Civil Revision No. 1426 of 2007(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 1426 of 2007(O&M) Date of Decision:November 16, 2009 Rajnish Jain and others ---Petitioners versus Krishan Kant ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Sudeep Mahajan, Advocate, for the petitioners Mr.K.S.Cheema, Advocate, for the respondent. *** GURDEV SINGH, J. (Oral) Petitioners-tenants have preferred this revision petition against the orders dated 3.2.2007 passed by Sh. Jaspal Verma, Rent Controller, Dasuya, vide which he dismissed the application filed by the petitioners under Section 18A(4) and (5) of the East Punjab Urban Rent Restriction Act, 1949 (in short “the Act”) and accepted the application filed by the respondent-landlord under Section 13-B of the Act ejecting the petitioners from the shop in dispute situated in main bazaar within the municipal limits of Mukerian. Facts are that the respondent filed an application under Section Civil Revision No. 1426 of 2007(O&M) {2} 13-B of the Act for the ejectment of the petitioners from the demised shop pleading therein that the shop was originally owned by his father Dr. Diwan Chand Joshi, who died in October, 1979, leaving behind him and others as his legal heirs. Sarhandi Lal, the successor-in-interest of the petitioners was tenant at monthly rental of Rs. 50/- and after the death of Dr. Diwan Chand Joshi, he became a tenant under him and other legal heirs. He went to USA for studies and since 1958 has settled at that place. He is Non-resident Indian. He has organized a corporation in the name of Krishan and Vicky Joshi Foundation (hereinafter referred to as “the Corporation”) with its intention to co-ordinate, co-operate and participate with other non-qualified, non-profit common religious, charitable, scientific, literary and educational concerns for the betterment and well being of the society in general. That Corporation has already donated Rs. 15 lacs, Rs. 10 lacs, Rs. 2 lacs and Rs. 1 lac to ASSS School, Mukerian, Arya Girls School, Mukerian, S.P.N.College, Mukerian, Guru Nanak Girls School, Mukerian and D.A.V.College, Dasuya respectively. He is considering to donate more money to such like institutions for upgrading their infrastructures. He intends to provide benefit of this Corporation to his native motherland and wants to set up office for the same in the demised shop and as such requires the same for his own use and occupation. The other shop owned by him and his family is far away from his residence and is in occupation of other tenant. After the petitioners were served, they moved an application under Section 18-A(4) and (5) of the Act for leave to contest the ejectment application. They contended therein that the respondent is a permanent resident/citizen/national of U.S.A. and is holding a passport of that country. The Corporation has no existence/registration in India and the respondent Civil Revision No. 1426 of 2007(O&M) {3} has no intention to return to this country. He is already having a big house consisting of eight rooms, which is owned by his family. He can open office in that house itself for this Corporation. He is neither Director nor statutory agent of that Corporation. Even his brothers are settled in U.S.A. and have no intention to come back. In fact, he wants to sell the shop after getting the same vacated. They also contended that after the death of Dr. Diwan Chand Joshi, the mother of the respondent claims herself to be owner of this shop and got a rent note executed on 29.10.1979 and is receiving the rent to which the respondent and his brothers and sisters never objected. There is no relationship of landlord-tenant between them and the respondent. In these circumstances, they are entitled to be permitted to contest the ejectment application. The learned Rent Controller after hearing the counsel for the parties and going through the record of the case, dismissed that application of the petitioners and after accepting the application filed under Section 13-B of the Act directed them to vacate the demised shop. I have heard learned counsel for the parties and have carefully gone through the case file. It has been submitted by the counsel for the petitioners that the respondent has not been able to prove that he is the owner of the demised shop. It is very much clear from the rent note produced before the learned Rent Controller and which has been admitted by the respondent that the demised shop, after the death of Dr. Diwan Chand Joshi, was rented out by the mother of the respondent. That itself shows that she is the exclusive owner thereafter. In fact, the respondent has no intention to come to India and it is nowhere pleaded that the corporation has got any business to do in Civil Revision No. 1426 of 2007(O&M) {4} this country or any of its branch has been registered here. The said requirement of respondent is not his need and at the most can be said to be his wish. In these circumstances, learned Rent Controller committed an illegality while dismissing the application of the petitioners and not permitting them to contest the ejectment application. He prayed that the revision be accepted and the ejectment order passed by the Rent Controller be set aside and the petitioners be permitted to contest the ejectment application. On the other hand, it was submitted by the learned counsel for the respondent that the permission to contest the ejectment application was rightly refused by the learned Rent Controller who supported his findings by sound reasoning. The respondent is one of the co-owner who also inherited the shop in dispute after the death of his father Dr Diwan Chand Joshi, along with other legal heirs. The application under Section 13-B of the Act can be maintained even by a co-owner. The execution of the rent note by his mother to the exclusion of the other legal heirs will not make any difference. The respondent has been able to prove that he is Non-resident Indian and requires the demised shop for opening office of the Corporation which has already donated huge amounts to a number of educational institutions. He cannot be forced to get some other building vacated for his use and occupation. He prayed for dismissal of the revision. The findings recorded by the learned Rent Controller are supported by sound reasoning. It cannot be said that the order passed by him suffers from any such illegality. Admittedly, the demised shop was owned by Dr. Diwan Chand Joshi and the respondent is his son and as such also inherited that property along with other legal heirs. No doubt, learned Civil Revision No. 1426 of 2007(O&M) {5} counsel for the petitioners has drawn the attention of this Court towards the rent note executed by the mother of the respondent in favour of Sarhandi Lal, the original tenant (successor-in-interest of the petitioners). The execution of that rent note will not exclude the respondent from the ownership of the shop. In Ravinder Pal Mohindra v. Gurbacha Singh and others 2006(2) R.C.R. (Rent) 211 similar question was decided. In that case the joint property was let out by one of the co-owners and not by the NRI- landlord himself. It was held therein that “It is settled principal of law that letting out by a co-owner would be letting out on behalf of other co- owners.” Thereafter, even if there is rent note executed in favour of the mother of the respondent even then it is to be assumed that the shop was letted out by her on behalf of the all the co-owners and not to their exclusion. The respondent is not deprived of the benefit to recover the immediate possession of the shop on account that the same had not been let out by himself. The Apex Court in Baldev Singh Bajwa v. Monish Saini 2005(2) R.C.R. 470 has held that “where the NRI landlord seeks eviction of tenant on the ground of bona fide requirement, the tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds and is able to show : (i)Landlord is not NRI landlord (ii)Landlord is not owner of premises (iii)Landlord is not owner for last 5 years before institution of proceedings (iv)Landlord's requirement is not bona fide and is a pretext to get Civil Revision No. 1426 of 2007(O&M) {6} accommodation vacated.” The petitioners have not been able to prove that the respondent is not the owner of the demised shop from the last five years before the institution of the proceedings or that he is not Non-resident Indian. The only question which remains to be determined is whether the finding recorded regarding his bona fide need is correct or not. It is categorical case of the respondent that he has floated a Corporation under the name of Krishan and Vicky Joshi Foundation, the main function of which is religious, charitable and educational. He has already donated lacs of rupees to number of educational institutes. He wants to run the office of that Corporation in the demised shop. It is not necessary that the Corporation must have a registered branch office in this country for running the said work in the demised shop. The need of the respondent is genuine and bona fide. It is for the NRI-landlord to make choice of the building and leave to contest cannot be granted to the petitioner merely on the ground that he or his family has a house near the shop in dispute or that he owns another shop in the same urban area. This Court has held in M/s Bhadari General Store and another v. Makhan Singh Grewal 2006(2) Civil Court Cases 633 that “in case the NRI-landlord having more than one property, it is his choice to get one building vacated under Section 13-B of the Act out of two or more buildings.” It was also held by this Court in Prem Kumar Patel v. Inderjit Singh Grewal (2002-3) Punjab Law Reporter 829 that “ the NRI owning or possessing other suitable property in the same urban area is no bar to get one building of his choice vacated under Section 13-B of the Act.” Civil Revision No. 1426 of 2007(O&M) {7} The above question is, therefore, answered in favour of the respondent. From the above discussion, it is concluded that there is no merit in this revision petition and the same is hereby dismissed. (GURDEV SINGH) JUDGE November 16, 2009 PARAMJIT