Allowed

Surinder Kumar and Anr. v. Sukhjinder Singh Aulak and Anr.

Punjab & Haryana HC4 Jul 2011CR/4201/2006

Case brief

AI extract

What is this about?

The High Court allowed two revision petitions challenging the dismissal of tenants' applications for leave to defend. The court held that NRI co-owners can separately maintain eviction petitions under Section 13-B for different properties, even if co-owners have filed such petitions for other properties.

What did the court decide?

The impugned orders in both revision petitions were set aside, and leave to defend was granted to the tenants based on the maintainability of the eviction petitions.

Surinder Kumar and Anr. Vs Sukhjinder Singh… — Landlord and Tenant | Punjab & Haryana HC (2011)

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CR No.4091 of 2006 CR No.4201 of 2006

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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(1) CR No.4091 of 2006 Date of decision:04.07.2011.

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Harbhajan Singh ...Petitioner Versus Sukhjinder Singh Aulak @ Billa and another ...Respondents

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Versus Sukhjinder Singh Aulak @ Billa and another ...Respondents (2) CR No. 4201 of 2006 Date of decision:04.07.2011. Surinder Kumar and another ...Petitioners Versus Sukhjinder Singh Aulak @ Billa and another ...Respondents

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CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN

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Present: Mr. Arun Palli, Senior Advocate, with Mr. K.V.S.Kang & Mrs. J.J.Kaur, Advocates, for the petitioners. Mr. Amit Rawal, Advocate, for the respondents. *****

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RAKESH KUMAR JAIN, J.

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This order shall dispose of two revision petitions bearing CR No.4091 of 2006 titled as Harbhajan Singh Vs. Sukhjinder Singh Aulak @ Billa and another' and CR No.4201 of 2006 titled as Surinder Kumar and another Vs. Sukhjinder Singh Aulak @ Billa and another' as in both the cases the eviction petitions filed by the same landlords under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] have been allowed and the applications filed by the tenants under Section 18-A(4) of the Act have been declined and they have been ordered to vacate the demised

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CR No.4091 of 2006 CR No.4201 of 2006

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premises. The only difference in both the cases is that in CR No.4091 of 2006, the tenant Harbhajan Singh is in occupation of shop No.1, 1^st Floor, Block-B, Dilkusha Market, Civil Lines, Jalandhar, whereas in CR No.4201 of 2006, the tenants Surinder Kumar and another are in possession of shop No.1, Ground Floor, Block-B, Dilkusha Market, Civil Lines, Jalandhar. Thus, for the sake of convenience, the facts are being extracted from CR No.4091 of 2006 titled as `Harbhajan Singh Vs. Sukhjinder Singh Aulak @ Billa and another'.

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The pleaded case of the landlords is that they had purchased the demised premises along with Bhagat Singh, Tripta Rani and Balwant Kaur in the year 1973. The demised premises fell to their share in an oral family settlement arrived at in November, 2005 regarding which a memorandum was also executed between the parties on 05.01.2006. They sought eviction of the tenants on the ground that they are owners of the demised premises from the last five years as the demised premises was purchased in the year 1973 and is required by them for their own use and occupation as they wanted to start consultancy business in both the shops situated on Ground Floor and First Floor. After service, the tenant put in appearance and filed an application under Section 18-A(4) of the Act in which it was alleged that the demised premises is jointly owned by Bhagat Singh, Tripta Rani, Sukhjinder Singh, Harjinder Singh and Balwant Kaur to the extent of 1/5^th share each. Bhagat Singh and Tripta Rani, parents of the landlords, had already filed an eviction petition under Section 13-B of the Act against Shiv Darshan Singh in respect of part of property No.7/B, Model Town Market, Jalandhar in which the tenant has been granted leave to defend. The parents of the landlords have also filed another eviction petition under Section 13-B of the Act against M/s Raj Hans Tailor and others in respect of part of property N.7/B, Model Town Market, Jalandhar in which leave to defend was not granted on 26.04.2005 against which the said tenant had filed appeal and his dispossession has been stayed. It was further alleged that the parents of the landlords have filed other eviction petition under Section 13-B of the Act against Harinder Singh Bedi in respect of part of property No.7/B, Model Town Market, Jalandhar which is pending before the

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CR No.4091 of 2006 CR No.4201 of 2006

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learned Rent Controller, Jalandhar and that one of the landlords, namely, Sukhjinder Singh Aulak, had filed an affidavit that he is a co-sharer in the property No.7/B, Model Town Market, Jalandhar and had no objection to the eviction petition having been filed by his father and mother against all the tenants in building No.7/B, Model Town Market, Jalandhar. It was also alleged that the said affidavit was filed on 09.03.2005, whereas the family settlement was arrived at in November, 2005, a document in this regard was prepared on 05.01.2006, Power of Attorney was executed in favour of Rajiv Kumar on 07.01.2006 and the present eviction petition was filed on 21.01.2006. It was alleged that the family settlement was only a camouflage because parents of the landlords had already filed eviction petition under Section 13-B of the Act in respect of the property situated in Model Town Market, Jalandhar.

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The learned Rent Controller dismissed the application for leave to defend specially on the ground that the tenant is nobody to challenge the family settlement and even if the family settlement is not taken into consideration, the landlords being co-sharers had a right to file eviction petition under Section 13-B of the Act. It was also observed that the landlords are the Non-resident Indians as they are holding foreign passports and are co-owners in the demised premises for more than five years as per the sale deed which pertains to the year 1973 and there is no necessity for them to first come to India for filing of the eviction petition which could be filed through Power of Attorney. In this view of the matter, the learned Rent Controller had found that there is no triable issue involved for which leave to defend could have been granted.

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Aggrieved against the impugned orders, the present revision petitions have been filed in which operation of the impugned orders was stayed on 03.08.2006. Thereafter the matter was adjourned sine die because it was alleged that the landlords could have chosen one of the premises in the same building and could not have filed eviction petition in respect of two premises in the same building. However, the matter was revived because it is now well settled that the building would not mean a part of the building but the entire building.

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CR No.4091 of 2006 CR No.4201 of 2006

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At the outset, learned counsel for the tenants has submitted that the right to apply under Section 13-B of the Act is available only after 5 years from the date of becoming owner of such a building which shall be available once during the life time of such an owner. It is submitted that if the NRI landlord is a co-owner in some urban property which is in occupation of a tenant and the other co-owners had already filed a petition under Section 13-B of the Act, then the right of the other co-owners, who have not filed the petition, would be extinguished for the purpose of maintaining a petition under Section 13-B of the Act in respect of the other premises in a different building. In this regard, he has drawn the attention of this Court to the document Annexure P-5 which is the eviction petition filed by Bhagat Singh and Tripta Rani against M/s Raj Hans Tailors and others under Section 13-B of the Act in respect of part of building No.7/B, Model Town Market, Jalandhar in which it was alleged that “ the demised premises in question fully described in the cause title above is owned by the petitioner, his wife Tripta Rani and his two sons, namely, Lovely alias Warjinder Singh Aulakh and Billa alias Sukhjinder Singh Aulakh”. The said petition was filed on 04.03.2004. It is further submitted that in the present eviction petition which was filed on 21.01.2006, it is alleged by the present landlords that “ the shop in question including the ground floor was purchased by the petitioners along with Sh. Bhgat Singh, Smt. Tripta Rani, Balwant Kaur vide various registered sale deeds”. It is further alleged that subsequent to the oral family settlement arrived at in November, 2005 amongst the petitioners, their mother Tripta Rani, their father Bhagat Singh and the brothers of Bhagat Singh who are the legal heirs of Balwant Kaur, a memo of family settlement was also executed between the parties incorporating the oral terms of family settlement. The said memo was executed on 05.01.2006. Learned counsel for the tenants has submitted that the learned Rent Controller, while holding the landlords to be the owners of the demised premises from the last 5 years, has relied upon the sale deed of the year 1973 according to which they were coowners with Bhagat Singh, Tripta Rani and Balwant Kaur and in that circumstance, they could not have filed the present eviction petition once the

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CR No.4091 of 2006 CR No.4201 of 2006

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petition under Section 13-B of the Act has already been filed by their parents in respect of property No.7/B, Model Town Market, Jalandhar and if they claimed it to be their exclusive property on the basis of oral family settlement which was arrived at in November, 2005 and a memorandum in that regard was executed on 05.01.2006, then they had not completed five years for the purpose of filing the eviction petition under Section 13-B of the Act as the petition was filed on 21.01.2006. In this regard, he has relied upon a Division Bench judgment of this Court rendered in CR No.4025 of 2006 titled as `Smt. Bachan Kaur and others v. Kabal Singh and another' decided on 26.04.2011.

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In reply, learned counsel for the landlords has submitted that if the demised premises has fallen to the share of the landlords by way of family settlement, the tenant is nobody to challenge the family settlement. In this regard, he has relied upon a judgment of this Court in the case of Ashwani Kumar Rana v. Balsharan Gautham and another, 2005(1) P.L.R. 389. He has further submitted that the eviction petition (Annexure P-5) was not filed by the present landlords, therefore, they cannot be held to be dis-entitled to maintain this eviction petition on their own accord in respect of the other building.

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I have heard both the learned counsel for the parties and perused the record with their able assistance.

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Before referring to the respective contentions of both the learned counsel for the parties, it would be relevant to refer to Section 13-B of the Act, which is reproduced hereasunder: -

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[13-B. Right to recover immediate possession of residential building or scheduled building and/or non-residential building to 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

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CR No.4091 of 2006 CR No.4201 of 2006

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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:

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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 time of such an owner.

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(2) Where the owner referred to in subsection (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 that 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.

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(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.”

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According to the aforesaid provision of the Act, a Non-Resident Indian landlord is required to prove that (i) he is a Non-Resident Indian, (ii) he has returned to India and required the property for his use or for the use of any one ordinarily living with him and dependent on him, (iii) his requirement of accommodation by seeking eviction of the tenant is genuine and (iv) he is

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CR No.4091 of 2006 CR No.4201 of 2006

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owner of the property for the last five years from the date of institution of the proceedings for ejectment. The tenant's affidavit asking for leave to contest the NRI landlord's application is required to be confined to the grounds which the NRI landlord has to prove. The word used by the Legislature in Section 13-B of the Act is “ownership” of the demised premises by the NRI which shall be 5 years old on the date of filing of the eviction petition and is given only one chance during his life time to file such a petition as an NRI landlord. The question, thus, arises as to “ whether an NRI landlord, who is a co-owner in two different properties which are in occupation of the tenants, can maintain a petition under Section 13-B of the Act after filing of the petition by his co-owners as NRI in respect of the other property”? In this regard, in the case of Karnail Singh v. Surinder Singh @ Chhinda, 2006(1) R.C.R. (Rent) 214, this Court has held that one of the NRI landlords, who is the co-owner, is not required to seek express authority or consent of the other co-owners for filing of the eviction petition as the one co-owner filing the suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. The term “owner” would also include a co-owner and for that matter, there is an affidavit on record (Annexure P-2) wherein one of the landlords, namely, Sukhjinder Singh Aulak has stated on 09.03.2005 that “ I have got no objection if my father Mr. Bhagat Singh and my mother Tripta Rani at present of VPO Rurka Kalan, Tehsil Phillaur, Distt. Jalandhar, Punjab, India, have filed an ejectment petition against all our tenants in building No.7-B, Model Town Market, Jalandhar, Punjab, India” and that “ I am also co-sharer in the property bearing No.7-B, Model TownMarket, Jalandhar, Punjab, India”. Moreover, in Smt. Bachan Kaur and others' case (supra), it has been held that “ thus an order of ejectment obtained by a NRI – co-owner will bind other co-owners but will not entitle other NRI and/or a co-owner to seek ejectment of tenant from another building either owned solely by such co-owner or jointly with other persons as

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CR No.4091 of 2006 CR No.4201 of 2006

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co-owner in exercise of right of eviction granted to an NRI by Section 13-B of the Punjab Act”.

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In view of the above discussion, I find that the impugned orders in both the revision petitions are patently illegal as the facts and circumstances of these cases indicate that there is sufficient grounds for granting leave to defend with regard to the maintainability of eviction petition as NRI landlords. Hence, the present revision petitions are hereby allowed and the impugned orders are set aside.

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No costs.

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A photocopy of this order be placed on the file of another connected case.

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July 04, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE

Surinder Kumar and Anr. v. Sukhjinder Singh Aulak and Anr.

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Surinder Kumar and Anr. v. Sukhjinder Singh Aulak and Anr.

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