Punjab-Haryana High Court
Sheela Rani And Another vs Minder Kaur Alias Mohinder Kaur on 21 March, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
Civil Revision No.1259 of 2012 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No. 1259 of 2012 (O&M)
Date of decision: 21.3.2012
Sheela Rani and another ....Petitioners
Vs.
Minder Kaur alias Mohinder Kaur ....Respondent
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Puneet Kumar Jindal, Advocate for the petitioners.
Mr. Gulzar Mohd. Advocate for the caveator-respondent.
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G. S. SANDHAWALIA, J.
Civil Misc. No.5261-C-II of 2012 Prayer made in the application is for grant of exemption from filing the certified copies of Annexures P-1 to P-5.
In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed. CR No.1259 of 2012
1. The present revision petition has been filed by the legal representatives of tenant Shadi Lal against the order of the Rent Controller, Jalandhar dated 13.9.2011 whereby the Rent Controller, Jalandhar had ordered ejectment under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "the Rent Act") after leave to contest had been granted and evidence Civil Revision No.1259 of 2012 -2- ***** between the parties was led pertaining to building bearing House No.1166 (Corp. No. of the house EG-35), Mohalla Sant Nagar, Ladowali Road, Jalandhar shown in red colour, the boundaries of which are mentioned in the head note of the ejectment petition.
2. The respondent-landlady filed a petition under Section 13-B of the Rent Act regarding the shop in dispute on the ground that she and Raksha Devi vide registered sale deed dated 28.9.1968 had purchased the building in question and after purchase of the property, the landlady and Raksha Devi had constructed 9 shops and also residential building in the alleged property. It was pleaded that in a family settlement 4-1/2 shops including the shop in dispute and portion of the residential building behind the above said shops fell to the share of the landlady and she became the exclusive owner of the said portion. The shop in dispute had been rented out by the landlady to the respondent-tenant and the respondent-tenant lastly paid the rent in the month of July, 2003 @ Rs.2000/- and had not paid rent thereafter. The landlady pleaded that she wanted to settle in India permanently and also wanted to start her own business of selling readymade furniture and in order to sell and display the readymade furniture, the landlady required a big showroom which was to be constructed over the 4-1/2 shops owned by the petitioner including the shop in dispute for running the readymade furniture showroom. It was also alleged that the landlady filed an ejectment petition against other tenant also and shop in dispute as well as other Civil Revision No.1259 of 2012 -3- ***** shops for which the ejectment on the ground of personal necessity under Section 13-B of the Rent Act was sought was formed part and parcel of the one building bearing House No.1166 (Corp. No. of the House EG-35), Mohalla Sant Nagar, Ladowali Road, Jalandhar. The landlady claimed to be NRI having gone to Austria in the year 2001 as immigrant for employment for uncertain period and had been issued a Permanent Resident Card and was born in village Chanian, Tehsil Nakodar, District Jalandhar on 1.2.1935 and was holder of Indian Passport and used to visit India once or after 2 years to look after her property and to see the family members. The attested photocopy of the passport and permanent resident card were appended with the ejectment petition. Accordingly, it was pleaded that shop in dispute was under the occupation of the respondent- tenant and in shop on the western side of the shop in dispute, Mukesh Kumar grand son of the landlady was in occupation and on the western side of Mukesh Kumar, there was shop in occupation of Dr. Azmer Singh and on the western side of Dr. Azmer Singh, shop is also under the occupation of Mukesh Kumar, who was presently using both the shops for running the business to sell the cosmetics. The landlady required all 4-1/2 shops for running the showroom to display and sell the furniture and would construct a show room over the area of 4-1/2 shops after demolishing all the shops. This was to be done after the vacation of the shops in dispute as presently the shops were in occupation of Dr. Azmer Singh and Jagan Nath since Civil Revision No.1259 of 2012 -4- ***** shops under the occupation of Mukesh Kumar were not sufficient for running the showroom or to display or sell the furniture. The business of selling the cosmetics by Mukesh Kumar grandson of the landlady in both the shops was fetching no income and Mukesh Kumar was also ready and willing to work with the landlady for running the furniture showroom and wanted to close the business of selling the cosmetics. The landlady as well as Mukesh Kumar had good experience in dealing with the readymade furniture. Accordingly, shop in question and other shops were required for personal use and occupation as the landlady intended to start the business to sell the readymade furniture at the showroom along with her grandson Mukesh Kumar. Accordingly, it was pleaded that neither the landlady had occupied any other shop nor she had got vacated any shop within the urban area of Municipal limit of Jalandhar City and Mukesh Kumar grandson of the landlady was in occupation of two shops out of 4-1/2 shops.
3. The tenant had filed an application for leave to contest under Section 18-A of the Rent Act which was allowed and the Rent Controller had permitted the tenant to contest the petition on merits.
4. The tenant in the written statement filed raised various preliminary objections that there was no landlady called Minder Kaur and petition had been wrongly filed and petitioner was trying to project herself as Minder Kaur for the purpose of filing the ejectment petition and petition was liable to be dismissed with special Civil Revision No.1259 of 2012 -5- ***** compensatory costs. The landlady had no concern or connection with the property in question and neither she was owner nor had any right, title or interest. It was also pleaded that the landlady was neither NRI nor she had gone abroad for the purpose of employment nor become owner of any property within five years before filing of the present petition and petition was liable to be dismissed with costs. The relationship of the landlady and tenant was denied and it was also denied that the landlady along with Raksha Devi had purchased the building in question vide sale deed dated 28.9.1968. The factum of construction of nine shops over the land in dispute was also denied and it was alleged that there was no sanctioning of any plan for raising of any construction and it was incorrect that there was any partition or family settlement vide which any shop had fallen to the share of the landlady and that the landlady had become exclusive owner of 4-1/2 shops and the portion of the residential building behind the shops. The shop in question had never been rented out to the respondent-tenant by the landlady and rate of rent at Rs.2000/- per month was also denied. It was also denied that the rent had not been paid with effect from July, 2003. The site plan was not correct and legal and the partial ejectment of building in question could not be allowed. The landlady was estopped by her own act and conduct from filing the petition and the petition under Section 13-B of the Rent Act was not maintainable and not accompanied by any affidavit.
5. On merits also, the averments were denied in detail and it Civil Revision No.1259 of 2012 -6- ***** was alleged that there was no family partition either oral nor it was reduced into writing to show that the landlady had become exclusive owner of the shop in question and question of being rented out the same did not arise since the shop was taken on rent from Bhag Ram, who was owner of the shop. In the written statement it was admitted that after the death of Bhag Ram his wife Raksha Devi had started collecting rent and did not issue any receipt and the relationship of landlord and tenant between the landlady and the respondent-tenant did not arise. The issue of the landlady settling in India permanently did not arise as neither she was owner nor she had any connection with the shop in question. It was further incorrect that the landlady required the big showroom which was to be constructed over portion of 4-1/2 shops. The landlady having filed another ejectment petition against the other tenant was also denied and the shop in question was slated to be not the part of the building No.1166. The landlady having gone to Austria in 2001 as immigrant for employment for uncertain period was denied or being resident of Austria or that she was issued permanent Resident Card by the Government of Austria. Even birth in Jalandhar was denied. It was also denied that the landlady was holder of Indian Passport and used to visit India once or twice in a year. Copies of the passport and permanent resident card having not supplied to the respondent-tenant were not admitted. The location of the shop in question having been situated on the western side of shop in the occupation of Mukesh Kumar was also Civil Revision No.1259 of 2012 -7- ***** denied and it was also denied that Mukesh Kumar was running shops for selling cosmetics and it was pleaded that no ejectment order can be passed. It was also pleaded that it was totally incorrect after the ejectment of Dr. Ajmer Singh and Jagan Nath from the shops any construction would be raised. Accordingly, it was pleaded that shops were not sufficient for running the showroom or to display or sell the furniture and the issue was pending consideration before the Hon'ble Supreme Court if the shops are independently given, one cannot get vacated more than one shop under Section 13-B of the Rent Act. It was also denied that Mukesh Kumar grand son of the landlady was ready and willing to work with the landlady and that she and Mukesh Kumar had any experience in dealing with the readymade furniture. It was pleaded that no plan had been sanctioned by the landlady for raising construction nor she had any money for raising such construction. The petition was liable to be dismissed and thus, the need for personal use and occupation was denied. The averments of the landlady having no other shop in the municipal limits of Jalandhar City was also denied and it was alleged that grand son of the landlady was in occupation of two shops out of 4-1/2 shops which were being used for selling the utensils and it was pleaded that petition may be dismissed with special and compensatory costs of Rs.50,000/-.
6. The rejoinder to the written statement was filed and on the basis of the pleadings, the trial Court framed the following issues on Civil Revision No.1259 of 2012 -8- ***** 26.3.2008:-
"1. Whether the petitioner is NRI and requires the premises in dispute for her bonafide use and occupation?OPA
2. Whether the petition is not maintainable in the present form?OPR
3. Whether petitioner has concealed the material facts, if so to what effect and what are the facts?OPR
4. Relief"
7. The trial Court on 15.3.2011 framed the following additional issues:-
".3A Whether petitioner has been owner of the demised premises more than 5 years prior to filing of present petition?OPP 3B Whether there is relationship of landlord and tenant between the parties?OPP"
8. The landlady examined as many as eight witnesses and brought on record the Jamabandi of the property in dispute for the year 2004-05 Ex.P1, copy of sale deed dated 28.9.1968 Ex.P2, Copies of site plans Ex.P3, Ex.P4 and Ex.P5, copy of resident permit Ex.P6, copies of passport and Visa Ex.P7 and Ex.P8 respectively. copy of another passport Ex.P9, copy of sale deed Ex.P10, copy of agreement Ex.P11 and copy of translation of Ex.P6 which was the resident permit Ex.P6/A. The tenant examined Shadli Civil Revision No.1259 of 2012 -9- ***** lal as RW-1 and also examined Vijay Kumar as RW-2 and placed on record electricity bills.
9. After considering the evidence on record, the Rent Controller on issue no.1 regarding the landlady being NRI and requiring premises in dispute for her bonafide use and occupation came to the conclusion that all the ingredients of Section 13-B of the Rent Act were fulfilled as the landlady was a NRI and returning to India, owner of the premises in dispute for more than five years and building was required for her own bonafide use. The definition of NRI as contained in Section 2(dd) of the Rent Act was also taken into consideration and the Rent Controller noticed that the landlady had a resident permit Ex. PW6/A which was valid up to 29.9.2012 and was issued at Vienna (Austria) on 30.9.2003. The date of birth of the landlady has been mentioned as 1.2.1935. The said document was in German language and the translation of the document was proved by PW-4 Amandeep Walia, who was diploma holder in German language and fully conversant with the same. The landlady herself appeared in the witness box and stated the facts that she wanted to return to India and was visiting India once or after two years to look after her property and was NRI having gone to Austria in the year 2001 and being of Indian origin born in village Chanian, Tehsil Nakodar, District Jalandhar and having Indian passport issued at Vienna. Accordingly, it was held that the landlady was NRI and required the premises for her bonafide use. The maintainability issue Civil Revision No.1259 of 2012 -10- ***** was decided in favour of the landlady as it could not be proved in any manner that the petition filed by the landlady was not maintainable. Issue no.3 regarding the concealment of material facts was decided against the tenant. On the issue of ownership of the last five years which was condition precedent the revenue record in the form of Jamabandi Ex. P1 for the year 2004-05 and the sale deed dated 28.9.1968 Ex. P2 were taken into consideration. The statement of the landlady that she and Raksha Devi had constructed nine shops and residential building were also taken into consideration and the fact that the respondent had failed to prove that the landlady was not owner of the premises in question rather it was noticed that Shadi Lal tenant himself in cross-examination admitted that property in dispute was part and parcel of House No.EG-35, Mohalla Sant Nagar, Ladowali Road, Jalandhar and accordingly the landlady was owner of the shop in question for the last more than five years before filing of the petition. The relationship of the landlord and tenant was noticed that the respondent himself admitted that he had taken the shop in dispute from Bhag Singh, who was the husband of Raksha Devi in the year 1993 and Bhag Singh had died and Raksha Devi had started collecting rent from him and accordingly, it was held that the landlady was the owner and the tenant had been inducted in the shop in question by Bhag Singh husband of Raksha Devi and she had become owner by way of partition of half share of nine shops. Keeping in view the above findings, the ejectment order had been Civil Revision No.1259 of 2012 -11- ***** passed on 13.9.2011 which is subject matter of challenge before this Court.
10. Counsel for the petitioner has argued firstly that the landlady was not a NRI and not owner of the property and there was no partition deed to show that shop in question came to her share. Secondly, it was submitted that the tenancy had been denied and the tenant was only a tenant of Raksha Devi and Bhag Singh, who had died in year 1993 and thus, the property had never been let out by the landlady. Thirdly, it was submitted that grand son was not dependent upon the landlady and, therefore, the ejectment was wrongly ordered.
11. The ownership of the landlady has already been noticed by the Rent Controller in the impugned order. The sale deed dated 28.9.1968 Ex.P2 is already on record. The revenue record in the form of Jamabandi for the year 2004-05 Ex.P2 also verifies this fact. The counsel has only tried to high light the fact that the landlady had pleaded that there was a partition and the partition has not been proved. Counsel for the respondent-caveator had pointed out that in the cross-examination, it was put to the landlady and she stated that regarding the property partition was duly registered with the Sub Registrar. The said partition deed is Ex.P3 on record and is executed on 10.7.1978 between Raksha Devi and Minder Kaur, who are sisters-in-law being wives of Harnam Singh and Bhag Ram sons of Harnam Singh. Even otherwise if the said partition had not been Civil Revision No.1259 of 2012 -12- ***** properly proved, the landlady being a co-sharer of the property was entitled for the eviction of the tenant. The co-owner Jaswinder Kumar PW-2 son of Bhag Ram was also produced as one of the witness and in his affidavit which is tendered by way of evidence he also admitted the family settlement and depose that his father and mother had already died. Thus, consent of Jaswinder Kumar the co- owner of the property being a legal heir of Bhag Ram and Raksha Devi is there on the record and in view of the Division Bench judgment of this Court in Smt. Bachan Kaur and others Vs. Kabal Singh and another 2011 (1) RCR (Rent) 368, it has been held that even if one of owners is a NRI, he is entitled for eviction of the tenant provided the other co-owner has no objection. The said judgment also deals with the second contention of the counsel for the tenant that the property had not been let out by the respondent-landlady but the tenancy was with Raksha Devi and Bhag Singh and,therefore, in view of the provisions of Section 13-B of the Rent Act, the words "let out by him or her" would come into play and the present landlady Minder Kaur @ Mohinder kaur was not entitled for eviction under Section 13-B of the Rent Act not having let out the property. This contention has already been negatived by the Division Bench of this Court Smt. Bachan Kaur's case (supra), which held as under on both of the issues i.e. co-owner and letting out:-
Co-owner:-
"Whether NRI/landlord who is a co-owner with the other Civil Revision No.1259 of 2012 -13- ***** landlords, who do not have the same status, as that of NRI can maintain a petition for eviction of the tenant from the property jointly owned by all of them?"
"A co-owner is owner of each part of the property in husband like manner with other co-owners. He is entitled to seek ejectment of tenant in premises for benefit and for the benefit of all other coowners. Such right is subject to one exception that none of the remaining co-owner objects to such action of the petitioning co-owner. If one of the owners happens to be a NRI, he does not relinquish his character and status as that of co-owner. Thus an order of ejectment obtained by a NRI - co-owner will bind other co-owners but will not entitle other NRI and/or an co-owner to seek ejectment of tenant from another building either owned solely by such co-owner or jointly with other persons as co-owner in exercise of right of eviction granted to an NRI by Section 13-B of the Punjab Act. Thus in respect of first question of law, it is held that a co-owner, who is Non-Resident Indian, even when other co-owners are not Non-Resident Indians, can maintain a petition for ejectment for the benefit of all the co-owners.
Letting out:-
"Whether the premises from which eviction is sought Civil Revision No.1259 of 2012 -14- ***** under Section 13-B of the Act is to be let out by NRI/landlord or his duly authorized person acting on his behalf, or it can also include the letting by some other co- owner or predecessor-in-interest in their own right and not under the authority of NRI/landlord?"
"17. In the Punjab Act, as originally enacted, the word owner is not used in the entire Act. Section 13-B of the Punjab Act confers a right of eviction to an owner for the first time. Therefore, an ordinary meaning of such expression has to be applied while interpreting the provisions of the Punjab Act. The proviso to sub-section (1) o f Section 13-B of the Punjab Act, regulates the right of eviction of such owner i.e. after a period of five years from the date of becoming the owner of such a building.
The proviso is an exception to the substantive provision when it restricts right of such owner to seek eviction after five years and is explanatory, when it provides that an owner shall be entitled to seek eviction after five years of becoming owner. The right of eviction under the Punjab Act, has been given to an owner in respect [of residential, scheduled or non residential building let out by him or her, required for his or her use or for the use of anyone ordinarily living with or dependent upon him or her. The proviso explains that an owner is entitled to seek Civil Revision No.1259 of 2012 -15- ***** ejectment after five years of acquiring title. It is well settled that all words in the statute have to be given meaning. The argument that an NRI is entitled to seek eviction after five years of becoming owner only if the tenant has been inducted by him does not serve the purport of the Act. If such meaning is assigned, the right of eviction given to NRI becomes otiose. Therefore, restricting the right of eviction to an owner who has let out the building alone cannot be reconciled with the proviso. The harmonious construction of proviso and the substantive provision is possible by accepting the argument that the tenant need not be necessarily inducted by the petitioner- owner more so when a tenancy is interest in the immoveable property transferred with the property itself.
18. The ownership of the building is the necessary condition for maintaining the eviction petition under Section 13-B of the Punjab Act. The letting out by the petitioner is not a sine-qua-non to maintain eviction petition in terms of the Punjab Act. One can acquire ownership right by virtue of a purchase or by inheritance. Though in our opinion, the title derived by inheritance is legal consequence and should exclude limit of five years, but since the said question has not been debated before Civil Revision No.1259 of 2012 -16- ***** us, we so no more in the present case. We leave such question to be decided in an appropriate case later. Therefore, an owner has a right to seek eviction after the period of five years from the date of becoming owner of such building, irrespective of the fact that the building has been let out by him or her. Once a person has become owner of the property, the tenancy rights being attached to the building stand transferred to him in the same manner as all other rights to a building, which has been purchased by him or her. The object of granting summary right of eviction to a Non Resident Indian is to provide mechanism for possession of their own residential building, as an exception to rigid legal provisions of the existing provisions of the law. Such right is manifested when right of eviction is conferred on an owner. If the argument of the learned counsel for the tenants is to be accepted that the intention was to restrict the right of eviction to only those NRI's who have let out the premises, such interpretation would negative the very purpose of the insertion of the mechanism of summary eviction contemplated under Section 13- B of the Act. The expression let out by him in the context of Section 13-B of the Punjab Act, does not require strict interpretation as interpreted by the Supreme Court in Nathi Devi's case Civil Revision No.1259 of 2012 -17- ***** (supra), as such interpretation is neither warranted nor advances the purpose of granting summary right of eviction under Section 13-B of the Punjab Act. Therefore, the Judgment in Nathi Devi's case (supra) cannot be applied to the cases arising out of the Punjab Act."
12. The last submission of the counsel for the petitioner- tenant regarding dependency of the grand son also needs to be noticed and rejected. The landlady in her affidavit tendered by way of evidence has categorically stated that she wants to get the premises vacated to construct a big show room for running readymade furniture business and associate her grand son Mukesh Kumar who was already doing business in two of the shops and is ready and willing to work with the landlady. It is come in the evidence that Mukesh Kumar was living with his father Jasbir Singh who his son of the landlady and father had done work of carpentry. Thus, the property is required by the landlady for her own use and also for the benefit of her grand son and the submission that grand son has to be dependent upon the landlady for the use of building is not tenable since the pleadings herein are that the property was required for the landlady and for her grand son and not solely for the grand son who was independently doing some business and in her statement she has also deposed that her sons would invest in the show room, who were living abroad.
13. The Hon'ble Supreme Court in Baldev Singh Bajwa Vs. Civil Revision No.1259 of 2012 -18- ***** Monish Saini JT 2005 (12) SC 442 laid down the principle of requirements of the Non Resident Indians and noted the objects and reasons for the introduction of the new provisions which reads as under:-
"The State Government had been receiving representations from various N.R.I.s individuals and through their associations highlighting the plight of Indian residents returning to India after long years abroad. It was represented that the NRIs having spent long years of their life abroad did not find conditions congenial in their own country on their return either to settle down or to take up any business. On account of rigid legal provisions of existing Rent laws, the NRIs were unable to recover possession of their own residential building from the tenants. Government having considered the situation had decided that the existing Rent Legislation viz. East Punjab Urban Rent Restriction Act 1949 should be amended to provide relief to NRIs to enable them to recover possession of a residential or scheduled building and/or one non residential building for their own use.''
14. After taking into consideration the said objects and reasons, it was held that right under Section 13-B could be availed only once during the life time and the NRI-landlord could choose one among several others residential building or scheduled building Civil Revision No.1259 of 2012 -19- ***** and/or non-residential building for the purpose of eviction of the tenant from that premises and if there was any breach on the part of the owner, Section 19(2-B) provides sufficient safeguards and put restrictions and provided penal action against the defaulting landlord. Accordingly, it was held that a NRI had to basically prove i) that he was a NRI and ii) had returned to India permanently or temporary period and iii) requirement of the premises was genuine and bonafide and iv) he was owner of the premises for the last five years.
15. In the present case, the said elements as noticed by the Hon'ble Supreme Court in Baldev Singh Bajwa's case (supra) have been fulfilled and the Rent Controller after examining the evidence on record has come to the conclusion that the ownership of the landlady stands duly proved from the sale deed dated 28.9.1968 Ex.P2. NRI status is clear from the residency card issued by the Austrian authority and intention to come back and to settle in India has been duly proved by the statement of the landlady stepping into witness box and being available for cross-examination on various dates in spite of her age. Once these necessary requirements have been fulfilled no fault can be found with the well reasoned order passed by the Rent Controller and keeping in view the limitations under Section 15(5), this Court is satisfied that there is no illegality or impropriety in the order under challenge which may warrant interference in the revisional jurisdiction of this Court.
16. However, since the counsel for the petitioner had made a Civil Revision No.1259 of 2012 -20- ***** request in the alternative that since the petitioner-tenant has died during the pendency of the eviction proceedings and survived by his wife and son,who are running a cold drink shop and have been in possession of the property in dispute for a long time, therefore, keeping in view such circumstances, the order of eviction shall not be given effect to till 30.6.2012. The rent for the period from 1.1.2012 to 30.6.2012 shall be deposited by the petitioner-tenant with the Rent Controller along with an undertaking that they shall vacate the premises in question by 30.6.2012. The said undertaking and deposit of rent shall be made by 10.4.2012. In the event of the undertaking being not furnished along with the rent, the liberty given to occupy till 30.6.2012 shall no longer enure.
15. Accordingly, the revision petition is dismissed.
(G.S.SANDHAWALIA) JUDGE 21.03.2012 Pka