Punjab-Haryana High Court
Narinder Singh vs Kirpa Singh And Ors. on 21 July, 2006
Equivalent citations: (2006)144PLR597
JUDGMENT Vinod K. Sharma, J.
1. This revision petition has been filed against he order passed by the learned Rent Controller, Jalandhar vide which the application filed by the petitioner was rejected and application filed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) was allowed and the petitioners were directed to hand over the vacant possession of the demised premises within a period of 3 months from the date of passing of the order.
The brief facts leading to the filing of the present petition are that the petitioner filed petition under Section 13-B of the Act for ejectment of the respondents from the building bearing No. 6-A near Sodal Mandir, Sodal Nagar, Jalandhar. It was alleged in the application that the respondent No. 1 Manjit Singh was inducted as a tenant vide agreement dated 26.3.1979 at a monthly rent of Rs. 1,200/- for a fixed period and thereafter the rent was enhanced to Rs. 1,500/- per month which was paid up to 31.3.1997. It was the case of the petitioners that they were owner/landlords qua the building premises in dispute and that the property in dispute was ancestral property of the petitioners and mutation of the property has already been sanctioned in the name of the petitioners on the basis of inheritance. The petitioners are NRIs and have been residing in England and that the petitioners alongwith their sons were running business of import and export in the name of Dhillon Trimming Company. It is the case of the petitioners that they came to know that respondent No. 1 has sub-let the premises in dispute and parted with possession to one Narender Singh, Darshpal Singh and Mohinder Pal Singh, respondent Nos. 2 to 4 against the terms of the agreement without the knowledge of the petitioners. It was the case of the petitioners that the respondent also made additions, and alterations in the property in dispute. The case set up the petitioner was that Manjit Singh, respondent No. 1 has shifted to new premises i.e. 10-A, New Grain Market, G.T. Road, Jalandhar where he has opened a store in the name of Punja Khad Store by running business there. The ejectment was sought on the grounds that the premises in dispute were required by the petitioners for their personal use and occupation as they have decided to settle in Jalandhar City. They have decided to settle in room in the building in dispute and start their own business of import and export.
2. On notice having been issued, the respondents moved an application for leave to contest stating therein that the petitioner was served with ordinary summons on 21.5.2001. It was further the case of the respondent-petitioner that the notice was not sent in proper form and there was, thus, no notice to respondent No. 1 in the eyes of law. The leave to defend was sought on the following grounds:
That there is no relationship of landlord and tenant between the petitioner and respondent No. 1 and agreement dated 26.3.1979 was never acted upon and respondent No. 1 never became tenant in the property in dispute under the petitioners. The demised premises was taken on rent by M/s Gee Ess Engg. Works situated at 6-A, Sodal Nagar, near Sodal Mandir, Jalandhar, through its partners from the petitioners and since 1.4.1979 the rent is being paid on the basis of cheques drawn on Punjab National Bank, Industrial Area, Jalandhar and said rent was being received by Shiv Dev Singh, representative of the petitioners. Electricity charges are also paid since the inception of the tenancy by Gee Ess Engg. Works. At no point of time. Manjit Singh, respondent No. 1 ever paid rent to the petitioners nor the petitioners ever received the rent from Manjit Singh since April 1979. Partnership deed also came into existence w.e.f. with Darshapal Singh, Amarbir Singh, Tirath Singh, Manjit Kaur w/o Narinder Singh, another Manjit Kaur w/o Manjit Singh, Parkash Kaur and Mohinder Pal Singh and till date the rent has been paid from the bank account of Gee Ess Engg. Works by cheques. The petitioners are estopped by their acts, acquiescence and admission from asserting the relationship of landlord and tenant between the petitioner and respondent No. 1. Neither Manjit Singh nor Narinder Singh have got any concern with the tenanted premises and are not in possession of any part of the suit property. The application for leave to contest is likely to be accepted on the grounds mentioned in the application Applicants have other properties in Jalandhar, which they have concealed. The demised premises is a commercial building let out for commercial purposes, as such, as per amended Act, Non-Resident Indians are not competent to seek ejectment in respect of the commercial premises. Lastly, it is prayed that leave to contest the petition may kindly be granted to the applicant/tenants. The application is supported by affidavits of Manjit Singh s/o Balwant Singh, Darshanpal Singh s/o Narinder Singh and Mohinderpal Singh s/o Mehar Singh.
3. The application for leave to contest was opposed by the petitioner - landlord and the objection was taken that respondent No. 1 had no locus standi to seek leave to contest the present ejectment application on behalf of the respondents and that the leave to contest on behalf of the respondent was barred by limitation as the same was not filed within 15 days of the service of summons. It was also contended by the petitioner-respondents that the application was filed in Court on 7.6.2001 and was filed with mala fide intention and ulterior motive to delay the decision of the ejectment application. The allegations that the service of summons was not in proper form was also denied. The contention that the petition was within time was also denied. It was also denied that there was no relationship of landlord and tenant between the petitioner and respondent No. 1. The factum of agreement dated 26.3.1979 being not having been acted upon was also denied. The allegation in the petition that the premises were taken on rent by M/s Gee Ess Engg. Works was also denied. The case set up by the respondent was that the alleged partnership was never a tenant in the property in dispute under the petitioners. The allegation that as the rent was being paid on the basis of cheque drawn on Punjab National Bank was also denied. It was also denied that Shivdev, representative of the petitioner had been receiving the rent on the basis of cheque from M/s Gee Ess Engg. Works through its partner and that electricity charges were paid by them. The case of the landlord was that the authority of Shiv Dev Singh as an attorney/representative was withdrawn. Leave to defend was earlier declined by Shri H.P. Singh, PCS, learned Rent Controller vide order dated 28.1.2002 and order of ejectment was passed against the respondent. However, said order was challenged by the petitioner by filing C.R. No. 631 of 2002 and the same was disposed of on 29.7.2003 by passing the following order:
The petitioners are respondent Nos. 2 to 4 in an ejectment petition filed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act).
The respondent-landlord has alleged that vide Rent Note dated 26.3.1979 premises in dispute were let out to Manjit Singh at a monthly rent of Rs. 1,200/- for a period of 6 years and that the rent was subsequently enhanced to Rs. 1,500/- per month. It is further pleaded that Manjit Singh has sub-let the building and parted with possession in favour of the present petitioners i.e. Respondent Nos. 2 to 4 in the ejectment petition under Section 13-B of the Act.
The petitioners herein applied for leave to defend alleging therein that they are direct tenants since 1.4.1979. Premises were taken on rent by M/s Gee Ess Engg. Works through its partners from the petitioners and since 1.4.1979 the rent is being paid through chequesto Shivdev Singh, representative of the landlord.
Learned Rent Controller declined the leave to defend for the reason that there is only bald statement of the petitioner that they had taken the demised premises directly and written agreement dated 26.3.1979 was never acted upon.
Admittedly at the stage of leave to defend the parties have not led evidence. The parties can support their contentions only if leave to defend is given and issues are framed. In the absence of an opportunity to leave to lead evidence it was not justified for the Rent Controller to hold that it is the only bald averment of the petitioners. It may be stated hat it is - categorical stand of the petitioners that from 1.4.1979 the rent is being paid through cheques. It was a strong circumstance, which was sufficient to grant leave to defend to the petitioners.
In view thereof, the order passed by the learned Rent Controller is set aside. The petitioners are permitted to file written statement within 15 days after leave to defend is granted and the learned Rent Controller is expected to decide the case expeditiously.
The parties are directed to appear before the learned Rent Controller on 21.8.2003.
4. The landlord-petitioner has filed S.L.P. bearing No. 18955 of 2003 which was disposed of by the Hon'ble Supreme Court vide order dated 10.11.2003. The order passed by the Hon'ble Supreme Court reads as under:
The landlord-petitioner has filed these petitions complaining that pursuant to the impugned order of the High Court the tenant-respondents have went on to file the written statement. The order of the High Court is clear. The application for leave to defend has to be decided afresh by the trial Court and if allowed then the defendants have to file written statement within 15 days thereafter. The Rent Controller shall act accordingly. If there is any error in the proceedings the same shall be corrected. The S.L.P. is dismissed.
5. After passing of the order by the Hon'ble Supreme Court learned Rent Controller again heard arguments. The learned Rent Controller noticed that leave to defend has been filed by the petitioners by claiming themselves to be the direct tenant and not the sub-tenant as alleged by the landlord. The position would not change as they being tenant no case is made out for leave to defend.
6. With regard to the next contention that the service was by way of ordinary summons vide which they were directed to appear on 21.5.2001 learned Rent Controller came to the conclusion that after 21.5.2001 the petitioners were granted 15 days' time for leave to defend and therefore, no grievance could be made by the petitioners that the summons were not in order as their leave to defend was considered on merit and was not treated to be time bared. Learned Rent Controller further relied upon the judgment in Gursharan Singh v. Satpal (1991-2) 100 P.L.R. 507 to reject the contention that non-service in accordance with the specified summons does not make out a case for leave to defend. As the contention of the petitioners that the landlord-petitioner was not bona fide as they held other property was rejected on the ground that the objector failed to disclose any other property of which the landlord was said to be the owner. It was also observed that even if the landlord had another property option was with the landlord to seek ejectment from any property and therefore, leave to defend could not be granted on this ground. It was also noticed by the learned Rent Controller that the copies of the passport has been placed on record showing the landlord to be N.R.I. and by holding that the landlord fulfilled the following conditions i.e. the landlord was shown to be owner and that they were NRIs and also that they had returned to India and the building was required for their own use and occupation ordered the ejectment by rejecting leave to defend. It was also proved on record that the landlord-respondents were owners of the building for more than 5 years and that right was availed only once during their life time.
7. Mr. Arun Jain, learned Counsel for the petitioner contended that the order is contrary to the judgment passed by this Court in C.R. No. 1631 of 2002 referred to above. The contention of the petitioner is that this Court has prima facie held that the petitioner was entitled to leave to defend and therefore, this application could not be rejected. Learned Counsel for the petitioners submitted that the said order was affirmed by Hon'ble Supreme Court while dismissing the SLP filed by the landlord-respondent. This contention cannot be accepted as the operative part of the order permitted the petitioner to file written statement within 15 days, after the leave to defend was granted, and it was further ordered that the learned Rent Controller is expected to decide the case expeditiously. The said order was rightly clarified by the Hon'ble Supreme Court to the effect that the application for leave to defend has to be decided afresh by the learned Trial Court and if allowed then the defendants have to file the written statement within 15 days thereafter. Thus, if there was any doubt in the order passed by this Court with regard to the leave to defend stood clarified by the Hon'ble Supreme Court.
8. Learned Counsel for the petitioner, thereafter contended by relying upon a judgment of this Court in Dharampal v. Malkiat Singh Gill (1987-2) 92 P.L.R. 383 that the learned Rent Controller was only to see the ground set out in the affidavit for the purpose of leave to defend and was not to see reply filed by the landlord to the said application. Thus, the contention raised by the learned Counsel is that it was not open to the learned Rent Controller to look into the defence of the landlord in the reply to the objection.
9. Learned Counsel for the petitioner thereafter contended that the provisions of Section 13-B of the Act could not be invoked in the present case as under Section 13-B of the Act the words used are that the building should be let out by the landlord to the tenant and therefore, in the absence of admission of relationship of landlord and tenant, it was not open to the petitioner to file the present petition. He also made reference to the provisions of Section 18-A of the Act, wherein words used are that the summons have to be served on the tenant as the case may. The contention of the learned Counsel for the petitioner, therefore, is that once the landlord disputed their relationship with the tenant the application under Section 13-B of the Act was not competent. Though the argument on the face of it looks attractive but if seen in the context of the present case it does not advance the case of the petitioner. Sections 13-B and 18-A of the Act are reproduced for ready reference:
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 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 and 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 or 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 possession of the said building and the Controller shall make an order accordingly.
18-A. Special procedure for disposal of applications under Section 13-A or Section 13-B.-
(1) Every application under Section 13-A or Section 13-B shall be dealt with in accordance with the procedure specified in this section.
(2) After an application under Section 13-A or 13-B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II.
(3)(a) The summons issued under sub-section (2) shall be served on the tenant as far as may be in accordance with the provisions of Order V of the First Schedule of the Code of Civil Procedure, 1908. The Controller shall in addition direct that a copy of the summons be also simultaneously sent by registered post acknowledgement due addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and that another copy of the summons be affixed at some conspicuous part of the building in respect whereof the application under Section 13A or Section 13-B has been made.
(b) Where an acknowledgement purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent has refused to take delivery of the registered article and an endorsement is made by a process server to the effect that a copy of the summons has been affixed as directed by the Controller on a conspicuous part of building and the Controller after such enquiry as he deems fit, it satisfied about the correctness of the endorsement, he may declare that there has been a valid service of the summons on the tenant.
(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 and/or non-residential building, as he 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, widowers, child, grandchild or the widowed daughter-in-law of such specified landlord or the owner, who is a non-resident Indian 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.
(5) The Controller may give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitled the specified landlord or, as the case may be, the widow, widower, child, grandchild or widowed daughter-in-law of such specified landlord or the owner, who is a non-resident Indian from obtaining an order for the recovery of possession of the residential building or scheduled building and/or non-residential building or scheduled building and/or non-residential building, as the case may be, under Section 13-A or Section 13-B. (6) Where leave is granted to contest the application, the Controller shall commence the hearing on a date not later than one month from the date on which the leave granted to the tenant to contest and shall hear the application from day to day till the hearing is concluded and application decided.
(7) Notwithstanding anything contained in this Act, the Controller shall while holding an inquiry in a proceeding to which this section applies including the recording of evidence, follow the practice and procedure of a Court of Small Causes.
(8) No appeal or second appeal shall lie against an order for the recovery of possession of any residential building or scheduled building and/or non-residential building, as the case may be, made by the Controller in accordance with the procedure specified in this section:
Provided that the High Court may, for the purpose of satisfying itself that an order made be the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
(9) Save a otherwise provided in this section, the procedure for the disposal of an application for eviction under Section 13-A or Section 13-B shall be the same as the procedure for the disposal of applications by the Rent Controller.
10. The petitioners in the leave to defend did not deny the relationship of landlord and tenant rather they asserted that they were the direct tenant under the landlord and were not the sub-tenants as alleged. The claim of landlord in the petition that they were sub-tenants was denied. In support of this contention the petitioners prima facie produced evidence to show that they were directly paying rent to the landlord and were in possession of the building as per their own right. It was also the case of the petitioners themselves that the agreement alleged to have been executed with Manjit Singh was not acted upon. Therefore, I feel no hesitation to hold that even though under Section 13-B read with Section 18-A of the Act the petition can only be filed against the tenant for eviction on account of bonafide requirement, but no relief can be granted to the petitioners on this ground in view of their own stand that they were direct tenant over the premises.
11. Learned Counsel for the respondent, on the other hand relied upon the judgment of Hon'ble Supreme Court in Baldev Singh Bajwa v. Monish Saini , by relying on para Nos. 20 and 22 of the said judgment contended that no fault can be found with the orders parsed by the learned Rent Controller. The contention of the learned Counsel for the respondents is that the respondent-landlord proved on record that he was the NRI and the owner of the property for more than 5 years and that he required the premises for his bonafide use. Para Nos.20 and 22 of the said judgment read as under:
20. The legislative intent of expeditious disposal of the application for ejectment of the tenant filed by the NRI landlord is reflected from the summary procedure prescribed under Section 18-A of the Act of 1949 which requires the Controller to take up the matter on day-to-day basis till the conclusion of the hearing of an application. The Legislature wants the decision of the Controller to be final and does not provide any appeal or second appeal against the order of eviction, it is only the High Court which can exercise the power of consideration of the case, whether the decision of the Controller is in accordance with law. Section 13-B gives right of ejectment to special category of landlord who is NRI (Non-Resident Indian); and owner of the premises for five years before action is commenced. Such a landlord is permitted to file an application for ejectment only once during his life time. Sub-section (3) of Section 13-B imposes a restriction that he shall not transfer through sale or any other means or lease out the ejected premises before the expiry of the period of five years from the date of taking possession of the said building. Not only that, if there is a breach of any of the conditions of Sub-section (3) of Section 13-B, the tenant is given a right of restoration of possession of the said building. Under Sub-section (2-B) of Section 19 of the landlord has to take possession and keep it for a continuous period of three months and he is prohibited from letting out the whole or any part of such building to any other person except the evicted tenant and for any contravention thereof, he shall be liable for punishment of imprisonment to the term which can be extended up to six months. These restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine. Landlord, after the decree for possession, is bound to possess the accommodation. Landlord is prohibited from transferring it or letting out for a period of five years. Virtually conditions and restriction imposed on the NRI landlord makes it improbable for any NRI landlord to approach the Court for ejectment of a tenant unless his need is bonafide. No unscrupulous landlord probably, under this Eviction, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which practically he is deprived of his right in the property not only as a lessor but also as the owner of the property. There is a restriction imposed even on the transfer of the property by sale or any other-manner. The restriction imposed on the landlord by all probability points to the genuine requirement of the landlord. In our view there are in built protections in the relevant provisions, for the tenants that whenever the landlord would approach the Court he would approach when his need is genuine and bonafide. It is, of course, subject to tenant's right to rebut it but with strong and cogent evidence. In our view, in the proceeding taken up under Section 13-B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlord's need pleaded in the petition is genuine and bonafide. But this would not disentitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
22. The golden rule of construction is that when the words of legislation are plain and unambiguous, effect must be given to them. The basic principle on which this rule is based since the words must have spoken as clearly to legislatures as to judges, if may be safely presumed that the legislature intended what the words plainly say. The legislative intent of the enactment maybe gathered from several sources which is, from the statute itself, from the preamble to the statute, from the statement of objects and reasons, from the legislative debates, reports of committees and commissions which preceded the legislation and finally from all legitimate and admissible sources from where they may be allowed. Record may be had from legislative history and latest legislation also. But the primary rule of construction would be to ascertain the plain language used in the enactment which advances the purpose and object of the legislation. No doubt the legislative intent in enacting Section 13-B, is to provide for immediate possession of the accommodation owned by the NRI but it cannot be assumed that the legislature wants the NRI landlord/owner, to get the possession of the accommodation from the tenant even if he does not require it and the need pleaded is proved to be a mere pretext to get the accommodation vacated. Had that not been the intention of the legislatures, the phrase 'required' by the NRI landlord would not have been used in Section 13-B. The classified landlords are given the benefit of summary trial under Section 18-A of the Act. The summary trial is in two parts. Sub-section (4) provides that after the service of summons the tenant has no right to contest the prayer for eviction from the residential building or schedule building and/or non-residential 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 provided in Sub-section (5) of Section 13-B to contest the matter. If the tenant defaults to appear in pursuance of summons or when he does not get leave to contest, the controller shall presume the statements made by the NRI in his petition have been admitted by the tenant and pass an order of eviction. This eventuality is contemplated when a tenant does not appear in pursuance of the summon issued and served or where the leave to contest has not been granted by the Controller. The second facet of the section comes into operation when the leave to contest is granted by the Controller. Sub-section (6) of Section 18-A provides that the Controller has to commence the hearing of the petition not later than one month from the date on which the leave was granted to the tenant to contest and he has to hear the application from day to day till the hearing is concluded and the application is decided. It is further provided that the procedure which shall be followed in deciding the application would be as is being practiced by Court of Small Causes. No appeal or second appeal is provided. From the aforesaid, it is absolutely apparent that even when leave would be given to the tenant to contest, legislatures have taken care of expeditious disposal of the petition for ejectment filed by the NRI landlord. Trial of the issue of bona fide requirement, of the landlord in the procedure prescribed would not take much time and thus we cannot accept the argument that the phrase "required' used the legislature in Section 13-B would not mean bonafide or genuine requirement and the section has to be construed as and when the allegation is made by the landlord of his need, it is to be taken as gospel truth and the tenant's right to defend on that count is completely extinguished and given a go-bye. We do not think High Court is right in holding that mere prayer of the NRI landlord that tenanted premises is required by him or his dependent living with him entails decree of eviction on the mere allegation or requirement and no leave to contest can be given in respect of cases which are covered by various provisions restricting the right of the landlord to deal with the premises taken possession of by him in pursuance of the decree for eviction passed by the Controller under Section 13-B of the Act of 1949. We hold that allegations made by the NRI landlord of his requirement shall be presumed to be genuine and bonafide unless rebutted by the tenant by placement of cogent and material facts and evidence in support thereof at the stage of leave to contest before the Controller. We feel any other interpretation would completely whittled down and deny the tenant's right to show and prove that landlord does not in fact, or in law require suit premises.
12. Learned Counsel for the respondent further made reference to para No. 26 of the judgment to contend that the observation made by the Hon'ble Supreme Court stood fully complied with in the present case.
Para No. 26 of the judgment is reproduced as under:
26. On the interpretation given by us and on a plain reading of the provisions, once in a life time possession (permission?) is given to a NRI to get one building vacated in a summary manner. A Non-resident Indian landlord is required to prove that: (i) he is a NRI, (ii) that he has return to India permanently or for the temporary period, (iii) requirement of the accommodation by him or his dependent is genuine, and (iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenant's affidavit asking for leave to contest the NRI landlord's application should confine to the grounds which NRI landlord is required to prove, to get ejectment under Section 13-B of the Act. The controller's power to give leave to contest the application filed under Section 13-B circumscribe to the ground and inquiry to the aspects specified in the Section 13-B The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13-B and no other aspect shall be considered by the Controller.
13. In view of findings recorded above, I find no merit in the present revision petition and dismiss the same with no order as to costs.