Eviction--NRI Landlord--Respondent acquired ownership rights for first time only after the death of his father--Respondent was not owner for the period of five years on the date of presentation of the petition as a Non Resident Indian--Eviction petition not maintainable
Eviction--NRI Landlord--Ownership for five years--Ownership attained after death of father--If the deceased owner was also an NRI, then the period of his ownership as an NRI can be taken into consideration for the reason that the ownership does not remain in abeyance.

Mr. Hemant Gupta, J.: - Petitioner-tenant is in revision aggrieved against the order dated 22.4.2010 (Annexure P-7), whereby an application for leave to defend filed by the petitioner to cross-examine the landlord was declined. The challenge is also to another order dated 22.4.2010 (Annexure P-8) wherein an order of eviction was passed against the petitioner under Section 13-B of the East Punjab Urban Rent Restriction Act 1949 (for short the ‘Act’).

2. The brief facts leading to the aforesaid orders are that the respondent filed a petition under Section 13-B of the Act on 6.8.2009, alleging therein, that his father Mehanga Singh was the owner of the property in question. He died on 23.4.2009 and that he along with his brother succeeded to the estate of Mehanga Singh on the basis of registered Will dated 20.11.1984. He, a Non Resident Indian (NRI), is entitled to seek eviction in terms of Section 13-B of the Act inserted vide the Punjab Act No. 9 of 2001.

3. On 30.7.2012, the learned Single Bench expressed his disagreement with the judgment of a learned Single Bench of this Court reported as 2008 (1) Punjab Law Reporter 33, Ved Parkash Sharma, vs. Ranbir Singh Sahota and another and referred the matter to the Larger Bench. It is in pursuance of such order, the matter has been placed before this Bench.

4. Learned counsel for the petitioner has vehemently argued that in terms of Section 13-B of the Act, an NRI- owner is entitled to seek eviction only if he is an NRI for a period of five years before filing of the petition. In the present case, respondent inherited the right in the property on the death of his father on 23.4.2009 and has sought eviction soon thereafter. Therefore, he is not entitled to seek summary eviction of a tenant contemplated under Section 13-B of the Act. It is argued that in Ved Parkash Sharma’s case (supra), the land owner had died in the year 1976, whereas the provisions of Section 13-B of the Act came to be introduced vide the Punjab Act No 9 of 2001. Therefore, the owner was an NRI for a period of five years, prior to the filing of the petition. Thus, such judgment is not applicable to the facts and circumstances of the present case.

5. On the other hand, the learned counsel for the respondent has relied upon the said judgment and also a judgment of Hon’ble the Supreme Court in Baldev Singh Bajwa vs. Monish Saini, [2005(4) Law Herald (P&H) 561 (SC)] : AIR 2006 SC 59.

6. Before we consider the respective arguments of learned counsel for the parties, Section 13-B of the Act would need reproduction: -

“13.B Right to recovery immediate possession of residential building or scheduled building and/or non-residential building to accrue 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 non-resident 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) ........................................................................................

(3)........................................................................................”

7. It is the proviso which is the subject matter of interpretation before this Court. Such proviso was also the subject matter of interpretation before a Division Bench of this Court in Smt. Bachan Kaur and ors vs. Kabal Singh and another, [2011(3) Law Herald (P&H) (DB) 2786] : Civil Revision No. 4025 of 2006 decided on 26.4.2011, in which one of us (Hemant Gupta, J) was a member. One of the argume