the year 1998 i.e. about 16-17 years back. A tenant has no locus standi to raise the plea in the ejectment petition that his landlord is a benami holder of property. The leave to defend cannot be allowed on the such evasive, vague and frivolous plea raised by the revision petitioners.
Regarding the properties mentioned in the application as owned by respondent No.1-landlady, she has explained in her reply that same are owned by Ritesh Sharma under the Will of her father and the revision petitioners had tried to club her parental properties with the properties owned by her. One such attempt appears to have been made by the revision petitioners when they have cleverly tried to project by pleading that "in this compact building, a tenant known as Samson Communic" is also a tenant under respondent No.1-landlady, a plea not supported by any document on record.
I have examined all the pleas raised by the revision petitioners in their application under Section 18-A of the Rent Act but find that the revision petitioners had failed to raise any triable issue calling for decision on merits after affording opportunity to the parties to lead evidence. The revision petitioners have failed to rebut the plea taken by respondent No.1-landlady that she requires the demised premises for her personal bona fide need or to discharge the heavy burden placed on them to prove that the requirement of the landlord is not genuine. Hon'ble Supreme Court in para 18 of the judgment in the case of Baldev Singh Bajwa vs. Monish Saini, 2005 (2) RCR 470 has observed as follows:
SACHIN MEHTA2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh CR-5645-2014 -11-
"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."
In the application under Section 18 of the Act, the revision petitioners have raised vague, unspecific and frivolous pleas seeking the leave to defend and the learned Rent Controller has committed no error of law or fact, on appraisal of the pleadings and documents on record, while reaching the conclusion that they are not entitled to be permitted leave to defend in the absence of any triable issue raised by the revision petitioners.
On perusal of the paper-book and the detailed order passed by learned Rent Controller, I find no legal or factual infirmity therein calling for any interference.
This revision petition has no merits. Dismissed.
( SURINDER GUPTA ) February 06, 2015. JUDGE Sachin M. SACHIN MEHTA 2015.02.27 16:38 I attest to the accuracy and authenticity of this document Chandigarh