Punjab-Haryana High Court
Punjab National Bank vs Sh. Nirmal Singh on 31 March, 2010
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.6518 of 2009
Date of decision:31.03.2010
Punjab National Bank ....Petitioner
versus
Sh. Nirmal Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Pawan Kumar Dutt, Advocate, for the petitioner.
Mr. Sudeep Mahajan, Advocate, and Mr. Partik Pandit,
Advocate, for the respondent.
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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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K.Kannan, J.
1. The Civil Revision by the tenant in a rent control proceeding under the East Punjab Urban Rent Restriction Act of 1949 has come about after an earlier disposal by this Court in a Civil Revision No.4288 of 2008, decided on 30.05.2009 brought at the instance of the landlord. Initially in the application filed by the landlord under Section 13-B of the Act, the tenant had applied for grant of leave to defend which had been granted by the Rent Controller. In a challenge against the said order in Civil Revision No.4288 of 2008, the order of the Rent Controller was set aside and the leave granted to the tenant was withdrawn and the matter was remitted to the Rent Controller for a singular consideration to take Civil Revision No.6518 of 2009 -2- up the petition only for the purpose of satisfaction of the Rent Controller whether the landlord had established the grounds for eviction and pass appropriate orders in terms of Section 18-A of the Act.
2. To appreciate the scope of enquiry before the Rent Controller after remand from High Court, the relevant portion of the Section is reproduced:-
"18-A. Special procedure for disposal of applications under Section 13-A ...............
(4) The tenant on whom the service of summons has been declared to have been validly made under sub-section (3), shall have no right to contest the prayer for eviction from the residential building or scheduled building, as the case may be, unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the specified landlord or, as the case may be, the widow, widower, child, grandchild or the widowed daughter-in-law of such specified landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction of the tenant."
On being remitted to the Rent Controller, the landlord had submitted his evidence through a proof of affidavit and he was subjected to cross- examination by the tenant. The landlord had sought to establish his non- resident Indian status by filing the Canadian passport, his subsequent immigration to Canada and his overseas Indian membership card given to him with permanent visa endorsement made in his Canadian passport. Civil Revision No.6518 of 2009 -3- The landlord had also given evidence to the effect that the property had belonged to him and his brothers in equal shares and while his brothers and sons had chosen to stay back in foreign countries, the petitioner intended to start his own business in the demised property to earn his livelihood. The petitioner has stated that the property in occupation of the Bank was situate in Defence Colony, Jalandhar and was ideally suited for starting the business of selling electronic goods. The petitioner had also given evidence to the effect that all his brothers except Baldev Singh were living abroad and Baldev Singh himself had died and the legal representatives were consenting parties to the petition and that in any event, he was holding a power of attorney of all his brothers. The documents in substantiation of his oral evidence were produced before the Court at the time of giving evidence.
3. In the cross-examination of the petitioner, it was elicited that the petitioner had previously filed a similar petition against the Bank in the year 1995 on the ground of personal necessity but it was dismissed. It was suggested to the petitioner that the property was not required by him and that the petitioner had been filed only to pressurize the Bank to enhance the rent. The Rent Controller was satisfied about the NRI status of the petitioner and also found that the petitioner's personal requirement had been established. The Rent Controller observed that the leave to sue which had been granted to the tenant had been denied by the High Court and the matter had been remitted to the Court only for the satisfaction of the Court about the fulfillment of the conditions to obtain eviction under Section 13-B of the Act. Having thus been satisfied, the order of Civil Revision No.6518 of 2009 -4- eviction had been passed.
4. The order that had been originally passed by this Court on 30.05.2009 in the revision in Civil Revision No.4288 of 2008 had been rendered on merits but in the absence of any representation on behalf of the tenant. Consequently an application had been filed for review of the judgment but it was dismissed, for, at the time, the Rent Controller had already taken a decision after remand from this Court and, therefore, at the time when the application for review was filed, this Court granted to the petitioner the right to challenge the order of eviction that was passed subsequently after remand from the Court. When the revision was filed, this Court had directed that the revision was being admitted only for considering whether the satisfaction entered by the Rent Controller for ordering eviction was justified or not and that the Civil Revision was restricted only to the order passed by the Rent Controller on 11.09.2009 and the matter that had already been concluded by the judgment in Civil Revision No.4288 of 2008 while rejecting the tenant's plea for leave to defend shall not be reopened again. The scope of the present revision therefore must be understood only to examine whether the Rent Controller was justified in ordering eviction within the narrow confines of the requirements of Section 18-A of the Act.
5. The learned counsel appearing for the tenant would submit that there had been no proof that the tenant was a NRI for the document that had been produced before the Court namely, the copy of the Canadian passport purported to have been issued on 08.06.2006 contained an endorsement of visa of Republic of India on 21.05.2006. Civil Revision No.6518 of 2009 -5- The visa endorsement that bore anterior to the date of issue of passport, could not be true and, therefore, the passport was a fabricated one. To counter these allegations, the counsel for the landlord took great pains to show that the Canadian passport was itself a renewal of an earlier passport issued after he had migrated to Canada and the Indian passport which he had held upto the year 1996 had been surrendered. The learned counsel appearing for the landlord would contend that persons of Indian origin who had take up citizenship of another country could still obtain an Overseas Citizenship of India (OCI) and as per the Citizenship Amendment Act of 2008, under a scheme promoted by the amendment, the eligibility was to a foreign national who, inter alia, was a citizen of India at or any time after 26.01.1950. The scheme provided for a multiple entry of life-long visa for visiting India and issuance of a certificate very much akin to the Indian passport in appearance. This had been issued to him on 21.05.2006 and in the manner provided under Rule 25 of the scheme, the OCI visa sticker would simply be fixed on the foreign passport. The sticker which had been issued on 21.05.2006 had been affixed to the passport issued by the Canadian Government on 08.06.2006 and it did not mean that the endorsement was a fabrication. In the manner explained by the learned counsel appearing for the landlord and by going through the provisions of the scheme of OCI, I have no doubt in my mind about the authenticity of the copy of the passport which was produced before the Rent Controller and the determination of his NRI status. The learned counsel at the time of arguments had also produced all the originals of the passport issued by Civil Revision No.6518 of 2009 -6- the Canadian authorities and the OCI certificate and the OCI sticker affixed on the Canadian passport. Even apart from contending that the petitioner's NRI status cannot be denied with reference to the document, the learned counsel appearing for the landlord urged that the definition of NRI mentioned under Section 2(dd) is wide enough to admit a person of Indian origin, who had settled abroad for any indefinite period and it did not even require the proof of his foreign citizenship. I do not mean to undertake this exercise of examining the wider meaning for the definition of NRI as prescribed under the Act, for, I have already concluded that the NRI status is far beyond dispute in view of the documentary evidence produced before the Rent Controller and how it was substantiated by the landlord.
6. As regards the contention of the tenant that the landlord had not established his bona fide requirement and the inference made by the Rent Controller was erroneous without considering the evidence given by the tenant himself and the facts elicited in the cross-examination of the landlord, both the counsel relied on the decision of the Hon'ble Supreme Court in Baldev Singh Bajwa Versus Monish Saini-(2005) 12 SCC 778, that held that even in an enquiry under Section 13-B, the finding of bona fide requirement of the landlord cannot be merely presumed and there has to be a proof of such a requirement. The learned counsel appearing for the landlord would contend that there was a presumption in favour of the landlord of the requirements and the tenant, who contended that there was no such requirement, shall alone prove that the landlord's requirement was not bona fide. The presumption that may Civil Revision No.6518 of 2009 -7 - be applicable at the stage when a leave to defend is sought, may get further diluted in its rigor when the Rent Controller's satisfaction is recorded under Section 18-A of the Act. The standard of proof in such a later situation is really one of degree and all that has to be seen at the time when the Rent Controller passes an order of eviction is whether there is any evidence to support the contention of the landlord that he required the property for his bona fide requirement. In this case, the petitioner has let in evidence to the effect that he is going to start business in electronic goods and he has also given evidence about the fact that all his other surviving brothers remained outside India and he holds the power of attorney for all of them. The attempt to doubt the strength of this statement was made by the learned counsel for the tenant by stating that there was no proof that the petitioner had retired from service in Canada and that he had been receiving pension from the Canadian Government. The bona fide of the landlord himself was suspect because all his brothers, son, daughter-in-law and their grand children, were all living outside India and there was no reason why the petitioner alone shall remain in India to do the business. This argument of the learned counsel for the tenant is without any substance for an adult Indian who wants to return to India to do his business, need not bring with him his sons and relatives to prove that he is interested in running the business. Alone or with family members, it is his own choice and the tenant cannot make an inference on the bona fides by his own perception about how an elderly person should engage himself in business solitarily leaving all his relatives outside India. Such an exercise is wholly Civil Revision No.6518 of 2009 -8- irrelevant to the scheme of the Act. The learned counsel for the tenant contended that since Section 13B is put on a fast track and the tenant's right to defend itself subject to certain restrictions, the standard of proof before the Rent Controller for establishing the bonafides or the NRI status shall be rigorous. On the other hand, by giving a wide description to a NRI status and limiting the defence to proof of want of bona fides, the Rent Controller has to only render a summary adjudication whether on the records submitted, it was possible to enter a finding in favour of the landlord. The Rent Controller had sufficient materials to base his satisfaction that the landlord had established what was required to be proved for ordering eviction under Section 13-B and it is unassailable in the manner in which evidence had been tendered before him. The order of eviction is confirmed and the Civil Revision is dismissed.
7. Before parting, it must be stated that the tenant is a nationalized bank and it is strange that a nationalized bank shall contest the issue of bona fides of the landlord as though it were a private litigant taking up pleas which are fragile, especially when the landlord had come to India, has given evidence and had continued during the entire trial to remain in India and was present even in the Court at the time when the case was heard by this Court. The defences were, the landlord is not NRI, the passport was not true, the family members of the petitioner were living outside India and hence he need not return, the brothers did not join the rent control petition, etc. A provision under Section 13-B put on a speed mode is needlessly stultified by frivolous pleas with no Civil Revision No.6518 of 2009 -9- substantial defence. The Civil Revision is, therefore, dismissed with cost assessed at Rs.10,000/-.
(K.KANNAN) JUDGE March 31, 2010 sanjeev At the time when the judgment was pronounced, learned counsel appearing for the petitioner requested for time for eviction.
Two month's time is allowed for eviction.
(K.KANNAN) JUDGE March 31, 2010 sanjeev