Punjab-Haryana High Court
Onkar Singh vs Dilbagh Rai & Anr on 5 August, 2011
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
Civil Revision No.2836 of 2010(O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No.2836 of 2010(O & M)
Date of Decision:05.08.2011
Onkar Singh
....petitioner
Versus
Dilbagh Rai & anr.
.....respondents
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.Upinder Kaur Bedi, Advocate
for the petitioner
Mr.Sumeet Mahajan, Senior Advocate with
Mr.Vaibhav Sehgal, Advocate
for the respondents
***
RAKESH KUMAR GARG, J.
This is tenant's revision petition challenging the impugned order dated 16.02.2010 whereby the Rent Controller, Ludhiana, has ordered his eviction from the demised premises on an application filed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (in short 'the Act') by the respondents-landlords.
The facts arising out of which this instant revision petition has emerged are that eviction petition was filed by the respondents on the averments that respondent Charanjit Rai was the owner of the demised premises i.e.shop No.2 as shown Red in the site plan which is a part of Building No.XXXIV-2224/1, Bassi Market, Joshi Nagar, Haibowal Kalan, Ludhiana, whereas respondent Dilbagh Rai was the brother of Charanjit Rai and had let out the demised premises to the petitioner. The tenancy was oral and subsequently rent note was executed between the parties on Civil Revision No.2836 of 2010(O & M) 2 14.10.1992 and thus their existed the relationship of landlord and tenant. Respondents are NRIs and have returned to India and they required the entire property, of which the shop in dispute forms a part, for their own use and occupation as well as use of son of respondent No.2. It was further stated that the climate of UK did not suit respondent No.2 They got vacated their own residential house in Ludhiana and are residing there. Whole of the entire building of which the shop in dispute is a part, consists of eight shops. Shops No.7 and 8 have been vacated by the tenants looking into the personal necessity of the respondents and the same have been demolished along with the rear portion. Separate petitions against the other tenants of shop No.1,3,4,5 and 6 on the ground of personal necessity have been filed and are pending. It was further averred that they have no other residential property except the property mentioned above and that they have not vacated any such property in the urban area concerned and thus the petitioner was liable to be evicted.
Upon notice, petitioner appeared and contested the eviction petition. An application was filed for leave to contest which was declined by the Rent Controller, however, revision petition filed by the petitioner before this court was allowed.
Thus, the petitioner contested the ejectment petition stating that he was a tenant under Dilbagh Rai at the time of creation of tenancy and also at the time of execution of the rent deed and there was no relationship of landlord and tenant between the petitioner and respondent No.2. Respondent No.1 has not returned to India and the petition filed through his attorney was not maintainable. The respondents were owning sufficient properties and were seeking ejectment of six tenants occupying different shops belonging to them and the petitioner was entitled to get vacated one shop only as the provisions of Rent Act do not enable a non- resident Indian to seek ejectment of more than one tenanted premises. It Civil Revision No.2836 of 2010(O & M) 3 was further stated that the respondents-landlords have not placed on record any title deed to show that respondent No.1, was owner of the suit property for the last more than 5 years prior to the institution of the petition. Respondent No.2 after getting shops No.2 and 3 vacated from the respondent had further let out the same to the others. Property in question was not required by respondent No.2 bonafidely and thus they were estopped by their act and conduct to file the ejectment petition and the same was liable to be dismissed.
From the pleadings of the parties, the following issues were framed:
1. Whether petitioner is entitled for ejectment on the ground of personal necessity?OPP
2. Whether the petition is not maintainable?OPR
3. Whether the petition has not come to the court with clean hands?OPR
4. Whether there is no relationship of landlord and tenant between the petitioner and respondent?OPR
5. Relief.
After considering the evidence on record and hearing learned counsel for the parties, the Rent Controller, Ludhiana, reached to the conclusion that it was established on record that respondents require the shop in dispute for their bona fide need and there being no other accommodation available at their disposal they were entitled to evict the petitioner from the demised premises on the ground of personal bona fide requirement. It was further held that relationship of landlord and tenant between the petitioner and respondents exists and the petition was maintainable. Hence, issues No.1 to 4 were decided in favour of the respondents-landlords and in the light of the aforesaid findings, eviction of Civil Revision No.2836 of 2010(O & M) 4 the petitioner was ordered.
Aggrieved from the aforesaid order, the petitioner is before this Court challenging the aforesaid order.
Counsel for the petitioner has vehemently argued that there is no relationship of landlord and tenant between the parties which is one of the essential condition to move an application under Section 13-B of the Act and further that the fact that respondent No.2 has let out the property, is not proved and the findings in this regard are erroneous. Counsel for the petitioner has also argued that the need of the respondents-landlords for the demised premises is not bona fide as there is ample evidence on record to show that the respondents-landlords have executed rent notice in favour of Gagandeep Singh and Jatinder Kumar. Counsel for the petitioner has further argued that petition was filed by respondent No.2 Charanjit Rai as attroney of Dilbagh Rai-respondent No.1 and after the death of Dilbagh Rai the said petition has abated as the attorney comes to an end on the death of a person, but, the aforesaid fact has been ignored by the Rent Controller, Ludhiana, while passing the ejectment order against the petitioner. On the basis of the aforesaid arguments, learned counsel for the petitioner has submitted that the impugned order is liable to be set aside.
On the other hand, learned senior Advocate appearing on behalf of the respondents has supported the impugned order of eviction and has cited 2007(4) RCR Civil 149 to contend that on similar pleas, Pritam Singh who was a tenant in another part of the main building has been ordered to be evicted and his eviction has been upheld by this Court.
I have heard learned counsel for the petitioner and have also perused the impugned order. It is useful to note at this stage that the present petition has been filed under Section 13-B of the Rent Act. The Hon'ble Apex Court in the case of Baldev Singh Bajwa versus Monish Civil Revision No.2836 of 2010(O & M) 5 Saini 2006 AIR(SC) 59 has held as under:
In Shiv Sarup Gupta v. Dr.Mahesh Chand Gupta,1999(2)RCR (Rent) 141 SC: 1999 (6) SCC 222, this Court while dealing with the aspect of bona fide requirement has said that in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself-whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest.
It is also useful to refer to the observations of Hon'ble Apex Court in Baldev Singh Bajwa's case(Supra), which reads thus:
"From the aforesaid decisions the requirement of the landlord of the suit accommodation is to be established as genuine need and not a pretext to get the accommodation vacated. The provisions of Sections 18-A(4) and (5) concede to the tenant's right to defend the proceedings initiated under Section 13-B showing that the requirement of the landlord is not genuine or bona fide. The legislative intent for setting up of a special procedure for NRI landlords is obvious from the legislative intent which has been deliberately Civil Revision No.2836 of 2010(O & M) 6 designed making distinction between the ordinary landlords and special category of landlords. The Controller's power to give leave to contest the application filed under Section 13-B is restricted by the condition that the affidavit filed by the tenant discloses such fact as would disentitle the landlord from obtaining an order for recovery of possession. It is needless to say that in the summary proceedings the tenant's right to contest the application would be restricted to the parameters of Section 13-B of the Act. He cannot widen the scope of his defence by relying on any other fact which do not fall within the parameters of Section 13-B. The tenant's defence is restricted and cannot go beyond the scope of the provisions of the Act applicable to the NRI landlord. Under Section 13-B the landlord is entitled for eviction if he requires the suit accommodation for his or her use or the use of the dependant, ordinarily lives with him or her. The requirement would necessarily to be genuine or bona fide requirement and it cannot be said that although the requirement is not genuine or bona fide, he would be entitled to the ejectment of the tenant nor it can be said that in no circumstances the tenant will not be allowed to prove that the requirement of the landlord is not genuine or bona fide. A tenant's right to defend the claim of the landlord under Section 13-B for ejectment would Civil Revision No.2836 of 2010(O & M) 7 arise if the tenant could be able to show that the landlord in the proceedings is not NRI landlord; that he is not the owner thereof or that his ownership is not for the required period of five years before the institution of proceedings and that the landlord's requirement is not bona fide."
Thus, right of the NRI can be defeated by a tenant by showing that the bona fide requirement was a pretext to get the accommodation vacated and the landlord was not owner of the premises.
In the present case, the petitioner has clearly stated about his need which has not been disputed. The landlords have also established that all the eight shops which are part of the one main building are required by them. The argument of the learned counsel for the petitioner that respondents have already got evicted the tenant from another part of the building and therefore they are not entitled to ask for eviction of the petitioner as such right can be exercised by the respondents-landlords only once in life time, is liable to be rejected in view of the judgment of this Court in M/s Bhandhari General Store versus Makhan Singh Grewal RCR(Rent) 2006(1) 306, wherein it has been held that all the shops which form part of one integral building can be got vacated by a NRI owner/landlord.
Moreover, it is well settled that the landlord is the best judge of his needs and the tenant cannot dictate his terms regarding the suitability of the premises. Not only this, the argument of the learned counsel for the petitioner that in the present case Charanjit Rai, NRI who is the owner of the demised premises was not landlord of the petitioner as admittedly building was let out to him by Dilbagh Rai,is liable to be rejected in view of the judgment dated 26.04.2011 of this Court in Civil Revision No.4025 of 2006 titled as Smt.Bachan Kaur and others versus Kabal Civil Revision No.2836 of 2010(O & M) 8 Singh and another, wherein it has been held that a NRI owner has a right to seek eviction after a period of 5 years from the date of becoming owner of such building irrespective of the fact that the building is let out by him or her. It could not be disputed by the learned counsel for the petitioner that respondent Charanjit Rai is the owner of the property in dispute on the basis of the sale deed dated 27.12.1972, the original of which has been produced on record Ex.P-1. There is no evidence to controvert the aforesaid factum of the title of the respondent-landlord. It may also be mentioned, at this stage that as per the provisions of Section 13-B of the Act, suit for eviction can be filed by owner of the suit property and it is not necessary that the person who inducts the tenant can only file the petition. In the present case, the rent note was executed between Dilbagh Rai- respondent and the petitioner, but, respondent No.2 is the real owner of the property in dispute. The present petition has been filed jointly by Charanjit Rai being owner of the suit property and Dilbagh Rai being landlord. In 2000(2)RCR 355, it was held that eviction petition for ejectment of the tenant can be maintained by the landlord and the owner will automatically be a landlord. The aforesaid view also finds support from a judgement of this Court in 1980 Current Law Journal(Civil) 141 and 2003(2) Civil Court Cases 161. The factum that the respondent is a NRI is also not in dispute. Thus, it has been established on record that the respondent is a NRI who has returned to India and is owner of the property for the last 5 years before the initiation of proceedings for ejectment before the Rent Controller and his requirement of the accommodation is genuine. The argument that on the death of Dilbagh Rai, eviction petition has abated, is without any merit. The ejectment petition was filed by respondent Nos.1 and 2, jointly for the need of respondent No.2 and his son and therefore cause of action shall survive in respondent No.2, who alone is also competent to maintain the instant petition.
Civil Revision No.2836 of 2010(O & M) 9
Not only this, all the points as raised in this petition were also raised in 2007(4) RCR Civil 149 but the same were answered against the tenant and in favour of respondent-landlord. The said case pertains to the adjoining portion of the demised premises belonging to the respondent- landlord in the present revision petition.
In view of the aforesaid discussion having taken place, the arguments raised by learned counsel for the petitioner are without any merit and are rejected.
Thus, the impugned order does not warrant any
interference.
Dismissed.
(RAKESH KUMAR GARG)
JUDGE
05.08.2011
neenu