Hon'ble Mr. Justice Abhay Manohar Sapre
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 15371538 OF 2019
(Arising out of S.L.P.(C) Nos.1558515586 of 2017)
Deepak Tandon & Anr. ….Appellant(s)
VERSUS
Rajesh Kumar Gupta ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. These appeals are filed against the final
judgment and order dated 03.08.2016 passed by
the High Court of Judicature at Allahabad in Writ
Appeal No.32311 of 2014 and the order dated
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24.03.2017 in Civil Misc. Review Application No.
275082 of 2016 in Writ Appeal No. 32311 of 2014.
3. A few relevant facts need mention hereinbelow
to appreciate the short controversy involved in these
appeals.
4. The appellants are the applicants and the
respondent is the opposite party in the application
filed by the appellants herein under Section 21(1)(a)
of the U.P. Urban Buildings (Regulation of Letting,
Rent 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 House No. 18/15, Hastings Road
(1/5 Nyay Marg), Tandon Quarters, Allahabad
(hereinafter referred to as “suit house”). They have
let out the suit house to the respondent as their
tenant on monthly rent.
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6. The appellants filed an application (P.A.
No.20/2011) before the Prescribed Authority under
Section 21(1)(a) of the Act, 1972 against the
respondent(tenant) seeking his eviction from the
suit house. The eviction was sought on the ground
of the appellants’ bona fide need for doing and
continuing with their business operations in the
suit house. The appellants alleged inter alia that
presently they are carrying on their business
operations in a tenanted premises, which is hardly
5060 mtr. away from the suit house. The
appellants alleged that they have no other suitable
accommodation of their own in the city where they
can do their business and hence the application in
question seeking release of the suit house for their
personal bona fide need.
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7. The respondent filed his reply. The respondent,
however, admitted that the appellants are carrying
on their business operations in the place pointed
out by them but, according to him, they were not
paying any rent for use and occupation of the said
place to its owners because the owners of the said
house were in relation with them. The respondent
then pointed out that the appellants also have their
own one shop in the city, which is still lying vacant
and, therefore, the appellants can accomplish their
need by using the said shop.
8. The Prescribed Authority, by order dated
10.01.2013, allowed the application. It was held
that, there exists a relationship of the landlord and
tenant between the parties in relation to the suit
house; the appellants’ need for carrying on their
business operation is bona fide; and the appellants
do require the suit house to carry on their business
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in the suit house. It was also held that the place
pointed out by the respondent where the appellants
could carry on their business operation was not
sufficient and, therefore, the respondent was liable
to be evicted from the suit house to enable the
appellants to do and carry on their business
operations 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 and affirmed the order of the Prescribed
Authority.
10. The respondent felt aggrieved by the said order
and carried the matter to the High Court under
Article 227 of the Constitution of India. By
impugned order, the Single Judge of High Court
allowed the writ appeal and set aside the orders of
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the Appellate Court and Prescribed Authority and
dismissed the appellants’ application filed under
Section 21 (1)(a) of the Act, 1972.
11. The High Court allowed the writ appeal mainly
on the ground that the application filed by the
appellants under Section 21(1)(a) of the Act, 1972
was not maintainable. The High Court held that the
pleadings of the parties indicate that the tenancy in
question was essentially for residential purpose
because out of four rooms, the respondent was
using three rooms for residence and one room for
shop, whereas the appellants sought respondent's
eviction for their commercial need which, according
to the High Court, was not permissible by virtue of
proviso to Section 21 of the Act, 1972. The High
Court, therefore, did not examine the findings of the
two Courts below on merits, which were answered
in appellants’ favour.
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12. Against the said order, the appellants filed the
review application before the High Court, which was
also dismissed.
13. The appellants (applicantslandlord) have felt
aggrieved by the orders of the High Court in appeal
and the review and filed these appeals by way of
special leave in this Court.
14. So, the short question, which arises for
consideration in these appeals, is whether the
Single Judge was justified in allowing the
respondent's writ appeal and was, therefore,
justified in dismissing the appellants’ application
filed under Section 21 (1)(a) of the Act, 1972 as not
maintainable.
15. Heard Mr. Avi Tandon, learned counsel for the
appellants and Mr. Nitin Bhardwaj, learned counsel
for the respondent.
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16. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are constrained to allow the appeals, set aside the
impugned order and restore the orders of the
Prescribed Authority and the Appellate Court
(District Judge).
17. In our considered opinion, the High Court
committed jurisdictional error in setting aside the
concurrent findings of the two Courts below and
thereby erred in allowing the respondent's writ
appeal and dismissing the appellants’ application
under Section 21(1)(a) of the Act, 1972 as not
maintainable. This we say for the following reasons.
18. First, it is not in dispute that the respondent
(opposite party) had not raised the plea of
maintainability of the appellants’ application under
Section 21(1)(a) of the Act, 1972 in his written
statement before the Prescribed Authority.
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19. Second, since the respondent failed to raise
the plea of maintainability, the Prescribed Authority
rightly did not decide this question either way.
20. Third, the respondent again did not raise the
plea of maintainability before the First Appellate
Court in his appeal and, therefore, the First
Appellate Court was also right in not deciding this
question either way.
21. Fourth, it is a settled law that if the plea is not
taken in the pleadings by the parties and no issue
on such plea was, therefore, framed and no finding
was recorded either way by the Trial Court or the
First Appellate Court, such plea cannot be allowed
to be raised by the party for the first time in third
Court whether in appeal, revision or writ, as the
case may be, for want of any factual foundation and
finding.
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22. Fifth, it is more so when such plea is founded
on factual pleadings and requires evidence to prove,
i.e., it is a mixed question of law and fact and not
pure jurisdictional legal issue requiring no facts to
probe.
23. Sixth, the question as to whether the tenancy
is solely for residential purpose or for commercial
purpose or for composite purpose, i.e., for both
residential and commercial purpose, is not a pure
question of law but is a question of fact, therefore,
this question is required to be first pleaded and
then proved by adducing evidence.
24. It is for this reason, such question could not
have been decided by the High Court for the first
time in third round of litigation in its writ
jurisdiction simply by referring to some portions of
the pleadings.
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25. In any case and without going into much
detail, we are of the view that if the tenancy is for
composite purpose because some portion of
tenanted premises was being used for residence and
some portion for commercial purpose, i.e.,
residential and commercial, then the landlord will
have a right to seek the tenant’s eviction from the
tenanted premises for his residential need or
commercial need, as the case may be.
26. Seventh, the High Court exceeded its
jurisdiction in interfering in the concurrent findings
of fact of the two Courts below while allowing the
writ appeal entirely on the new ground of
maintainability of the application without examining
the legality and correctness of the concurrent
findings of the two Courts below, which was
impugned in the writ appeal.
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27. Eighth, the High Court should have seen that
the concurrent findings of facts of the two Courts
below were binding on the writ Court because 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 of the considered opinion that the
impugned order is not legally sustainable.
29. In view of the foregoing discussion, the appeals
succeed and are hereby allowed. The impugned
order is set aside. As a consequence, the orders
passed by the Prescribed Authority and the first
Appellate Authority are restored.
30. The respondent is, however, granted three
months’ time to vacate the suit house from the date
of this order subject to the condition that he
furnishes the usual undertaking in this Court and
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pays to the appellants the entire arrears of rent up
to date as per the agreed rate of rent or the rent
determined by the Prescribed Authority in its order
in the Court below and further pay three months’
rent at the same rate by way of use and occupation
in advance along with the arrears of rent.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHEHSWARI]
New Delhi;
February 07, 2019
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