Punjab-Haryana High Court
Sanjiwan Kumar @ Pappu Khad Wala vs Sarabjit Kaur on 9 September, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.929 of 2013 (O&M)
Date of decision: 9th September, 2013
Sanjiwan Kumar @ Pappu Khad Wala
Petitioner
Versus
Sarabjit Kaur
Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Raj Kumar Gupta, Advocate for the petitioner.
Mr. Devinder S. Gurna, Advocate for the respondent.
RAKESH KUMAR GARG, J.
Respondent-landlady filed a petition for ejectment of the petitioner-tenant from the demised premises on the averments that she is owner cum landlady of the premises in dispute and a Non Resident Indian and at present permanently settled in England with her family. She is owner of the property as detailed in the plaint to the extent of 33/320 shares and had constructed two big godowns in a part of the land which are exclusively owned and possessed by her and have been duly depicted as 'ABCD' in the site plan annexed with the plaint. The petitioner is a tenant in the premises in question, i.e. both the godowns @ `5500 per month since April 2005. The tenancy is oral and Singh Rattan Pal 2013.09.17 12:42 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.929 of 2013 (O&M) 2 there is no formal document in the shape of any rent note etc. The petitioner was making payment of rent @ `5500 per month through her special attorney Raghbir Parshad son of Ram Saroop, who was also issuing receipts; but the petitioner was in arrears of rent since July 2011. He was also requested to vacate the premises in question as the respondent herself was in need of the same for her own use and occupation being NRI landlady as her husband Shaminder Singh is going to retire from his private job in England within a short span of time and as such the respondent wants to start her own business here in India in the premises in question after getting the same vacated from the petitioner, as husband of the respondent-landlady is also having his property at village Pilkhani in Tehsil Rajpura, District Patiala. The petitioner was also served a legal notice dated 09.02.2012 and after receiving the said notice he made payment of arrears of rent upto 31.03.2012 by way of an account payee cheque, but has failed to vacate the premises in question. Hence the petition.
Upon notice, the petitioner-tenant moved an application for grant of leave to defend on the ground that the respondent is a permanent resident of London (UK) and is well settled there, and there were no chances of her settling in India for doing any business by her husband. The respondent-landlady and her husband are having other commercial properties where they can start the business, if so desire.
The prayer of the petitioner-tenant was contested by the respondent-landlady by filing reply to the application for grant of leave to defend. The Rent Controller, Rajpura vide impugned order dated Singh Rattan Pal 2013.09.17 12:42 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.929 of 2013 (O&M) 3 24.12.2012 has rejected the prayer of the petitioner-tenant and has directed him to hand over the vacant possession of the premises in question to the respondent-landlady.
While passing the impugned order, the Rent Controller has held that the respondent-landlady is an NRI within the meaning of provisions of Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as, 'the Rent Act') and the question of having any additional accommodation with her husband does not arise at all as it is the specific case of the respondent-landlady that she requires the demised premises for the purpose of running business and the need of the landlord has to be construed from the dual perspective of necessity, availability and suitability. Moreover, it was not the requirement of law under Section 13-B of the Rent Act that an NRI shall not own or possess any other building in the urban area concerned. While declining the leave to contest, the Rent Controller further held that the petitioner has miserably failed to prove on record necessary facts and particulars or any document, even prima facie showing that requirement of the respondent-landlady is not bonafide, and thus, no triable issue is raised on behalf of the petitioner-tenant and the application is liable to be rejected.
Challenging the aforesaid impugned order of the Rent Controller, Rajpura, learned counsel for the petitioner-tenant has vehemently argued that the Rent Controller while dismissing the application of the petitioner has nether considered nor appreciated the controversy in its right perspective and passed the impugned order Singh Rattan Pal 2013.09.17 12:42 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.929 of 2013 (O&M) 4 without considering the facts on record, pleadings of the parties and the relevant proposition of law applicable thereto. Learned counsel for the petitioner has further argued that the ground of bonafide requirement, as raised by the respondent-landlady, on the face of it is frivolous and manipulated. According to the counsel, need of an employed husband cannot be made a ground for ejectment of the tenant under the aforesaid provisions, as he is not dependent upon the landlady. Moreover, the respondent-landlady is a co-sharer to the extent of 33/320 shares in the entire land measuring 16 Bighas and the land in dispute has not been partitioned so far. Admittedly, the other co- sharers including husband of the respondent-landlady have also constructed godowns in the land in question; and even if the plea taken by the landlady that her husband wants to start a business in India is taken as correct, in that case also his own godowns are also available for running such a business and ejectment of the petitioner cannot be sough by his wife for his necessity, particularly when his own godowns are available for running the business; and thus, the impugned order is liable to be set aside and the petitioner is entitled to leave to defend as the issues raised by him are certainly triable issues and the tenant has a right to contest such issues by availing an opportunity of leading evidence.
However, learned counsel for the respondent-landlady has vehemently argued that in the instant case, no triable issue is raised and therefore, the impugned order has been passed in accordance with law. Learned counsel for the respondent has further argued that Singh Rattan Pal 2013.09.17 12:42 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.929 of 2013 (O&M) 5 dependency of the husband is not financial dependency and in the context of the Rent Act, it is dependency for the building and he being a member of the family of the respondent-landlady, his requirement was the requirement of the landlady for her own use and occupation. Moreover, landlord is the best judge of his needs and the tenant cannot dictate terms with regard to suitability and availability of the alternative accommodation; and thus, the revision petition which has no merit, be dismissed.
I have heard learned counsel for the parties.
It is useful to refer to the following observations of Hon'ble the Supreme Court in 'Joginder Pal v. Naval Kishore Behal' AIR 2002 SC 2256:
"23. We are of the opinion that the expression 'for his own use' as occurring in Section 13(3)(a)(iii) of the Act cannot be narrowly construed. The expression must he assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In the several decided cases referred to hereinabove we have found the pari-materia provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as "his" or "his own" requirement Singh Rattan Pal 2013.09.17 12:42 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.929 of 2013 (O&M) 6 and user. Keeping in view the social or socio- religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identity nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the abovesaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent. The landlord is not going to let out the premises to his son and though the son would run his office in the premises the possession would continue with the landlord and in a sense the actual occupation by the son would be the occupation by the landlord himself. It is the landlord who requires the premises for his son and in substance the user would be by landlord for his son's office. The case squarely falls within the scope of Section 13(3)(a)(ii) of the Act."
It is also useful to refer to the judgment of Hon'ble the Supreme Court in the case of 'Smt.Rajinder Dhanda v. Jagjit Singh' 2002(1) PLR 411, wherein the Hon'ble Apex Court has interpreted the Singh Rattan Pal 2013.09.17 12:42 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.929 of 2013 (O&M) 7 word "family" to mean such relation of the Landlord as ordinarily living with him.
In view of the aforesaid law laid down by Hon'ble the Apex Court, the argument raised on behalf of the petitioner-tenant that the employed husband of the respondent-landlady, who wants to settle him in business after his retirement, cannot be included in the family as he is not dependent upon her; is liable to be rejected outrightly.
This brings us to the other limb of argument raised on behalf of the petitioner to the effect that need of the respondent- landlady is frivolous and does not seem to be bonafide, especially in view of the fact that she is a co-sharer to the extent of 33/360 shares of the property in dispute and also that her husband is also having godowns and therefore, the same can be used for settling him. It is well settled that even a co-sharer can file an ejectment application for the bonafide need of his/her family. Again, it is settled proposition of law that a landlord is the best judge of his needs and the tenant cannot dictate his terms with regard to availability, suitability etc. of the additional/alternative accommodation with the landlord. It may further be noticed that in a petition filed under Section 13-B of the Rent Act, it is not a requirement of law that the landlord should not possess any other alternative accommodation and should not have vacated any such premises. Under the provisions of the Rent Act, once it is established on record that the landlord is an NRI and is the landlord of the tenanted premises, which are owned by him for the last five years prior to filing of the petition, and requires the same for his personal Singh Rattan Pal 2013.09.17 12:42 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.929 of 2013 (O&M) 8 need; a presumption has to be drawn in favour of the landlord that his need is bonafide, unless the same is rebutted by making out a very strong case. In the present case, it was necessary for the petitioner- tenant to make out a very strong case for grant of leave to defend to rebut the said presumption of bonafide need of the respondent-landlady by placing on record specific information/documents to support his case.
It may further be noticed that in the present case, learned counsel for the petitioner-tenant has not raised any argument to challenge the status of respondent-landlady as an NRI landlady. Moreover, in the application for leave to defend, the petitioner has raised an argument that the respondent-landlady was having alternative accommodation where she could have settled her husband and therefore, her need is not bonafide. The aforesaid assertion itself is not sufficient to hold against the respondent-landlady, as the need of the respondent-landlady is to be judged from her view point and not on the dictates of the petitioner-tenant.
No other argument has been raised.
No merit.
Dismissed.
(RAKESH KUMAR GARG) JUDGE September 9, 2013 rps Singh Rattan Pal 2013.09.17 12:42 I attest to the accuracy and integrity of this document High Court, Chandigarh