Dismissed

M/S Bharat Textiles Mills v. Balbir Singh

Punjab & Haryana HC7 Aug 2013CR/2197/2013

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed a tenant's revision petition challenging an order rejecting leave to defend and granting ejectment under the East Punjab Urban Rent Restriction Act. The court held that eviction is an automatic consequence under Section 18-A(4) once leave to defend is refused to an NRI landlord, relying on precedent.

What did the court decide?

The revision petition was dismissed as without merit. The order rejecting leave to defend was upheld, making ejectment an automatic consequence.

M/S Bharat Textiles Mills Vs Balbir Singh — Property and Title | Punjab & Haryana HC (2013)

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CR No.2197 of 2013 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.2197 of 2013 (O&M) Date of decision: 07.08.2013

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M/s Bharat Textile Mills

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......Petitioner(s)

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Versus

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Balbir Singh

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......Respondent(s)

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CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR GARG

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Present: Mr. V.K. Sandhir , Advocate for the petitioner.

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Mr. Bikramjit Arora, Advocate for the respondent.

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Rakesh Kumar Garg, J. (Oral)

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This is tenant's revision petition against the order dated 22.2.2013 of Rent Controller rejecting its prayer to grant leave to defend, sought by him in a petition filed on behalf of the landlord under Section 13B of the East Punjab Urban Rent Restriction Act,1949 (for short the “Rent Act”).

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On 3.4.2013, after considering the arguments raised on behalf of the petitioner-tenant, this Court passed the following order:

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“The revision petition is against the order rejecting the leave to defend sought by the respondent-tenant. He had principally two objections to make before the Rent Controller. i) the lease had been in favour of the partnership firm represented through a partner and since there are other partners the landlord was required to implead all the partners. ii) the petition has been filed under Section 13-B and the document

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Saini Pushpinder 2013.08.12 12:21 I attest to the accuracy and integrity of this document High Court Chandigarh

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CR No.2197 of 2013 (O&M)

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produced does not show the landlord's status as NRI. The Rent Controller rejected the both these objections and directed the ejectment.

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Learned counsel for the petitioner has mounted a third objection to what had been already stated that the Court which rejects the leave to defend cannot pass an order of eviction straightway without being satisfied about the landlord's bona fides of requirement.

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As regards his contention that the petition filed against the partnership firm represented through only one of the partners was not maintainable, learned counsel refers to the judgment of the Supreme Court in Shri Krishan Sarup Dhir Vs. Shambhu Parshad 1981 (1) RLR 371 I have gone through the judgment and it does not give out any such proposition in the manner urged by the learned counsel. On the other hand, it is a cryptic order that has merely directed a remand of the case on a question which was still required to be considered whether there was a valid partnership and whether each of the partners was entitled to run the business of the partnership firm or not. The reliance on this judgment is, in my view, does not advance the case of the petitioner. Learned counsel also refers to the judgment of the Supreme Court in The Upper India Cable Co. &

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CR No.2197 of 2013 (O&M)

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others Vs. Bal Kishan 1984(3) SCC 462. This

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judgment, if properly understood, will set out a proposition exactly contrary to what the learned counsel urges before this Court. The Court has brought out the fact that there is no compulsion for a party suing against the partnership firm to implead all the partners. The Court has observed in para 7 of the judgment “It was open to him (landlord) not to implead the partners of the firm in view of the provision contained in Order 30, rule 1 CPC which permits a firm to be sued in the firm's name.” The judgment also delineates the procedure that could be adopted where either party may seek the other to disclose the name of all the partners. If all other partners are added, they shall also be taken as proper parties. There is a difference between the expression 'proper party' and the 'necessary party'. A nonimpleadment of proper party may not result in dismissal of an action while a non-impleadment of a necessary party would result in such disability for a plaintiff suing against the firm. The fact that a partnership firm has disclosed in its defence other partners is wholly irrelevant that cannot compel a plaintiff to implead all other persons. The argument of the learned counsel making reliance on the judgment for a proposition canvassed by

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CR No.2197 of 2013 (O&M)

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him is not tenable. The petition filed against the partner representing the firm who was also incidentally the party to whom the letting was made was therefore perfectly tenable and the objection regarding the maintainability of the petition for non-impleadment of the other partners is also without merit which do not require any elaborate consideration.

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Learned counsel has a contention to make that though the landlord was a person of Indian origin he had been residing in as a citizen of U.K. and having forsaken his citizenship he has transited to Kenya and the document produced before the Court will only show entitlement in the passport that he has on a transmit visa endorsement. The expression NRI under the East Punjab Rent Restriction Act under Section 2 (dd) is wide enough to accept every situation of a person of Indian origin who settled either temporarily or permanently outside India. It sets three circumstances where such settlement outside India could take place; a) for or on taking up employment outside India; b) for carrying on a business or vocation outside India; c) for any other purpose, in such circumstances, as would indicate his intention to stay outside India for uncertain period.

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CR No.2197 of 2013 (O&M)

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In this case the fact that he had been a person of Indian origin for which he has produced a certificate issued by the Indian Embassy and the fact that he has been holding a passport of the Republic of Kenya is seen from the copy of the passport produced by the petitioner and it is sufficient to indicate that he has embraced Kenyan citizenship. Learned counsel is in error in referring to a visa endorsement showing his transit status as meaning that he holds a transit visa at Kenya. If the landlord had been issued with the passport of a foreign country it would also mean that he holds citizenship of that country. In fact, the visa entitlement shows that the stamping has been done by the Secretary, High Commission of India at Nairobi, with multiple entry allowing a Kenyan citizen of Indian origin to visit India. This document is clear that he has NRI status and the argument that he is not a NRI is clearly wrong and does not make a proper reading of the document relied on by the landlord.

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The only possible error that I can find about the order is that a rejection of leave to sue cannot result in an automatic order of ejectment. Learned counsel refers me to the judgment of this Court in MRF Limited Vs. Major Singh Purewal 2009 (4) PLR 23 and Sardar Ajit Singh Vs. Sardar

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CR No.2197 of 2013 (O&M)

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Amarjit Singh and others 2007 (3)RCR (Civil)

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485 that according to the learned counsel that the Court is still required to consider the issue of bona fides. Need of the landlord is not merely to be presumed at all times but it is the issue whether the requirement of the accommodation of the landlord or his dependent is genuine or not it shall be examined in the context of what is stated in the written statement.

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The counsel would state that all that the landlord has stated is that the property was necessary for the business purpose and nature of business has not even been set forth. I have elaborately dealt with the objections only for the purpose of narrowing the controversy for an adjudication in the civil revision.

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Notice of motion for 3.7.2013.

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Interim stay.”

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Thus, the only point which survives in this revision petition is “whether ejectment of the tenant is automatic once leave to defend is rejected?”

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The question raised herein has already been answered by a Full Bench of this Court in CR No.1493 of 2010 (Anwar Ali versus Gian Kaur) decided on 9.11.2010. The relevant part of the aforesaid order reads thus:

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“A conjoint reading of the aforesaid two provisions of the Act would go to show that the

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CR No.2197 of 2013 (O&M)

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legislature in its wisdom thought it is necessary to engraft special provisions for expeditious disposal of petitions for eviction filed by Non-resident Indian landlord. Under Section 13-B, leave to defend, has to be sought by a tenant and only upon such leave being granted, it would be open for the tenant to contest the claim of the landlord with regard to his requirement of the tenanted premises. Once leave is refused, Section 18-A (4) introduces a deeming provision by which the claim of the landlord with regard to the need for the premises is to be presumed.

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Apart from the specific provisions of the Act, reproduced above, particularly those contained in sub-section 4 of Section 18-A, the Apex Court in Baldev Singh Bajwa versus Monish Saini, AIR

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2006 Surpeme Court 59 had occasion to deal with the very same provisions of the Act. After an elaborate discussion, which is available in the text of the judgment, the Apex Court came to a conclusion that the provisions of Section 13-B would require the tenant to bring on record evidence of a very strong character to rebut the legal presumption that is inbuilt in Section 18-A of the Act with regard to the need of the NRI landlord in respect of the tenanted premises. Only upon such convincing evidence being laid before the

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Saini Pushpinder 2013.08.12 12:21 I attest to the accuracy and integrity of this document High Court Chandigarh

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CR No.2197 of 2013 (O&M)

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Rent Controller, leave to defend can be granted, failing which, obviously, the legal presumption with regard to the need of the landlord would continue to hold the field.

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Learned counsel for the appellant has placed before us an order of the Apex Court dated 19.01.2009, passed in Civil Appeal No.347 of 2009 titled as Kamal Raj Bansal versus Rajpal Singh in which the Apex Court, according to the learned counsel, has taken the view that even after rejection of the leave to defend, the landlord would be obliged to prove his case. Another judgment of the Apex Court in Modula India versus Kamakshya Singh Deo, AIR 1989 Supreme Court 162 has also been placed before us by the learned counsel for the petitioner to contend that the NRI landlord would have still to prove his case after leave to defend is refused to the tenant. The order dated 19.01.2009 in Kamal Raj Bansal (supra), in our considered view, does not erode the efficacy of the ratio of the judgment of the Apex Court in Baldev Singh Bajwa's case (supra) inasmuch as neither the decision in Baldev Singh Bajwa (supra) has been referred to in the said order nor the detailed reason for the conclusion reached is available in the order of the Court. Insofar as the decision in Modula India's

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CR No.2197 of 2013 (O&M)

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case (supra) is concerned, the Apex Court in the said case was dealing with the provisions of the West Bengal Premises Tenancy Act, 1956, which did not contain provisions pari materia with Section 13-B and 18-A of the East Punjab Urban Rent Restriction Act, 1949. Moreover, in Modula India (supra), the Apex Court was dealing with a situation where the defence of the defendanttenant was struck off. We are, therefore, of the considered view that the decision in Modula India's case (supra) does not detract from the principles of law laid down in Baldev Singh Bajwa's case (supra).

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The above discussions would lead us to the conclusion that in a situation where under Section 13-B of the Act, leave is refused to the tenant to defend the proceedings brought by the NRI landlord, eviction of the tenant has to be ordered an an automatic consequence.”

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In view of the aforesaid law laid down authoritatively, the question raised before this Court does not survive.

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Thus, the revision petition is dismissed being without any

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merit.

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August 07, 2013 ps

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(RAKESH KUMAR GARG) JUDGE

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