CR No.734 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.734 of 2010 Decided on : 05-07-2010 Narinder Paul and another ....Petitioners VERSUS Achhar Kumar ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. M.L.Saggar, Senior Advocate with Ms. Taranjeet Kaur, Advocate for the petitioners. Mr. Amarjit Markan, Advocate for the respondent MAHESH GROVER, J The tenant impugns the order dated 17.11.2009 by which his application for leave to defend, proceedings initiated by the respondent- landlord under the provisions of Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act') has been declined and he has been ordered to be evicted from the premises in dispute. The facts of the case need to be referred to in view of the peculiar nature of the controversy. Achhar Kumar, respondent-landlord filed a petition under Section 13-B of the Act for eviction of the present petitioners from Shop No. 2 which formed a part of property no.1363, Navyug Colony, Haibowal Khurd, Ludhiana. While invoking the provisions of Section 13-B of the Act, he also took up additional grounds such as non-payment of rent, sub-letting, creating nuisance and bona fide requirement. Para 4 of the eviction petition is extracted hereunder for ready CR No.734 of 2010 2 reference:- “4. That the respondents are liable to be ejected from the tenancy shop No.2 on the following grounds:- a) that the respondent have neither tendered nor paid the arrears of rent @ Rs.500/- p.m since September, 1999 alongwith interest @ 15% p.a. b) that the petitioner had gone back to Kuwait to attend his employment. The respondent took wrongful advantage of the situation & neither paid the rent & house tax nor sent or tendered the same despite requests & reminders of the petitioner. The respondent no.1 acted smart as in the absence & without consent of the petitioner, he sublet the said shop to the respondent no.2, without any right or authority. c) that respondents are constant sources of nuisance for the petitioner & his family. They create scences after taking liquor with ill motive to scare the petitioner & his family members. d) that the petitioner has permanently settled in Ludhiana & he is an NRI, hence he bona fide requires the demised shop No.2 for his personal use & occupation & that of his son Charanjit Singh, who is unemployed. The petitioner wants to settle his said son in life & open his business of electronics in the demised shop as he has expertise in the said business. The petitioner has sufficient balance with him to help his son run the said business. The petitioner honestly & bona fidely requires the demised shop No.2 in occupation of the CR No.734 of 2010 3 respondents for personal use and occupation of his said son, hence he is entitled to recover immediate possession of the said shop & the demised shop is most suitable shop to run the said business.” The petitioner who was served filed an application for leave to contest and disputed the right of the petitioner by countering the allegations made in the petition. In para 5 he enumerated the defences set up by him while questioning the averments of the petitioner. The relevant defences are extracted hereunder:- a) that the petitioner is not non resident Indian. From mere photostat copy of the front page of passport it cannot be stated that the petitioner is NRI b) that the petitioner is not settled permanently or temporarily outsides India for business or on account of the employment or for any other purpose so as to indicate his intention to stay outside India for an uncertain period. The petitioner does not fulfil the condition of NRI and have no locus standi to file the present petition. c) that the respondent alongwith his brother respondent no.1 are tenants on a monthly rent of Rs.100/-. The petitioner has wrongly claimed the rent of Rs.500/- alongwith house tax at the rate of 15% per annum. This fact has also been established from the previous judgment that the respondent no.1 and also the respondent are both tenants in the shop in question. The respondents are not liable to pay house tax. d) that the petitioner is not only the legal heir CR No.734 of 2010 4 of Bachan Ram rather there are five other legal heirs of Bachna Ram as mentioned above and on the basis of forged and fabricated family settlement the petitioner cannot become the exclusive owner of the property. To acquire ownership the legal requirements are mandatory which have not been fulfilled by the petitioner and he is co-owner and as such he has no locus standi to claim the eviction of the respondent from the property in question in absence of other legal heirs. e) That the petitioner has filed the petition not on the basis of Section 13-B of the East Punjab Urban Rent Restriction Act rather he has claimed the other grounds of eviction namely non payment of rent, nuisance, subletting and in such situation ordinary petition under Section 13 of the East Punjab Urban Rent Restriction Act is applicable and not Section 13-B of Rent Restriction Act on the basis of which the petition has been filed. f) Moreover, petition under Section 13-B of the East Punjab Urban Rent Restriction Act can be filed only if the petitioner wants to settle himself in India or he wants to settle his unsettled children. He has alleged that he wants the property in question for settlement of his two sons. His two sons are already settled in the business. The elder son Kamaljit is running the shop of gift etc. and has a flourishing business in the same building. His second son Chanan Jit Singh is employed in Reliance Company and is getting handsome salary there and also running part time business of selling and CR No.734 of 2010 5 repairing cooler in the same building. So it is clear that the present petition has been filed with mala fide intention. So the provision of Section 13-B of the East Punjab Urban Rent Restriction Act are not at all applicable in the present case.” During the course of proceedings before the application for leave to defend could be determined by the learned Rent Controller, the respondent-landlord made a statement to the following effect:- “I withdraw the ground of arrears of rent which is mentioned in para no.4 of sub-paras A, B and C as it is not applicable in this petition. But I reserve my right for taking the arrears of rent.” This statement was made by the respondent before the Rent Controller on 13.8.2008 pursuant to which an order was passed by the Rent Controller accepting the statement which is extracted hereunder:- “Counsel for the petitioner made a statement and withdraw the ground of arrears of rent. For consideration to come up on 18.8.2008” Thereafter, the petitioner moved an application for treating the petition moved by the respondent under Section 13-B of the Act as a one under Section 13 of the Act. The respondent in the meanwhile filed a revision petition bearing no.6461 of 2009 making a prayer before this Court that the application moved by the petitioner for leave to defend alongwith an application for condonation of delay be decided forthwith as the same has been pending since 29.3.2006. The said petition was disposed of on 6.11.2009. This petition was disposed of in the following terms:- “3. Having heard learned counsel for the CR No.734 of 2010 6 petitioner at some length and keeping in view the legislative intent behind Section 13-B read with Section 18-A of the Act, which contemplates the disposal of the eviction petition under Section 13-B of the Act on day-to-day basis, I am of the considered opinion that it is imperative upon the Rent Controller, Ludhiana to decide the above-stated application forthwith. 4) Moreover, there appears to be no plausible explanation for keeping such miscellaneous application pending for years together. 5) The revision petition is, accordingly, disposed of with a direction to the Rent Controller, Ludhiana to decide the application dated 29.3.2006 filed by the respondent- tenants on the date fixed i.e. 16.11.2009 in accordance with law.” The application was thereafter disposed of resulting in the passing of the impugned order dated 17.11.2009 which is now the subject matter of challenge in the instant revision petition. The counsel for the petitioners contended that even though a petition under Section 13-B of the Act was filed by the respondent yet he had taken up other material grounds which can be taken up only in a petition under Section 13 of the Rent Act and are not available to any petition under Section 13-B of the Act. He contended that Section 13-B was a special provision which contemplated the eviction of a tenant under exceptional circumstances and ingredients which are sought to be satisfied for invoking provisions of Section 13-B are entirely different from the ingredients which are required for seeking CR No.734 of 2010 7 eviction of tenant under Section 13 of the Act. He contended that once other material grounds have been taken up by the respondent to seek the eviction of the petitioners, the proceedings under Section 13-B of the Act could not be construed to be valid proceedings and proceedings ought to have proceeded in a manner which is stipulated for processing the application under Section 13 of the Act and since the procedure under Section 13 has not been followed and rather the process as contemplated under Section 18A of the Rent Act which prescribes the procedure for processing application under Section 13 B has been followed, the petitioner has been seriously prejudiced. He further contended that the prejudice which has been caused to his case can be gauged from the fact that his eviction has been ordered by merely deciding an application for leave to defend whereas if the proceedings had to be considered under Section 13 then such a course was not available to the Rent Controller. He further contended that his application for leave to defend has also been decided on the ground of limitation but if at all the limitation had to be construed then it should have been from the date when the respondent made statement before the Rent Controller giving up the grounds other than what was available to him under the provisions of Section 13 B and if such a course was adopted then his application would have been within time. He thus contended that the impugned order is erroneous and liable to be set aside. Learned counsel for the respondent on the other hand justified passing of the impugned order while pleading that the petition had been filed under Section 13 B and merely because additional grounds have been raised therein, it could not deprive the respondent of his right to invoke the proceedings under Section 13 B as the other ingredients required for the CR No.734 of 2010 8 said provision of law stood satisfied. He further contended that no prejudice has been caused to the petitioners as they had fiercely contested the allegations and averments made in the rent petition under Section 13 B of the Act. He placed reliance on judgments titled as Sarup Chand Jindal versus Kali Charan Wadhwa 1989-1 PLR 297, Vijay Kumar versus Arun Chopra 2009(1) RCR (Rent) 354, Sat Pal versus Om Parkash 2007(1) RCR 278 I have heard learned counsel for the parties and have perused the impugned judgment and also the material on record. Section 13 B of the Rent Act is indeed a special legislation conferring the right upon a Non Resident Indian to seek eviction of the tenanted premises if certain ingredients were pleaded and were proved to be satisfied. The said Section is reproduced hereunder:- “Section 13-B Right to recover immediate possession of residential building or scheduled building and/or non- residential building accrue to Non-Resident Indian:- 1) Where an owner is a Non-Resident Indian and returns to India and the residential building or scheduled building and/or non-residential building, as the case may be, let out by him or her, is required for his or her use, or for the use of any one ordinarily living with and dependent on him or her, he or she, may apply to the Controller for immediate possession of such building or buildings, as the case may be: Provided that a right to apply in respect of such a building under this Section, shall be available only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life CR No.734 of 2010 9 time of such an owner. (2)Where the owner referred to in sub-section (1), has let out more than one residential building or scheduled building and/or non-residential building, it shall be open to him or her to make an application under the sub-section in respect of only one residential building or one scheduled building and/or one non-residential building, each chosen by him or her. (3)Where an owner recovers possession of a building under this section, he or she shall not transfer it through sale or any other means or let it out before the expiry of a period of five years from the date of taking possession of the said building, failing which, the evicted tenant may apply to the Controller for an order directing that he shall be restored the possession of the said building and the Controller shall make an order accordingly.” The respondent while invoking the said provisions of law and by pleading the essentials required of the said statutory provision in his zeal pleaded other grounds as well which grounds he chose to give up subsequently. The petition had been styled as the one under Section 13 B of the Act and as observed earlier its essentials were also pleaded. Hence, merely because other grounds were pleaded would not rob the petition of its character under Section 13 B of the Act but if the converse had been done that is if the respondent had filed a petition under Section 13 by merely pleading all the particulars and taking up other grounds as well, then in such a situation he could not have raised a plea that the petition be construed as CR No.734 of 2010 10 petition under Section 13 B of the Act because in that situation if the petitioners who are the tenants after being served would have reacted to the petition in the normal course and would not have reacted in a way which was required of them while facing the proceedings under Section 13 B by moving an appropriate application for leave to defend within the time frame prescribed under the Act.Therefore, the prejudice which is pleaded to have been caused to the petitioners can be termed to be imaginary. Moreso, when upon receipt of the intimation of the proceedings under Section 13 B of the Act, the petitioners responded appropriately by moving an application for leave to defend and also by controverting the necessary ingredients set up by the respondent to invoke provision of Section 13 B. The contention of the learned counsel for the petitioners on this count has therefore to be repelled and it is to be held that the petition was justifiably filed under Section 13 B of the Act and merely because other grounds were added to it would not deprive the special character of the proceedings under Section 13 B of the Act to render it to be an ordinary petition under Section 13 of the Act. The next question that has to be determined is as to whether this petition could be construed to be a petition under Section 13 B of the Act after the respondent gave up other grounds which he had set up in the original petition and whether such a petition could be construed only from that date to be a petition under Section 13 B when such grounds were given up. I am afraid the argument is fraught with fallacy for the very same reasons which have been detailed above. Petition was originally filed under Section 13 B and contained the necessary ingredients contemplated under such provision and consequently merely because some additional grounds CR No.734 of 2010 11 were taken and given up subsequently would not make any alteration to its status as a valid petition invoking provisions of Section 13 B of the Act and for this very same reason, the contention of the learned counsel for the petitioners that their application should be considered within time as the same was moved before respondent gave up the other grounds so as to confine his challenge only to the ground available under Section 13 B is also without any merit and same is accordingly rejected. The counsel for the petitioners did not make any serious attempt to lay any challenge to the impugned order on merits. He did not refer to any material which could have off set the other essentials pleaded and established by the respondent- landlord and also laid down by Hon'ble Supreme Court in case titled as Baldev Singh Bajwa versus Monish Saini 2005(4) RCR (Civil) 492 that he is Non Resident Indian, that his is the owner of the property for last 5 years and that he has made application in respect of one scheduled building. The impugned order has been passed both on merits as also on the ground that the application for leave to defend was belated. It is a settled principle of law that the application for leave to defend cannot be moved beyond the period stipulated under the Act and that the Rent Controller has no power to extend such a limitation. Reliance has been placed on judgment of this Court titled as Suman versus Bhagat Ram 2008(1) RCR (civil) 313 wherein it has been observed as under:- “2. xxxxx In a judgment as S.Manohar Singh v. S. Aridaman Singh Dhillon, 2002 (2) RCR (Rent) 652: (2003- 1)133 Punjab Law Reporter 231, an Hon'ble Single Judge of this Court has held in favour of applicability of Section 5 of the Limitation Act for condonation the delay in making an CR No.734 of 2010 12 application for leave to defend. In the other two rulings reported as Amarjit Singh Walia v. Narbans Singh, 2004(2) RCR (Rent) 1: (2004-3) 138 PLR 141 and Babu Ram v. Naresh Kumar, 2006 (3) RCR (civil)789: 2006(2) RCR (Rent) 249: (2006-3) 144 PLR 529, two Hon'ble Judges of this Court sitting singly took a contrary view and held that Section 5 of the Limitation Act has no application and cannot be invoked to condone the delay in filing application for leave to contest the eviction petition as prescribed under Sections 13 A and 18 A of the Act.” In such a eventuality when the petitioners failed to bring to the notice of this Court any material irregularity and also failed to show any such material which could defeat the findings of the learned Rent Controller on merits of the application under Section 13 B and also on account of the fact that leave to defend was barred by period of limitation, I am of the opinion that the revision is totally without any merit and the same is hereby dismissed. July 5, 2010 (Mahesh Grover) rekha Judge During the course of pronouncement of the order, Shri M.L.Saggar, Senior Advocate appearing for the petitioners made an oral prayer that since the premises in question are commercial in nature, some time may be granted to vacate the same. He categorically stated before this Court that the petitioners are willing to furnish an undertaking to hand over physical vacant possession of the premises in question to the respondent- landlord provided some time is granted to them. CR No.734 of 2010 13 The prayer was opposed by the counsel for the respondent- landlord. He stated that the petitioners are neither paying rent nor they are entitled to retain any longer the possession of the premises in question. After hearing the learned counsel for the parties and also noticing the fact that the petitioners are in possession of the premises which is commercial in nature, I deem it appropriate to direct that the petitioners shall be entitled to retain the possession of the same for one more year from today. They shall, however, be required to furnish an undertaking before the Rent Controller, Ludhiana within three weeks from today in the following terms:- 1. That they will hand over physical vacant possession of the premises in question on or before 4.7.2011. 2. That they will pay the arrears of rent as claimed by the respondent-landlord i.e at the rate of Rs.500/- per month, within two months from today. 3. That they shall continue to pay the rent at the rate of Rs.500/- per month by the 7th of each month till they hand over vacant possession of the premises in question. 4. That they shall not commit any default in making the payment of the rent and that even a single default will disentitle them to the benefit of this order. 5. That in the event of such a default, the respondent-landlord shall be entitled to execute the eviction orders forthwith. 6. That they shall hand over the vacant physical possession of the premises in question in the condition as it is. 7. That in the event of their making an attempt to deviate from CR No.734 of 2010 14 the undertaking, the respondent-landlord shall apprise the Rent Controller, who shall proceed to get the premises in question vacated and to hand over the possession thereof to the respondent-landlord by granting police assistance. July 05, 2010 (Mahesh Grover) Judge