Punjab-Haryana High Court
Deepak Maini vs Amrik Singh Khatkar on 7 December, 2009
Author: Surya Kant
Bench: Surya Kant
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No.6289 of 2009 (O&M)
Date of Decision : 7.12.2009
Deepak Maini .....Petitioner
versus
Amrik Singh Khatkar .....Respondent
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
Present : Mr.Atul Mahajan, Advocate, for the petitioner.
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1. Whether Reporters of Local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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ORDER
Surya Kant, J. (Oral) The petitioner-tenant is aggrieved at the order dated 20.8.2009 passed by the Rent Controller, Phagwara, whereby in an eviction petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as `the Act'), leave to contest has been declined to him and consequential eviction order has been passed.
The respondent-NRI landlord filed the eviction petition under Section 13-B of the Act, seeking the petitioner's eviction from the demised premises situated at Pharwara, District Kapurthala. The respondent, inter- alia, alleged that the demised premises was earlier owned by his father Charan Singh who passed away on 2.5.1973. The mother of the C.R. No.6289 of 2009 (O&M) 2 respondent, namely, Gurmej Kaur, also died on 27.12.1997. The estate of the deceased parents of the respondent including the demised premises, has been inherited by the respondent-Amrik Singh alongwith his two brothers namely, Surinder Pal and Kuldeep Singh. The respondent further averred that he alongwith his brother Surinder Pal is residing in United Kingdom for more than 20 years and are Non-Resident-Indians. He further averred that the demised premises is required by him as he wants to return India and start his own business. The respondents specifically averred that he is owner of the demised premises for the last more than 5 years before filing of the eviction petition and in support thereof, relied upon the revenue record comprising jamabandi for the year 2000-2001.
Upon notice, the petitioner-tenant moved an application under Section 18-A of the Act and sought leave to contest which has been declined by the Rent Controller, Phagwara vide the impugned order dated 20.8.2009, giving rise to this revision petition.
While explaining the legislative intent and import behind provisions like Section 2 (dd), 13-B and 18- A of the Act inserted/amended vide Act No.9 of 2001, the Hon'ble Supreme Court in Baldev Singh Bajwa versus Monish Saini, (2005) 12 SCC 778, has ruled that:-
"We hold that allegations made by the NRI landlord of his requirement shall be presumed to be genuine and bona fide unless rebutted by the tenant by placement of cogent and material facts and evidence in support thereof at the stage of `leave to contest' before the Controller. We feel any other interpretation would completely whittle down and deny the tenant's right to show and prove that landlord does not in fact, or in law require suit premises."C.R. No.6289 of 2009 (O&M) 3
This court in Civil Revision No.1385 of 2004 (Lakhwinder Kumar versus Pavitter Kaur (dead) through LRs), decided on 7.9.2009, has further summarised that while considering an application for leave to contest moved by a tenant, the Rent controller has to consider the following factors:-
"(i) whether or not such an application accompanying by an affidavit has been moved within 15 days from the date of effecting service upon the tenant as per the Schedule-II; (ii) whether or not the tenant has raised a triable issue duly supported with some cogent material, which if proved, would disentitle the NRI-landlord to seek eviction of the tenant; (iii) the leave to contest cannot be granted on mere asking and the tenant would be under a heavy onus to establish that the landlord's eviction application lacks in material particulars and does not fall within the four corners of Section 13-B of the Act.
With a view to ascertain that there is a triable issue raised by the tenant, the Rent Controller shall be obligated to consider such contention in the light of judicially settled main and ancillary issues, like: (i) a NRI-landlord even if only a co-owner/joint owner in the demises premises, can seek eviction of his tenant under Section 13-B of the Act;
(ii) ordinarily, the fate of an eviction petition filed earlier under Section 13 of the Act, before Section 13-B came into existence, is no ground for not entertaining the eviction application under Section 13-B of the Act; (iii) nothing precludes the NRI-landlord to institute parallel proceedings for recovery of the arrears of rent, while also seeking eviction of the tenant under Section 13-B of the Act, for the reason that every landlord is entitled to be paid the rent till C.R. No.6289 of 2009 (O&M) 4 the premises is required by the tenant; (iv) the general principle that the landlord is the best judge of his own requirement and the tenant has no authority to dictate or advise his landlord as to how the later should adjust within the available accommodation or in a particular manner applies to an eviction application under Section 13-B of the Act also; (v) the ownership with possession of another accommodation is no bar against a NRI-landlord to invoke his once in a life time right and get one building of his choice vacated under Section 13-B of the Act; (vi) contrary to Section-13, the requirement of the NRI-landlord for the demised premises for his own use and occupation, shall be presumed to be genuine and bonafide unless rebutted by the tenant; (vii) even if there are more than one tenants in a single `building', the NRI-landlord is entitled them to evict;
(viii) the tenant shall have to apply for leave to contest within 15 days of effecting service on him. No application shall thereafter be entertained and the Rent Controller has no power to condone the delay in filing such an application;
(ix) even if the premises was let out by the `co-owner' or an authorized person by the NRI-landowner, it shall amount to `letting out of the premises' for and on behalf of such owner only."
I have heard learned counsel for the petitioner at some length and perused the impugned order also.
It is, inter-alia, contended that the petitioner has raised the triable issues, namely, (i) there is no relationship of landlord and tenant between the parties as the premises was let out to the petitioner by Kuldeep Singh, brother of the respondent and not by the respondent himself, and
(ii), the respondent is not the `exclusive owner' of the demised premises. C.R. No.6289 of 2009 (O&M) 5
Having given my thoughtful consideration, I find that both the contentions are devoid of any merit. Even according to the petitioner, the respondent is a co-owner of the demised premises. That being so and as held by their Lordships in Baldev Singh Bajwa's case (supra), an eviction petition under Section 13-B of the Act is maintainable at the instance of a co-owner also. Similarly, even if it is presumed that the premises was let out by Kuldeep Singh, brother of the respondent, such letting out was for and on behalf of all the co-owners including the respondent.
No case to interfere with the impugned order is made out by this Court in exercise of its revisional jurisdiction.
Dismissed.
07-12-2009 (SURYA KANT) Mohinder JUDGE