CR No.260 of 2011 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.260 of 2011 (O&M) Date of decision:03.05.2011. State Bank of Patiala ...Petitioner Versus Sh. Rajbir Singh ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. P.K.Dutt, Advocate, for the petitioner. Mr. M.L.Sarin, Senior Advocate, with Ms. Hemani Sarin, Advocate, and Mr. Anuj Raura, Advocate, for the respondent. ***** Rakesh Kumar Jain, J. (Oral) This revision petition is directed against the order passed by the learned Rent Controller, Chandigarh dated 19.10.2010 by which an application filed by the tenant under Section 18-A of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] for seeking leave to defend an application filed by the landlord under Section 13-B of the Act, has been declined. In brief, the landlord filed the eviction petition under Section 13-B of the Act alleging that he is a citizen of the United States of America having American passport No.2153335212. He claimed that he is the owner of SCO No.3-A, Sector 7-C, Chandigarh (for short “demised premises”] for last more than 5 years which is in possession of the tenant and since the demised premises is now required by him for his own use and occupation, therefore, he sought eviction of the tenant from its ground floor. The petition filed under Section 13-B of the Act was contested by the tenant by filing an application for CR No.260 of 2011 (O&M) -2- ***** leave to defend under Section 18-A of the Act. During the pendency of the application, the tenant filed an application for production of original documents annexed with the eviction petition for examination and record. On the said application, the learned Rent Controller passed the order dated 19.07.2010 which, according to the petitioner/tenant, reads as under: - “One set of documents which have been relied upon by the petitioner has been supplied to the counsel for the respondent. There is an application for production of original documents, same shall be considered on the next date of hearing along with arguments on application for leave to defend.” During the course of hearing of the application for leave to defend, the tenant had urged that the demised premises is jointly owned by the landlord with other co-owners, therefore, he cannot maintain the eviction petition alone. Ultimately, the learned Rent Controller had found that there is no triable issue involved and as such, the application filed under Section 18-A of the Act was dismissed and the eviction petition was allowed. Before this Court, at the time of motion hearing, learned counsel for the petitioner had asserted as under: - “Learned counsel for the petitioner, inter alia, contends that the learned Rent Controller has erred in dismissing the application for leave to defend without looking to the fact that the demised premises is owned by three co-owners/landlords, which is evident from the document Annexure P-2, placed on record of this Court. He further submits that though this plea was not taken before the Rent Controller but from the documents placed on record, it is alleged that the eviction petition is not signed by the NRI/landlord rather his signatures are forged which is apparent from the document Annexure P-6. On the legal submission, it is argued that the learned Rent CR No.260 of 2011 (O&M) -3- ***** Controller has erred in passing the order of eviction immediately at the time of dismissing the application for leave to defend, which runs contrary to the decision rendered by this Court in the case of “MRF Limited and another Vs. S. Major Singh Purewal” 2009(3) RCR (Civil) 196. Notice of motion for 09.02.2011. In the meantime, dispossession shall remain stayed.” After the service was over, the case was fixed for arguments. On 26.04.2011, the landlord Rajbir Singh appeared with his Advocates, who had filed one application bearing CM No.10828-CII of 2011 in order to place on record the affidavit of the landlord along with photocopy of his passport. The said application was allowed in the presence of learned counsel for the petitioner without any objection and the affidavit of the landlord as well as the photocopy of his passport were taken on record. The first submission made by learned counsel for the petitioner on the merits of the case is that the learned Rent Controller has committed an error of procedure by not deciding the application for production of original documents which was ordered to be taken up with the main case vide zimni order dated 19.07.2010. The second submission raised is that the landlord is the owner to the extent of 25% share in the demised premises, whereas the demised premises is owned by other two co-owners also to the extent of 50% and 25% share each, therefore, it violates Rule 14 of the Chandigarh (Sale of Sites and Buildings) Rules, 1960 [for short “Rules”] which have been framed under the Capital of Punjab (Development & Regulation) Act, 1952. His submission is that the tenancy cannot be fragmented and since the landlord is owner to the extent of only 25% share, therefore, he cannot seek eviction of the tenant from 25% share of the demised premised by fragmenting the tenancy. In reply, learned counsel for the respondent has argued that the revision petition deserves to be dismissed with exemplary costs as the petitioner has overreached this Court by citing an overruled judgment at the time of notice CR No.260 of 2011 (O&M) -4- ***** of motion. Secondly, it is submitted that the petitioner being a nationalized bank should not have raised frivolous objection much-less relying upon an overruled judgment in order to get an order of notice of motion and stay from this Court. He submits that insofar as the zimni order dated 19.07.2010 is concerned, that has been dealt with by the learned Rent Controller in the impugned order itself since the leave to defend has not been granted. It is submitted that by permitting the petitioner the certified copy of the original documents and the passport etc. would otherwise have meant that the leave to defend has been granted for the purpose of trial. Learned counsel for the respondent also submits that insofar as the question of maintainability of the eviction petition by the landlord, who is a co-owner in the demised premises, is concerned, that issue has already been decided by the Division Bench of this Court in Civil Revision No.4025 of 2006 titled as `Smt. Bachan Kaur and others V. Kabal Singh and another' decided on 26.04.2011 and the question which has been raised by learned counsel for the petitioner by relying upon the case of MRF Limited and another (supra) that has been decided by the Full Bench of this Court in Civil Revision No.1493 of 2010 titled as `Anwar Ali V. Gian Kaur' decided on 09.11.2010. He also relies upon a decision of this Court in the case of Punjab National Bank V. Sh. Nirmal Singh, 2010(3) P.L.R. 255 to contend that on raising frivolous issue by a nationalized bank, this Court had dismissed the revision petition with costs of `10,000/-. I have heard both the learned counsel for the parties and perused the available record with their able assistance. Admittedly, notice of motion was issued in this revision petition by this Court on 18.01.2011, prima facie, believing the petitioner that the decision of the Single Bench of this Court rendered in the case of M.R.F. Limited and another (supra) is still in vogue which was decided on 04.05.2009, whereas the said judgment was reversed by the Full Bench of this Court as not a good law on 09.11.2010 in Anwar Ali's case (supra), but still this judgment was cited by learned counsel for the petitioner on 18.01.2011. Apparently, learned counsel for the petitioner has tried to overreach the Court by citing an overruled judgment. CR No.260 of 2011 (O&M) -5- ***** Now insofar as the argument raised by learned counsel for the petitioner about fragmentation of tenancy is concerned, even that argument was not raised by the tenant before the learned Rent Controller as is evident from the impugned judgment wherein the only argument raised was with regard to the maintainability of the eviction petition by an NRI co-owner/landlord, which has now been settled by the Division Bench of this Court in Smt. Bachan Kaur and others' case (supra) and in the present revision petition, the argument has been raised about fragmentation of the tenancy, but the learned counsel for the petitioner miserably failed to point out before this Court that the said plea was ever raised before the learned Rent Controller and the same was not decided by it. It appears that all efforts have been made by the petitioner/tenant to mislead this Court even at the stage of notice of motion or even at this stage when the case was argued today. In view of the above discussion coupled with the fact that I do not find any error in the impugned order passed by the learned Rent Controller, the present revision petition is found to be an act of overreaching the Court which calls for an imposition of the costs of `1,00,000/- [Rupees One Lac] upon the petitioner/tenant, which shall be paid to the landlord within 30 days from the date of receipt of certified copy of this order. May 03, 2011 (Rakesh Kumar Jain ) vinod* Judge