CR No.6444 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6444 of 2010(O&M) Date of decision: 8.7.2011 Piara Lal ......Petitioner(s) Versus Harwant Singh Grewal ......Respondent(s) CR No.6445 of 2010(O&M) Ram Lal ......Petitioner(s) Versus Harwant Singh Grewal ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vikas Bahl, Advocate for the petitioner(s). Mr. J.S. Puri, Advocate for the respondent. Rakesh Kumar Garg, J. This judgment shall dispose of two civil revisions i.e. CR No.6444 of 2010 and 6445 of 2010 as similar questions of law on similar facts have been raised. However, the facts are extracted from CR No.6444 of 2010 for convenience sake. Brief facts giving rise to this revision petition are that the respondent-landlord filed an application under Section 13-B of the East Punjab Rent Restriction Act, 1949 ( hereinafter referred to as “the Rent Act”) against the petitioner for his ejectment from the demised premises, which is a part of the shop, on the ground that on the basis of oral family settlement, the shop in dispute had fallen to his share and he was a Non- Resident Indian settled in USA and was owner of the shop in dispute for the last more than 5 years. He wants to return to India and to settle at Dhuri which is close to his native village. He requires the demised CR No.6444 of 2010(O&M) 2 premises for his own use and occupation and he does not own or possess any other building at Dhuri except the shop in dispute and the premises adjoining it under tenancy of Ram Lal (petitioner in CR No.6445 of 2010). Upon service, the petitioner-tenant appeared and filed an application for granting him leave to contest, on the ground that the petitioner was not an NRI and has gone to USA only to see his daughters and has got no intention to come back in India. The petitioner has no personal necessity as he has already set up his residence and clinic at village Gill, District Ludhiana and has no intention to settle at Dhuri at his native village as alleged. In fact, the present petition has been filed just to increase the rent or to sell the demised premises and thus, triable issues have been raised and the leave to contest be granted to the petitioner. The aforesaid application was contested by the respondent- landlord. The Rent Controller, Dhuri vide impugned order dated 30.7.2010 rejected the application declining the leave to contest to the petitioner and further directed him to hand over the vacant possession of the premises in dispute to the landlord within a period of three months from the date of order. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that a landlord is under legal obligation to plead and prove the ingredients of Section 13 of the Act seeking eviction on the ground of personal necessity and even if the Rent Controller refuses to grant leave to defend, still the landlord is to prove the ingredients of Section 13-B of the Act. Since in the present case the respondent-landlord has failed to prove his personal necessity, the impugned order is liable to be set aside. It is the further case of the petitioner that respondent -landlord in the present case is not proved to be an NRI and his casual visits to his relations in USA will not confer upon him the status of an NRI. CR No.6444 of 2010(O&M) 3 Moreover, the landlord has failed to prove that he is the owner of the premises in dispute and thus, the impugned order is liable to be set aside. On the other hand, Shri.J.S.Puri, learned counsel appearing on behalf of the respondent-landlord has taken this Court through the impugned order and has submitted that from the findings recorded by the Rent Controller, it is clearly established that the contentions raised by the petitioner are not tenable and are liable to be rejected at the outset. I have heard learned counsel for the parties. The respondent-landlord has filed the instant petition under Section 13-B of the Act for eviction of the petitioner from the premises in dispute on the ground that he is a Non Resident Indian and the owner of the building in question for the last more than 5 years and the same is required for his personal necessity. He has also stated that he has got no other building at Dhuri. The aforesaid petition filed by the respondent-landlord is required to be disposed off in the manner indicated under Section 18-A of the Act. From the perusal of the provisions of Section 13-B and 18-A of the Act, it is clear that to get a building vacated, the NRI landlord is required to prove that; (i) He is Non Resident Indian; (ii) He has returned to India permanently or for a temporary period; ] (iii) Requirement of accommodation by him is genuine and; (iv) He is owner of the property for the last five years before the institution of the proceeding for the ejectment before the Rent Controller. CR No.6444 of 2010(O&M) 4 The Hon'ble Supreme Court of India in Baldev Singh Bajwa versus Munish Saini,2005(2) RCR 470, has held that a tenant is entitled to leave to contest only if he makes out a strong case to show that landlord is not an NRI; he is not owner of the premises; he is not owner for the last five years before institution of the proceedings; his requirement is not bonafide and is a pretext to get an accommodation vacated. In the application for leave to contest, the petitioner has alleged that landlord is not an Non Resident Indian and he has gone to USA only to meet his relations. The aforesaid contention of the petitioner did not find favour with the Rent Controller in view of the fact that undisputedly, respondent-landlord had been granted a permanent resident status in USA/Canada. The copy of the passport, which is on the record, clearly shows that the respondent-landlord has been granted status of permanent resident by the USA Authorities. The petitioner has failed to prove that the respondent-landlord was not an NRI. In fact, before this Court, the fact that petitioner is an NRI has not been disputed. What has been argued before this Court is that respondent-landlord has failed to prove that he was the owner of the premises in dispute for the last five years before the institution of the proceedings. Learned counsel for the petitioner has tried to support his argument submitting that there is no document of title placed on record of the case by the respondent-landlord, even to prima facie hold, that he is the owner of the premises in dispute. According to him, the rent note dated 15.3.1978 between the parties and tax assessment register of the Municipality are not documents of title. The contention raised on behalf of the petitioner is misconceived. Admittedly, the rent note dated 15.3.1978 has been executed by the petitioner himself wherein he has admitted the respondent as owner and landlord of the premises in dispute. The petitioner cannot be allowed to resile from the CR No.6444 of 2010(O&M) 5 aforesaid admission made in favour of the respondent-landlord. Not only this, even before this court, the respondent has placed on record judgment dated 30.7.1992 passed in Civil Suit No.138 of 5.3.1991 wherein a declaration has been granted regarding the ownership of the suit property, as a co-sharer, alongwith others, in favour of the respondent-landlord. Counsel for the petitioner could not point out any evidence on record to controvert the aforesaid facts. In view of the aforesaid facts, the finding that respondent was an NRI landlord and owner of the demised premises for the last more than five years before the institution of proceeding, cannot be found faulted with. Faced with this situation, learned counsel for the petitioner has further argued that the bonafide requirement of the landlord to possess the demised premises for his personal use and occupation is not proved on record as the respondent does not want to come back to India and has no intention to settle at Dhuri. As per the judgment of the Hon'ble Supreme Court in Baldev Singh Bajwa's case (Supra), it was for the tenant-petitioner to show that the landlord's requirement was not bonafide and is only a pretext to get it vacated. The burden lies on the tenant to prove that the requirement of the landlord is not genuine and he was supposed to give necessary facts and particulars supported by the documentary evidence in the affidavit to establish that the requirement of the landlord was not genuine. The mere assertion of the petitioner-tenant would not be sufficient to rebut the presumption in favour of the landlord that his requirement was real and genuine. It is a settled law that the allegations made by NRI/landlord of his requirement shall be presumed to be genuine and bonafide, unless rebutted by the tenant by cogent and material facts and evidence in support, thereof, at the stage of leave to contest. Before the Rent CR No.6444 of 2010(O&M) 6 Controller, no such documents and material facts have been produced on record by the petitioner-tenant to show that need of the landlord was not genuine and bonafide. It is also useful to refer to the observations of the Hon'ble Supreme Court in Baldev Singh Bajwa's case ( supra) which read thus. “Under this section the owner who recovers the possession of the building by virtue of the order passed under section 13-B shall neither transfer it either by sale or by any other mode nor he shall let it out for the period of five years from the date he took possession of the building. In case there is a breach on the part of the owner who take the possession of the building, of any of the conditions, the tenant who had been evicted would be entitled to apply to the Controller for an order directing that the tenant be restored back possession of that building and on such a petition being moved, the Controller would pass an appropriate order. Apart from the restriction which is imposed by sub-section (3) of Section 13-B on the landlord's right to deal with the building of which he took possession under the provisions (4) 13-B, a further restriction has been imposed on the landlord under section 19(2-B) of the Act of 1949. Section 19(2-B) contemplates that when the order for possession is being passed in favour of the owner-landlord under section 13-B, he is required to occupy the premises continuously for the period of three months from the date of eviction of the tenant. He is prohibited from letting out the whole or any part of that CR No.6444 of 2010(O&M) 7 building from which the tenant was evicted to any other person except section 13-B. In contravention of these restriction, the landlord is liable for a penal action and can be imposed punishment of imprisonment for a term which may extend to six months or with fine which may extent to rupees one thousand or with both.” Thus, it is clear that there are restrictions imposed upon the landlord for alienating the premises again and the tenant can approach the Rent Controller. Lastly learned counsel appearing on behalf of the petitioner has vehemently contended that even if the petitioner is held not entitled to leave to contest, still his eviction from the demised premises cannot be ordered straightway without leading any evidence on the part of the respondent-landlord in support of his averments for eviction. Again the argument raised by the learned counsel for the petitioner is misconceived in view of the provisions of Section 18-A which read thus: “(4) The tenant on whom the service of summons has been declared to have been validly made under sub- section (3), shall have no right to contest the prayer for eviction from the [residential building or scheduled building and/or non-residential building], as the case may be, unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the specified landlord or, as the case may be, the widow, widower, child, grandchild or the CR No.6444 of 2010(O&M) 8 widowed daughter-in-law of such specified landlord [or the owner, who is a non-resident Indian] in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction of the tenant.” From the aforesaid provision, it is clear that in case the leave to defend is declined to the tenant, the statement of facts mentioned in the eviction application of such a landlord shall be deemed to be admitted by the tenant and the landlord shall be entitled to his eviction. In view of the aforesaid discussion, there is no merit in the revision petitions. Dismissed. July 8, 2011 (RAKESH KUMAR GARG) ps JUDGE CR No.6444 of 2010(O&M) 9 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6445 of 2010(O&M) Date of decision: 8.7.2011 Ram Lal ......Petitioner(s) Versus Harwant Singh Grewal ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vikas Bahl, Advocate for the petitioner(s). Mr. J.S. Puri, Advocate for the respondent. Rakesh Kumar Garg, J. For orders, see judgment of even date passed in CR No.6444 of 2010 (Piara Lal Versus Harwant Singh Grewal). July 8, 2011 (RAKESH KUMAR GARG) ps JUDGE