Punjab-Haryana High Court
Harjinder Singh vs Baljit Kaur on 31 October, 2011
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.2337 of 2011 (O&M)
Date of decision: 31.10.2011
Harjinder Singh ......Petitioner(s)
Versus
Baljit Kaur ......Respondent(s)
CR No.6131 of 2011 (O&M)
Harjinder Singh ......Petitioner(s)
Versus
Baljit Kaur ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Amit Rawal, Advocate for the petitioner.
Mr. H.S. Bhullar, Advocate for the respondent.
Rakesh Kumar Garg, J.
This judgment shall dispose of two civil revision petitions i.e. CR Nos.2337 and 6131 of 2011 which have arisen out of the same ejectment petition between the same parties.
The respondent-landlord filed an ejectment petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 for eviction of the petitioner from the demised premises i.e Booth No.49, Phase-3B-2, Mohali, claiming herself to be Non Resident Indian and owner/landlord of the demised premises for the last 5 years prior to the date of filing of the ejectment petition. It was also averred by the respondent that she is aged approximately 68 years and her husband is of approximately 74 years and they wish to come back to India to settle permanently as they want to spend rest of their life in their motherland and require the demised premises for their personal use. It was also averred that she does not have any other source of income and wants to start business in the said premises.
Upon notice, the petitioner appeared before the Rent Controller and moved application under Section 18-A of the Act seeking leave to defend, on the ground that respondent is not an NRI and does not intend to live in India as she is permanently settled in England along with her family. She is not the complete owner of the property in dispute. She has not produced any deed of ownership of booth No.49, Phase 3-B2, Mohali. No conveyance deed has been issued in her favour by the Estate Officer, Urban Estate, Punjab, and in the absence of any registered conveyance deed, the respondent does not fall in the definition of owner and thus, the triable issues are raised and therefore, the petitioner was entitled to the grant of leave to defend.
Vide impugned order dated 22.04.2011, the Rent Controller, Mohali rejected the said application of the petitioner for grant of leave to defend. While dismissing the aforesaid application, the Rent Controller, Mohali observed as under:
"After hearing rival contentions of both the ld. Counsel for the parties and gone through the file, this court is of the view that the main petition has been filed by the respondent/petitioner under section 13-B of the Punjab Urban Rent Restriction Act, respondent/petitioner being an NRI and owner of the property for bona-fide requirement of the respondent/petitioner. This court of the opinion that present application has got no merits and same is hereby dismissed as the application for leave to defend is only allowed if there exists any triable issue between the parties, but in the present petition, the respondent/petitioner has placed on record the copy of the passport which clearly proves that the respondent/petitioner is an NRI. Moreover, the status of respondent/petitioner being an NRI is not disputed by the applicant. The relationship of landlord and tenant is also not disputed by the applicant, hence, the relationship of landlord and tenant is also proved by the respondent/petitioner. The respondent/petitioner has produced on record the sale deed dated 13.08.1982 in favour of the respondent/petitioner, which clearly shows that the respondent/petitioner is the owner of the demised premises for more than five years. The respondent/petitioner has also produced on record the copy of letter issued by the concerned authorities vide which the Booth No.56 has been changed to Booth No.49. Therefore, it clearly proves that the respondent/petitioner is the owner of the Booth No.49. In the present petition, the respondent/petitioner was required to prove three ingredients i.e. (1) She is an NRI, (2) Owner of the demised premises and (3) Relationship of landlord and tenant between the parties.
As discussed earlier the respondent/petitioner has been able to prove all three basic ingredients of the section 13-B of Punjab Urban Rent Restriction Act as the respondent/petitioner has placed on record the relevant documents to prove the same. As far as contention of the applicant that the present petition has been filed by the respondent/petitioner for eviction of the applicant as the respondent/petitioner wants to sale out the demised premises is concerned, is not sustainable, as applicant has not produced on record any document to prove the fact that respondent/petitioner is in process of selling out the demised premises. Furthermore, the applicant has contended that the respondent/petitioner is negotiating with some persons to sale out the demised premises but has not specified the names of intended purchaser, therefore, it seems that this is mere allegation otherwise the applicant should have produced on record the relevant documents to prove the same. Moreover, the rent act itself provides that if the respondent i.e. landlord/owner sale out the premises within 5 years, after the eviction of the tenant, then tenant would be entitled for restoration of possession and further landlord/owner also would be held for penal consequences. The other contention of the applicant that ordinary summons have been served upon the applicant and as such the present petition be considered as ordinary petition, is concerned, the respondent/petitioner is contending that the summons have been issued under the prescribed procedure to the applicant, but even then if the contention of the applicant is to be believed that ordinary summons have been issued to the applicant but the applicant has appeared and has filed the application for leave to contest, therefore, the contention of the applicant looses its significance and it does not give any right to the applicant to contest the present petition. The other contention of the applicant that the respondent/petitioner is not the owner of the demised premises for more than 5 years, as demised premises is Booth No.49, but the respondent/petitioner has produced on record the ownership of Booth No.56, but the same is not sustainable as the respondent/petitioner has placed on record the sale deed executed in favour of the respondent/petitioner way back in the year 1982 of the Booth No.56 and furthermore, the respondent/petitioner has produced on record the letter of the concerned authorities vide which the number of the Booth has been changed from Booth No.56 to 49. Moreover, if the demised premises, is not the same premises of which the petitioner/respondent is the owner, but is different premises, then there was no necessity for the applicant to file the present petition, as he was stated to be occupying the booth No.49. Therefore, this contention is also not sustainable. The other contention of the applicant that the respondent/petitioner has not specified the bona fide requirement of the respondent is concerned, is not sustainable, as under the law the respondent/petitioner is not required to disclose the business, which the respondent/petitioner is going to start in the demised premises. Moreover, filing of the present petition itself shows the bona-fide requirement of the respondent/petitioner. The other contention of the applicant that the respondent/petitioner also has premises at Kharar is concerned, is not sustainable, as the applicant has not produced any document whatsoever, to prove that the respondent/petitioner is having other premises in the locality. Moreover, the respondent/petitioner has filed the present petition under section 13-B of the Punjab Urban Rent Restriction Act, which can be filed only once in a life time and it is also the sweet-will of the respondent/petitioner to get any of her premises vacated and the applicant cannot be allowed to dictate terms to the respondent/petitioner regarding which premises is to be vacated or which is to be not. Therefore, from the above discussion, the respondent/petitioner being able to prove that she is an NRI and is the owner and landlord of the demised premises. Hence the present application is dismissed as there is no triable issue for which the present application be allowed as the applicant has admitted the respondent/petitioner to be an NRI and landlord of the demised premises and further respondent/petitioner has produced on record the sale deed which proves that the petitioner/respondent to be the owner of the demised premises for more than five years.
CR No.2337 of 2011 has been filed by the petitioner-tenant challenging the aforesaid order.
Thereafter, the respondent appeared as PW-1 and tendered into evidence her affidavit as Ex.PW1/A and passport Ex.P-1, copy of conveyance deed Ex.P-2 and also examined Jagdish Singh, Record Keeper of GMADA as PW-2. Thereafter, the Rent Controller further vide order 15.9.2011 allowed the ejectment petition filed by the respondent- landlady and ordered the eviction of the petitioner from the premises in dispute. While passing the aforesaid order, the Rent Controller observed as under:
"In a petition filed under section 13-B of the East Punjab Urban Rent Restriction Act, the landlord is required to prove the following things to get eviction of the tenant:-
(i) She is Non Resident Indian (N.R.I.)
(ii) She has returned to India permanently or
temporarily.
(iii) She is owner of the property for more than five years before the institution of the petition.
In the present case, petitioner has tendered her affidavit Ex.PW1/A stating that she is N.R.I. A permanent citizen of U.K. She has produced on file the copy of his passport Ex.P1 showing that she was born in Hoshiarpur and presently she is British citizen, so from the passport Ex.P1, petitioner is proved to be N.R.I. Petitioner has also placed on file the copy of conveyance deed Ex.P2, vide which petitioner has become owner of the property in dispute i.e. Booth No.56, Phase 3B-II SAS Nagar. This is a registered document and presumption of truth is attached to this. Petitioner has also produced on file letter Ex.P3 dated 14.12.1984 issued by the Estate Officer, Urban Estate, Punjab, in which the number of the booth has been changed from booth No.56 to 49. So, the petitioner is also proved to be owner of the property in dispute for more than five years.
As far as the other requirement that petitioner has returned permanently or temporarily or that the requirement of the petitioner is genuine or not, in this regard affidavit of the petitioner Ex.PW1/A is sufficient, in which she has categorically stated that petitioner wants to settle in India and for the purpose, she requires the premises in dispute vacated from the respondent who is a tenant. The relationship of landlord and tenant is admitted by the respondent in the application filed for seeking leave to contest by the respondent. There is no reason to disbelieve the duly sworn affidavit submitted by the petitioner Baljit Kaur herself in the Court. So, it is established that petitioner has intention to return to India permanently and she wants to start her business and property in dispute is required by her. So, requirement of the petitioner is found to be genuine.
In view of the above discussion, petition of the petitioner succeeds and the same is allowed.
Respondent is ordered to be evicted from the premises in dispute with the direction to hand over the vacant possession of the premises in dispute to the petitioner within two months from the date of this order. Memo. Of costs be prepared. File be consigned to the record room."
CR No.6163 of 2011 has been filed by the tenant-petitioner challenging the aforesaid order dated 15.9.2011 of the Rent Controller.
The said revision petition was ordered to be heard along with CR No.2337 of 2011 vide order dated 4.10.2011 which reads thus:
"Counsel for the petitioner contends that Civil Revision No.2337 of 2011 challenging order dated 11.03.2011, by which the prayer of the petitioner for grant of leave to defend was rejected is pending before this Court and in the instant revision petition, eviction order of the petitioner dated 15.09.2011 which is consequential, has been challenged.
Notice of motion for 31.10.2011.
Mr. H.S. Bhullar, Advocate who is appeared on behalf of Baljit Kaur-respondent in Civil Revision No.2337 of 2011, seeks a short adjournment to get instructions.
To be heard along with Civil Revision No.2337 of 2011."
Challenging the aforesaid order of rejecting the application for leave to contest and consequential order of eviction, learned counsel for the petitioner-tenant has vehemently argued that from the documentary evidence brought on record, the ingredients of Section 13-B of the Act are not proved as the respondent has not been ex facie proved to be the owner of Booth No.49, Phase III-B2, Mohali, at the time of filing of the rent petition in the year 2010. In support of the aforesaid argument, learned counsel for the petitioner has further referred to the fact that conveyance deed Ex.P-1 pertains to Booth No.56, Phase III-B2, Mohali and not the demised premises (i.e. Booth No. 49) and further the letter dated 14.12.1984 Ex.P-3 was not addressed to the respondent but to Parkash Singh son of Ruda Singh, General Power Attorney of Gurbaksh Singh and thus, an irresistible conclusion is to be drawn that the respondent did not acquire the ownership of the booth in question prior to the filing of the rent petition. She has acquired the ownership only on 5.5.2011 as per the letter dated 5.5.2011 brought on record as Annexure P-6(Ex.P4). Counsel for the petitioner has further argued that the respondent-landlord does not require the demised premises for her bona fide need as the same has been proved to be a mere pretext to get the premises vacated as in the instant case she has not rebutted the specific pleadings of the petitioner that she and her husband are permanently settled in England and are drawing their retirement pension over there which give rise to an irresistible conclusion that the intention of the respondent is not bona fide but a mere pretext to get the premises vacated.
Counsel has also argued that the respondent is a British citizen and has not acquired the citizenship of India by registering herself under the provisions of Indian Citizenship Act, 2005 and thus, would not fall within the definition of NRI.
On the basis of the aforesaid argument, learned counsel for the petitioner has vehemently argued that the impugned orders are liable to be set aside as the petitioner had raised triable issues before the Rent Controller and in view of the aforesaid triable issues raised, the petitioner was entitled to grant of leave to defend and since the petitioner has been denied his right, the impugned orders are liable to be set aside resulting into dismissal of the ejectment petition against him.
On the other hand, learned counsel appearing on behalf of the respondent has supported the impugned orders by arguing that in the application for leave to contest, the petitioner has not disputed the status of the respondent-landlady as NRI. The relationship of landlord and tenant between the parties is also admitted. Counsel for the respondent has further brought to the notice of this Court that sale deed dated 13.8.1982 in favour of the landlord clearly establishes that respondent is owner of the property in dispute for more than 5 years prior to the filing of the petition and the aforesaid facts finds further corroboration from Ex.P-3 i.e. the letter dated 14.12.1984 whereby the Estate Officer, GMADA has clearly conveyed that the number of property in question stood changed from 56 to 49 and thus, the aforesaid public document clearly proved the ownership and thus, the respondent-landlady fulfills the requirement of seeking possession of the demised premises under Section 13-B of the Act as on fulfillment of the aforesaid conditions, a presumption under Section 18-A(4) of the Act is deemed to be drawn in favour of the landlady regarding her bona fide need of the demised premises and there is no evidence/document to rebut the same. Counsel for the respondent has further argued that under the provision of Section 13-B of the Act, any NRI, who fulfills the required conditions as aforesaid, can file the petition for ejectment of a tenant from the demised premises if he/she intends to come back to India either temporarily or permanently and it was not necessary for him/her to come back first to India and then file a petition and thus, the instant revision petitions having no merit are liable to be dismissed.
I have heard learned counsel for the parties and perused the impugned orders.
At the outset, it may be noticed that relationship of landlady and tenant between the parties is not in dispute. It is also not in dispute that the respondent is a British passport holder and settled in U.K. It is also an admitted fact that respondent-landlady is of Indian origin.
While dealing with the definition of 'NRI', as enumerated in the Act, the Hon'ble Supreme Court in the case of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 has observed as under:-
"Definition of "Non-resident Indian" (NRI) under the Act contemplates that any person who is of an Indian origin, and who has settled either permanently or temporarily outside India for taking up employment; or for carrying on a business or vocation outside India; or for any other purpose in such circumstances as would indicate to stay outside India for an uncertain period, would be a Non- Resident Indian. Thus to be a NRI, it is sufficient that a person of an Indian origin establishes that he has permanently or temporarily settled outside India for his business or on account of his employment, or for any other purpose which would indicate his intention to stay outside India for an uncertain period. Therefore, any person who has gone out of India and temporarily settled there for the purposes of undertaking certain course or degree of University would not be a NRI because his stay could not be said to be for an uncertain period. A person to be an NRI, first should be of an Indian origin. The phrase ``Indian Origin'' has not been defined in the Act of 1949. The dictionary and in ordinary parlance phrase ``origin'' refers to persons parentage or ancestry. The person whose parent, grand-parents, or great-grand parents were born in India and permanently resided in India would be an NRI for the purposes of the Act of 1949. It is not necessary that the person should be a citizen of India and shifted to the foreign country or that because he holds foreign passport he would not be NRI."
Further in the judgment in the case of Sohan Lal v. Swaran Kaur 2003(2) Rent Control Reporter 407, it has been observed as under:-
"The expression 'NRI' used in Section 2(dd) of the Act has been clearly defined and there is no ambiguity necessitating any external aid for interpreting the same. The ordinary meaning of the expression 'NRI' given in Section 2(dd) of the Act is that a person of Indian origin living abroad whether settled permanently or temporarily. The purpose of his living abroad has been amplified either for taking up employment outside India or for carrying on business or vocation outside India or for any other purpose as would indicate his intention to stay outside India for uncertain period. Therefore, the definition of expression 'NRI' cannot be confined to only those who are holding Indian Passport and continue to be the Indian citizens. The definition in fact embraces all those categories of Indians living abroad whether citizens or non-citizens, whether born in India or abroad, whether carrying Indian or foreign passport. It appears that as long as he is owner of a property in the State of Punjab legislature has intentionally used a wider expression to include large number of NRIs."
Counsel for the petitioner could not dispute the aforesaid settled proposition of law except to state that the matter is pending before the Hon'ble Supreme Court in this regard. However, learned counsel for the petitioner was unable to submit before this Court with regard to the specific question as raised before the Hon'ble Supreme Court in SLP No.189 of 2011 by placing on record any pleadings between the parties or any question framed by the Hon'ble Supreme Court in this regard. Admittedly, the judgment of this Court has not been stayed by the Hon'ble Supreme Court of India in the aforesaid SLP. Thus, the contention of the petitioner that petitioner is not an NRI is without any merit.
It may also be noticed that while ordering the eviction of the petitioner vide order dated 15.9.2011, the Rent Controller has clearly observed that in her affidavit Ex.PW-1/A, the respondent-landlord has categorically stated that she wants to settle in India and for the purpose she requires the premises in dispute and there was no reason to disbelieve the duly sworn affidavit submitted by the respondent and from the aforesaid affidavit, it is clearly established that the respondent has an intention to return to India permanently and she wants to start her business in the property in dispute, so her requirement is found to be genuine.
Not only this, a Full Bench of this Court in C.R. No.1493 of 2010 (Anwar Ali versus Gian Kaur) decided on 9.11.2010 has clearly laid down that once the requirement of Section 13-B of the Act is fulfilled, a presumption with regard to need of the respondent-landlord is deemed to be drawn in his/her favour as provided under Section 18-A (4) of the Act. There is nothing on record to rebut the aforesaid presumption which has to be drawn in favour of the respondent-landlady. Thus, the Rent Controller has found that the respondent-landlady fulfills all the conditions in the application of Section 13-B of the Act.
The objection of the petitioner with regard to the ownership of the respondent-landlady qua the demised premises is also without any merit. From the copy of the conveyance deed Ex.P-2 vide which the respondent has become owner of the property of Booth No.56 Phase-3B, SAS Nagar Mohali coupled with the letter Ex.P-3 dated 14.12.1984 issued by the Estate Officer, Urban Estate, Punjab, wherein the number of property which was conveyed to the respondent Ex.P-2 has only been changed, the respondent has been proved to be the owner of the property. The argument raised on behalf of the petitioner that the respondent has become owner of the property only on 5.5.2011 on the issuance of Ex.P-6 (Ex.P4) is superficial and misconceived. It is only an admission of the fact by the Estate Officer, Urban Estate, Punjab that the property in question which was allotted to the respondent vide Ex.P2 as Booth No.56 has become Booth No.49 because of change of site plan etc. It may also be noticed at this stage that at no stage, the petitioner has disputed the fact that earlier the demised premises were not bearing property No.56, Phase III-B2, SAS Nagar, Mohali and it was a different property.
Learned counsel for the petitioner could not dispute the settled proposition of law to the effect that once leave to defend is declined, eviction order has to follow.
In view of the aforesaid discussion, the instant revision petitions have no merit.
No other point has been argued.
Resultantly, both the petitions are dismissed. A photocopy of this order be placed on the file of another connected case.
October 31, 2011 (RAKESH KUMAR GARG) ps JUDGE