Punjab-Haryana High Court
Shri Sita Ram vs Smt. Malwinder Kaur on 28 September, 2011
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.5985 of 2011 (O&M)
Date of decision: 28.9.2011
Shri Sita Ram
-----Petitioner
Vs.
Smt. Malwinder Kaur
-----Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present:- Mr. Chetan Mittal, Sr. Advocate with
Mr. Vishal Garg, Advocate
for the petitioner.
Mr. B.R. Mahajan, Advocate
for the respondent/caveator.
---
RAKESH KUMAR GARG, J.
1. This is tenant's revision petition challenging the impugned order of eviction dated 28.7.2011 passed by the Rent Controller, Amritsar, whereby ejectment petition filed by the respondent-land lady under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short, "the Act") has been accepted and the petitioner- tenant has been ordered to deliver the vacant possession of the tenanted premises to the respondent-land lady within a period of two months from the date of said order.
2. The brief facts of this revision petition are that the respondent-land lady filed an ejectment application against the petitioner through her attorney Shri Sarabjit Singh on the averments that she was born in India and is an NRI. She was residing in Canada for last many years. She had earlier resided in India at Rani Ka Bagh, Amritsar and now she has shifted and settled in Canada. She is an C.R. No.5985 of 2011 2 exclusive owner of the property in dispute on the basis of inheritance as well as registered sale deeds executed in her favour on 17.1.1980, 16.6.1981, 17.2.1994 and 17.2.1994. The petitioner was a licencee and was permitted to use two front rooms of the property, as fully detailed and described in the head note about 12-13 years back. Later on, the respondent shifted to Canada and on account of her absence, the petitioner broke open the door and lock of the remaining portion of the property in dispute and occupied the entire kothi unlawfully. The respondent requested the petitioner to vacate and hand over the possession of the property in dispute to her or her attorney but the petitioner filed a suit for permanent injunction alleging that he had taken the entire kothi on rent @ `1,000/- per month from the respondent in the month of July, 1992 and was in physical possession of the same as tenant. The respondent contested the suit by filing a written statement as well as counter-claim challenging the allegations put forth by the petitioner in that suit. Ultimately, the said civil suit was decreed in favour of the petitioner vide judgment dated 8.4.2006 in Civil Suit No.47 of 10.1.1995 titled as "Sita Ram Vs. Malwinder Kaur and another". In view of the aforesaid findings of the Civil Court, there existed a relationship of land lady and tenant between the parties and the petitioner was liable to be ejected, as the respondent required the tenanted premises for her personal use and occupation. The respondent intends to return to India and settle here. She is owner of the property in dispute for more than five years before filing of the ejectment petition and thus, fulfills all the conditions for seeking possession of the demised premises under the provisions of Section 13-B of the Act.
C.R. No.5985 of 2011 3
3. Upon notice, the petitioner-tenant appeared and filed written statement, raising various preliminary objections including that Sarabjit Singh was not a competent attorney of the respondent-land lady and was not authorized to sign and verify the ejectment petition. The respondent is estopped by her own act and conduct from filing the present ejectment petition and her need was tainted with oblique motive and she has filed the instant petition under the special provisions of the Act only to get undue benefit on false pretext. Earlier the respondent was contesting the suit on the ground that the petitioner was a licencee and now she has changed her stand and has come forward with the instant petition after having failed in earlier suit. She had no bona fide need and has in fact agreed to sell the property in dispute to Shri Sarabjit Singh, the attorney. She has been possessing many other residential properties in Amritsar and she has never resided in the property in dispute during her stay in India. She has left India about 15 years back and has never returned to India and all her relatives and children are permanent residents of Canada. She has her own residential house at Rani Ka Bagh at Amritsar and has no intention to shift to India. The instant petition is an abuse of the process of law and thus, prayer for dismissal of the ejectment petition was made.
4. The land lady filed rejoinder to the written statement, wherein all the averments made in the ejectment petition were reiterated and the pleas taken in the written statement were denied being incorrect.
5. After hearing learned counsel for the parties and considering the evidence on record and other documents, the Rent Controller vide impugned judgment allowed the ejectment petition and C.R. No.5985 of 2011 4 ordered eviction of the petitioner. While allowing the ejectment petition of the petitioner-tenant, the Rent Controller found that the respondent- land lady has fulfilled all the necessary ingredients of Section 13-B of the Act for getting the immediate possession of the tenanted premises by way of eviction of the petitioner. It was further held that since the petitioner himself has taken a stand that he is tenant of the respondent in the demised premises and moreover, the Civil Court has decreed his suit in this regard, the instant petition was maintainable and the respondent was entitled to seek possession of the demised premises by filing the instant ejectment petition.
6. Challenging the aforesaid order, learned counsel appearing on behalf of the petitioner has vehemently argued that there is no cogent evidence on record to prove that the respondent-land lady is a Non-Resident Indian (NRI), as the attested copies of her passport which have been brought on record are not properly certified, as provided under the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 and the aforesaid attested copies of the passport of the respondent being inadmissible evidence, cannot be relied upon to hold that the respondent is an NRI. It has been further argued on behalf of the petitioner that the necessary ingredients of Section 2(dd)(c) of the Act have not been complied with, as the respondent has not pleaded regarding her purpose to visit and stay in the foreign country, to bring her case within the aforesaid clause. According to the learned counsel for the petitioner unless there are pleadings in this regard, the respondent cannot be granted benefit under the said provision. In the last, learned counsel has argued that the instant petition was liable to be rejected on the ground that the ejectment petition has been filed by C.R. No.5985 of 2011 5 the respondent-land lady through her attorney who is not competent to depose on her behalf in view of law laid down by Hon'ble the Supreme Court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others (2005) 2 SCC 217 and this Court in Basant Kumar v. Romesh Kumar Deora 2008(4) PLR 313. Elaborating his argument further, learned counsel has vehemently argued that in the instant petition Shri Sarabjit Singh, the alleged attorney holder, has no knowledge of the personal facts of the principal NRI and therefore, his statement to support the case cannot be taken into consideration and thus, the instant ejectment petition is liable to be dismissed.
7. I have heard learned counsel for the petitioner and the caveator and perused the impugned order and other documents placed on record of the case.
8. The first argument raised on behalf of the petitioner that the respondent-land lady is not an NRI is without any merit. Even if assuming for the sake of arguments that the attested copies of the passport of the respondent cannot be looked into as evidence on the ground that the same has not been attested/notarized as per the applicable provisions, yet it may be noticed that it is admitted case of the petitioner that the respondent-land lady was residing in Amritsar and has left India and permanently settled in Canada for the last many years. In view of the aforesaid admission, nothing more was required to prove the factum of her NRI status. As per the definition of the term 'Non-Resident Indian' as provided under Section 2(dd) of the Act, a person of Indian origin who has settled abroad permanently or temporarily for any purpose, is a Non-Resident Indian. It is not in dispute that the respondent owns the property in dispute for the last C.R. No.5985 of 2011 6 more than five years prior to initiation of the ejectment proceedings against the petitioner as required under the law. Further it cannot be disputed that in case it is established that an NRI is owning property for the last more than five years prior to initiation of the ejectment proceedings, a presumption has to be drawn in favour of the landlord with regard to his bona fide need and necessity of the premises in dispute and then it is for the tenant to produce cogent material/evidence on record to rebut the aforesaid presumption drawn in favour of the landlord. In the instant case, there is no evidence led on behalf of the petitioner to rebut the aforesaid presumption of bona fide need of the respondent-land lady. What has been argued before this Court is that the statement of the attorney of the respondent-land lady cannot be looked into, as the facts to prove the case of the land lady were not personal to the knowledge of the attorney holder and therefore, he cannot depose on behalf of the respondent land lady. The argument raised is without any force. It is not in dispute that Sarabjit Singh was constituted as an attorney by the respondent-land lady on 8.2.2006. It is again an admitted fact that the aforesaid attorney was constituted to look after and manage the demises property of the respondent-land lady and he was also defending the civil suit filed by the petitioner against the respondent-land lady. Therefore, findings of the Civil Court to the effect that the petitioner is the tenant in the demised premises belonging to the respondent were very much to his knowledge and he was competent to depose about the aforesaid facts in the instant ejectment petition.
9. The factum of ownership of the disputed property for more than five years by the respondent-land lady and her being an NRI, as C.R. No.5985 of 2011 7 discussed above, has already been admitted and there being no evidence to rebut the presumption of bona fide need of the respondent- land lady, it cannot be held that the impugned order is erroneous.
10. Thus, there is no merit in this revision petition and the same is hereby dismissed.
September 28, 2011 ( RAKESH KUMAR GARG ) ak JUDGE