IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7471 of 2010 (O&M) Date of decision: 13.10.2011 State Bank of India ......Petitioner(s) Versus Amarbir Singh Panjhazari ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Ms. Kamini Sharma, Advocate for Mr. Sajal Kosar, Advocate for the petitioner. Mr. Arun Palli, Sr. Advocate with Mr. Kanwalvir Singh Kang, Advocate for the respondent. Rakesh Kumar Garg, J. This is tenants’ revision petition challenging the order dated 6.9.2010 of the Rent Controller, Patiala whereby an application for leave to defend filed by it in an ejectment petition filed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949, (hereinafter referred to as the ‘Act’) by the respondent/landlord was declined. Briefly stated, the petitioner had taken on lease the demised premises i.e. Kothi No.4-A/1, Raghbir Marg, Model Town, Patiala, from the mother of the respondent in the year 1985 vide lease deed dated 10.1.1985. The said lease was renewed from time to time and was lastly renewed vide lease deed dated 18.9.1999 for a period of three years w.e.f. 1.2.1998 with the option to petitioner-Bank for further renewing the lease for further 2 terms, each term not exceeded three years. The respondent filed the instant petition under Section 13-B of the Act claiming himself to be owner of the demised premises on the basis of a gift deed dated 16.9.2003 and further claiming himself to be an NRI in the year 2009 seeking ejectment of the petitioner on the ground that the demised premises were required by him for his own use and occupation. Upon receipt of the notice, the petitioner-Bank filed an application for grant of leave to defend on the grounds mentioned below: “(i) That no rent note was executed between the parties and in fact the lease deed was executed. Therefore there does not exist the relationship of the landlord and tenant between the parties and the parties are governed under the provisions of Transfer of Property Act. (ii) The applicant is having another premisses in his name and as such he has tried to mislead to court and as such the petition under Section 13-B of East Punjab Urban Rent Restriction Act (here in after called the Act) is liable to be dismissed. (iii) There does not exists the relationship of the landlord and tenant between the parties as the mother of the applicant namely Smt. Manjit Kaur had executed gift deed in favour of the applicant which was created with a view to defeat the rights of the respondent by taking undue advantage of the Provisions of the Act.] (iv) The applicant does not require the premises bonafidely. (v) The applicant is not an N.R.I. (vi) The applicant has intentionally filed the present petition with a view to increase the rate of rent.” The aforesaid application of the petitioner was contested by the respondent by placing on record various documents and praying that the application be dismissed. Vide impugned order, the application of the petitioner was dismissed holding that the petitioner-Bank has failed to establish the grounds taken in the application seeking leave to contest the petition whereas the respondent-landlord has established all the ingredients required for ejectment of the petitioner-Bank from the demised premises as envisaged under Section 13-B of the Act, further observing that the respondent was a Non-Resident Indian and was owner of the demised premises for the last 5 years before the institution of the proceedings and that he required the property in dispute for his bona fide requirement and he had no other property other than the property in question within the Municipal Limits of Patiala Town. Noting the contentions of the learned counsel appearing on behalf of the petitioner, this Court passed the following order on 19.11.2010: “Learned counsel for the tenant-petitioners states that non-residential building cannot be got vacated for residential purpose under Section 13-B of the East Punjab Urabn Rent Restriction Act, 1949. learned counsel for the petitioners has placed reliance on the judgment of this court in the matter of S.Tarlochan Singh vs Smt. Harbhajan Kaur, 20099i) RCR(Rent 553. Notice of motion for 19.1.2011. Till further order, further proceedings shall remain stayed. Let respondent be served through the counsel appearing on behalf of respondent/landlord before the learned Rent Controller.” Thereafter, on 21.2.2011, the following order was passed: “Learned counsel for the petitioner, inter alia, contends that the demised premises was let out by Manjit Kaur. Later on she gifted the demised premises to her son in 2003 in 2003, who had filed the present eviction petition as NRI. Learned counsel for the petitioner has submitted that since the property was let out by a person, who was not NRI, the present petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 9 for short “ the Act”) is not maintainable and in this regard he has referred to an order of this court passed in CR. No.4025 of 2006titled as Smt. Bachan Kaur and others Vs. Kabal Singh and another decided on 29.9.2010, in which one of the question was “ whether the premises from which eviction is sought under Section 13-B of the Act is to be let out by NRI/ landlord or his duly authorised person acting on his behalf or some other co-owner or predecessor-in-interest in their own right and not under the authority of NRI/landlord”? Adjourned sine die to await the decision of CR No.4025 if 2006 Interim order to continue. At this stage, learned counsel for the respondent has submitted that the contention, which has been recorded on 19.11.2010, is totally misleading. Be that as it may, this question shall also be taken into consideration, after the question of law, which has been raised and referred to the Larger Bench of this court to decide.” The respondent-landlord filed the application i.e. CM No.22700-CII of 2011 stating therein that the civil revision be listed for hearing in view of the fact that the judgment of the Division Bench in CR No.4025 of 2006 was pronounced on 26.4.2011. Along with this application, the respondent also placed on record a copy of the judgment dated 26.4.2011 passed in CR No.4025 of 2006, wherein this Court has held that a co-owner NRI can seek eviction of the tenant in a building though the tenant was not inducted by such NRI and that it is not necessary that all other co-owners should be Non-Resident Indian. Upon notice, counsel for the petitioner-tenant appeared and the following order was passed by this Court on 4.10.2011: “After hearing learned counsel for the parties, the application is allowed and the revision petition is ordered to be listed for motion hearing on 13.10.2011. To be shown in the urgent list.” I have heard learned counsel for the parties and perused the impugned order. At the outset, it may be noticed that in view of the judgment of the Division Bench passed in CR No.4025 of 2006, counsel for the petitioner has not raised any argument as raised vide order dated 21.2.2011. It may further be noticed that the contention raised by the learned counsel for the petitioner on 19.11.2010 is against the facts on the record of the case, as admittedly, it could not be disputed that demised premises in the instant case is a residential house though the same is being used for a commercial purpose by the petitioner-Bank. Even otherwise, there is overwhelming evidence on record of this revision petition showing that the petitioner-Bank itself has admitted the fact that the demised premises are of residential nature. In view of the aforesaid facts, the contention as raised by the petitioner-Bank at the time of motion hearing, is outrightly rejected. It may also be relevant to refer to a Full Bench judgment of this Court in the case of Hari Mittal Advocate and others versus B.M. Sikka 1986(1) RCR 93 wherein this Court has held that the conversion of residential building into non-residential building requires the permission of the Rent Controller under Section 11 of the Act and in case residential building is let out for non-residential purpose by the landlord without obtaining the permission of the Rent Controller in terms of Section 11 of the Act then it would continue to be a residential building and the landlord shall be entitled to ejectment of the tenant on the ground of bona fide requirement. The aforesaid position has been further approved by this Court in the case of Bhagat Singh Sodhi versus Union of India 2003 (2) RCR 141 and Nand Kishore versus Yashpal Singh 2009(3) RCR (Civil) 829. Not only this, the petitioner-Bank has not placed on record any document to show that the demised premises were let out by the respondent-landlord for a commercial purpose. Even assuming for the sake of argument that the building which in fact is a residential building was let out on rent for a commercial purpose, the same shall continue to be residential building in view of the aforesaid judgments as referred above and the respondent was entitled to get the same vacated for a residential purpose. The judgment in S.Tarlochan Singh's case (supra) is not applicable in the facts of the present case. In that case, leave to defend was allowed as there was a likelihood of defence on the issue of maintainability because dispute therein was whether the demised premises were part of a residential building or a shop whereas there is no dispute with regard to the nature of the demised premises in the instant case which is residential in nature. Counsel for the petitioner has further argued that the need of the respondent-landlord was not bona fide as there was enough correspondence between the parties from which it is evident that the respondent wanted to increase the rent of the demised premises and when the petitioner-Bank refused to accept such request of the respondent, the respondent connived with his mother and created a false/bogus gift deed dated 16.9.2003 to create a ground of eviction under Section 13-B of the Act and thus, the need of the petitioner was not bona fide and therefore, the petitioner should have been granted leave to defend to prove all these triable issues. The argument raised is without any merit. Admittedly, the petitioner-Bank has atoned the respondent as its landlord and the rent is being paid/deposited in the account of the respondent for the last many years. Not only this, even in its correspondence with the respondent as envisaged from Annexure P-2 and P-5 placed on record of this revision petition, it is quite evident that the petitioner-Bank has accepted the respondent as its landlord and have never questioned his authority. Except a bald allegation, there is nothing on record to challenge the gift deed dated 16.9.2003 which is a registered document. It may also be mentioned that even as per the documents placed on record by the petitioners themselves, lastly, the respondent had requested the Bank in the year 2001 to renew the lease deed at an increased rate of rent whereas the instant petition has been filed in the year 2009 i.e. after a gap of eight years. It may also be noticed that in the letter Annexure P-4, the respondent has clearly stated that in case the terms offered by him are not acceptable to the petitioner-Bank, the said letter be treated as a notice to vacate the property by 31.7.2005. Instead of that, the respondent did not file any petition till the year 2009. Thus, it cannot be said that the respondent-landlord had filed the instant petition only to pressurize the petitioner-Bank to increase the rent and he does not require it for his bona fide need. Not only this, a proper safeguard has been provided under the provisions of Section 13-B and 18-A of the Rent Act and in case of non occupation of the demised premises by the respondent on its vacation, the petitioner has a remedy to reoccupy it as per the aforesaid provisions. Lastly, learned counsel appearing on behalf of the petitioner- Bank has argued that the respondent has failed to establish on record that he has returned to India for settling himself either temporarily or permanently. In view of the law laid down by the Hon’ble Supreme Court in the case of Baldev Singh Bajwa vs. Monish Saini 2005 (4) RCR (Civil) 492, wherein it has been held as under: “When we read Section 13-B along with the definition of NRI it is apparent that a person who is permanently residing outside India can also claim possession under Section 13-B of the Act. All that is required under Section 13-B is that an NRI should return to India and claim the premises for his/her use or for the use of any dependant ordinarily living with him. There is no requirement that he has permanently settled in India on his return or he has returned to India with an intention to permanently settle in India. An NRI may require the accommodation for expansion of his business which he is carrying on in another country or requires the accommodation for his temporary stay. Under Section 13-B, an NRI can also claim ejectment of the tenant from the premises for the purposes of any other person who is dependant on him and is ordinarily living with him, which makes it clear that although an NRI resides permanently in another country, he could get the accommodation vacated for the need of his dependant who ordinarily lives with him and he intends to come to India, choosing it to be his permanent abode. We do not find any substance in the submissions made by the learned counsel that the words “return to India” under Section 13-B of the Act denotes return to India permanently.” the aforesaid argument is of no merit and is rejected. No other argument was raised. In view of the aforesaid, no fault can be found with the impugned order. Dismissed. October 13, 2011 (RAKESH KUMAR GARG) ps JUDGE