Punjab-Haryana High Court
Parvinder Singh vs Smt. Sandhiya on 7 October, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
CR No. 318 of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No. 318 of 2006 (O&M)
Date of Decision: 07.10.2013
Parvinder Singh
....Petitioner.
Versus
Smt. Sandhiya
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. N.C. Sahni, Advocate for the petitioner.
Mr. Deepak Arora, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
1. This order shall dispose of a bunch of five petitions bearing Civil Revision Nos. 318, 319, 323, 324 and 325 of 2006 as learned counsel for the parties are agreed that the facts and the legal issue involved herein are similar and stated that on the basis of the submissions made by them in Civil Revision No. 318 of 2006, the other civil revisions being similar can be disposed of. For brevity, the facts are being extracted from Civil Revision No. 318 of 2006.
2. Briefly stated, the facts necessary for disposal of the present petition as mentioned therein are that the petitioner is a Non-Resident Indian (NRI). Smt. Savitri Devi wife of Milkhi Ram was the original owner of the property in question. The respondent was occupying the room in question as a tenant under Smt. Savitri Devi. Smt. Savitri Devi sold the Singh Gurbachan 2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -2- said property in question to the petitioner vide sale deed dated 23.09.1987. A notice with regard to purchase of the said property by the petitioner was served upon the respondent by Shri Harbans Singh (attorney of the petitioner). Thereafter, the rent of ` 300/- per month was settled between the parties. The petitioner through his attorney Shri Harbans Singh filed an ejectment petition for eviction of the respondent- tenant on 22.10.2001 under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (in short "the Act"). The ejectment of the respondent-tenant was sought on the following grounds:-
i) Non-payment of arrears of rent w.e.f. 1.4.1995.
ii) The property in dispute is in dilapidated condition and the same was unfit and unsafe for human habitation.
iii) The petitioner wants the property in question for his permanent settlement after demolition thereof as the same was not fit for human habitation.
3. The said ejectment petition was contested by the respondent-tenant by filing a written statement. It was pleaded that the rate of rent of the demised premises was ` 40/- per month as recorded by the competent court in the previous proceedings. The other averments made in the ejection petition were controverted and a prayer for dismissal of the petition was made.
4. From the pleadings of the parties, the Rent Controller framed the following issues:-
1. Whether the petitioner is a Non-Resident Indian?OPP
2. Whether the respondent is in arrears of rent? OPR
3. Whether the disputed property is unsafe and unfit for human habitation? OPR Singh Gurbachan 2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -3-
4. Whether the petitioner is entitled to the ejectment as prayed for? OPP
5. Whether the application is not maintainable under Section 13-B of the Act? OPR
6. Whether the petition is barred by the principle of resjudicata? OPR
7. Relief.
5. The Rent Controller took issues No.2 and 3 together and decided the same against the petitioner and in favour of the respondent as having been given up by the counsel for the petitioner vide a separate statement made on 21.9.2005. Issues No.1, 4 and 5 were taken up together being interconnected and were decided against the petitioner and in favour of the respondent holding that the petitioner had not been able to prove that he was a NRI within the meaning of Section 2(dd) of the Act and, therefore, was not entitled to claim the ejectment of the respondent under Section 13-B of the Act. Issue No.6 was decided against the respondent. Accordingly, the Rent Controller vide order dated 22.9.2005 dismissed the ejectment petition filed by the petitioner. Hence, the present revision by the petitioner-landlord.
6. Learned counsel for the petitioner-landlord submitted that the sale deed was executed on 23.9.1987 which was registered on 25.9.1987 by virtue of which the petitioner had become owner of the demised premises. The petitioner went to Italy in the year 2000 and the present petition was filed in October, 2001 claiming eviction of the tenant from the demised premises under Section 13B of the Act. It was submitted that so far as grounds No. (i) and (ii) for eviction of the tenant- respondent regarding non-payment of arrears of rent and the dilapidated Singh Gurbachan 2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -4- condition of the property in dispute having become unfit and unsafe for human habitation are concerned, the same have been given up and ground No. (iii) of personal necessity is the only ground which remains for adjudication. It was urged that issues No.1, 4 and 5 have been wrongly decided by the Rent Controller as requirements of Section 13-B of the Act stand fully satisfied in the present case. It was argued that Section 2(dd) of the Act defines Non-Resident Indian (NRI). The petitioner being a NRI, as was evident from Ex.P3, copy of the passport and the certificate produced from the NRI Sabha by the petitioner. Reliance was also placed upon the statement of PW1-Parvinder Singh- landlord who came to India to depose regarding his case as pleaded. Scanning through the statement of PW1, it was submitted that in the cross-examination, it had specifically come that the petitioner had gone to Italy on 9.7.2000 and the presentation of the rent petition was on 22.10.2001. Thus, in such circumstances, it could not be said that the petitioner was not a NRI. Reliance was placed upon the judgments of the Hon'ble Apex Court in Baldev Singh Bajwa v. Monish Saini, 2005 (2) RLR 488 and of this Court in Lakhwinder Kumar v. Pavitter Kaur (dead) through LRs 2010(3) RCR (Civil) 279, Guriqbal Singh and another v. Gurjaib Singh 2011(3) PLR 85 and Kanta Devi and another v. Mehta Singh and another, 2011(3) RCR (Civil) 716. It was submitted that the Rent Controller had erred in holding that the landlord was required to show that he had been a NRI for a period of five years. This was never the requirement as envisaged under the provisions of Section 2(dd) or Section 13-B of the Act. It was also submitted that the landlord in his statement had specifically stated that he required the demised premises for himself and for his family members. Once that Singh Gurbachan 2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -5- was so, the order of eviction ought to have been passed by the Rent Controller.
7. Controverting the submissions made by the learned counsel for the petitioner, learned counsel for the respondent-tenant submitted that there was no pleading as to when did the petitioner go to Italy. In the absence of any pleading, no evidence either in examination-in-chief or in cross-examination could be led. It was argued that there was no evidence in affirmative according to the pleadings of the petitioner and, therefore, the Rent Controller had rightly dismissed the petition filed by him. It was also submitted that no evidence was produced to prove his case regarding requirements of Section 13-B of the Act that they stand fulfilled. Once that was so, no eviction order could be passed against the respondent-tenant. While supporting the judgment passed by the Rent Controller, it was argued that the petitioner does not require the premises bonafide and, therefore, the petition had rightly been dismissed by the Rent Controller.
8. I have heard the learned counsel for the parties and perused the record. I find force in the submissions made by the learned counsel for the petitioner.
9. Following two questions arise for consideration in this revision:-
(a) Whether the landlord-petitioner is a NRI?
(b) Whether the landlord-petitioner is not entitled to eviction of the demised premises as he was not NRI for 5 years before filing of the petition?
10. Adverting to the first issue as to whether petitioner-landlord is NRI or not, definition of "non-Resident Indian" as given in Section 2 Singh Gurbachan 2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -6- (dd) of the Act is relevant which reads as under:-
"(dd) "Non-resident Indian" means a person of Indian origin, who is either permanently or temporarily settled outside India in either case-
(a) for or on taking up employment outside India; or
(b) for carrying on a business or vocation outside India; or
(c) for any other purpose, in such circumstances, as would indicate his intention to stay outside Indian for a uncertain period."
According to the aforesaid definition, NRI is a person of Indian origin living abroad whether settled permanently or temporarily. The purpose of his living abroad is for either for taking up employment outside India or for carrying on business or vocation outside India or for any other purpose as would indicate his intention to stay outside India for uncertain period.
11. Examining the first issue, it is observed that the petitioner in the petition filed under Section 13B of the Act had specifically pleaded that he is a NRI and is a member of NRI Sabha, Jalandhar and therefore, has the privilege and protection under Section 13B of the Act which is available to NRI. There is no other statutory requirement to be incorporated in the pleadings to establish his status of a NRI. In his deposition while appearing as PW1-Parvinder Singh-landlord-petitioner has reiterated his stand taken in the eviction petition. He further stated that his NRI membership number is 2779 which is issued by NRI Sabha Punjab. During cross-examination it had come on record that the passport was issued to him in the year 1997 and that he had gone to Singh Gurbachan 2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -7- Italy on 9.7.2000. He stated that he had gone abroad on work basis and was sponsored from Italy by Tarsem Pabla. He gave his residential address as Paswale Sufassi No.11, Modena Italy where he had rented the house. The visa was initially issued for one year which was being extended for one more year after which he would get permanent green card in Italy. The statement of the landlord was recorded on 14.2.2002 when he had come from Italy. In the affidavit of tenant-Sandhya Devi, Ex.RA filed in examination-in-chief it was not disputed that the landlord was not in India at the time of filing of the petition. While evaluating the testimony of a witness, the statement made by a witness in the examination-in-chief and also in the cross-examination are to be read together as it is the statement as a whole which forms part of the deposition of a witness. Further, Ex.P1, Ex.P2 and Ex.P4 being corroborative evidence also support the claim of the petitioner being NRI. He had further deposed that after the demised premises would be vacated his father and mother wanted to live therein. Thus, the trial court was not right in deciding issue No.1 against the landlord-petitioner and the findings are hereby reversed.
12. Taking the second limb of the argument which stands formulated in question (b) above, it would be expedient to notice Section 13B of the Act. Section 13B of the Act provides for right to recover immediate possession of residential building or scheduled building and/or non-residential building to Non-resident Indian. It reads thus:-
"13-B: Right to recover immediate possession of residential building or scheduled building and/or non-residential building to accrue to non- resident Indian-(1) where an owner is a Non-Resident Indian Singh Gurbachan 2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -8- and returns to India and the residential building or scheduled building and/or-non- residential building, as the case may be, let out by him or her, is required for his or her use, or for the use of any one ordinarily living with the dependent on him or her, he or she, may apply to the Controller for immediate possession of such building or buildings, as the case may be:
Provided that a right to apply in respect of such a building under this Section, shall be available only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner. (2) Where the owner referred to in sub-section (1) has let out more than one residential building or scheduled building and/or non-residential building, it shall be open to him or her to make an application under that sub-section in respect of only one residential building or one scheduled building and/or one non-residential building, each chosen by him or her.
(3) Where an owner recovers possession of a building under this section, he or she shall not transfer it through sale or any other means or let it out before the expiry of a period of five years from the date of taking possession of the said building, failing which, the evicted tenant may apply to the Controller for an order directing that he shall be restored the Singh Gurbachan 2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -9- possession of the said building and the Controller shall make an order accordingly.''
13. Proviso to sub-section (1) of Section 13B of the Act which would be material for resolving the controversy arising in the present revision petition provides that the landlord claiming benefit of provisions of Section 13B of the Act is required to establish that the applicant is a NRI and is owner of the subject premises for a period of more than 5 years on the date when he applies for eviction. The landlord has to plead and explain that the premises are required by him for his own and/or for the use and occupation of anyone ordinarily living with and dependent upon him. The benefit under Section 13B of the Act is available only once during the life time of such owner. The Hon'ble Apex Court in Baldev Singh Bajwa's case (supra) had laid down as follows:-
(i) Any person, who himself is of Indian Origin and/or whose parents/grand-parents are/were of Indian Origin and who is settled outside India either permanently or temporarily for taking up employment or for carrying on business/ vocation would be a Non-Resident Indian;
(ii) a Non-Resident Indian-landlord has a special right to seek immediate possession of the let-
out premises if he is its owner for at least a period of 5 years before his applying to the Rent Controller for possession and that he requires the premises for his own use and occupation and/or for anyone ordinarily living with him and Singh Gurbachan 2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -10- is dependent on him;
(iii) the right under Section 13-B of the Act for immediate possession can be availed of only once during the life-time of such an owner/NRI landlord;
(iv) the NRI-landlord has the choice to select one
amongst several other residential/non-
residential buildings;
(v) it is not necessary for a NRI-landlord to
permanently return to India for seeking eviction of the tenant;
(vi) the Courts shall presume that the need of the NRI-landlord is genuine and bonafide, though the tenant is entitled to prove that in fact and in law, the requirement of the NRI-landlord is not genuine;
(vii) a heavy burden would lie on the tenant to prove that the requirement of the NRI-landlord is not genuine and mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour;
(viii) if the NRI-landlord gets possession under Section 13-B of the Act, he can neither transfer it either by sale or by any other mode nor can he let it out for a period of 5 years and in case of any breach, the tenant is entitled to seek restoration of possession.
Singh Gurbachan2013.12.05 12:02 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 318 of 2006 -11-
14. The plain reading of the provisions of Section 13B of the Act clearly leaves no doubt that it no where provides that the landlord before filing a petition under the aforesaid provision should be NRI for 5 years. The requirement which has been prescribed is that a NRI should be the owner of the property in respect of which he is seeking ejectment from the tenant for a period exceeding 5 years. Undisputedly, the property in dispute was purchased by the petitioner-landlord on 23.9.1987 and the eviction petition was instituted on 22.10.2001. Thus, there was no dispute that the petitioner was owner of the property for more than 5 years when he had filed the ejectment petition. The interpretation to the contrary placed by the Rent Controller is unsustainable and accordingly while setting aside the same, issues No.4 and 5 are also adjudicated in favour of the petitioner-landlord.
15. In view of the above, the revision petitions are accepted and the judgment of the Rent Controller dated 22.9.2005 is set aside and the eviction petitions filed by the petitioner-landlord under Section 13-B of the Act are allowed.
October 07, 2013 (AJAY KUMAR MITTAL)
gbs JUDGE
Singh Gurbachan
2013.12.05 12:02
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CR No. 318 of 2006 -12-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 319 of 2006 (O&M) Date of Decision: 07.10.2013 Parvinder Singh ....Petitioner.
Versus Jatinder Kumar ...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. N.C. Sahni, Advocate for the petitioner.
Mr. Deepak Arora, Advocate for the respondent. AJAY KUMAR MITTAL, J.
For orders, see CR No. 318 of 2006 (Parvinder Singh v. Smt. Sandhiya).
October 07, 2013 (AJAY KUMAR MITTAL)
gbs JUDGE
Singh Gurbachan
2013.12.05 12:02
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CR No. 318 of 2006 -13-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 323 of 2006 (O&M) Date of Decision: 07.10.2013 Parvinder Singh ....Petitioner.
Versus Vijay Kumar ...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. N.C. Sahni, Advocate for the petitioner.
Mr. Deepak Arora, Advocate for the respondent. AJAY KUMAR MITTAL, J.
For orders, see CR No. 318 of 2006 (Parvinder Singh v. Smt. Sandhiya).
October 07, 2013 (AJAY KUMAR MITTAL)
gbs JUDGE
Singh Gurbachan
2013.12.05 12:02
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CR No. 318 of 2006 -14-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 324 of 2006 (O&M) Date of Decision: 07.10.2013 Parvinder Singh ....Petitioner.
Versus Premwati ...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. N.C. Sahni, Advocate for the petitioner.
Mr. Deepak Arora, Advocate for the respondent. AJAY KUMAR MITTAL, J.
For orders, see CR No. 318 of 2006 (Parvinder Singh v. Smt. Sandhiya).
October 07, 2013 (AJAY KUMAR MITTAL)
gbs JUDGE
Singh Gurbachan
2013.12.05 12:02
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CR No. 318 of 2006 -15-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 325 of 2006 (O&M) Date of Decision: 07.10.2013 Parvinder Singh ....Petitioner.
Versus Smt. Shanti Devi alias Bano ...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. N.C. Sahni, Advocate for the petitioner.
Mr. Deepak Arora, Advocate for the respondent. AJAY KUMAR MITTAL, J.
For orders, see CR No. 318 of 2006 (Parvinder Singh v. Smt. Sandhiya).
October 07, 2013 (AJAY KUMAR MITTAL)
gbs JUDGE
Singh Gurbachan
2013.12.05 12:02
I attest to the accuracy and
integrity of this document
High Court Chandigarh