Civil Revision No.1687-88 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1687 of 2008 (O&M) Date of decision:22.04.2009 Ram Pal Thukral .............Petitioner Vs. Jagjit Singh and another ............Respondents 2. Civil Revision No.1688 of 2008(O&M) Mrs. Romilla Thukral and another ............Petitioners Vs. Shri Jagjit Singh Sood .........Respondent Present: Mr. B.R. Mahajan, Advocate and Mr. V.K. Kaushal, Advocate for the petitioner. Mr. Sudeep Mahajan, Advocate for the respondents. CORAM: HON'BLE MR. JUSTICE K. KANNAN 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 -.- K.KANNAN, J. (ORAL) I. The three stands of contentions by tenant: 1. The tenant, who was ordered to be evicted in an application filed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 opposes the plea in ejectment on three grounds that (i) the landlord was not a NRI within the definition of the Act and hence not competent to maintain a petition; (ii) the property is not held by his landlord as an absolute owner and another person, who incidentally Civil Revision No.1687-88 of 2008 (O&M) -2- happens to be the husband, has himself become a co-owner of the premises. The co-owner does not consent to the prosecution of the petitioner and therefore, eviction petition is not maintainable; and (iii) the need of the landlord is not bona fide and the earlier action for eviction by the landlord on the same ground had been disallowed and the landlord was applying for eviction with an oblique purpose of merely evicting him when the landlord was actually residing elsewhere at Noida in his own premises and therefore, there was no bona fide of the requirement of the landlord. II. The plea of co-owner in possession: 2. The husband of the tenant, who had since become a co- owner of the premises is a legal representative to his mother Krishna Wati, who had purported to have purchased a fractional 1/3rd share of the property from the purchaser of the brother of the landlord has also come by means of revision. Since the order of ejectment had been passed despite the objection taken on his behalf that he had not concurred as a co-owner of the premises for the action of ejectment, the petition is not maintainable. III. Consideration of definition of NRI-includes a person who has no business or calling outside India 3. As regards the contention of the landlord for ejectment by invoking Section 13B, learned counsel appearing for the petitioner has referred to the definition of NRI, which is set forth in Section 2 (dd) of the East Punjab Urban Rent Restriction Act, 1949 as follows:- 2 (dd) "Non-resident Indian" means a person of Indian origin, who is either permanently or temporarily settled outside India in either case - Civil Revision No.1687-88 of 2008 (O&M) -3- (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 an uncertain period; 4. A reading of the provision, according to him, would admit of only persons who were either permanently or temporarily settled outside India, either for taking up employment outside India; or for carrying on a business or a vocation outside India; or for any other purpose, in such circumstances, as would indicate his intention to stay outside India for an uncertain period. In this case, according to him, the landlord's three children had been settled outside India, two of them in USA and one in U.K. and he had no intention to settle either temporarily or permanently for any employment or business and therefore, he does not come within the definition to obtain eviction by resort to Section 13-B. He refers to the evidence of the landlord where he had admitted that his passport contained a reference to an entry of the year 1999 and wanted to make the Court believe that after 1999, he never gone back to USA. Learned counsel for the respondent immediately joined issues on a matter of fact that the landlord holds an US passport and it was not correct to state that he had not returned to USA after his entry into India after 1999. He refers to the evidence of the landlord, which reads as follows:- “I was back to America on 05.09.2001. Thereafter, I again returned back to India from America on 08.01.2002. Civil Revision No.1687-88 of 2008 (O&M) -4- Thereafter, I again went back to America on 18.11.2003 and thereafter, I had been off and on come to India.” 5. It becomes clear that the landlord has been going in and out of India and it is not a case as if that for the last 15 years, he has been here only in India that he could not be attributed to the status of a NRI. Indeed, the definition contains not merely the status of a person, who takes up employment outside India or carries out business, Section 2 (dd) (c) also refers "any other purpose", in such situation, as would indicate his intention to stay outside India that is residuary in character and it can be even a personal purpose. If a person had decided to stay with his children and he takes nationality of a foreign country, he ought to be understood that he falls within the sub-clause (c) under "any other purpose" and his status as a NRI, under such circumstances, cannot be denied. I, therefore, reject the contention made on behalf of the tenant that he is not a "specified landlord" coming through the definition of a NRI under Section 13-B read with 2 (dd) of the East Punjab Urban Rent Restriction Act, 1949. IV. Consent of co-owner not necessary for prosecuting petition – circumstances explained: 6. As regards the second objection that has been raised on behalf of the tenant that the petition is not maintainable, since a co- owner of the premises, namely the tenant's husband added as a legal representative to his mother Krishna Wati, had not consented to the petition and the petition itself cannot be prosecuted in the absence of concurrence of a co-owner. Learned counsel for the petitioner refers to a decision of the Hon'ble Supreme Court in Mohinder Prasad Jain Vs. Manohar Lal Jain JT 2006 (2) SC 620, where it holds that if a Civil Revision No.1687-88 of 2008 (O&M) -5- property in question is jointly owned by several persons and if consent of the co-owners is not shown, the eviction would not be permissible. The Hon'ble Supreme Court was laying down the law, while considering a petition for eviction under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 where the Court, however, cautioned that the consent of other co-owners was not a pre- condition and so long as co-owners did not have objection to the eviction petition, the suit for eviction would be maintainable. Learned counsel appearing for the petitioner reads the judgment to an inference that such a petition would be maintainable only if it is not objected and in this case another co-owner has objected to the petition and therefore, the petition is not maintainable. This argument is opposed by learned counsel for the respondent and which, in my view, correct by that if only the tenancy had commenced at the instance of all the co-owners and the other co-owners could also be treated as landlord, an action for eviction at the instance of one co-owner alone without the consent of other co-owners would not be tenable. He points out that the initial letting itself had been made in the year 1980, when the present landlord was the only landlord. The rent note itself was executed by only one of the co-owners. The purchaser of the property under whom the tenant's husband now claims as a co-owner, has never acted in his capacity as a landlord at any time. Indeed, even Krishna Wati under whom he claims did not assert her right as a co-owner landlord at any point of time. The purchaser had assumed the possession of only the ground floor when the tenanted premises itself was with reference to the first floor and the second floor. Civil Revision No.1687-88 of 2008 (O&M) -6- 7. The law admits of no ambiguity that an action by a co- owner shall be treated to be on behalf of other co-owners also and it may not be necessary to parade as petitioner-landlords all the persons who are entitled to the property. There the consent will be presumed that one co-owner was acting on behalf of other co-owners. This could arise typically in situations where the original letting was by one person and after his death, the right flows to several persons as co- heirs and co-owners and there any one petition at the instance of one co-owner would be always maintainable. If, in such case, yet another co-owner objected to the continuance of the petition, the only procedure that the Court to adopt would be to implead the other co- owner as a co-respondent and if the grounds are made, order could be passed in favour of both the co-owners. Such a situation does not arise here in this case. If amongst several co-owners, one of them had been authorized to create a lease and he acts as the landlord qua the tenant, it shall be only that landlord, who would be entitled to obtain eviction. Here, the issue of ownership becomes irrelevant. 8. An objection from yet another person, who was not a landlord, also has no relevance for the scheme of almost all rent control legislations including the East Punjab Urban Rent Restriction Act contemplate the status of a landlord as a person, who is entitled to receive rents, where the ownership itself is never a point that is put at issue. Under such circumstances, the landord, who let the premises to the tenant in respect of the first and the second floor was alone the person, who was competent to maintain the action for recovery of possession. The fact that yet another brother, who had not admittedly Civil Revision No.1687-88 of 2008 (O&M) -7- joined in the execution of the rent note had sold his share of the property to a third party subsequently and the third party in turn had sold the property to the person, under whom the tenant's husband now stated to claim a share in the property, will make no difference and will not entitle such a co-owner to upset the proceedings for eviction taken at the instance of the landlord. Such a co-owner may have a right to a share in the property, which might include even the portion of the property that is presently in possession of the tenant but those rights will get fructified when the particular share is predicated in a properly constituted action for partition. As a matter of fact, the suit for partition itself appears to have been instituted by the landlord himself and there has been a decree for partition of 1/4th share of the whole property and the decree records a finding that the 8th defendant in the suit, who is the 2nd respondent in the rent control petition, was declared entitled to 1/4th share. It must be borne in mind that the 1/4th share is not confined to merely the ground floor, although it was the ground floor which was handed over possession, even as per the admission of the 2nd respondent in the written statement. 9. Learned counsel for the petitioner puts on record the order passed by this Court, while admitting the first appeal against the decree for partition, where there has been a direction for passing of a final decree but that the possession of the property itself cannot be given withot securing permission from the Court. The said decision, in my view, will not have any bearing right now, since the possession, according to the landlord, in respect of the 8th defendant in that suit was in respect of the ground floor, while his action for eviction is with Civil Revision No.1687-88 of 2008 (O&M) -8- reference to first and second floor. It is needless to state that the ultimate decision as to what the tenant's husband shall be entitled to take possession of, will be a matter that will fall for consideration in the civil suit, which is the subject of appeal before this Court. The maintainability of the action for eviction at the instance of the landlord under such circumstances cannot be a point of objection as canvassed by the revision petitioner and hence I reject that contention as well. V. Bona fides of landlord-Not irrelevant to petition under Section 13-B: 10. The residuary point that will fall for consideration would be the bona fides of the landlord. The sweeping observations made by the Rent Controller that the bona fides would be irrelevant in an application for Section 13-B is pointed out by learned counsel for the petitioner to be quite off the mark even as per the decision of the Hon'ble Supreme Court in Baldev Singh Bajwa Vs. Monish Saini 2005 (4) RCR (Civil) 492. Learned counsel refers to paragraphs 18 and 19 where the Hon'ble Supreme Court has read the expressions "required for his or her own use" occurring under Section 13-B to mean a bona fide need. The Hon'ble Supreme Court would caution that the provisions of Section 18A (4) and (5) conceived the tenant's right to resist the petition initiated under Section 13B showing that the requirement of the landlord is not genuine or bona fide, the legislative intent for setting up a special procedure for NRI landord is obvious from the legislative intent, which has been deliberately designed, making the distinction between the ordinary landlords and special category of landlords. The tenant's right to defend the claim of the landlord under Section 13-B for ejectment would arise if the tenant Civil Revision No.1687-88 of 2008 (O&M) -9- could be able to show that the landlord in the proceedings is not a NRI landlord; that he is not the owner thereof or that his ownership is not for required period of 5 years before the institution of proceedings and that the landlord's requirement is not bona fide (emphasis mine). 11. While, I have no difficulty in agreeing with the contention of the revision petitioner that the issue of bona fide cannot be irrelevant, I still confirm that in this case the ultimate decision directing eviction cannot be different, if we examine that here is a case where the landlord, who was held to be a NRI, on his return to India wants to secure the premises in the occupation of the tenant, which is in the Amritsar town. Admittedly, he does not own any other property at Amritsar. The issue of bona fides is taken in the context of the landlord having been a resident of Greater Kailash, New Delhi for nearly a decade as a tenant and later purchased the property in Noida a suburb adjoining Delhi some time in the early 90s and that he was in occupation of the premises whenever he was in India. This does not lead to undermining the landlord's bona fide need of the premises situate at Amritsar, not in the same place but in yet another town. It will be unconceivable for a landlord to establish his bona fide only by shifting himself to Amritsar and then show that he has no place to live of his own and therefore, the eviction is necessary. If an intention is expressed that he wants to settle down at Amritsar, it has to be examined only in the light of what Section 13B itself sets out as being necessary for proof before an eviction is ordered. The decision of Hon'ble Supreme Court in Baldev Singh Bajwa's case (supra) itself gives the guidance in abundance in paragraph 26 of the judgment, Civil Revision No.1687-88 of 2008 (O&M) -10- which reads:- "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 13-B of the Act. The Controller's power to give leave to contest the application filed under Section 13- B circumscribe to the grounds and inquiry to the aspects specified in the Section 13-B. 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 13-B and no other aspect shall be considered by the Controller." I have no difficulty in holding that the landlord fulfills every one of the parameters that the law requires him to establish before he obtains eviction. I find the requirement of the landlord to be bona fide under such circumstances. Civil Revision No.1687-88 of 2008 (O&M) -11- VI. Conclusion: 12. The landlord is, therefore, entitled to succeed in obtaining eviction and the revision petition filed by the tenant is dismissed. The revision filed by the tenant's husband claiming as a legal representative of Krishan Wati whose rights have been upheld to 1/4th share in the civil suit cannot object to the eviction petition filed at the instance of the landlord and his revision petition is also dismissed. It is made clear that the rights which he may have in respect of the property will be independently worked out in the civil case, which is now pending adjudication before this Court. 13. Learned counsel appearing on behalf of the tenant pleads for time for vacating the premises on the ground that she has been running a school in one portion and she is also residing at the same property. It is contended that the property is being held by her as a tenant from the year 1980 and it may be difficult for her to immediately vacate the premises. Learned counsel appearing for the landlord contends that school is being not run in the premises now and that there shall be no reason to favour the tenant with any concession regarding the time for eviction. I do not want to dwell on length at such a disputed question whether the property is used as a school or not but tenant's own possession for residential purpose at least is not denied. Time for eviction, under such circumstances, shall be four months. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE April 22, 2009 Pankaj*