Civil Revision No.8131 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.R. No.8131 of 2010(O&M) DATE OF DECISION : 3.1.2011 Anita Sood and others PETITIONERS VERSUS Manjit Singh RESPONDENT CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri Chetan Mittal, Senior Advocate with Shri Vishal Garg, Advocate for the petitioners. Shri Kanwaljit Singh, Senior Advocate with Ms.Sukhwinder Kaur, Advocate for the respondent. MAHESH GROVER, J. This is a tenant's revision petition directed against the order of the learned Rent Controller, by which the leave to defend to contest the proceedings initiated by the respondent/landlord under Section 13(B) of the East Punjab Urban Rent Restriction (Amendment)Act, 2001 (hereinafter referred to as the Act) has been declined. The respondent/landlord pleaded that he is a person of Indian origin and a non-resident Indian having acquired Canadian citizenship and that he Civil Revision No.8131 of 2010 -2- is the owner of House No.56, Sector 11-A, Chandigarh (demised premises) which was on rent with the petitioner and her late husband. The husband of the petitioner having died, the tenancy rights have devolved upon all the three petitioners who are the legal heirs of deceased Abhay Sood. They have been paying rent at the rate of Rs.2500/- per month excluding water and electricity charges. It was further the case set up by the respondents that the demised premises were purchased by him vide sale deed dated 30.12.1971. That now he required the same for his bona fide use and occupation as he has decided to return to India and settle down here. In response to this petition, the respondent filed an application for leave to defend and stated therein that the respondents had earlier filed civil suit for ejectment of the petitioner and Late Abhay Sood which was withdrawn by him. It was admitted that respondent is a Canadian citizen and it was denied that he ever wanted to return to India. It was further pleaded that there are no triable issues which entitled the petitioners to seek leave to contest the petition. It was further pleaded that respondent has failed to prove that he is a non-resident Indian and his case falls within the ambit of Section 13(B) of the Act. It was denied that respondent had let out the premises to the petitioners. The premises was taken on rent by late Abhay Sood in the month of January, 1983 at a monthly rent of Rs.2000/-. Petitioner Anita Sood had been paying rent to Smt.Ajit Kaur, mother and general power attorney of the respondent. Later on late Abhay Sood started sending the rent by bifurcating the rent i.e. 1500/- and 1000/- per month. It was further pleaded that Anita Sood was having a separate tenancy than her husband and no rent petition has been filed against her. Abhay Sood was having a separate tenancy qua another portion of the house and after the death of Abhay Sood, the tenancy was inherited by Abhinav Sood and Ruchi Sood along with petitioner Anita Sood. It was thus sought to be projected that the tenancy being separate, a composite petition was not maintainable. Civil Revision No.8131 of 2010 -3- It was also pleaded that rent was being paid by cheques to Ajit Kaur and the respondent had never let out the premises at any point of time. It was lastly pleaded that the petition has been filed through a power of attorney which is not maintainable. The respondent filed reply to the application for leave to contest and explained that the civil suit which he had filed against the petitioner had become infructuous in view of the notification dated 7.11.2002 having been quashed by the Hon'ble Supreme Court which rendered that remedy redundant. The rest of the averments pertaining to the petitioner not being an N.R.I. and not intending to return to India were also denied and it was pleaded further that complete portion of House No.56, Sector 11-A, Chandigarh (demised premises) was taken on rent by late Abhay Sood in January, 1984 at a monthly of Rent 2000/- and this amount has been paid vide cheque dated 1.2.1984 and subsequent payments were also made through various cheques deposited by Ajit Kaur who is the mother and General Power of Attorney holder of the respondent in her saving bank account. It was also pleaded that there is ample correspondence between late Abhay Sood and Ajit Kaur with regard to payment of rent. Thereafter the rent was enhanced from Rs.2000/- to Rs.2500/- per month and it is Abhay Sood who subsequently bifurcated the rent by two different cheques of Rs.1500/- and Rs.1000/- respectively as per his own convenience. The tenancy being separate, was denied and it was lastly pleaded that since the mother and brother of respondent are residing in Chandigarh,, he intends to come back to Chandigarh and settle down permanently here. The Rent Controller went into the matter and declined the leave to defend the petition which is the cause of grievance in the instant petition. It has been contended by the learned counsel for the petitioner that the tenancy was split up in two parts and therefore, a composite petition could not Civil Revision No.8131 of 2010 -4- have been filed, and that in the application for leave to defend he had raised several issues which were debatable and triable and hence the Rent Controller was wrong in declining the prayer of the petitioner for leave to defend. He contended that it was specifically denied that the premises were ever let out by the respondent to petitioner Anita Sood or Abhay Sood and once this fact is denied, then it raises a triable issue. The petition has been filed by the power of attorney and has not been filed by the respondent in his own capacity. A challenge was also made to the issue that respondent is not an N.R.I. by making a reference to the notification dated 11.4.2005 issued by the Ministry of Home Affairs to say that under the provisions of the Citizenship Act, 1955, if a person is not registered as an Overseas Indian under Section 7-A of the Act, then he cannot be considered to be an N.R.I. and cannot avail any of the facilities available to him, economic, educational and financial. It was lastly pleaded that the plea of the respondent that the premises are required for his own personal use and occupation cannot be accepted and that his bona fide to return to India are also seriously in question and since these are the matters which should have been determined on the basis of evidence, the Rent Controller was wrong in declining the prayer for leave to defend. Reliance was placed on a judgment of this Court in Civil Revision No.5491 of 2008 titled Tejinder Singh v. Rajpal 2009(2) R.C.R. 361 wherein the tenant had sought leave to defend on the following grounds and it was observed by this Court as follows :- “1. Landlord was not NRI - He did not produce his passport. 2. Landlord was not owner for 5 years. 3. Shop was let by father of tenant and not by landlord. 4. Petition had been filed by Power of Attorney holder and not landlord himself 5. Held, grounds seeking leave to defend were not Civil Revision No.8131 of 2010 -5- flimsily- Leave to defend granted - Held - A Court that considers whether leave to defend shall be granted or not under Section 18 of Rent Act has to only see whether the defence is such that the landlord's petition for eviction could be depicted against him or that the defence is not a moonshine and it could be supported by appropriate evidence or legal propositions.” While placing reliance on a judgment of this Court in Basant Kumar v. Romesh Kumar Deora, 2008(1) R.C.R. (P&H) 296 it was sought to be projected that if a petition has been filed through a power of attorney, then the evidence of such an attorney cannot be relied upon. On the other hand, learned counsel for the respondent contended that all the ingredients as required under Section 13(B) have been made and since the application for leave to defend did not raise any triable issue, the leave to defend was rightly declined. Reliance was placed on a judgment of this Court in Charan Singh Malhi v. Smt.Ram Plari and another 2006(2) R.C.R. Rent 604, wherein this Court had held that where a tenant pleads that the landlord was a British citizen and had ceased to be an Indian citizens, and therefore, the Indian Laws were not applicable, such a plea was not tenable. Likewise, in Pritam Singh v. Dilbag Rai 2007(4) R.C.R.(Civil) 149, this Court held that it is not the requirement of law that premises should have been let out by the N.R.I. landlord himself. In Dharampal Sood V. Sarwan Singh and others 2006(1) R.C.R. 515, it was held by this Court that an Indian national acquiring Canadian nationality - He is an NRI and entitled to seek eviction of tenant under Section 13-B of the Rent Act. This Court further held in Ravinder Pal Mohindra v. Gurbachan Civil Revision No.8131 of 2010 -6- Singh and others 2006(2) R.C.R. 211 that petition was maintainable through the power of attorney and cannot be thrown out simply on this score. In Civil Revision No.1557 of 2008 M/s. Amrik Singh and Brothers & others v. Nirbhel Singh and another, it was held that it is not necessary that an N.R.I. has to return permanently to India to avail himself of the benefit of section 13(B) and that even if he expresses his desire to return to India, to have the premises vacated for his own requirement, that is sufficient. I have heard the learned counsel for the parties and perused the impugned judgment of the Rent Controller. The contention of the petitioner that tenancy was separate and therefore, a composite petition could not have been filed, is not acceptable. There is no rent note to this effect and it is the admitted case of the parties that the premises was let out to Abhay Sood and thereafter the tenancy was let out to Anita Sood and even otherwise, there is no bar to file a composite petition qua two tenancies, more so, when the tenants are closely related. There is evidence that the rent was being paid by Abhay Sood. The plea of the petitioner is thus, without any merit. In so far as the plea that the respondent is not an N.R.I., the same has also to be negated. Section 2(dd) of the Act clearly defines an N.R.I. which reads as under :- “(dd) “Non-resident Indian” means a person of Indian origin, who is either permanently or temporarily settled outside India in either case - (a) for or on taking up employment outside India ; or (b) for carrying on a business or vocation outside India ; or (c) for any other purpose, in such circumstances, as would indicate his intention to stay outside India for a uncertain period.” Civil Revision No.8131 of 2010 -7- The contention of the learned counsel for the petitioner that in view of the notification of the Ministry of Home Affairs dated 11.4.2005, a person not registered as an overseas citizen of India under Section 7(a) of the Act, is not entitled to parity with an N.R.I., is also misplaced. As per this notification, a person registered as Overseas Citizen of India under Section 7A of the Act shall be entitled to parity with Non-Resident Indians in respect of all facilities available to them in economic, financial and educational fields except in matters relating to the acquisition of agricultural or plantation properties. This notification deals with a different aspect altogether and is not attracted herein. In a judgment of the Hon'ble Supreme Court in Baldev Singh Bajwa v. Monish Saini 2005(2) R.C.R. (Civil) 470, the controversy with regard to N.R.I. has been elaborately dealt with and it was held as under :- “24. Definition of “Non-resident Indian” (NRI) under the Act contemplates that any person who is of an Indian origin, and who has settled either permanently or temporarily outside India for taking up employment ; or for carrying on a business or vocation outside India ; or for any other purpose in such circumstances as would indicate to stay outside India for an uncertain period, would be a Non-resident Indian. Thus to be an NRI, it is sufficient that a person of an Indian origin establishes that he has permanently or temporarily settled outside India for his business or on account of his employment, or for any other purpose which would indicate his intention to stay outside India for an uncertain period. Therefore, any person who has gone out of India and temporarily settled there for the purpose of undertaking certain course or degree of University would not be a NRI because his stay could not be said to be for an uncertain period. A person to be an NRI, first should be of an Indian origin. The phrase “Indian Origin” has not been defined in the Act of 1949. The dictionary and in ordinary parlance phrase “origin refers to person's percentage or ancestry. The person whose parent, Civil Revision No.8131 of 2010 -8- grant-parents, or great-grand parents were born in India and permanently resided in India would be an NRI for the purposes of the Act of 1949. It is not necessary that the person should be a citizen of India and shifted to the foreign country or that because he holds foreign passport he would not be NRI. In the appeals before us, there is no challenge that the landlords are not the NRIs within the meaning of the Act because they do not have the Indian origin. Submission of the learned counsel for the appellants is to bring the case within the four corners of Sections 2(dd) and 13-B of the Act of 1949, it is necessary that NRI has to return to India permanently. We are unable to agree with the interpretation of Sections 2(dd) and 13-B sought to be placed by the learned counsel. Return to India could not be read as return to India permanently with an intention to settle in India permanently. If we read the phrase “return to India” along with the definition of the “NRI” under Section 2(dd) of the Act, it is clear that the special category of landlords NRI could also be a person who has settled permanently outside India. Thus permanent resident outside being NRI can claim ejectment. 25. When we read Section 13-B along with the definition of the NRI it is apparent that the person who is a 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 a NRI should return to India and claim the premises for his/her use or for the use of any dependent 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. A NRI may require the accommodation for expansion of his business which he is carrying on in other country or requires the accommodation for his temporary stay. Under Section 13-B, a NRI can also claim ejectment of the tenant from the premises for the purposes of any other person who is dependent on him and is ordinarily living with him, which makes it clear that although a NRI resides permanently in Civil Revision No.8131 of 2010 -9- other country, he could get the accommodation vacated for the need of his dependent 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 submission made by the learned counsel that the words “return to India” under Section 13-B of the Act denote return to India permanently. 26. On the interpretation given by us and on a plain reading of the provisions, once in a life-time possession 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 returned 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 grounds 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.” In the same judgment, (Baldev Singh Bajwa's case supra), the Hon'ble Supreme Court held as under :- “19. From the aforesaid decisions the requirement of the landlord of the suit accommodation is to be established as genuine need and not a pretext to get the accommodation vacated. The provisions of sections 18-A(4) and (5) concede to the tenant's right to defend the proceedings initiated under Section 13-B showing that the requirement of the landlord is Civil Revision No.8131 of 2010 -10- not genuine and bona fide. The legislative intent for setting up of a special procedure for NRI landlords is obvious from the legislative intent which has been deliberately designed making distinction between the ordinary landlords and special category of landlords. The Controller's power to give leave to contest the application filed under Section 13-B is restricted by the condition that the affidavit filed by the tenant discloses such fact as would disentitle the landlord from obtaining an order for recovery of possession. It is needless to say that in the summary proceedings the tenant's right to contest the application would be restricted to the parameters of Section 13-B of the Act. He cannot widen the scope of his defence by relying on any other fact which does not fall within the parameters of Section 13-B. The tenant's defence is restricted and cannot go beyond the scope of the provisions of the Act applicable to the NRI landlord. Under Section 13-B the landlord is entitled for eviction if he requires the suit accommodation for his or her use or the use of the dependent, (who) ordinarily lives with him or her. The requirement would necessarily to be genuine or bona fide requirement and it cannot be said that although the requirement is not genuine or bona fide, he would be entitled to the ejectment of the tenants or it can be said that in no circumstances the tenant will not be (will be ?) allowed to prove that the requirement of the landlord is not genuine or bona fide. A tenant's right to defend the claim of the landlord under Section 13-B for ejectment would arise if the tenant could be able to show that the landlord in the proceedings is not NRI landlord; that he is not the owner thereof or that his ownership is not for the required period of five years before the institution of proceedings and that the landlord's requirement is not bona fide. 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 Civil Revision No.8131 of 2010 -11- 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 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 any contravention thereof, he shall be liable for punishment of imprisonment to the term which can be extended upto six months. These restrictions and conditions inculcate inbuilt 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 it out for a period of five years. Virtually conditions and restrictions imposed on the NRI landlords makes it improbable for any NRI landlord to approach the Court for ejectment of a tenant unless his need is bona fide. No unscrupulous landlord probably, under this section, 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 Civil Revision No.8131 of 2010 -12- 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 probabilities points to the genuine requirement of the landlord. In our view, there are inbuilt 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 bona fide ...... (Emphasis supplied).” It is the conceded case that the respondent was the owner of the property and had purchased it in the year 1973 and ever since, he has been dealing with the property through his mother who was his power of attorney. Ajit Kaur being his mother and power of attorney holder, was having such a relation that it cannot be said that she would not be knowing about the personal needs of the respondent and would not be well equipped with the facts while filing the present petition or deposing pursuant thereto. Besides, the petitioner and her late husband had throughout been paying the rent to Ajit Kaur who was the power of attorney holder of the respondent and thus, by their conduct, acquiesced to the acceptance of the fact that Manjit Singh is the landlord and Ajit Kaur was the power of attorney and was acting on his behalf. It is an accepted position of law that the Executor of power of attorney by way of acts done on behalf of the executor of the power of attorney is bound by the acts of the attorney. Likewise, a person who has dealt with the power of attorney on the strength of such a document, is also necessarily bound by his own conduct vis-a-vis the executor of such a