SUPREME COURT RULES IN FAVOUR OF NRI LANDLORD

INTRODUCTION

A Division Bench comprising of Justice Aniruddha Bose, Justice Sanjay Kumar and Justice S.V.N Bhatti passed an Order dated 05.10.2023 in Smt. Shanta Rani Widow of Amrit Lal Vs. Nasib Kaur Widow of Harbhajan Singh in Civil Appeal No. 7328 Of 2010 and held that the Appeal filed by the tenant in the Eviction Appeal does not hold any merit and hence dismissed the Appeal of the Appellant.

FACTS

i) In the present case, one, Smt. Nasib Kaur, the Respondent owned a Shop No. 2 in Guru Amardas Chowk, Model Town, Jalandhar (“Tenanted Premises”) which was given on rent to Smt. Shanta Rani, the Appellant.

ii) The Respondent had been residing in England and was claiming the status of Non- Resident Indian (“NRI”) for several years. The Respondent claimed to have been pursuing avocation earnings or gains in England.

iii) She had become unemployed due to the recession in England, and was unable to earn a living. Consequently, the Respondent decided to relocate and settle down in India and also decided to seek eviction from the Appellant from the tenanted premises so that the Respondent could start her own business in readymade garments.

iv) Thereafter, the Respondent filed an Eviction Application under Section 13 of East Punjab Urban Rent Restriction Act, 1949 against the Appellant complaining of default in payment of rent.

v) Subsequently, the Appellant on the Notice of summary eviction proceedings under Section 13-B[1] of East Punjab Urban Rent Restriction Act, 1949 (“Right to recover immediate possession of residential building or scheduled building and/or non-residential building to accruing to Non-resident Indian”) sought leave of the Court in terms of Section 18-A (4) and (5) (“Special procedure for disposal of applications under Section 13-A or Section 13-B”)of the Act, to defend the eviction through summary proceedings. The said application seeking leave to defend was numbered E.A No. 334 of 2004.

vi) The Appellant contended that instant eviction proceedings simultaneously initiated against Shop Room No. 1 and tenanted premises (i.e., Shop Room No.2) are unavailable because Shop Room No.1 was let out to a partnership firm, M/s Amrit Lal and Sons, by Rent Note dated 02.05.1994 and the tenanted premises to Amrit Lal s/o Chaman Lal vide Rent Note dated 07.02.1989.

vii) Further, the Respondent had previously filed two separate applications to evict these tenants from their respective places.

viii) That the Respondent had stated that she only wanted to evict the tenant in the tenanted premises and not Shop No. 1. Therefore, the averments on this area of controversy were not adverted.

ix) Further, the Appellant averred that since the Respondent was a permanent resident of the United Kingdom and had not shifted to India, the petition for eviction through Section 13-B was not maintainable. Further, the Appellant alleged that relationship of the landlady and the tenant did not exist between them; and therefore, the Ejectment Application under Section 13-B (2) of the Act was not maintainable because an Ejectment Petition was filed concerning Shop Room No. 3 under Section 13-B of the Act.

x) The Respondent was one of the owners of Shop Room no.3 and therefore, Section 13-B was unavailable for summary eviction of the rent from tenanted premises.

xi) Thereafter the Rent Controller, by an Order dated 19.02.2009, dismissed the Application, by holding that the ejectment was not filed seeking eviction of two distinct premises, because the Respondent had withdrawn the relief made against the Shop no. 1. The Rent Controller, after perusing the passport of the Respondent recorded that the Respondent was of the Indian origin and was presently holding the passport of United Kingdom and therefore, the Respondent satisfied the definition of an NRI.

xii) That, the Rent Controller determined that the Respondent’s petition, even though she was residing in the United Kingdom, was valid. The Rent Controller ruled that even before the eviction process begins, a Non-Resident Indian (NRI) does not need to be physically present in India.

xiii) Adverting to other grounds raised in the defense, that the Respondent filed several Eviction Applications, it is concluded that the filing of a Petition by S. Kuldeep Singh against Mukesh Kumar does not debar the Respondent from maintaining a Petition under Section 13-B of the Act, against the Appellant.

xiv) The last objection of the Appellant was that the Eviction Application was filed against a dead person. The Rent Controller, by referring to the cause title, held that the Application was not filed against the dead person, but the Legal Representatives of the deceased were arrayed as parties. Having filed the reply to the summary eviction with the standing shown in the cause title, the Appellant herein ought not to be heard that the petition was filed against a dead person. The filing of an Eviction Petition against M/s. Arcade under an erroneous view does not make the Respondent an owner of such shop. The Learned Rent Controller, subsequently dismissed the Application of the Appellant.

xv) After rejecting the application filed for leave to defend, the Rent Controller independently examined the case of the Respondent and, by Order dated 19.02.2009, ordered eviction. The Appellant filed Civil Revision No. 2121 of 2009 before the High Court of Punjab and Haryana at Chandigarh. The Appellant in the High Court, challenged the Order of Eviction on three grounds: firstly, the Application filed in respect of Shop Room No. 3 stood dismissed, and S. Kuldeep Singh maintained another Petition for Shop Room No. 3. The High Court noted that the dismissal of an earlier Application against one of the tenants was not a ground for dismissal of another Ejectment Petition filed by the landlord. Secondly, the Application for Eviction was filed for default in payment of rent and continuing even after the amendment of Petition under Section 13-B, is wholly erroneous. After examining the record, the High Court held that the Rent Controller rightly did not proceed with the inquiry on the alleged default in payment of rent. No bar to amend the application was brought to their notice to examine this ground in detail. Lastly, the argument against the Order of Ejectment is that for Shop Room No. 5, an Order of Ejectment dated 14.05.2004 was made in favour of S. Kuldeep Singh. The High Court recorded a finding that each one of the owners claimed possession on separate grounds and the owner of Shop Room No. 2 is not disentitled to file the present application. The requirement pleaded by them cannot be held as malafides, and by noting that no other argument was advanced, the High Court dismissed Civil Revision No. 2121 of 2009.

xvi) Aggrieved by the said Order of the High Court of Punjab and Haryana at Chandigarh, the Appellant filed an Appeal in the Supreme Court vide Appeal No. 7328 Of 2010.

SUPREME COURT ANALYSIS

1) The Apex Court was of the opinion that the Civil Appeal has been admitted by referring to a few similar petitions/appeals pending in this Court. The similarity of an issue with a pending matter has been raised as one of the grounds for granting Special Leave, and the Civil Appeal is numbered. With the dismissal of the connected matters, the natural result is that the instant Appeal must follow. Since a distinguishing feature is raised by Counsel for the Appellant, the Court would consider the maintainability of the Civil Appeal.

2) That, the Apex Court noticed that the Appellant confined the challenge to the Order of Eviction only to three grounds before the High Court. Either by choice or for any reason, the Appellant before the High Court did not press any other ground available against the Order of Eviction or the Order refusing to grant leave to the Appellant. Having done so, in the Civil Appeal, contentions do not expand more than the scope of consideration either by the High Court or the Rent Controller.

3) Further, the Eviction Order was passed on the principles laid down by this Court in Ram Krishan Grover and others v. Union of India and others (2020) 12 SCC 506:

“37. In terms of Section 13-B of the Rent Act, the landlord should have been the owner of the premises for five years before the eviction petition is filed. Such landlord/owner is permitted to file an eviction petition only once during the lifetime and in respect of one building. Sub-section (3) to Section 13-B of the Rent Act imposes a restriction on sale or lease of the premises for a period of five years from the date of taking possession from the tenant. On breach of the conditions/restrictions mentioned in sub-section (3) to Section 13-B, the tenant has a right to seek restoration of possession. Sub-section (2-B) to Section 19 imposes a maximum punishment of six months’ imprisonment or a fine of one thousand rupees or both in case the landlord does not occupy the premises for a continuous period of three months after getting an eviction order or lets out the whole or any part of the premises to a third person other than the tenant in contravention of the provisions of sub-section (3) to Section 13-B. The reasoning in Baldev Singh Bajwa [Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778] exposits that these restrictions and conditions are strong in-built checks to ensure that the need of the landlord should be genuine and bona fide and the tenant should not be subjected to frivolous and dubious eviction order by relying on false assertions. 38. The presumption raised with regard to the genuine need of the landlord as pleaded in the petition should not be read as an axiom or self-evident truth, which entitles the landlord and mandates the court to pass a decree of eviction. This is clear from subsequent elucidation by this Court in paras 20 and 21 in Baldev Singh Bajwa [Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778]. The true ratio, in our opinion, is reflected in para 25, which reads as under: (Baldev Singh Bajwa [Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778], SCC p. 796) “25. On the interpretation given by us and on a plain reading of the provisions, once in a lifetime possession is given to an NRI to get one building vacated in a summary manner. A  Non-Resident Indian landlord is required to prove that: (i) he is an NRI; (ii) that he has returned to India permanently or for a temporary period; (iii) requirement of the accommodation by him or his dependant is genuine; and (iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenant’s affidavit asking for leave to contest the NRI landlord’s application should confine itself to the grounds which NRI landlord is required to prove, to get ejectment under Section 13-B of the Act. The Controller’s power to give leave to contest the application filed under Section 13-B is circumscribed to the grounds and inquiry on the aspects specified in Section 13-B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13-B and no other aspect shall be considered by the Controller.” 39. The requirement of a “strong case” for obtaining leave to defend means a good case that brings to fore reasonable and well-grounded basis on which the tenant seeks leave to contest the eviction proceedings. It does not mean setting up and establishing at that stage a case beyond any scintilla of doubt and debate. The grounds and pleas raised should reflect clear and strong defence and relate to the grounds mentioned in para 25 in Baldev Singh Bajwa [Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778] . The standard applied is similar to parameters elucidated in Inderjeet Kaur v. Nirpal Singh [Inderjeet Kaur v. Nirpal Singh, (2001) 1 SCC 706] , in which this Court had held that the leave to defend should not be granted on mere asking but when the pleas and contentions raise triable issues and the dispute on facts demands that the matter be properly adjudicated after ascertaining the truth of affidavits filed by the witnesses in their cross-examination. Each case has to be decided on its merits and not on the basis of any preconceived suppositions and presumptions. By providing for a simplified procedure of eviction by the Non-Resident Indians, Section 13-B does not dilute the rights of tenants. It gives a chance to the tenants on merits to establish their case and when justified and necessary to take the matter to trial. By no means, therefore, Section 13-B can be held to be arbitrary and unreasonable.”

4) That, the Division Bench held that the Appellant failed to make out a case that the Rent Controller’s Order was perverse. According to Article 136 of the Constitution of India, a court does not ordinarily go into the credibility of the findings of fact, reappraise the averments, and record results. In the case on hand, the circumstances stated were very normal and have been examined from the perspective in which they were required to be reviewed by the Rent Controller while exercising the jurisdiction under Section 13-B read with Section 18-A Sub-Sections (4) and (5) of the Act. No ground for any interference is made out whichever way the contentions are considered by this Court.

5) Applying the aforesaid principles to the present case, the Bench held that after perusing the findings recorded by the Rent Controller and the High Court of Punjab, the Court finds the grounds of the Appeal urged were without merit.

CONCLUSION

Thus, after considering the facts and circumstances of this case, the Apex Court, dismissed the Appeal filed by the Appellant.

 

Kartik Khandekar

Associate

The Indian Lawyer

 

[1] Section 13B. Right to recover immediate possession of residential building or scheduled building and/or non-residential building to accruing 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 nonresidential 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 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: 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.

(2) Where the owner referred to in sub-section (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.

(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.