Amar Manchanda & Another vs Abhey Man Singh Sidhu @ Abhey Man Sidhu & ... on 20 March, 2012

[Cites 15, Cited by 1]

Punjab-Haryana High Court

Amar Manchanda & Another vs Abhey Man Singh Sidhu @ Abhey Man Sidhu & ... on 20 March, 2012

1. The present revision petition is directed against the order dated 16.12.2011 passed by the Rent Controller, Chandigarh whereby the application for amendment of leave to defend application filed by the tenant under Section 18 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the 'Act') has been dismissed holding that the subsequent events set up in the amended application are not such events which go to the roots of the matter and have material bearing in the present petition under Section 13-B of the Act.

2. The petitioner-landlord filed ejectment application under Section 13-B of the Act as extended to Chandigarh for ejectment of the respondent- tenant from the SCF No.7, Sector 10-D, Chandigarh. The respondent-tenant filed an application for grant of leave to defend dated 29.01.2010 and took the plea that the landlord along with his father had already filed a rent petition on the ground of personal requirement which is pending in the Court of the Rent Controller, Chandigarh and filed the said petition and written statement of the earlier rent petition along with the said application. It was further alleged that the landlord is no more resident of Australia and CR No.767 of 2012 2 he has permanently shifted along with his family to Chandigarh with effect from 09.01.2008 and therefore, he has lost his status of NRI and there was no evidence on record to show that he has retained the citizenship of Australia and there was no certificate by any competent authority regarding proof of citizenship of Australia. The tenants further alleged that petition has been filed through the general power of attorney, Manjeet Kaur and the general power of attorney was not a valid document and there was no valid authority even in the power of attorney which was attached with the ejectment petition and there was no relationship of tenant and landlord between the parties. The tenancy had come to an end in 2004 and a new tenancy had been created in favour of M/s Sardara Singh Sidhu HUF through payee's account cheques and the photostat copies of the cheques were appended. It was further alleged that the intention of the landlord was to enhance the rent every year and on the request of the father of the landlord, the rent had been paid at a enhanced rate and pleaded that the landlord was well settled and running business of banquet hall at Zirakpur. The tenants further pleaded that they were related to each other and had taken the entire shop-cum-flat jointly but however, at the instance of landlord/owner, separate tenancies were created to avoid the deduction of Income Tax at source, and therefore, all the three family members were necessary parties to the petition and there were several questions which required leading of evidence and the petition was liable to be dismissed.

3. The said application was contested by filing reply by the landlord- owner on the ground that he fell within the definition of NRI under the Act and he had gone to Brisbane, Australia on 25.05.2003 in connection with his vocation and was doing jewellery business in Australia for the last 4-5 CR No.767 of 2012 3 years but the said business had closed down and was not flourishing and petitioner No.1 was not successful in running the business and he had permanently shifted to Chandigarh with effect from 09.01.2008. The factum of earlier filing a petition under the Act was admitted and it was denied that the landlord had lost the status of NRI and he was citizen of Australia as per certificate, copy of which is attached and it was accordingly contended that the earlier filing of petition did not bar the owner from filing a fresh petition and the owner had instituted the petition in his individual capacity and not through attorney and it was denied that he instituted the petition through Manjeet Kaur as general power of attorney. It was replied that the premises in question were leased out vide lease deed dated 19.04.1999 duly registered in the office of the Sub-Registrar, Chandigarh and on expiry of the lease period, the tenant was continuing as statutory tenant. In the earlier rent petition, the tenant had admitted relationship of landlord-tenant and no new tenancy had been constituted with M/s Sardara Singh Sidhu HUF and the tenancy came to an end in the year 2004. It was clarified that on the commencement of the tenancy from 01.04.1999, vide lease deed dated 19.04.1999, tenancy was created for five years upto 31.03.2004 and rent was paid mutually by the tenant to M/s Sardara Singh Sidhu HUF who never vacated the premises and was continuing as statutory tenant after the expiry of the lease period and the respondent was a tenant under the landlord. The tenant himself had agreed to increase the rent by 5% after the end of financial year according to Clause 3 of the agreement and the tenant enhanced the rent every year and no new agreement had been entered into and the landlord No.1 was a partner and having 30% share with his father and brother in the banquet hall at Zirakpur CR No.767 of 2012 4 and the premises were bona fide required for the jewellery business as well as for his residence as the tenanted premises mentioned in Transport Area, Sector 26, Chandigarh was insufficient and inadequate and the owners of the premises had asked the landlords to vacate the premises for their use and occupation. The premises were owned to the extent of 2/3rd share by the landlords and were bona fide required by the landlord and they being NRI's, were entitled to get the premises vacated and for separate tenancies, there were separate lease deeds and the said tenancies were distinct and different and all three family members were not necessary parties to the petition. The relationship of landlord and tenant having been admitted in the earlier pending litigation, the written statements filed in the said petitions were attached along with the reply.

4. Thereafter, when arguments had been addressed in the application for leave to defend, the tenants filed an application for dismissal of the petition under Section 13-B of the Act. The landlords filed reply to the application for dismissal of the application stating that it was not maintainable and had been instituted after 27.09.2010 and averments were made which were not there in the application for leave to defend and after expiry of the period of limitation, could not be looked into. It was mentioned that arguments had already been addressed on the application for leave to defend and was fixed for orders when the application for admission and denial had been moved which was also not maintainable and now, the present application had been filed just to delay the proceedings. It was mentioned that owner was not a voter and the certificate to this effect had also been filed and his name had been deleted in the voters list. It was contended that the landlord being voter, had no concern with the definition CR No.767 of 2012 5 of NRI and the issuance of PIO Card had nothing to do with the petition under Section 13-B of the Act and it was further mentioned that the petitioner had got himself registered with the local police within 18 days from the date of his arrival in India and letter dated 06.05.2008 was attached. Thereafter, an application for amendment of the application for grant of leave to defend and for adding subsequent events was filed in which it was alleged that following subsequent events had taken place which need to be incorporated to show that the petition has been filed only for enhancement of rent and para Nos. 11 to 15 were sought to be added. The subsequent events in gist which are sought to be added were that the rent has been enhanced with effect from April, 2011 from Rs.24,443/- per month to Rs.25,655/- per month and a fresh tenancy had been created again in April, 2011 as the rent had been enhanced to Rs.25,655/- per month from 01.04.2011 and the tenants had also enhancing the rent @ 5% every year but the landlord did not execute the fresh lease deed in their favour but had been receiving the enhanced rate of rent. It was further contended that the intention of the landlord/owners was to get the rent enhanced and it was averred that in the petition filed under Section 13 of the Act, the witnesses have not been produced since 19.11.2009 before the Rent Controller and the case was fixed for 03.11.2011 and last opportunity was granted subject to payment of cost and the petitioner had failed to deposit the cost, and therefore, was intentionally delaying the recording of evidence and the only motive was to enhance the rent. The zimni orders of the petition under Section 13 of the Act were reproduced to show that from 19.11.2009, cross- examination of the landlord's witnesses were being deferred. Accordingly, para Nos.11 to 15 were sought to be added.

CR No.767 of 2012 6

5. The said application was contested by filing reply that there was no provision for amendment as under Section 18-A of the Act, leave to defend had to be filed only within 15 days and the tenant had to confine his contest to the averments made in the said application and the application filed for amendment was barred by limitation and was liable to be dismissed on this ground. On merits, it was pleaded that as per the lease agreement dated 19.04.2009, the rent was to be increased @ 5% of the last rent of closing month of the financial year and it was increased in pursuance of the said agreement and no new tenancy had come into existence and arguments had been already addressed to the application to leave to defend and no new ground could be added. It was replied that no fresh agreement had been entered into and no fresh tenancy had come into existence whereas regarding the earlier proceedings dated 17.11.2011 under Section 13 of the Act, it was replied that the landlord had produced the 3 witnesses but their cross-examination has not been done so far and the interim orders produced of the said petition were not relevant as far as the present proceedings are concerned. It was further replied that the cross-examination of the respondents had not been done by the tenants and the case was delayed on one pretext or the other. It was also alleged that the provision of Section 13-B had not been made applicable to Chandigarh earlier and even after the filing of the petition, the landlord had a subsequent right to institute the proceedings. Accordingly, it was contended that the premises are bona fidely required by the landlords and the entire rent receipts were shown in Income Tax returns regarding the separate tenancies. The landlords being co-owners, were entitled to file the petition and after taking into consideration the application filed for amendment and the reply, the CR No.767 of 2012 7 Rent Controller dismissed the same and resultantly, the present revision petition has been filed.

6. Counsel for the petitioner has argued that subsequent events were very material and had a very important bearing on the decision of the case and the Rent Controller had committed grave illegality and irregularity in dismissing the application and the said order was liable to be set aside and the amendment was liable to be allowed and he has placed reliance upon a decision of this Court in CR No.6140 of 2010 titled M/s Ghazal Restaurant & another Vs. Mrs.Samarbir Kaur @ Samarbir & others decided on 02.05.2011. He, accordingly, contends that the averments made in the application for amendment were relevant for the decision and would have a great bearing on the facts of the case for proper adjudication of the application.

7. The said submission has been considered and all the documents appended along with the present petition have been perused and after considering the same, this Court feels that the initial hurdle of the petitioner has been cleared in the said decision since this Court in the above-cited judgment has considered the said proposition as to whether the application for amendment would be maintainable for leave to contest in view of the fact that there is a limitation of 15 days to file the application for leave to contest under Section 18-A of the Act and in view of the decision of the Hon'ble Apex Court in Om Prakash Bassi Vs. Ashwani Kumar Bassi AIR 2010 SC 3791 that in application filed under Section 18-A of the Act, beyond a period of 15 days, delay of even one day is not maintainable. However, in the case of M/s Ghazal Restaurant (supra), it has been held that where the amendments are sought not working to the in-justice to the CR No.767 of 2012 8 other side and necessary for the purpose of determining the real question of controversy between the parties and any subsequent event(s) which are necessary for decision of the application, such amendments can be allowed.

8. Then, the whole question which is now to be considered is whether the amendment sought to be made is relevant or not and is necessary for the purpose of determining the real question of controversy in between the parties. In the considered opinion of this Court, the said amendments are of no relevance as the said amendment sought to be made in the application are already contained in the original application. It is also pertinent to mention here that in both the applications for dismissing the petition under Section 13-B of the Act and the application for admission and denial, it has been categorically replied that the arguments were already addressed in the application for leave to defend. Thus, from the conduct of the parties, it would be clear that basically, it is an attempt by the tenant to delay the proceedings and part of the dilatory tactics adopted to avoid ejectment at the earliest. On merits of the case, it would be relevant to note that under Section 13-B of the Act, the basic ingredients which have to be fulfilled are as under:

(i) that the landlord has to be a owner of the premises in question for a period of 5 years prior to the institution of the petitioner,

(ii)that the landlord should be non-resident Indian falling within the definition of Section 2(dd) of the Act,

(iii)that there has to be a intention to return to India,

(iv)that there has to be a bona fide requirement of the premises in question.

9. The application for leave to contest has to raise a triable issue regarding the said 4 issues mentioned above. The other issues which pertain CR No.767 of 2012 9 are of no relevance and the Rent Controller is only to adjudicate on the said 4 issues for decision. This has been laid down by this Court in Sohan Lal Vs. Surinder Kaur 2003 (2) RCR (Rent) 407 that a prima facie case for presumption of bona fide requirement has to be seen. Similarly, in Baldev Singh Bajwa Vs. Monish Saini 2005 (4) RCR (Civil) 492, the Hon'ble Apex Court has held as under:

"19.The legislative intent of expeditious disposal of the application for ejectment of the tenant filed by the NRI landlord is reflected from the summary procedure prescribed under Section 18-A of the Act of 1949 which requires the Controller to take up the matter on day-to- day basis till the conclusion of the hearing of an application. The Legislature wants the decision of the Controller to be final and does not provide any appeal or second appeal against the order of eviction, it is only the High Court which can exercise the power of consideration of the case, whether the decision of the Controller is in accordance with law. Section 13-B gives right of ejectment to special category of landlord who is NRI (Non Resident Indian); and owner of the premises for five years before action is commenced. Such a landlord is permitted to file an application for ejectment only once during his life time. Sub-s. (3) of Section 13- B imposes a restriction that he shall not transfer through sale or any other means or lease out the ejected premises before the expiry of the period of five years from the date of taking possession of the said building. Not only that, if there is a breach of any of the conditions of sub-section (3) of Section 13-B, the tenant is given a right of restoration of possession of the said building. Under sub-section (2-B) of Section 19 the landlord has to take possession and keep it for a continuous period of three months and he is prohibited from letting out the whole or any part of such building to any other person except the evicted tenant CR No.767 of 2012 10 and any contravention thereof, he shall be liable for punishment of imprisonment to the term which can be extended upto six months. These restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine. Landlord, after the decree for possession, is bound to possess the accommodation. Landlord is prohibited from transferring it or letting it out for a period of five years Virtually conditions and restrictions imposed on the NRI landlord makes it improbable for any NRI landlord to approach the Court for ejectment of a tenant unless his need is bona fide. No unscrupulous landlord probably, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which practically he is deprived of his right in the property not only as a lessor but also as the owner of the property. There is a restriction imposed even on the transfer of the property by sale or any other manner. The restriction imposed on the landlord by all probability points to the genuine requirement of the landlord. In our view there are inbuilt protections in the relevant provisions, for the tenants that whenever the landlord would approach the court he would approach when his need is genuine and bona fide. It is, of-course, subject to tenant's right to rebut it but with strong and cogent evidence. In our view, the proceeding taken up under Section 13-B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlord's need pleaded in the petition is genuine and bona fide. But this would not dis- entitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea CR No.767 of 2012 11 in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlords' favour that his requirement of occupation of the premises is real and genuine."

The amendment which is sought to be done in the application for leave to defend is only an addition to the earlier grounds which have already been taken and the additional ground which are now sought to be taken in para Nos. 11 to 15 regarding fresh tenancy during the pendency of the earlier petition and the increase of rent, lack of notice for termination and information under the RTI Act regarding the status of landlord No.1 not being an NRI are not relevant for the necessary decision of the petition under Section 13-B of the Act. Whether the rent is being increased or not and that the earlier lease deed is not a relevant issue as noticed above and similarly, the earlier petition filed under Section 13 of the Act for eviction prior to the extention of the provisions of Section 13-B of the Act to Chandigarh has also no relevance as a fresh right has been created in the favour of the landlord after his arriving at Chandigarh. This Court in Dr.Ved Pal Kaushal Vs. Harcharan Singh & another 2010 (4) PLR 637 has held as under:

"9. It is now well-settled that the Court shall presume that the landlord's need as pleaded in the petition, is genuine and bona fide. However, the tenant would be entitled to prove that in fact, in law, the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. In the present case, from the material available on the record, I find that the tenant CR No.767 of 2012 12 could not prove that need of the landlord is not genuine. It is also now well settled that no NRI in view of Sections 13-B(3) and 19(2-B) of the Act shall approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which he is practically deprived of his right of property not only as the lessor but also as the owner of the property. Court has to presume that whenever the NRI landlord would approach the Court, he would approach when his need is genuine and bonafide.

10. Now, next question is as to whether landlord can file a petition under Section 13-B of the Act during the pendency of earlier petition under Section 13 of the Act ? Learned Single Judge in the case of Sat Pal Vs. Om Parkash, reported in 2007(1) RCR(Rent) page 278 in paragraph 17 has held as under:-

"The respondent cannot be stopped from availing the remedy made available by the newly added provision merely because of the decision of earlier ejectment petitions or because of the pendency of ejectment petitions filed earlier under the ordinary law of ejectment. The petitioner can defeat the respondent only by proving that the case does not fall within the parameters of Section 13-B of the Rent Act.

11. This Court is of the opinion that rights granted to the N.R.I. landlord under Section 13-B of the Act are special rights to get vacant possession at the earliest. These special rights are independent to any other right given under Section 13 of the Act. Hence, rights given under Section 13-B of the Act cannot be curtailed merely because, landlord has filed previous petition under Section 13 of the Act. N.R.I. landlord can exercise his right under Section 13-B of the Act even during the pendency of earlier petition under Section CR No.767 of 2012 13 13 of the Act."

10. Thus, the pendency of the earlier petition and that their witnesses were being examined or not was of no relevance under Section 13-B of the Act especially keeping in view that under Section 13-B of the Act, there is a presumption of the bona fide requirement of the landlord as held in Baldev Singh Bajwa's case (supra). The other 2 grounds that there was no notice of termination of tenancy and that some information has been obtained under the RTI Act would not also have any bearing on the application under Section 13-B in view of the limited scope of examining the issue of the right to raise a triable issue before the Rent Controller and that .` of the tenant to contend and hold out that the application filed by the landlord was not maintainable does not warrant entertainment under the revisional jurisdiction of the Act.

7. Thus, keeping in view all the above cumulative facts, it can be safely said that the application filed for amendment for adding subsequent events in the present case are not necessary for determining the real controversy between the parties and accordingly, no fault can be found with the well reasoned order passed by the Rent Controller, Chandigarh.

8. Resultantly, the revision petition is dismissed in limine.




20.03.2012                                          (G.S.SANDHAWALIA)
sailesh                                                    JUDGE

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Punjab-Haryana High Court