DEEPAK TANDON & ANR. versus RAJESH KUMAR GUPTA on 7 February 2019

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[2019] 3 S.C.R. 684

SUPREME COURT REPORTS

[2019] 3 S.C.R.

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DEEPAK TANDON & ANR.

v.

RAJESH KUMAR GUPTA

(Civil Appeal Nos. 1537-1538 of 2019)

BFEBRUARY 07, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Uttar Pradesh Urban Buildings (Regulation of Letting, Rentand Eviction) Act, 1972:

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s.21(1)(a) – Application under – Seeking eviction of tenantedpremises – On the ground of bona fide requirement for commercialpurpose – Competent Authority as well as Appellate Court, givingconcurrent finding held that the tenant was liable to be evicted –Writ appeal u/Art. 227 of Constitution – High Court held that theDapplication for eviction for commercial need was not maintainableby virtue of proviso to s.21, because the premises in question wasessentially for residential purpose – Review against the orderdismissed – On appeal, held : The plea of maintainability was notraised either before the prescribed Authority or before the appellateCourt – In absence of such plea or issue, such plea cannot be raisedEfor the first time before the third court – Nature of tenancy (whethercommercial or residential) is not a pure question of law, but is aquestion of fact and hence such question was first required to bepleaded and then proved – If a tenancy is for composite purpose,landlord has the right to seek eviction either for his residential needFor commercial need – High Court exceeded its jurisdiction ininterfering with concurrent findings of fact – Rent Control andEviction.

Allowing the appeals, the Court

HELD: 1. The High Court committed jurisdictional errorGin setting aside the concurrent findings of the two Courts belowand thereby erred in allowing the respondent’s writ appeal anddismissing the appellants’ application under Section 21(1)(a) ofthe Uttar Pradesh Urban Buildings (Regulation of Letting, Rentand Eviction) Act, 1972 as not maintainable. [Para 17][688-G]

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2. If the plea is not taken in the pleadings by the partiesand no issue on such plea was, therefore, framed and no findingwas recorded either way by the Trial Court or the First AppellateCourt, such plea cannot be allowed to be raised by the party forthe first time in third Court whether in appeal, revision or writ,as the case may be, for want of any factual foundation and finding.It is more so when such plea is founded on factual pleadings andrequires evidence to prove, i.e., it is a mixed question of law andfact and not pure jurisdictional legal issue requiring no facts toprobe. [Paras 21 and 22][689-C-D]

3. The respondent-tenant had not raised the plea ofmaintainability of the appellants’ application under Section 21(1)(a)of the Act, 1972 in his written statement before the PrescribedAuthority. Since the respondent failed to raise the plea ofmaintainability, the Prescribed Authority rightly did not decidethis question either way. The respondent also did not raise theplea of maintainability before the First Appellate Court in hisappeal and, therefore, the First Appellate Court was also right innot deciding this question either way. [Paras 18, 19 and 20][689-A-C]

4. The question as to whether the tenancy is solely forresidential purpose or for commercial purpose or for compositepurpose, i.e., for both residential and commercial purpose, is nota pure question of law but is a question of fact, therefore, thisquestion is required to be first pleaded and then proved byadducing evidence. Therefore, such question could not have beendecided by the High Court for the first time in third round oflitigation in its writ jurisdiction simply by referring to someportions of the pleadings. [Paras 23 and 24][689-E-F]

5. If the tenancy is for composite purpose because someportion of tenanted premises was being used for residence andsome portion for commercial purpose, i.e., residential andcommercial, then the landlord will have a right to seek the tenant’seviction from the tenanted premises for his residential need orcommercial need, as the case may be. [Para 25][689-G]

6. High Court exceeded its jurisdiction in interfering inthe concurrent findings of fact of the two Courts below while AB

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Aallowing the writ appeal entirely on the new ground ofmaintainability of the application without examining the legalityand correctness of the concurrent findings of the two Courts below.The High Court should have seen that the concurrent findings offacts of the two Courts below were binding on the writ Courtbecause these findings were based on appreciation of evidenceBand, therefore, did not call for any interference in the writjurisdiction. [Paras 26 and 27][689-H; 690-A-B]CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1537-1538 of 2019.

CFrom the Judgment and Order dated 03.08.2016 of the High Courtof Judicature at Allahabad in Writ A. No. 32311 of 2014 and order dated24.03.2017 in Civil Misc. Review Application No. 275082 of 2016 inWrit A. No. 32311 of 2014.

Avi Tandon, Ms. Deepti Tandon, Anish Agarwal, Omar Waziri,DMs. Meghna Tandon, T. Mahipal, Advs. for the Appellants.

Nitin Bhardwaj, Baij Nath Patel , Advs. for the Respondent.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.E2. These appeals are filed against the final judgment and orderdated 03.08.2016 passed by the High Court of Judicature at Allahabadin Writ Appeal No.32311 of 2014 and the order dated 24.03.2017 in CivilMisc. Review Application No. 275082 of 2016 in Writ Appeal No. 32311of 2014.

F3. A few relevant facts need mention hereinbelow to appreciatethe short controversy involved in these appeals.

4. The appellants are the applicants and the respondent is theopposite party in the application filed by the appellants herein underSection 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting,GRent and Eviction) Act, 1972 (hereinafter referred to as ‘The Act, 1972")before the Prescribed Authority, Allahabad.

5. The appellants are the owners and the landlord of the HouseNo. 18/15, Hastings Road (1/5 Nyay Marg), Tandon Quarters, Allahabad(hereinafter referred to as “suit house”). They have let out the suit houseHto the respondent as their tenant on monthly rent.

6. The appellants filed an application (P.A. No.20/2011) beforethe Prescribed Authority under Section 21(1)(a) of the Act, 1972 againstthe respondent(tenant) seeking his eviction from the suit house. Theeviction was sought on the ground of the appellants’ bona fide need fordoing and continuing with their business operations in the suit house.The appellants alleged inter alia that presently they are carrying ontheir business operations in a tenanted premises, which is hardly 50-60mtr. away from the suit house. The appellants alleged that they have noother suitable accommodation of their own in the city where they can dotheir business and hence the application in question seeking release ofthe suit house for their personal bona fide need.

7. The respondent filed his reply. The respondent, however,admitted that the appellants are carrying on their business operations inthe place pointed out by them but, according to him, they were not payingany rent for use and occupation of the said place to its owners becausethe owners of the said house were in relation with them. The respondentthen pointed out that the appellants also have their own one shop in thecity, which is still lying vacant and, therefore, the appellants can accomplishtheir need by using the said shop.

8. The Prescribed Authority, by order dated 10.01.2013, allowedthe application. It was held that, there exists a relationship of the landlordand tenant between the parties in relation to the suit house; the appellants’need for carrying on their business operation is bona fide; and theappellants do require the suit house to carry on their business in the suithouse. It was also held that the place pointed out by the respondentwhere the appellants could carry on their business operation was notsufficient and, therefore, the respondent was liable to be evicted fromthe suit house to enable the appellants to do and carry on their businessoperations in the suit house.

9. The respondent felt aggrieved by the said order and filed appeal(Rent Control Appeal No.52/2013) before the District Judge, Allahabad.By order dated 30.05.2014, the District Judge dismissed the appeal andaffirmed the order of the Prescribed Authority.

10. The respondent felt aggrieved by the said order and carriedthe matter to the High Court under Article 227 of the Constitution ofIndia. By impugned order, the Single Judge of High Court allowed thewrit appeal and set aside the orders of the Appellate Court and Prescribed A

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AAuthority and dismissed the appellants’ application filed under Section21 (1)(a) of the Act, 1972.

11. The High Court allowed the writ appeal mainly on the groundthat the application filed by the appellants under Section 21(1)(a) of theAct, 1972 was not maintainable. The High Court held that the pleadingsBof the parties indicate that the tenancy in question was essentially forresidential purpose because out of four rooms, the respondent was usingthree rooms for residence and one room for shop, whereas the appellantssought respondent’s eviction for their commercial need which, accordingto the High Court, was not permissible by virtue of proviso to Section 21of the Act, 1972. The High Court, therefore, did not examine the findingsCof the two Courts below on merits, which were answered in appellants’

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12. Against the said order, the appellants filed the review applicationbefore the High Court, which was also dismissed.

D13. The appellants (applicants-landlord) have felt aggrieved bythe orders of the High Court in appeal and the review and filed theseappeals by way of special leave in this Court.

14. So, the short question, which arises for consideration in theseappeals, is whether the Single Judge was justified in allowing theErespondent’s writ appeal and was, therefore, justified in dismissing theappellants’ application filed under Section 21 (1)(a) of the Act, 1972 asnot maintainable.

15. Heard Mr. Avi Tandon, learned counsel for the appellants andMr. Nitin Bhardwaj, learned counsel for the respondent.F16. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeals, setaside the impugned order and restore the orders of the PrescribedAuthority and the Appellate Court (District Judge).

17. In our considered opinion, the High Court committedGjurisdictional error in setting aside the concurrent findings of the twoCourts below and thereby erred in allowing the respondent’s writ appealand dismissing the appellants’ application under Section 21(1)(a) of theAct, 1972 as not maintainable. This we say for the following reasons.

18. First, it is not in dispute that the respondent (opposite party)Hhad not raised the plea of maintainability of the appellants’ application under Section 21(1)(a) of the Act, 1972 in his written statement beforethe Prescribed Authority.

19. Second, since the respondent failed to raise the plea ofmaintainability, the Prescribed Authority rightly did not decide this questioneither way.

20. Third, the respondent again did not raise the plea ofmaintainability before the First Appellate Court in his appeal and,therefore, the First Appellate Court was also right in not deciding thisquestion either way.

21. Fourth, it is a settled law that if the plea is not taken in thepleadings by the parties and no issue on such plea was, therefore, framedand no finding was recorded either way by the Trial Court or the FirstAppellate Court, such plea cannot be allowed to be raised by the partyfor the first time in third Court whether in appeal, revision or writ, as thecase may be, for want of any factual foundation and finding.

22. Fifth, it is more so when such plea is founded on factualpleadings and requires evidence to prove, i.e., it is a mixed question oflaw and fact and not pure jurisdictional legal issue requiring no facts toprobe.

23. Sixth, the question as to whether the tenancy is solely forresidential purpose or for commercial purpose or for composite purpose,i.e., for both residential and commercial purpose, is not a pure questionof law but is a question of fact, therefore, this question is required to befirst pleaded and then proved by adducing evidence.

24. It is for this reason, such question could not have been decidedby the High Court for the first time in third round of litigation in its writjurisdiction simply by referring to some portions of the pleadings.

25. In any case and without going into much detail, we are of theview that if the tenancy is for composite purpose because some portionof tenanted premises was being used for residence and some portion forcommercial purpose, i.e., residential and commercial, then the landlordwill have a right to seek the tenant’s eviction from the tenanted premisesfor his residential need or commercial need, as the case may be.

26. Seventh, the High Court exceeded its jurisdiction in interferingin the concurrent findings of fact of the two Courts below while allowing A

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Athe writ appeal entirely on the new ground of maintainability of theapplication without examining the legality and correctness of theconcurrent findings of the two Courts below, which was impugned in thewrit appeal.

27. Eighth, the High Court should have seen that the concurrentBfindings of facts of the two Courts below were binding on the writ Courtbecause these findings were based on appreciation of evidence and,therefore, did not call for any interference in the writ jurisdiction.

28. In the light of the aforementioned eight reasons, we are ofthe considered opinion that the impugned order is not legally sustainable.C

29. In view of the foregoing discussion, the appeals succeed andare hereby allowed. The impugned order is set aside. As a consequence,the orders passed by the Prescribed Authority and the first AppellateAuthority are restored.

30. The respondent is, however, granted three months’ time toDvacate the suit house from the date of this order subject to the conditionthat he furnishes the usual undertaking in this Court and pays to theappellants the entire arrears of rent up to date as per the agreed rate ofrent or the rent determined by the Prescribed Authority in its order in theCourt below and further pay three months’ rent at the same rate by wayEof use and occupation in advance along with the arrears of rent.

Kalpana K. Tripathy

Appeals allowed.

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