Punjab-Haryana High Court
Sham Lal Khera vs Sudershan Kumar Rao on 13 September, 2011
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
Civil Revision No.4984 of 2011(O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No.4984 of 2011(O & M)
Date of Decision:13.09.2011
Sham Lal Khera
....petitioner
Versus
Sudershan Kumar Rao
.....respondent
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
1.Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Ms.Naveen Malik, Advocate
for the petitioner
Mr.Vinay Kumar Mahajan, Advocate
for the respondent-Caveator
***
RAKESH KUMAR GARG, J.(ORAL):
At the outset, counsel for the respondent-caveator submits that possession of the demised premises in pursuance of the impugned order has already been taken and the instant revision petition has become infructuous. However, counsel for the respondent states that if impugned order is set aside, petitioner can claim restoration of demised premises. Be that as it may, this Court is deciding this petition on merits.
This is tenant's revision petition. Vide order dated 27.10.2010, application filed by the petitioner for grant of leave to defend the ejectment application filed under Section 13-B of the East Punjab Urban Rent Restriction Act(in short, 'the Act') on behalf of the respondent was declined. By separate order of the even date, eviction order against the petitioner was also passed. In the instant revision petition, the aforesaid orders are under challenge before this Court. Civil Revision No.4984 of 2011(O & M) 2
The respondent-landlord filed an ejectment application under Section 13-B of the Act making averments that he is a non-resident Indian in terms of the rent Act and owner of the demised premises since 2003 and wants to return to India to settle in his ancestral house i.e.House No.146, Sector 20-A, Chandigarh. It was further averred that the petitioner is in possession of second floor of the said house for the last many years as a tenant. He has not paid the rent since February2009. He was requested to vacate the demised premises as the same was required for his personal use. The respondent has no residential house in Chandigarh or all over India. He requires the said house for own need and occupation. Since the petitioner has failed to vacate and hand over the demised premises, in the circumstances, the requirement of the respondent was urgent and he was entitled to an order of ejectment of the tenant from the tenanted premises unde the provisions of Section 13-B of the Act.
Upon notice, the petitioner filed an application for leave to defend on the following grounds:
That the petition filed u/s 13 B of East Punjab Urban Rent Restriction Act is not maintainable at this stage. There is only notification, and no such law has been enacted by the Parliamentary Board of India till date to become Legislative Law. Once cannot take benefit of Administrative notification. Hence the petition deserves dismissal in all respect.
That even otherwise, the petitioner do not come under the preview of NRI claiming benefit of 13-B of East Punjab Urban Rent Restriction Act. The property in question is not purchased by the petitioner, it is an ancestral property, which has also been admitted by the petitioner even.Civil Revision No.4984 of 2011(O & M) 3
That even otherwise, the petitioner is trying to take the benefit of a Will executed by Smt.Kaushalaya Devi w/o Lt.Madan Mohan Rai. Firstly, such execution do not make a persona a purchaser. Secondly the execution of the said Will has been challenged by Sh.Ramesh Kumar Rai, the elder brother of the petitioner. The case is still pending in the Civil Courts, Chandigarh. Hence, in no way the petitioner do come under the meaning of purchaser to get benefit of 13 B of the Act. Hence petition is likely to be dismissed, in the interest of justice.
That the petitioner is having the entire ground floor and right side of first floor need as being claimed by the petitioner. The saying of petitioner is not genuine in the eyes of law.
That the petitioner had not put forward the basic need or requirement to get the house vacated. The reason is not at all genuine. Hence, there is no eviction in the present petition.
That the petitioner has no where put any such document to clarify his claim of personal necessity. The need of the petitioner is not genuine and is a pretext to get the house vacated and sell it at higher price and go back to London.
That the applicant/respondent received the summons on 08.02.2010 and so the applicant is well within the stipulated period.
The said application filed by the petitioner was contested by the respondent-landlord.Civil Revision No.4984 of 2011(O & M) 4
While rejecting the leave to defend, the Rent Controller, Chandigarh, observed as under:
I have heard the rival submissions and have perused the record carefully. I do not find any substance in the contention raised by the applicant/respondent. As per the settled principle of law, at the time of deciding the application for leave to defend the rent controller is not required to examine the issue from the point of ultimate proof which the tenant may produce but the only thing the Rent Controller is required to examine, is to look into the averments made in the application for leave to defend and the affidavit in support thereof. After the perusal of affidavit filed by the respondent the Rent Controller has to consider as to whether the affidavit discloses the fact which would dis-entitle the landlord from obtaining an order of possession of the demised premises on the ground specified under Section 13 B of the Rent Restriction Act. In the instant case, the applicant/tenant has sought to leave to defend firstly on the ground that the Punjab Urban Rent Restriction Act is not applicable in U.T., Chandigarh. The notification dated 09.10.2009 has not become law yet as it is not passed by the Parliament. Petitioner cannot take the benefit of administrative notification. But this contention is not tenable because the Central Government has passed the notification for making the provisions of Section 13 B of the rent Act applicable to U.T., Chandigarh. So, the petition is Civil Revision No.4984 of 2011(O & M) 5 very much maintainable under Section 13-B of the Rent Act.
The next contention raised by the applicant is that the petitioner does not come under the preview of NRI but he has failed to disclose how the petitioner does not come under the preview of NRI because it is clear from the record of the file that petitioner is British residence and holds British Passport. These averments have been pleaded by the petitioner by way of an affidavit and he has also placed the copies of his passport and citizenship card showing that he is British Citizen. So, this contention of the applicant with again without any force and is hereby rejected. The applicant has also contended that the petitioner is not entitled to invoke the provisions of Section 13-B because he has not become owner of the premises by way of purchase. But this is not requirement of law that petitioner should have become the owner of the premises by way of purchase. Under law, it is required that he must have become owner of the demised premises for at least 5 years before filing the petition. In the instant case, petitioner has become owner of the premises on the basis of a Will executed by his mother. Although, admittedly the Will has been challenged by other legal heir of Smt.Kaushalaya Devi who executed the Will in favour of the petitioner. But as it is clear from the pleadings it has not been set aside yet. Moreover, the petitioner otherwise has a share in the property in Civil Revision No.4984 of 2011(O & M) 6 question being legal heir of Smt.Kaushalaya Devi along with other legal heirs. So, even being a co- owner of the property, he can file a rent petition under the provisions of Section 13-B of Rent Act.
Lastly, the applicant is contended that the petitioner is already in possession of the ground floor and right side of the Ist floor of the demised premises in his possession. So, he does not require the demised premises as he already has sufficient portion of the house in question in his possession. So, his personal necessity pleaded in this case is not bona fide and genuine. But again this contention is without any force because it is settled proposition of law that the landlord is the best judge of his requirement and sufficiency of the accommodation. The tenant cannot tell him his requirement and sufficiency of the accommodation. In reply to this application, the petitioner has submitted that he requires the whole house for his own use and occupation and also want to renovate the premises because it is in dilapidated condition and requires major repairs.
So, in view of aforesaid discussion, this Court is of the opinion that no ground is made out to grant leave to the applicant-tenant to defend. The provision has been specifically enacted to give summary remedy to the NRI landlords, to take the possession of the premises which are occupied by the tenant in case the same is required for their own use Civil Revision No.4984 of 2011(O & M) 7 and occupation. The facts disclosed in the application and affidavit would not dis-entitle the landlord for taking the possession of the demised premises. Applicant has failed to convince this Court that there is any triable issue. Thus, the application is hereby dismissed.
Consequently, the order of eviction was passed against him. A perusal of the impugned order would show that primarily the petitioner has sought the leave to contest on the ground that the provisions of Section 13-B of the Rent Act, which were extended to Chandigarh vide notification dated 09.10.2009, were illegal and the respondent-landlord cannot claim the benefits of the said provisions. However, it has been brought to the notice of this Court that the aforesaid extension of the Punjab Laws to Chandigarh have already been upheld by a Division Bench of this Court vide judgment dated 23.08.2011 passed in CWP No.15378 of 2011 titled as Asha Chawla & ors.versus Union of India & ors.
The relevant observations of the Division Bench of this Court in the aforesaid judgement reads as follows:
As regards the validity of impugned notification,extending the Punjab Act to Union Territory, Chandigarh, the contention has to be negatived in view of judgment of the Hon'ble Supreme Court in Ramesh Birch and others v. Union of India and others AIR 1990 SC 560, upholding notification extending the 1985 amendment of the State of Punjab to the Union Territory, Chandigarh. Reliance by learned counsel on observations in para 31 of the said judgment is untenable. The extended provision will not be in conflict Civil Revision No.4984 of 2011(O & M) 8 with any existing provision. Reliance on judgment in Vasu Dev Singh and others v. Union of India and others (2006) 12 SCC 753 is also misplaced, as therein the issue was not of extension of any State legislation but of exercise of legislative power by the Executive, which is not the position in the present case. Faced with this situation, learned counsel for the petitioner has further argued that the respondent-landlord had filed this petition by concealing material facts which goes to the root of the case as he had entered into an agreement to sell the demised house on 04.01.2005 with Sh.Hakam Singh Sama who has already filed a civit suit against him for possession by way of specific performance of the said agreement to sell executed in his favour and in that suit the respondent-landlord has admitted the factum of agreement to sell and thus he was not having the title in the suit property at the time of filing of the ejectment petition. It is further case of the petitioner that even the alleged Will executed by Smt.Kaushalaya Devi in the name of the respondent is disputed. Not only this, the petitioner does not fall within the definition of NRI as in the present case, no original documents have been placed on record to justify his claim and the simple photo copies of the relevant documents were not sufficient and therefore triable issues were raised by the petitioner in the application for leave to defend and the impugned order rejecting the application for leave to defend cannot be sustained.
Submissions raised by the learned counsel for the petitioner are noticed only to be rejected. As per the settled principles of law, at the time of deciding the application for leave to defend the Rent Controller is required to look into the averments made in the application for leave to defend and the affidavit in support thereof and has to consider as to whether the affidavit discloses the fact which would dis-entitle the landlord Civil Revision No.4984 of 2011(O & M) 9 from obtaining the possession of the demised premises on the ground specified under Section 13-B of the East Punjab Urban Rent Restriction Act.
In the instant case, the petitioner has sought leave to defend on the ground that the petitioner does not come under the purview of NRI. However, he has failed to disclose as to how the petitioner does not come under the purview of NRI as it is clearly established on the record that respondent is a person of Indian origin and is settled in England. There are specific averments made by the respondent-landlord in his pleadings and he has also placed on record the duly authenticated copies of his passport and citizenship card showing that he is a British Citizen. Admittedly, petitioner is owner of the suit property and the same has also been transferred in his name by the Chandigarh Administration in the year 2003. Thus, the petitioner is owner of the demised premises for more than 5 years prior to filing of the instant ejectment application. The argument that there is an agreement to sell executed by the respondent is of no help as unless the said agreement is enforced, respondent is the owner of suit property and cannot be debarred from filing the instant petition. Simply because the Will is under challenge, it will not make any difference as admittedly, even if the Will is discarded, the respondent-landlord being Class-I heir of Smt.Kaushalaya Devi is co-owner of the suit property along with other legal heirs and can maintain the rent petition under the provisions of Section 13-B of the Act. It is well settled that on fulfilling the necessary ingredients of Section 13-B of the Act aforesaid, a presumption has to be drawn in favour of the landlord that his need for the demised premises is bona fide and the said presumption can only be rebutted by making out a case by the tenant in his application for leave to defend. The petitioner has failed to make out a case that need of the respondent-
landlord is not bona fide. So far as the argument of the learned counsel for Civil Revision No.4984 of 2011(O & M) 10 the petitioner that respondent-landlord was having sufficient accommodation in his possession, is of no significance. It is settled proposition of law that landlord is the best judge of his requirement as to the accommodation and the tenant cannot dictate him regarding the sufficiency or requirement of the accommodation.
In view of the aforesaid discussion, I find no merit in this revision petition.
Dismissed.
(RAKESH KUMAR GARG) JUDGE 13.09.2011 neenu