C. R. No. 3244 OF 2007 ::1:: C. R. No. 3244 OF 2007. ****** M/S Manjit Engineering Works & another vs Swaran Singh Present : Mr.Amit Rawal, Advocate for the petitioners. Mr.Sunil Chadha, Advocate for the respondent. ******* Challenge in this revision petition is to an order, dated 30.4.2007, passed by the learned Rent Controller, declining leave to the petitioners to defend the petition, filed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949, (for short herein after referred to as “the Act”), and consequently ordering their ejectment from the shop in dispute. Counsel for the petitioners submits that while considering the petitioners' application for leave to defend, the learned Rent Controller committed an error by ignoring relevant material. It is submitted that the petitioners pleaded that in addition to the shop in dispute, the respondent owns two other shops. One of these shops is occupied by a tenant-Saudagar Singh. The land lord filed an ejectment petition on 17.5.2003, praying for ejectment of Saudagar Singh. The petition, however, was dismissed as withdrawn after Saudagar Singh agreed to enhance rent. On 15.6.2004, i.e one month and 12 days after the withdrawal of the ejectment petition against Saudagar Singh, the landlord filed the present petition for the petitioners' ejectment, under Section 13-B of the Act by alleging his bona fide requirement. Similarly, in the case of another shop, the respondent filed a C. R. No. 3244 OF 2007 ::2:: petition for ejectment against the tenant Pritpal Singh. The petition was withdrawn in the year 2002 after the tenant agreed to pay the enhanced rent. It is argued that these facts have a material bearing on the petitioners' rights to seek leave to defend but the learned Rent Controller, by ignoring the facts, has caused serious prejudice to the petitioners and has also committed an error of jurisdiction. It is, therefore, prayed that the impugned order be set aside and the matter be remitted to the learned Rent Controller for a fresh consideration. Counsel for the respondent, on the other hand, submits that the aforementioned assertions are irrelevant. Whether a landlord asserts a bona fide requirement with respect to shop A or shop B, the tenant cannot interfere with the landlord's choice. A landlord cannot be directed, whether by a Court or by a tenant to occupy a particular shop. It is further asserted that as the demised premises are best suited to the landlord's requirement, and as the assertions by counsel for the petitioners are irrelevant, the present petition be dismissed. It is further pointed out that petitions against Saudagar Singh and Pritpal Singh were filed under Section 13 and not under Section 13-B of the Act. I have heard counsel for the parties and perused the impugned order. Section 13-B of the Act entitles a special category of landlord i.e a “Non Resident Indian-landlord” to seek ejectment, provided he successfully establishes four ingredients set out therein, namely :- (i) he is a NRI; (ii) that he has returned to India permanently or for the temporary period; C. R. No. 3244 OF 2007 ::3:: (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 Hon'ble Supreme Court, in Baldev Singh Bajwa v. Monish Saini, AIR 2006 SC 59, while considering the parameters necessary to establish a plea of requirement, under Section 13-B of the Act, held as follows :- “22. xx xx xx. 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. Xx xx xx xx 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 by the legislature in Section 13-B would not mean bona fide or genuine requirement and the C. R. No. 3244 OF 2007 ::4:: 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 of 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 bona fide 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 whittle down and deny the tenant's right to show and prove that landlord does not in fact, or in law require suit premises.” (emphasis supplied) The aforementioned principles, when applied to the present controversy, disclose a failure on the part of the learned Rent Controller, to adjudicate the application for leave to defend, in consonance therewith. The learned Rent Controller ignored relevant material and, thus, erred, while C. R. No. 3244 OF 2007 ::5:: dismissing the application for leave to defend. As noticed herein above, the respondent-landlord owns three shops. He filed ejectment petition No.67, dated 17.5.2003 against one of his tenants Saudagar Singh. The ejectment petition was withdrawn on 3.5.2004, after the tenant agreed to pay enhanced rent. Though these facts were placed before the learned Rent Controller, he failed to consider them or even make a reference thereto. The petition, filed against Saudagar Singh and its subsequent withdrawal, assumes significance, as it was withdrawn on 3.5.2004 i.e one month and 12 days before the present ejectment petition was filed against the petitioners and would, therefore, have a material bearing on the petitioners' application for leave to defend. Counsel for the petitioners has, therefore, rightly asserted that the withdrawal of the ejectment petition, filed against Saudagar Singh, a month and 12 days before the institution of the present ejectment petition, should have been considered by the Rent Controller, and only after an appraisal thereof, could a finding have been returned with respect to the petitioners' plea for leave to defend. While considering petitions, filed under Section 13-B of the Act, and applications for leave to defend, a Rent Controller should exercise due care and caution. The Legislature, in its wisdom, has conferred exceptional rights upon Non Resident Indian-landlords permitting them to seek expeditious ejectment of their tenants. The rights of tenants to contest such petitions, are limited by the presumptions, raised in favour of such landlords. A need, therefore, to strike a just balance between two competing rights and to consider such petitions/applications with due care and caution, is emphasized. As the learned Rent Controller, by ignoring relevant material, C. R. No. 3244 OF 2007 ::6:: committed an error of jurisdiction, the revision is allowed and the order, dated 30.4.2007, passed by the Rent Controller, Ludhiana is set aside. The matter is remitted to the learned Rent Controller, Ludhiana for an adjudication afresh, after taking into consideration all relevant material, available on record. Parties are directed to appear before the learned Rent Controller on 19.2.2008. The learned Rent Controller shall decide the application for leave to defend within three months from the aforementioned date. Nothing, stated herein, shall be construed to be an expression of opinion on the merits of the controversy. ( RAJIVE BHALLA ) January 22, 2008. JUDGE `kk'