Vinod K. Sharma, J.
1. Present revision petition has been filed against an order passed by the learned Rent Controller, Garhshankar declining the leave to defend to the petitioner.
2. The facts of the case are that the landlord-respondent had tiled a petition under Section 13B of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) for ejectment of the respondent from the shop marked ABCD shown red in colour in the site plan of the petition bounded as under:
East: Remaining building of the petitioner.
West: PWD Road, Garhshankar to Hoshiarpur.
North: Shop of the petitioner in possession of Sukh Dev Verma.
South: Private passage of petitioner
being Khata No. 185/196, Khasra No. 408 as per Jambandi for the year 1996-97 situated in ward No. 5 within the urban area of Garhshankar.
3. The learned Counsel for the petitioner-tenant had sought leave to contest the petition under Section 13-B of the Act on the following grounds:
(a) The petitioner is not owner of the building in dispute.
(b) The petitioner is not NRI.
(c) The origin of the petitioner is not India.
(d) The petitioner is an old lady of the age of 90 years and she is unable to do any work.
(e) The petitioner had not disclosed full detail of her property situated within the urban area of Garhshankar.
(f) The petitioner is in possession of shop lying vacant but not disclosed the fact in her petition.
(g) The petitioner has no locus standi to file this petition.
(h) The petitioner has not returned to India as alleged.
(i) The intention of the petitioner is not bona fide.
(j) The complicated questions of law and fact are involved in the case which can be decided after taking evidence.
(k) The shop in dispute is situated within the red line of Garhshankar and it does not bear Khasra No. 408.
4. The learned Rent Controller came to the conclusion that the petitioner had inherited this property from her husband Vishwa Nath on the basis of Will dated 28.2.1993 and the mutation had already been sanctioned in her favour. Therefore, it was held that she was owner of the property and thus, landlord qua the petitioner. It was also noticed that the tenant had not disclosed that who was the owner of the property. For the purpose the learned Rent Controller placed reliance on the judgment of Hon'ble Delhi High Court in Sham Singh Bisht v. Sushil Bhatia 1992 (1) R.C.R. 688.
5. It was also noticed by the learned Rent Controller that as per Jamabandi of the year 1996-97 the landlady was recorded as owner of the property, and therefore, learned Rent Controller rightly came to the conclusion that she was the owner of the property. Learned Rent Controller on perusal of the passport placed by the landlord on record came to the conclusion that in her Canadian Passport place of her birth was mentioned as Village Bhalowal Ropar and therefore, she fell within the definition of NRI. By relying upon the judgment of this Court in case i.e. Sohan Lal v. Swaran Kaur 2003 (2) R.C.R. 407 learned Rent Controller held that it was not necessary to hold an Indian Passport to be an NRI.
6. The contention of the learned Counsel for the petitioner that the shop was situated within the red line of Garhshankar and not forming part of Khasra No. 408 was also rejected on the basis of report made by Halqa Patwari. The learned Rent Controller also rejected, the contention of the petitoner that the landlord is not to return to India being 90 years of age by placing reliance on the judgment of this Court in Kamlesh Devi alias Keshi v. Chanan Singh wherein it was held as under:
Application by NRI for ejectment of tenant-Contention of tenant that NRI has no intention to return to India contention repelled. It is not unknown that in the evening of their lives home sickness and loneliness overtakes the NRI and there is every desire to come back to the roots which are provided by their own country as nothing survives for them to do in the foreign land after their retirement - Application by NRI for ejectment of tenant - There is no requirement that NRI should first return to India and then apply for eviction of tenant.
It was also noticed that the age of the landlord was 70 years and not 90 years as claimed by the petitioner.
7. Learned Counsel for the petitioner has challenged the order on the ground that the petition was mala fide as the landlady being of 90 years of age was not capable to do business. Learned Counsel for the petitioner placed reliance upon the judgment of Supreme Court in Gulabbai v. Nalin Narsi Vohra and Ors. A.I.R. 1991 S.C. 1760 to contend that there has to be an element of need as opposed to mere desire to claim ejectment on the ground of bona fide requirement. The contention of the learned Counsel was that the learned Rent Controller while declining leave to defend has not taken note of distinction between need and desire and has accepted the bald assertion of the landlady that she needed the property for her own business.
8. Learned Counsel for the petitioner by placing reliance on para No. 12 of the judgment of Hon'ble Supreme Court in Inderjeet Kaur v. Nirpal Singh 2001 (1) R.C.R. 33 (S.C.), contended that the leave of defend was to be granted on the basis of affidavit of the parties and assertion and counter-assertion could not be relied upon, which reads as under:
12. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would dis-entitle the landlord from obtaining an order of eviction. It would not be a right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord, leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act. Leave to defend, cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under Clause (3) of the proviso to Sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be dis-entitled for an order of eviction. At the stage granting leave to defend parties rely on affidavits in support of the rival contentions. Assertions and counter-assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under Clause (e) of the proviso to Sub-section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially and burden is on the landlord to establish his case affirmatively. In short the substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noticed that even, in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petition so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
9. The contention of the learned Counsel for the petitioner was that for the purpose of granting leave to defend the learned Rent Controller was merely to see the ground raised in the application for leave to defend and affidavit filed in support of the said application and it was not open to the learned Rent Controller to see the defence of the tenant. This contention cannot be accepted as object of framing Section 13(B) was to give immediate possession to an NRI intending to return to India to start his own business or to stay here. Therefore, the intention of the legislature was to avoid delay and that the landlord should not be deprived or denied of his right to immediate possession of the premises for his bona fide use. Though the Rent Controller cannot go into detailed inquiry qua the points raised still it was incumbent upon the learned Rent Controller to look into the grounds raised for leave to defend and in case those were found to be prima facie baseless and making out no case, the leave to defend was liable to be rejected.
10. Learned Counsel for the petitioner thereafter referred to para Nos. 19. 20 and 26 of the judgment of Hon'ble Supreme Court in the case of Baldev Singh Bajwa v. Monish Saini 2005 (4) R.C.R. (Civil) 492 : 2005 (2) R.C.R. 470 (S.C.) which reads as under:
19. From the aforesaid decisions the requirement of the landlord of the suit accommodation is to be established as genuine need and not a pretext to get the accommodation vacated. The provisions of Section 18A(4) and (5) concede to the tenant's right to defend the proceeding initiated under Section 13B showing that the requirement of the landlord is not genuine or bona fide. The legislative intent for setting up of a special procedure for NR1 landlords is obvious from the legislative intent which has been deliberately designed making distinction between the ordinary landlords and special category of landlords. The Controller's power to give leave to contest the application filed under Section 13B is restricted by the condition that the affidavit filed by the tenant discloses such fact as would disentitle the landlord from obtaining an order for recovery of possession. It is needless to say that in the summary proceedings the tenant's right to contest the application would be restricted to the parameters of Section 13B of the Act. He cannot widen the scope of his defence by replying on any other fact which does not fall within the parameters of Section 13B. The tenant's defence is restricted and cannot go beyond the scope of the provisions of the Act applicable to the NRI landlord. Under Section 13B the landlord is entitled for eviction if he requires the suit accommodation for his or her use or the use of the dependent, (who) ordinarily lives with him or her. The requirement would necessarily to be genuine or bona fide, he would be entitled to the ejectment of the tenant nor it can be said that in no circumstances the tenant will not be (will be) allowed to prove that the requirement of the landlord is not genuine or bona fide. A tenant's right to defend the claim of the landlord under Section 13B for ejectment would arise if the tenant could be able to show that the landlord under Section 13B for ejectment would arise if the tenant could be able to show that the landlord in the proceedings is not NRI landlord; that he is not the owner thereof or that his ownership is not for the requirement period of five years before the institution of proceedings and that the landlord's requirement is not bona fide.
20. The legislative intent of expeditious disposal of the application for ejectment of the tenant tiled by the NRI landlord is reflected from the summary procedure prescribed under Section 18A of the Act of 1949 which requires the Controller to take up the matter on day-to-day basis till the conclusion of the hearing of an application. The Legislature wants the decision of the Controller to be final and does not provide an appeal or second appeal against the order of eviction, it is only the High Court which can exercise the power of consideration of the case, whether the decision of the Controller is in accordance with law. Section 13B gives right of ejectment to special category of landlord who is NRI (Non-Resident Indian); and owner of the premises for five years before action is commenced. Such a landlord is permitted to file an application for ejectment only once during his life time. Sub-section (3) of Section 13B imposes a restriction that he shall not transfer through. sale or any other means of lease out the ejected premises before the expiry of the period of five years from the date of taking possession of the said building. Not only that, if there is a breach of any of the conditions of Sub-section (3) of Section 13B. the tenant is given a right of restoration of possession of the said building. Under Sub-Section (2B) of Section 19 the landlord has to take possession and keep it for a continuous period of three months and he is prohibited from letting out the whole or any part of such building to any other person except the evicted tenant and upon any contravention thereof, he shall be liable for punishment of imprisonment to the term which can be extended upto six months. These restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine. Landlord, after the decree for possession, is bound to possess the accommodation. Landlord is prohibited from transferring it or letting it out for a period of five years. Virtually conditions and restrictions imposed on the NRI landlord make it improbable for any NRI landlord to approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which practically he is deprived of his right in the property not only as a lessor but also as the owner of the property. There is a restriction imposed even on the transfer of the property by sale or any other manner. The restriction imposed on the landlord by all probably points to the genuine requirement of the landlord. In our view there are in built protections in the relevant provisions, for the tenants that whenever the landlord would approach the Court he would approach when his need is genuine and bona fide. It is, of course, subject to tenants' right to rebut it but with strong and cogent evidence. In our view, (in) the proceeding taken up under Section 13B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlord's need pleaded in the petition is genuine and bona fide. But this would not disentitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
26. On the interpretation given by us and on a plain reading of the provisions, once in a life-time possession is given to a NRI to get one building vacated in a summary manner. A Non-resident Indian landlord is required to prove that: (i) he is a NRI; (ii) that he has returned to India permanently or for the temporary period; (iii) requirement of the accommodation by him or his dependent 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 to the grounds which NRI landlord is required to prove, to get ejectment under Section 13B of the Act. The Controller's power to give leave to contest the application filed under Section 13B circumscribe to the grounds and inquiry to the aspects specified in the Section 13B. 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 13B and no other aspect shall be considered by the Controller.
10. By referring to the observations of the Hon'ble Supreme Court, learned Counsel for the petitioner contended that even the Hon'ble Supreme Court while interpreting the provisions of Section 13(B) has been pleased to hold that the tenant can contest the claim of the landlord if the requirement is not bona fide. The contention of the learned Counsel was that once arguable points were raised the learned Rent Controller was bound to allow the leave to defend so that the parties could lead evidence on the ground of bona fide requirement and thereafter the decision could be taken. However, I do not find any force in this contention. Hon'ble Supreme Court in the case of Baldev Singh Bajwa (supra) has been pleased to hold as under:
To prove this fact that the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
11. In the present case it would be seen that except for mere assertion on the part of tenant that the premises are not required bonafide no other material was placed on record and therefore, the petitioner cannot take any benefit from the observations of the Hon'ble Supreme Court in the case of Baldev Singh Bajwa's (supra).
12. In view of what has been stated above I find that there is no illegality which may call for interference by this Court in revisional jurisdiction.