AMAR MANCHANDA Vs. ABHEY MAN SINGH SIDHU

JUDGEMENT

(1.) The present revision petition is directed against the order dated 16.12.2011 passed by the Rent Controller, Chandigarh whereby the application for amendment of leave to defend application filed by the tenant under Section 18 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the 'Act') has been dismissed holding that the subsequent events set up in the amended application are not such events which go to the roots of the matter and have material bearing in the present petition under Section 13-B of the Act. The petitioner-landlord filed ejectment application under Section 13-B of the Act as extended to Chandigarh for ejectment of the respondent-tenant from the SCF No. 7, Sector 10-D, Chandigarh. The respondent-tenant filed an application for grant of leave to defend dated 29.01.2010 and took the plea that the landlord along with his father had already filed a rent petition on the ground of personal requirement which is pending in the Court of the Rent Controller, Chandigarh and filed the said petition and written statement of the earlier rent petition along with the said application. It was further alleged that the landlord is no more resident of Australia and he has permanently shifted along with his family to Chandigarh with effect from 09.01.2008 and therefore, he has lost his status of NRI and there was no evidence on record to show that he has retained the citizenship of Australia and there was no certificate by any competent authority regarding proof of citizenship of Australia. The tenants further alleged that petition has been filed through the general power of attorney, Manjeet Kaur and the general power of attorney was not a valid document and there was no valid authority even in the power of attorney which was attached with the ejectment petition and there was no relationship of tenant and landlord between the parties. The tenancy had come to an end in 2004 and a new tenancy had been created in favour of M/s Sardara Singh Sidhu HUF through payee's account cheques and the photostat copies of the cheques were appended. It was further alleged that the intention of the landlord was to enhance the rent every year and on the request of the father of the landlord, the rent had been paid at a enhanced rate and pleaded that the landlord was well settled and running business of banquet hall at Zirakpur. The tenants further pleaded that they were related to each other and had taken the entire shop-cum-flat jointly but however, at the instance of landlord/owner, separate tenancies were created to avoid the deduction of Income Tax at source, and therefore, all the three family members were necessary parties to the petition and there were several questions which required leading of evidence and the petition was liable to be dismissed.

(2.) The said application was contested by filing reply by the landlord owner on the ground that he fell within the definition of NRI under the Act and he had gone to Brisbane, Australia on 25.05.2003 in connection with his vocation and was doing jewellery business in Australia for the last 4-5 years but the said business had closed down and was not flourishing and petitioner No. 1 was not successful in running the business and he had permanently shifted to Chandigarh with effect from 09.01.2008. The factum of earlier filing a petition under the Act was admitted and it was denied that the landlord had lost the status of NRI and he was citizen of Australia as per certificate, copy of which is attached and it was accordingly contended that the earlier filing of petition did not bar the owner from filing a fresh petition and the owner had instituted the petition in his individual capacity and not through attorney and it was denied that he instituted the petition through Manjeet Kaur as general power of attorney. It was replied that the premises in question were leased out vide lease deed dated 19.04.1999 duly registered in the office of the Sub-Registrar, Chandigarh and on expiry of the lease period, the tenant was continuing as statutory tenant. In the earlier rent petition, the tenant had admitted relationship of landlord-tenant and no new tenancy had been constituted with M/s Sardara Singh Sidhu HUF and the tenancy came to an end in the year 2004. It was clarified that on the commencement of the tenancy from 01.04.1999, vide lease deed dated 19.04.1999, tenancy was created for five years upto 31.03.2004 and rent was paid mutually by the tenant to M/s Sardara Singh Sidhu HUF who never vacated the premises and was continuing as statutory tenant after the expiry of the lease period and the respondent was a tenant under the landlord. The tenant himself had agreed to increase the rent by 5% after the end of financial year according to Clause 3 of the agreement and the tenant enhanced the rent every year and no new agreement had been entered into and the landlord No. 1 was a partner and having 30% share with his father and brother in the banquet hall at Zirakpur and the premises were bona fide required for the jewellery business as well as for his residence as the tenanted premises mentioned in Transport Area, Sector 26, Chandigarh was insufficient and inadequate and the owners of the premises had asked the landlords to vacate the premises for their use and occupation. The premises were owned to the extent of 2/3rd share by the landlords and were bona fide required by the landlord and they being NRI's, were entitled to get the premises vacated and for separate tenancies, there were separate lease deeds and the said tenancies were distinct and different and all three family members were not necessary parties to the petition. The relationship of landlord and tenant having been admitted in the earlier pending litigation, the written statements filed in the said petitions were attached along with the reply.

(3.) Thereafter, when arguments had been addressed in the application for leave to defend, the tenants filed an application for dismissal of the petition under Section 13-B of the Act. The landlords filed reply to the application for dismissal of the application stating that it was not maintainable and had been instituted after 27.09.2010 and averments were made which were not there in the application for leave to defend and after expiry of the period of limitation, could not be looked into. It was mentioned that arguments had already been addressed on the application for leave to defend and was fixed for orders when the application for admission and denial had been moved which was also not maintainable and now, the present application had been filed just to delay the proceedings. It was mentioned that owner was not a voter and the certificate to this effect had also been filed and his name had been deleted in the voters list. It was contended that the landlord being voter, had no concern with the definition of NRI and the issuance of PIO Card had nothing to do with the petition under Section 13-B of the Act and it was further mentioned that the petitioner had got himself registered with the local police within 18 days from the date of his arrival in India and letter dated 06.05.2008 was attached. Thereafter, an application for amendment of the application for grant of leave to defend and for adding subsequent events was filed in which it was alleged that following subsequent events had taken place which need to be incorporated to show that the petition has been filed only for enhancement of rent and para Nos. 11 to 15 were sought to be added. The subsequent events in gist which are sought to be added were that the rent has been enhanced with effect from April, 2011 from Rs. 24,443/- per month to Rs. 25,655/- per month and a fresh tenancy had been created again in April, 2011 as the rent had been enhanced to Rs. 25,655/- per month from 01.04.2011 and the tenants had also enhancing the rent @ 5% every year but the landlord did not execute the fresh lease deed in their favour but had been receiving the enhanced rate of rent. It was further contended that the intention of the landlord/owners was to get the rent enhanced and it was averred that in the petition filed under Section 13 of the Act, the witnesses have not been produced since 19.11.2009 before the Rent Controller and the case was fixed for 03.11.2011 and last opportunity was granted subject to payment of cost and the petitioner had failed to deposit the cost, and therefore, was intentionally delaying the recording of evidence and the only motive was to enhance the rent. The zimni orders of the petition under Section 13 of the Act were reproduced to show that from 19.11.2009, cross-examination of the landlord's witnesses were being deferred. Accordingly, para Nos. 11 to 15 were sought to be added.