IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3929 of 2005 Date of Decision : 9.2007 Paramjit Kaur …. Petitioner Vs. Gurcharan Singh Walia …. Respondent Present: Mr.B.R.Mahajan, Advocate for the petitioner, Mr.Munishwar Puri, Advocate with Ms.Deepali Puri, Advocate for the respondent. Vinod K.Sharma, J. The present revision petition has been filed against the order dated 31.5.2005 passed by the learned Rent Controller, Tarn Taran dismissing the application moved by the petitioner for leave to defend and thereby allowing petition filed under Section 13-B of the East Punjab Urban Rent Restriction Act, as amended in the year 2001 (hereinafter referred to as the ‘Act’) and order of ejectment has been passed against the tenant-petitioner. The respondent-landlord filed a petition under Section 13-B of the Act seeking immediate possession of the shop situated opposite to Civil Hospital Tarn Taran. The petitioner claimed that he is Non Resident Indian (NRI) as defined under Section 2 (dd) of the Act and therefore, was entitled to immediate possession of the demised shop under the provisions of Section 13-B of the Act. It was claimed that he was born in India and thereafter, shifted to United States of America (in short U.S.A) and he has now returned to India. It was claimed by him that the permanent resident card and social security card have been issued in his favour by the USA. CR No.3929 of 2005 - 2 - He claimed that he was exclusive owner of the demised shop on the basis of sale deed dated 25.5.1963 and on the basis of family settlement dated 3.12.1985 which was part of the building situated in the area of Amritsar Road opposite Civil Hospital, Tarn Taran. Thus it was claimed that he was exclusive owner of the building including the demised premises for the last more than five years. The shop in dispute was taken on rent by the petitioner-tenant and a rent note was executed on 27.4.1995. The rent was fixed at Rs.600/- per month. The rent was said to have been decreased to Rs.500/- p.m. thereafter by way of another rent note dated 17.7.2001. The ejectment was sought on the ground that the demised premises was required for bona fide use by the landlord-respondent for carrying on his own business as he intends to return to India and start business in the demised shop. On presentation of petition, the learned Rent Controller by way of order dated 29.9.2004 was pleased to order issuance of notice to the petitioner-tenant in prescribed proforma for 27.10.2004. However, in spite of this order, summons were not issued in the proforma prescribed under Schedule II but by way of ordinary process. It was on account of this that when the respondent-tenant appeared, time was sought for filing reply and the case was adjourned to 17.11.2004. Even on 17.11.2004, written statement was not filed and application under Order 11 Rule 14 CPC for production of original passport of landlord was filed. The case was accordingly adjourned to 30.11.2004. On 30.11.2004, original documents were shown to the counsel for the respondent-landlord and a direction was issued to furnish the copies of the same to the counsel for the tenant- petitioner and it was ordered that reply to the main petiton was to be filed CR No.3929 of 2005 - 3 - on 17.12.2004. Again on 17.12.2004, reply to the main petition was not filed and the case was adjourned to 14.1.2005 subject to payment of Rs.70/- as costs. It was on 14.1.2005 that written reply was filed and costs were paid. The case was adjourned for filing rejoinder, reconciliation and statements of parties before framing of issues. Again on 18.2.2005, rejoinder was not filed, rather application was moved under Section 18-A of the Act for seeking order of ejectment. The case was adjourned for filing of reply to the said application. However, it was only on 18.3.2005 that the reply to the application moved under Section 18-A was filed alongwith affidavit seeking leave to defend. After obtaining reply to the said application, the learned Rent Controller dismissed the application for leave to defend and ordered eviction of the petitioner-tenant. It may be noticed here that till 18.3.2005, learned counsel for the parties as well as the court, were treating the petition to be one under Section 13 and not 13-B of the Act. It was only on the moving of the application under Section 18-A by the landlord, it came to the notice that in fact the petition filed under Section 13-B had to be tried in a summery manner. The learned Rent Controller dismissed the application by observing that the application alongwith affidavit for leave to defend was filed on 18.3.2005 i.e. very much beyond the time prescribed for filing the same which is 15 days from the date of service of summons. However, the learned Rent Controller also declined the leave to defend on merit. The learned Rent Controller came to the conclusion that in view of the copies of the passport, permanent resident card and social security card issued in his favour by the USA, the petitioner-landlord is to be treated as NRI as defined under Section 2 (dd) of the Act. The Court also came to the CR No.3929 of 2005 - 4 - conclusion that it was not open to the petitioner-tenant to challenge the ownership of the landlord as admittedly a rent note was executed in his favour by treating him as an exclusive owner of the demised shop. The Court also came to the conclusion that premises was bona fide required by the respondent-landlord and thus, the plea raised for leave to defend was rejected and an order of ejectment was passed. The petitioner-tenant sought leave to defend on the ground that the landlord was not an NRI and therefore, application was not maintainable; that respondent-landlord has no right to file application under Section 13-B of the Act as requirement of the shop in dispute was not bona fide. It was also claimed that the landlord- respondent has filed many applications under Section 13 of the Act against the various tenants including husband of the petitioner-tenant, details whereof, were given in the said application. It was also claimed that the landlord has been letting out premises to different tenants. Application was also moved in this court to place on record such lease deeds executed by the respondent-landlord in favour of different tenants. Mr.B.R.Mahajan, learned counsel appearing on behalf of the petitioner has challenged the order passed by the learned Rent Controller by contending that in view of facts brought on record, the respondent- landlord could not be treated to be NRI. The contention of learned counsel for the petitioner was that provisions of Section 13-B of the Act, were added by way of Ordinance to the Act on 27.12.2000, and Amendment Act was enforced on 31.5.2001. The premises on rent was given to the petitioner after the date of enforcement of Section 13B of the Act. It was the case of the petitioner that respondent-landlord went to U.S.A. on 18.10.2003 and the present petition was filed on 29.9.2004 showing his CR No.3929 of 2005 - 5 - desire to come back to India and start business. Learned counsel for the petitioner made a reference to Section 2(dd) of the Act which reads as under:- “2(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;” The contention of the learned counsel for the petitioner therefore, was that once a long stay in abroad is not proved, the person cannot be said to be an NRI. The contention of the learned counsel for the petitioner was that as the petitioner shifted to USA on 18.10.2003 and his desire to return in less than a year cannot bring him in the definition of NRI as defined under Section 2(dd). In view of object and reasons of introductions of new provisions which reads as under:- “The State Government had been receiving representations from various NRIs individuals and through their associations highlighting the plight of Indian residents returning to India after long years abroad. It was represented that the NRI having spent long years of their life abroad did not find conditions congenial in their own country on their return either to settle down or to take up any business. On account of rigid legal provisions of existing rent laws, the NRI were unable to recover possession of their own residential building from the tenants. Government having considered the situation had decided that the existing Rent Legislation viz. East CR No.3929 of 2005 - 6 - Punjab Urban Rent Restriction Act 1949 should be amended to provide relief of NRIs to enable them to recover possession of a residential or scheduled building and/or one non residential building for their own use.” This contention of the learned counsel for the petitioner cannot be accepted as the respondent-landlord produced on record the passport entries showing his departure to USA. He also placed on record permanent resident card and social security card issued by U.S.A. in his favour. These documents clearly show that the intention of the landlord was to stay outside India for uncertain period, otherwise there was no necessity for the respondent-landlord to get permanent resident card and social security card, merely because he chose to come back at an earlier date for want of adjustment can not take him out of category of NRI as he satisfied the conditions laid down under Section 2(dd) of the Act. There is no force in the first contention raised by the learned counsel for the petitioner. No advantage can be taken of object and reasons, as the words in statute are clear and un-ambiguous, therefore, have to be interpreted as such. The learned counsel also challenged the finding of the Rent Controller in treating the application for leave to defend to be barred by time. The contention of learned counsel for the petitioner was that in the present case, the summons, as envisaged under Schedule II, was not issued and in absence thereof, it could not be said that the application filed was barred by limitation. The contention of learned counsel was that no period is prescribed under the Act for filing application for leave to defend. The period of 15 days in fact has been prescribed under Schedule II and therefore, in order to non-suit a person on the ground of limitation, it is CR No.3929 of 2005 - 7 - incumbent to prove on record the service of summons in Schedule II which is statutory. This plea of learned counsel for the petitioner has been controverted by Mr.Munishwar Puri, appearing with Ms. Deepali Puri for the respondent, by placing reliance on the judgment of this Court in the case of Narinder Singh vs. Kirpa Singh and others, 2006(3) RCR (Civil) 732 wherein it has been held as under:- “para 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 barred. Learned Rent Controller further relied upon the judgment in Gursharan Singh v. Satpal, 1991(2) RCR 546 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 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 produced on record showing the landlord to be NRI and by holding that the landlord fulfilled the following CR No.3929 of 2005 - 8 - 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 landlord-respondents were owners of the building for more than 5 years and that right was availed only once during their life time.” However, on consideration of the matter, I find force in the contention raised by the learned counsel for the petitioner. As observed above, till the filing of the application under Section 18A of the Act, the parties as well as the Court were proceeding with the matter as if the petition was filed under Section 13 of the Act. Statutory summons were not served in prescribed form, thus there was no valid service under Section 13-B of the Act, thereby, the application for leave to defend could not be said to be time barred. The reliance placed by the learned counsel for the respondent on the judgment of this Court in Narinder Singh’s case (supra) is misconceived as in the said case it has not been held that in absence of service of statutory summons also, the petition is to be treated as time barred, rather in the said case, it was observed that the petitioner can have no grievance for non service of summons in Schedule II as plea for leave to defend was considered on merit. The situation in the present case practically is also the same, as besides holding the application to be beyond limitation, the learned Rent Controller, in fact, has considered the pleas of the petitioner on merit. The learned counsel for the petitioner, thereafter contended that the respondent-landlord did not need the premises bona fide as he had failed to mention what business he intended to do.Furthermore, the fact CR No.3929 of 2005 - 9 - that the respondent-landlord has been letting out the premises to other tenants from time to time clearly shows that the need is not bona fide. However, this plea of the petitioner also cannot be accepted as nothing has been brought on record to show that any premises has been let out by the respondent-landlord after filing the present petition i.e. on 29.9.2004. The Hon’ble Supreme Court in the case of Baldev Singh Bajwa vs. Monish Saini, JT 2005 (12) SC 442 has been pleased to lay down as under:- “On the interpretation given by us and on a plain reading of the provisions, once in a lifetime 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 13B of the Act. The Controller’s power to give leave to contest the application filed under Section 13B circumscribed to the grounds and inquiry to the aspects specified in the Section 13B. 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 13B and no other aspect shall be considered by the Controller.” In the present case, landlord has been able to prove that he is a non resident Indian that he has returned to India and he required his CR No.3929 of 2005 - 10 - accommodation for running his own business and further he was owner of the property for the last five years before the institution of the present proceedings. Therefore, the order passed by the learned Rent Controller being in consonance with the law laid down by Hon’ble Supreme Court in Baldev Singh Bajwa case (supra), does not call for any interference in this revision petition. Accordingly the revision petiton is dismissed. [Vinod K.Sharma] Judge .09.2007 sd