C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -1- C.R. Nos.1835 & 3085 of 2008 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 20.7.2010 1) C.R. No.1202 of 2006 (O&M) M/s Sharma Travels …Petitioner Versus Pritam Singh Malhi …Respondent 2) C.R. No.1203 of 2006 (O&M) M/s United Tiny Savings and Investments …Petitioner Versus Pritam Singh Malhi …Respondent 3) C.R. No.1204 of 2006 (O&M) M/s Gurbachan Singh and Sons …Petitioner Versus Pritam Singh Malhi …Respondent 4) C.R. No.1835 of 2008 (O&M) M/s Gurmeet Motors and another …Petitioners Versus Pritam Singh Malhi C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -2- C.R. Nos.1835 & 3085 of 2008 (O&M) …Respondent 5) C.R. No.3085 of 2008 (O&M) M/s Puri Travels and another …Petitioners Versus Pritam Singh Malhi …Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Rajeshwar Singh, Advocate (In C.R. Nos.1202-1204 of 2006) for the non-applicant(s)/petitioner(s). Mr. P.N. Aggarwal, Advocate for non-applicants/petitioners (In C.R. Nos.1835 & 3085 of 2008) Mr. Puneet Jindal, Advocate for the applicant(s)/respondent(s). 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. Tenants-revisionists in all the five cases have filed separate revisions before this Court under Section 15(5) of the East Punjab Urban Rent Restriction Act (for brevity ‘the Act’) challenging C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -3- C.R. Nos.1835 & 3085 of 2008 (O&M) the order of the Rent Controller under Section 13-B of the Act. In C.R. No.1202 of 2006, 1203 of 2006 and 1204 of 2006 impugned order is dated 19.11.2005 while in C.R. No.1835 of 2008 impugned order is dated 25.1.2008 and in C.R. No.3085 of 2008 impugned order is dated 20.3.2008. Since, in all the revision petitions landlord- respondent is the same and questions raised by learned Counsel for the revisionist(s) are same and identical, hence, with the consent of learned Counsel for the parties appearing in all the revision petitions, I propose to decide all the revision petitions by the common judgment. For the purpose of deciding the lis involved, I propose to take facts of the case from C.R. No.1202 of 2006. 2. Respondent-landlord/owner preferred a petition under Section 13-B of the Act for ejectment of the revisionist(s) from the portion of the first floor of building No.916 situated near Narinder Cinema, G.T. Road, Jalandhar City with the contention that applicant is the owner of the building; the said building is a double storeyed building; respondents are occupying the portion of the said building which has been shown in the site plan attached with the application; applicant is of Indian origin but later on he had settled in England, hence, he is an NRI; applicant is holding the British Passport; applicant has been owner as well as landlord of the tenanted premises for the period of five years preceding the filing of the application; applicant returned to India and wants to live at Jalandhar; C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -4- C.R. Nos.1835 & 3085 of 2008 (O&M) he intends to settle permanently at Jalandhar; he requires the premises in question for carrying on the business of readymade garments; he had been carrying on the business of readymade garments in England under the name and style “Malhis South Hall Leading Men’s & Children Wear Store”; he requires tenanted portion for his own use and occupation to carry on the business of readymade garments. 3. Tenant sought leave of the Court to defend the petition for eviction which was allowed vide order dated 23.8.2002; in reply, respondent-tenant had admitted the existence of relationship of landlord and tenant between the parties; petition of landlord was contested on the ground that landlord has been settled permanently in England and has adopted the British citizenship; petition for eviction has been filed with the motive of misusing the provision of Section 13-B of the Act to get the shop in question vacated for selling it for handsome price. It is further contended by the tenant that landlord has purchased the building only for commercial purpose and has invested the money earned in the foreign country for the purpose of selling the building on handsome price. The further case of tenant is that landlord has been permanently settled in England and he has no intention to return India. 4. Learned Rent Controller after considering entire material available on the file allowed the eviction petition filed by the C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -5- C.R. Nos.1835 & 3085 of 2008 (O&M) landlord/respondent herein. Learned Rent Controller has observed in the impugned judgment that landlord (respondent herein) is the NRI and he is the owner of the building for 5 years preceding the filing of the application. It has further been observed by the learned Rent Controller that landlord requires tenanted premises for his own use and occupation for the purpose of carrying on the business of readymade garments. Learned Rent Controller has also observed that landlord has returned to India and wants to carry on the business in India in the tenanted portion after getting it vacated. Feeling aggrieved from the impugned judgment, revisional jurisdiction of this Court is invoked by way of present petition. 5. All the learned Counsel appearing in all the revision petitions argued that during the pendency of eviction proceedings, in the month of August 2005, the tenanted premises occupied by M/s United Tiny Savings and Investment (revisionist in C.R. No.1203 of 2006) was vacated by M/s United Tiny Savings and Investment and thereafter it was let out by the landlord to M/s Sharma Travels (revisionist in C.R. No.1202 of 2006). It has further been argued that rent of portion under the tenancy of M/s United Tiny Savings and Investment was Rs.325/- per month while rent of the portion under the tenancy of M/s Sharma Travels was Rs.1000/- per month. It is further argued that after handing over the possession to M/s Sharma Travels of the portion under the tenancy of M/s United Tiny Savings C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -6- C.R. Nos.1835 & 3085 of 2008 (O&M) and Investment after getting it vacated from M/s United Tiny Savings and Investment, rent of M/s Sharma Travels was enhanced to Rs.1325/- from Rs.1000/-. It is further argued that if there had been any actual need of the landlord, the tenanted portion of M/s United Tiny Savings and Investment could have not been given to M/s Sharma Travels in tenancy after getting it vacated from M/s United Tiny Savings and Investment. The second argument advanced by learned Counsel appearing for revisionist(s) is that landlord/respondent never let out the property in question and it was in the tenancy of the tenants prior to the purchase of the building by the landlord, hence, Section 13-B of the Act can not be invoked by the landlord/respondent and Section 13-B of the Act can be invoked by that NRI who himself has let out the building; Third argument advanced by learned Counsel for the revisionist(s) is that in 1996, landlord had filed an eviction petition on the ground of his need which was dismissed on merit on 28.11.2000, hence, present application under Section 13-B is not maintainable and is barred by res judicata. The fourth argument of learned Counsel for the revisionist(s) is that landlord has absolutely no intention to shift to India, he is the casual visitor, hence, the requirement of Section 13-B on the ground that he has returned into India, is not fulfilled. 6. Learned Counsel appearing for the landlord-respondent argued that argument of learned Counsel for the tenant that C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -7- C.R. Nos.1835 & 3085 of 2008 (O&M) M/s United Tiny Savings and Investment (revisionist in C.R. No.1203 of 2006) had vacated the tenanted portion in the month of August 2005 which was later on given by the landlord in the tenancy of M/s Sharma Travels is a cooked up story. It is further argued by learned Counsel for the landlord/respondent that neither M/s United Tiny Savings and Investment has ever vacated the tenanted portion under his occupation nor landlord has ever let it out to M/s Sharma Travels. Learned Counsel for the landlord/respondent further argued that it is not at all necessary that landlord should have himself let out the property. His further argument is that it is also not necessary that landlord should shift permanently to India; If landlord wishes to establish business in India or wants to visit India, the requirement of Section 13-B is fulfilled. 7. In the present case, it is not disputed that respondent is the landlord/owner of the property in question for last five years preceding to the filing of the petition seeking eviction under Section 13-B of the Act. Landlord/respondent is an NRI is also not disputed. Relationship of landlord tenant between the revisionist(s) and respondent is also not in dispute. 8. From the perusal of the record, I find that all the revisionists have moved an application under Order 41 Rule 27 C.P.C. alongwith the revision petition seeking permission of this Court to lead additional evidence on the point that in the month of C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -8- C.R. Nos.1835 & 3085 of 2008 (O&M) August 2005, premises occupied by M/s United Tiny Savings and Investment (revisionist in C.R. No.1203 of 2006), was vacated, which was handed over to M/s Sharma Travels (revisionist in C.R. No.1202 of 2006) and rent of both the portions were being recovered/received by the agent of the landlord. 9. Undisputedly, M/s United Tiny Savings and Investment, one of the tenant, also filed revision petition i.e. C.R. No.1203 of 2006 on 27.2.2006 challenging its eviction. M/s United Tiny Savings and Investment also moved an application before this Court seeking stay of its dispossession. This Court vide order dated 23.3.2006 stayed the dispossession of M/s United Tiny Savings and Investment. It means that on the date of filing of the revision on 27.2.2006 and on the date of interim order staying dispossession of M/s United Tiny Savings and Investment on 23.3.2006, M/s United Tiny Savings and Investment (revisionist in C.R. No.1203 of 2003) was in possession. If M/s United Tiny Savings and Investment had vacated the property in the month of August 2005 as suggested by learned Counsel for the revisionist, then there was no occasion for M/s United Tiny Savings and Investment to file revision petition in C.R. No.1203 of 2006 and to obtain stay against the dispossession. Arguments advanced by learned Counsel for the revisionist(s) on this score are misconceived and against the record, which deserve to be rejected out-rightly. In the same way, application moved by the C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -9- C.R. Nos.1835 & 3085 of 2008 (O&M) revisionist(s) in all the cases under Order 41 Rule 27 C.P.C. to lead evidence on the above aspect is also misconceived and deserve to be rejected out-rightly, hence, are rejected. 10. Although there is no material available on the record to support the contentions of learned Counsel for the revisionist(s) that landlord had moved an application under Section 13 of the Act in 1996 which was dismissed by the Court, hence, present petition under Section 13-B of the Act is barred by res judicata, however, I propose to answer the arguments advanced by learned Counsel for the revisionist(s). 11. Undisputedly, Section 13-B of the Act was introduced in the Act w.e.f. 31.5.2001 giving special power to the NRI to evict the tenant summarily, if NRI needs the tenanted property for his or his dependent’s personal use and occupation. Filing of the petition under Section 13 of the Act and any decision thereon prior to the introduction of Section 13-B of the Act shall not make application under Section 13-B of the Act not maintainable, nor principle of res judicata shall be attracted for the simple reason that scope and ingredients required to be proved in both the provisions are distinct and different. 12. Word used in Section 13-B of the Act “let out by him or her” must be construed in the background of the object to induct Section 13-B of the Act. The object to introduce Section 13-B of the C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -10- C.R. Nos.1835 & 3085 of 2008 (O&M) Act is to provide special right to a Non Resident Indian who after returning India wants the tenanted property for use and occupation. “Let out by him or her” should be construed to mean that building belonging to an NRI under the tenancy of the tenant. If meaning to let out by him is restricted to mean that building should have been let out by the NRI himself then whole object of inducting Section 13-B of the Act would be frustrated. In that event, the NRI who has inherited the building under the tenancy of the tenant would never be entitled to invoke Section 13-B of the Act. Likewise NRI who has purchased the property in occupation of tenant can never get it vacated even if he has returned to India and requires it for use and occupation. 13. The Hon’ble Apex Court in the matter of Baldev Singh Bajwa vs. Monish Saini reported in (2005) 12 Supreme Court Cases 778 in paragraph No.23 has observed as under:- “23……..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 “NRI” under Section 2(dd) of the Act, it is clear that in the special category of landlords “NRI” could also be a person who has settled permanently outside India. Thus a permanent resident outside India being an NRI can claim ejectment.” 14. To invoke Section 13-B of the Act, it is not at all C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -11- C.R. Nos.1835 & 3085 of 2008 (O&M) necessary that NRI must return to India permanently. Even an NRI who is settled abroad if wants tenanted premises for his own use and occupation and for the use and occupation of his dependents ordinarily living with him, then he may invoke Section 13-B of the Act. In the present case, all the learned Counsel for the revisionist(s) admit that landlord keep on visiting India, however, he is casual visitor, while landlord’s specific case is that he has every intention to start business in the tenanted portion. Hence in my opinion, requirement of Section 13-B of the Act ‘returns to India’ is fulfilled. 15. The Hon’ble Apex Court in the matter of Baldev Singh Bajwa (supra) further observed in paragraph No.21 as under:- “21…..We hold that allegations made by the NRI landlord of his requirement shall be presumed to be genuine and bona fide unless rebutted by the tenant by placement of cogent and material facts and evidence in support thereof at the stage of “leave to contest” before the Controller. We feel that any other interpretation would completely whittle down and deny the tenant’s right to show and prove that the landlord does not in fact, or in law require the suit premises.” 16. Needs set up by the landlord shall be presumed to be genuine and bona fide unless rebutted by the tenant by placement of cogent and material facts and evidence. In the present case, tenants C.R. Nos.1202, 1203 & 1204 of 2006 (O&M) and -12- C.R. Nos.1835 & 3085 of 2008 (O&M) could not rebut strong presumption of bona fide need in favour of landlord. Arguments of learned Counsel for the tenants that landlord has let out the portion to M/s Sharma Travels which was earlier in the tenancy of M/s United Tiny Savings and Investment was found to be false and incorrect. Tenants failed to prove that landlord is having other premises at his disposal. No other point is argued. 17. Since revisionist(s) have taken incorrect and false stand about the fact that portion under the tenancy of M/s United Tiny Savings and Investment had been let out by the landlord to M/s Sharma Travels, hence, this Court is of the view that exemplary costs must be imposed on the revisionist(s). 18. Revision petitions are devoid of merit, hence, are dismissed with costs which is assessed to be Rs.25,000/- in each and every case. 19. A photocopy of this order be placed on files of connected cases. ( ALOK SINGH ) 20.7.2010 JUDGE ashish