GIRISH KANSAL Vs. NRI GURBAX SINGH DHILLON

JUDGEMENT

(1.) Challenge in this revision petition is to the order dated 26.02.2013 (Annexure P-4) passed by the Rent Controller, Kharar, whereby application under Sec. 18-A of The East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'Rent Act') filed by the petitioner-tenant seeking leave to contest the petition filed by the respondent-landlord under Sec. 13-B of the Rent Act has been declined.

(2.) It is the contention of the learned counsel for the petitioner that there were various triable issues, which were raised by the petitioner, which required evidence to be led by the parties and, therefore, the application should not have been dismissed summarily. He contends that the petition preferred under Sec. 13-B of the Rent Act has not been supported by an affidavit and in the absence of the said affidavit, the contents thereof could not have been taken into consideration. His further contention is that the respondent-landlord although was a co-owner of the demised premises but became an exclusive owner as per the pleaded case on 02.03.2012 when a mutual family agreement was entered into between the three co-sharers and that too, is not a registered document. He contends that the mandate of Sec. 13-B of the Rent Act is that an application would be maintainable only after a period of five years from the date of becoming the exclusive owner of the said building. If the date of the exclusive ownership is taken as 02.03.2012 (the mutual family agreement), the eviction petition could not have been filed prior to 02.03.2017 whereas the present application has been filed on 16.07.2012 and on this ground itself, the petition is not maintainable and, thus, the triable issue has arisen. His further contention is that the construction, which has been raised where the demised premises is situated, is a forest area and, therefore, would be an illegal construction, eviction whereof could not have been sought by the respondent. That apart, he submits that the bona-fide necessity, as has been sought to be projected by the respondent of himself and his son, also is not acceptable for the reason that the respondent was more than 71 years old when the petition for eviction was filed and as per the pleadings, he is a permanent resident of United States of America and, therefore, there is no likelihood of his coming back to India and starting the business of hotel, which he intends to start after demolishing all the nine shops of which he asserts himself to be the owner. The present eviction petition under Sec. 13-B of the Rent Act has been filed with a mala-fide intention in connivance with the other co-sharers for getting eviction from the demised premises of the tenants. That apart, he contends that there are nine shops which are the ownership of the respondent, out of which two shops and one store are in possession of the petitioner and qua the remaining seven shops, separate eviction petitions have been preferred by the respondent-landlord, which itself shows that it is violative of the provisions of Sec. 13-B of the Rent Act as it clearly mentions that a Non-Resident Indian owner, who returns to India, can get the possession of one building only. The nine shops being separate, he cannot seek eviction of all the nine shops under Sec. 13-B of the Rent Act. Assertion has also been made that he had already got possession of four shops and, therefore, there is no bona-fide necessity on the part of the respondent-landlord. All these triable issues, which arise for consideration, have been ignored by the Rent Controller while deciding the application preferred by the petitioner for leave to contest. In support of this contention, he has placed reliance upon a judgment of the Supreme Court in Charan Dass Duggal Vs. Brahma Nand (SC) 1983 (1) SCC 301 and the judgments of this Court in Kundan Singh Vs. Lal Singh, (P&H) 2005 (1) RCR (Rent) 194 , Harwinder Pal Kaur Vs. Kuldeep Singh Gurm (P&H) 2011 (1) RCR (Rent) 323 , Basant Kumar Vs. Romesh Kumar Deora (P&H) 2015 (2) RCR (Rent) 505 . In view of the above, the counsel for the petitioner prays for allowing the present revision petition by setting aside the order passed by the Rent Controller, Kharar dated 26.02.2013 (Annexure P-4).

(3.) On the other hand, learned counsel for the respondent submits that the Statute does not mandate or require the filing of an affidavit along with an application under Sec. 13-B of the Rent Act. In support of this contention, he places reliance upon the judgment of this Court in Mrs. Jainder Kaur Vs. Sh. Rohit Chopra, 2011(2) R.C.R.(Rent) 262 : 2011 (3) PLR 667 . His further submission is that a Division Bench of this Court in Smt. Bachan Kaur and others Vs. Kabal Singh and another, 2011 (1) RCR (Rent) 368 , has held that a co-owner is owner of each part of the properties in husband like manner with other co-owner and is entitled to seek ejectment of a tenant for benefit of all other co-owners with an only exception that none of the co-owners should object to such action having been taken and, therefore, in the present facts and circumstances of the case, the petition under Sec. 13-B of the Rent Act is fully maintainable as there is no objection raised by the co-owners. Reference has also been made to other judgments of this Court in Ram Lal Vs. Rashpal Lal, 2011 (3) RCR (Civil) 756 , Vinod Kumar Vs. Gurdarshan Singh Basra, 2009 (1) RCR (Civil) 53 .