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Shri Sita Ram Vs. Smt. Malwinder Kaur - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in(2008)152PLR793
AppellantShri Sita Ram
RespondentSmt. Malwinder Kaur
DispositionPetition dismissed
Cases ReferredBaldev Singh Bajwa v. Monish Saini (supra
Excerpt:
.....was nri - ownership of respondents also established by way of sale deed executed in his favour by owner of property - so far as ground of non-existence of bonafide requirement concerned, court below right held that respondent not owned any similar property in the locality - thus, bonafidely required suit property for his personal use - no grounds proved for grant of application of defend and same is rightly dismissed - accordingly, petition dismissed - .....and has been filed with mala fide intention. the present petition has been filed by malwinder kaur applicant through attorney sarabjit singh, advocate. it is not mandatory that the petitioner should herself appear and personally file the petition under section 13-b of the act and same can be filed through power of attorney holder. the fact that in the power of attorney, it has not been mentioned regarding filing of ejectment petition against the respondent by name cannot make the power of attorney defective. mere oral assertions of the respondent is not sufficient to rebut the presumption.3. mr. akshay bhan, learned counsel for the petitioner has (sic) the order of eviction primarily on the ground that reading of the power of attorney would show that the landlord authorized her.....
Judgment:

Vinod K. Sharma, J.

1. Present revision petition is directed against the order of eviction passed under Section 13-B of the East Punjab Rent Restriction Act, 1949 (for short the Act).

2. The respondent-landlord is residing in Canada and sought eviction of the petitioner herein from Kothi No. 210 min, situated at Old Jail Road, Amritsar. 3. On notice having been issued the petitioner filed an application for leave to defend. The ground on which leave to defend was sought is that the petitioner was neither NRI nor owner of the property and therefore, was not competent to maintain the petitioner. Second ground on which leave to defend was sought was that the claim framed is with mala fide intention as on an earlier occasion also the landlord had claimed the petitioner to be a licencee and the said matter was contested in the civil court. The plea was also taken that Sarabjit Singh was not validly constituted attorney whereas he was an intending purchaser. The personal need was also denied. Besides these, other general grounds were also taken. However, the application moved by the petitioner was rejected by the learned Rent Controller by observing as under:

6. In order to seek leave to defend the present petition, the Ld. Counsel for the respondent has made certain contentions. The first contention raised by Ld. Counsel for respondent is that the petitioner is not the owner of the property. Applicant has produced on file copy of sale deed dated 17.1.80. Perusal of which shows that Satish Kumar son of Chuni Lal has purchased the property from Janak Raj. Applicant has further produced copy of sale deed dated 16.6.81. Perusal of this sale deed shows that Satish Kumar s/o Chuni Lal has sold the property to Malwinder Kaur petitioner. Applicant has further produced sale deed shows that application. Malwinder Kaur has purchased the property from Manmohan Singh, Amarbir Singh sons of Gurdeep Singh, Harjit Singh, Ranjit Singh sons of Narinder Singh, Sukh Raj Singh s/o Gurbax Singh, Smt. Sukhbir Kaur widow of Prithipal Singh, Sarniamat Singh, Damanjit Singh sons of Prithipal Singh, Navneet Kaur daughter of Prithipal Singh, Smt. Narinder Kaur, Amarjit Kaur, Malwinder Kaur daughter of Shivdyal Singh, Kanwaljit Singh s/o Amolak Singh, Sawinder Kaur widow of Amolak Singh, Baldev Singh s/o Mula Singh, Ranjit Kaur, Jagjit Kaur, Manjit Kaur, Lakhbir Kaur Navneet Kaur daughters of Joginder Singh, Gurbachan Kaur daughter of Joginder Singh, petitioner Malwinder Kaur has also purchased the-property vide sale deed dated 17.3.94 from the above stated persons. Applicant has further placed on file record of House Tax Department to prove her ownership. Even the applicant has produced the certified copy of the judgment passed in Civil Suit No. 47/95 titled as Sita Ram v. Malwinder Kaur decided on 8.4.06 by the Court of Sh. Daljit Singh Ralhan, CJDD, Amritsar wherein there is a finding that Malwinder Kaur is owner of the property. In the judgment reference has been made regarding statement of Sita Ram present applicant who was examined as PW10 in that case. While appearing as PW10, he has admitted that he took the property on rent from Malwinder Kaur admitted Malwinder Kaur as owner and landlady .From the above facts, it is clear that the petitioner is owner of the demised premises. This contention of Ld. Counsel for respondent is without merits.

7. The next contention raised by Ld. Counsel for respondent is that the petitioner is not Non-resident Indian and is not residing outside India. The expression NRI has been defined by Section 2(dd) of the Act to mean a person of Indian origin who has either permanently or temporarily settled out side India for or taking up employment or for carrying on business or vocation or for any other purpose as would indicate his intention to stay outside India for an uncertain period. Two other statutes have referred to the expression 'Person of India Origin', namely, the Card 'Scheme Clause (a) of Sub-section (1) and expression to Sub-section (1) of Section 5 of the Citizenship Act, 1955. A perusal of Clause (a) of Sub-section (1) of the Section 5 of the 1955 Act shows that any person could be registered as citizen of India by the prescribed authority provided that he is not already such citizen by virtue of the provision of the Constitution or any other provisions of the 1955 Act. If such a person is of India origin and is ordinarily resident of India and have been so resident for five years before making an application for registration he could also be registered as a citizen. The explanation further provides that an applicant would be considered a person of India origin if he or either of his parents was born in undivided India. It thus becomes evident that person of Indian origin is a class apart from the citizens. By no stretch of imagination it could be held that the citizens alone could be the person of Indian Origin and could be considered as NRI's within the meaning of Section 2(dd) of the Act. The concept of 'citizenship' is different than the broader concept of person an Indian origin who are to include NRIs. The definition of 'Indian origin' as given in the 'Card Scheme' is even more broader. It has included in the definition of PIO in Clause 2(ii) all those persons as the persons of Indian origin if he or she or either of his parents or grand parents or great grand parents was born in and permanently resident in India as defined in the Government of Indian Act, 1935 and other territories that became part of India thereafter provided neither was at anytime a citizen of any of the countries like Pakistan, Bangladesh and other countries as may be specified by the Central Government from time to time. From the documents placed on the file it is clear that the petitioner is of Indian origin. Applicant has placed on file certified copy of judgment passed by die court of Sh. Daljit Singh Ralhan, CJJD, Amritsar in Civil Suit No. 47/95 decided on 8.4.06 and certified copy of statement of Sita Ram respondent in that suit. Perusal of these documents shows that it is admission of the respondent Sita Ram in that suit that the applicant Malwinder Kaur used to receive rent from him till March, 1994 and thereafter she went abroad which clearly shows that the petitioner is settled outside India and the petitioner is Non Resident Indian and there is no merits in the-contention raised by learned Counsel for respondent.

8. The next contention raised by Counsel for respondent that petitioner has not fulfilled the necessary ingredients of Section 13-B of Rent Act and she has not shown that she does not own or possess other suitable accommodation in the area where she intends to reside. Perusal of Section 13-B of the East Punjab Urban Rent Restriction Act states that the owner of a property who is a non resident Indian requires the property let out by him for his use or for the use of any member living with or dependent on him may apply to the controller for immediate possession of building and where the owner has let out more than one building it shall be open for him to make application in respect of one building chosen by him and as such, there is no requirement of landlord to prove that he does not own or possess any other suitable accommodation in the area where he intends to reside. This contention of ld. Counsel for respondent is not tenable.

9. The next contention raised by ld. Counsel for respondent is that applicant do not want to return to India and as such need of the applicant is not bona fide. Ld. Counsel has further contended that the petitioner wants to sell the property. This court does not find any merits in this contention because NRI landlord can get the accommodation vacated for his need or for the need of his dependents. It is to be presumed that the NRI landlord is seeking the eviction of the tenant for her need which is genuine and bona fide. It is not necessary for the NRI landlord to permanently return to India. Moreover, in the present case, there is specific averment that the landlord wants to come to India and wants to reside in the demised premises. Reliance can be placed on Baldev Singh Bajwa v. Munish Saini (2005)2 S.C.C. 778 wherein it has been held by the Hon'ble Apex Court that court shall presume that need of NRI landlord is genuine and bona fide and a heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. Mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour. From the pleadings and the document placed on file it is clear that the petitioner is owner of the property and is a Non Resident India. She wants to return to India and reside in the demised premises. Applicant is the owner of the property for the last more than five year. The respondent has failed to rebut the presumption by producing any evidence that the need of the Applicant is not bona fide; mis court does not find any merits in this contention raised by Ld. Counsel for respondent.

10. The next contention raised by Counsel for respondent is that petitioner is having sufficient accommodation in her possession and. the need of the petitioner is not bona fide. Perusal of the file shows that no document has been produced and this contention of the tenant is not supported by any proof and on mere vague plea, leave to defend cannot be granted as there is strong presumption in favour of the landlord under Section 13-B of the Rent Act that landlord requires the demised premises bona fide for her use and same is to be rebutted by the tenant by strong and cogent evidence of documents. This court is of the view that under Section 13-B of Rent Act landlord can get the entire building vacated from the tenant once in a life time and it is the landlord who can chose building which he wants to get vacated. Sufficiency of accommodation is no ground to deny him the vacation of the building.

11. The next contention raised by Ld. Counsel for respondent is that petition is not filed through competent person and has been filed with mala fide intention. The present petition has been filed by Malwinder Kaur Applicant through attorney Sarabjit Singh, Advocate. It is not mandatory that the petitioner should herself appear and personally file the petition under Section 13-B of the Act and same can be filed through Power of attorney holder. The fact that in the Power of attorney, it has not been mentioned regarding filing of ejectment petition against the respondent by name cannot make the power of attorney defective. Mere oral assertions of the respondent is not sufficient to rebut the presumption.

3. Mr. Akshay Bhan, learned Counsel for the petitioner has (sic) the order of eviction primarily on the ground that reading of the Power of Attorney would show that the landlord authorized her attorney to rent/lease and to collect rent and issue receipts and to watch the land on her behalf. It is the contention of the learned Counsel for the petitioner that he was further given power to eject any tenant as may be deemed necessary.

4. The contention of the learned Counsel for the petitioner, therefore, is that the word tenants as has been used in Power in Attorney that would show that the intention was to get evict the tenants and to give it again on rent to other tenant and therefore, the need of landlord cannot be said to be bona fide.

5. Reliance is placed upon the judgment of Hon'ble Supreme Court in the case of Baldev Singh Bajwa v. Monish Saini : AIR2006SC59 , to contend that it was necessary for the landlord to prove that his requirement was with respect to the building in dispute which according to the learned Counsel for the petitioner is not fulfilled in the present case.

6. However, on consideration of the matter, I find no force in the contention raised by the learned Counsel for the petitioner.

7. Hon'ble Supreme Court in the case of Baldev Singh Bajwa v. Monish Saini (supra) has laid down that NRI landlord can maintain a petition under Section 13-B of the Act through Power of Attorney. It was not necessary for the landlord to have given detailed reasons for seeking eviction in Power of Attorney.

8. Once he has given authority to seek eviction it cannot be said that the application was not competent in law nor any mala fide could be attributed to the landlord as sufficient safeguards are provided under the statute for repossession in case landlord fails to occupy the building for statutory period.

9. Consequently, the petition is dismissed. However, the petitioner is granted three months' time to hand over the vacant possession of the demised premises.


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