CR No.3366 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3366 of 2009(O&M) Date of decision: 1.6.2009 Mukand Lal Bawa ......Petitioner Versus Satwant Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: None for the petitioner. * * * Rakesh Kumar Garg, J.(Oral) CM No.13870-CII of 2009 CM is allowed subject to all just exceptions. CM No.13871-CII of 2009 CM is allowed. Annexures P-1 to P-4 are taken on record. CR No.3366 of 2009(O&M) Despite the fact that the present revision petition has been filed during the vacations showing urgency in the matter yet no one has chosen to argue the case on behalf of the petitioner. This is landlord's revision petition challenging the impugned order dated 24.4.2009 (Annexure P-4) passed by Sh.Ajaib Singh, Addl. Civil Judge (Sr. Division), Amritsar exercising the powers of Rent Controller Amritsar whereby the respondent-tenant has been granted leave to defend the eviction application filed against him. As per the averments made in this petition, the petitioner is a non-resident Indian and is the landlord of the demised premises. He came to India to get the demised premises vacated for himself and his family members. It is averred that the eviction application was being filed through his General Power of Attorney holder Sh. Nand Kishore Bawa, as CR No.3366 of 2009(O&M) 2 the petitioner was unable to look after the proceedings of the eviction petition. It is further stated in the eviction petition that the petitioner became the full owner of the property measuring 75 sq.yards and building constructed thereon situated at Partap Bazar, Amritsar on 29.2.1992 when other co-sharers executed a registered gift deed dated 28.2.1992 of their respective shares in favour of the petitioner who was already owner of 1/8th share in the said property. It is also averred that the family of the petitioner consists of petitioner himself, his wife and two sons. His wife and one son are residing at village Ghuman, Tehsil Batala, Distt-Gurdaspur and are fully dependent upon the petitioner. It is further averred that the petitioner has got no other property in the urban area of the Amritsar and he is in possession of one room measuring 12' .6' x 16' situated on the first floor of the property in dispute which is not sufficient for his needs. The respondent became tenant under the petitioner in the demised premises after the death of father of the petitioner comprising of one room measuring 12'.6' x 11' on the second floor at a monthly rent of Rs.30/- and therefore, the relationship of landlord and tenant exists between the parties. The eviction of the respondent was sought on the following grounds: “i) The respondent has neither paid nor tendered for payment of the arrears of rent w.e.f. 1.11.1995 onwards till date @ Rs.30/- per month despite repeated requests and demands made by the petitioner from time to time. ii) That the petitioner is an Indian Origin and is presently working at Kuwait at the address given above and hence non-resident Indian i.e. NRI. iii) That the petitioner came to India and needs CR No.3366 of 2009(O&M) 3 immediate possession of the demised shop for himself and his family members for residence and other purposes; iv) That the petitioner is exclusive owner of the property in dispute since 28.2.1992.” The respondent filed an application for leave to defend on the following grounds:- “i) The applicant/landlord is not entitled to file the ejectment application under provisions of 13B of the East Punjab Urban Rent Restriction Act because it is not framed in accordance with the Act. Under Section 13-B(i) it is clearly written 'where an owner is a non- resident Indian and returns to India and the building let out by him or her. In this case the applicant has not returned to India, nor he had given exact date of his return to India and is living in Kuwait, employed there nor he let out the demised premises to the respondent. ii) That the demised premises is not required by him for his use or his family members as he himself written in application that his one son is living with him in Kuwait and other son is living in Gurdaspur. His son is not dependent upon him and is living separately and doing separate business/service and her mother is living with him. iii) That the demised building is very small building of area of 70 sq.yards and is old building and there are three tenants in this building. The applicant has filed three ejectment applications, and in one application CR No.3366 of 2009(O&M) 4 permission to leave to defend has been granted and all the applications are to be entertained at one time and decided with one order. iv) That applicant in order to evict the tenant had forged and prepared alleged will copy not provided, gift deed dated 28.2.1992 taking benefit of his NRI status. The factum and validity of the alleged will, gift deed is denied. The applicant has not intentionally produced original will, nor supplied copy of the same.” The aforesaid application for leave to defend was contested by the petitioner by filing reply making following submissions: i) This sub para of the applicant is denied being incorrect. The petition of the landlord is in accordance with section 13-B(i) of the Act and the respondent/landlord petitioner returned to India to sign the petition as well as the power of the attorney given to the counsel and that is sufficient proof for return to India. It is also proved that the landlord/petitioner is the full-fledged owner in view of the gift deed dated 28.2.1992 and the applicant-tenant became the tenant under the petitioner landlord after his father's death. ii) This sub para of the application is denied. The landlord is residing at Kuwait alongwith his son and is likely to retire in the near future. The wife and the other son of the landlord are living in the village who are dependent upon the landlord/petitioner. The applicant is not entitled to get the leave to defend in the case and the plea taken by him is vague and baseless. CR No.3366 of 2009(O&M) 5 iii) It is admitted that the building stands with an area of 70 square yards and there are three tenants in this building including the present tenant. It is also admitted that the applications of the tenants are pending in different courts. It is specifically denied that one application to defend has already been granted by the court as alleged. There are different applications, therefore, it is not necessary that all the applications should be decided with one order as alleged by the applicant-tenant. One of the applications is pending in the court of Sh. S.M. Garg, Rent Controller cum Civil Judge (Jr. Division), Amritsar against Krishan Kapoor tenant and the date fixed in the said case is 26.4.2006 for consideration of the application of the tenant to get the leave to defend. iv) This is denied that there is any Will as alleged. The certified copy of the gift deed dated 28.2.1992 and the passport of the respondent/landlord/petitioner and the letter of employment of the landlord/petitioner at Kuwait obtained from Kuwait are annexed herewith. The certified copy of the general power of attorney given by the landlord to his brother Nand Kishore is also annexed.” After considering the submissions made by the parties, the Rent Controller, Amritsar vide impugned order granted leave to defend to the respondent. The aforesaid impugned order has been challenged by the petitioner by raising following grounds: CR No.3366 of 2009(O&M) 6 i) That it is established on record that the petitioner/landlord is NRI. He has come to India and he wants to occupy the property of which he is in possession of only one room at the first floor. He does not own any other property in the urban area of Amritsar. In this way, all the criteria prescribed in the Act are fulfilled by the petitioner/landlord. ii) That the present application for leave to defend was not filed within the specified period and as such is liable to be dismissed on this short ground alone. The tenant has not given any ground or reason for giving him permission to defend the case. The tenant has not alleged any malafide from the landlord and even no bonafide ground to contest the main application. iii) That the ld. Trial Court has not gone through case of Baldev Singh Bajwa Vs. Monish Saini, wherein the Hon'ble Supreme Court has set up a case law regarding ejectment of tenant and plea to contest the case on the plea of bonafide need by the NRI. The certificate of the NRI in respect of the petitioner is on the file. Other documents relating the said aspect is on the file and there is no ground to allow the application filed by the respondent. As such, the impugned order (P-4) is liable to be set aside. iv) That in the present case the main application was filed on 28.11.2005. Notice of the service to the respondent on the main application was issued for 23.3.2006. Service of summons was received on CR No.3366 of 2009(O&M) 7 1.12.2005 but the tenant appeared before the Hon'ble Court on 23.3.2006. Instead of submitting application within time specified under the Act, the tenant has come to the Court by his own whims and fancies. v) That alongwith this petition one another petition is also being filed and in both the said petitions, both the tenants are in possession of one room each for residential purposes and they are using each for residential purpose. In this way, all these petitions are filed to get sufficient accommodation. I have perused the record of this revision petition. While passing the impugned order, the Rent Controller observed as under:- “The ignorance of law is no excuse but the circumstances of the present case are favouring the stand of the respondent for the purpose of allowing the application in hand especially on account of allowing similar application in 3rd application filed by the applicant against the 3rd tenant by other Rent Controller conducting proceeding of the said application filed on the similar ground by the applicant against 3rd tenant. Therefore, the contention of the learned counsel for the applicant to decline the said application in hand is not found to be sustainable in view of over all circumstances of the present case. Thus, the application in hand is allowed. Now to come up on 22.5.2009 for filing written reply to the main application by the respondent.” CR No.3366 of 2009(O&M) 8 This Court in the case of Surinder Chopra v. Harbans Kaur 2008(3) RCR (Civil) 315 has held as under:- “The Rent Act postulates that a High Court may, in the exercise of power under Section 15(5) of the Act, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality of propriety of such an order of such proceedings. Power under Section 15(5) of the Act, in the nature of revisional jurisdiction is limited to an appraisal of impugned orders or proceedings so as to discern any error of jurisdiction, infraction of law or such perversity in the process of reasoning as has led to a miscarriage of justice. Where an impugned order does not suffer from any of the above disabilities, this Court would be justified in refusing to entertain a revision petition.” Undisputedly, the landlord has filed other eviction applications against the other tenants in the different parts of the same building. Since in another eviction application filed by the petitioner on similar grounds the leave to defend has been permitted, I find no reason to interfere in the impugned order on this ground alone. No merits. Dismissed. June 1, 2009 (RAKESH KUMAR GARG) ps JUDGE