1. Landlord seeking eviction of tenant for bona fide business need under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. (Para 4 , 5 , 6 )
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2019 Supreme(SC) 127
SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, DINESH MAHEHSWARI, JJ.
Deepak Tandon & Anr. – Appellants
Versus
Rajesh Kumar Gupta – Respondents
Civil Appeal Nos. 1537-1538 of 2019 (Arising out of S.L.P.(C) Nos. 15585-15586 of 2017)
Decided On : 07-02-2019
Important Points
IMPORTANT POINTS
Plea not raised either before prescribed authority or first appellate court cannot be raised before High Court for the first time.
A question of fact required to be proved by adducing evidence, but neither pleaded nor decided by the courts below, cannot be decided by the High Court raised for the first time before it.
Concurrent findings of trial court and first appellate court is binding on the High Court exercising jurisdiction under Article 227.
Plea not raised either before prescribed authority or first appellate court cannot be raised before High Court for the first time.
A question of fact required to be proved by adducing evidence, but neither pleaded nor decided by the courts below, cannot be decided by the High Court raised for the first time before it.
Concurrent findings of trial court and first appellate court is binding on the High Court exercising jurisdiction under Article 227.
Subject
Eviction - Maintainability of Application
Act Referred
Headnote
(a) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 – Section 21(1)(a) – Maintainability – Plea of maintainability not raised either before prescribed authority or first appellate court – Could not be raised before High Court for the first time – High erred in entertaining and deciding the issue. (Para 19, 20, 21)
(b) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 – Section 21(1)(a) – Maintainability of application on ground of nature of tenancy – A question of fact – To be proved by adducing evidence – Issue neither pleaded nor decided by the courts below – High Court erred in deciding such issue raised for the first time before it. (Para 24)
(c) Administration of justice – Judicial propriety – Concurrent findings of trial court and first appellate court – Binding on the High Court exercising jurisdiction under Article 227, Constitution of India. (Para 26, 27)
Facts of the case:
The appellants-landlords filed an application before the Prescribed Authority against the respondent (tenant) seeking his eviction from the suit house.
The Prescribed Authority allowed the application.
The District Judge dismissed the appeal and affirmed the order of the Prescribed Authority.
The Single Judge of High Court allowed the writ appeal and set aside the orders of the Appellate Court and Prescribed Authority and dismissed the appellants’ application filed under Section 21 (1)(a) of the Act, 1972.
Finding of the Court:
Impugned judgment is not sustainable.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Landlord asserts bona fide business need; tenant contends the landlord possesses other suitable vacant premises and the tenancy is primarily residential, rendering the application non-maintainable. (Para 6 , 7 , 11 )
3. The High Court erred by deciding maintainability for the first time in writ jurisdiction based on factual issues not pleaded or proved in lower courts. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 26 , 27 )
4. Pleas involving mixed questions of law and fact cannot be raised for the first time in a third court without prior pleadings and findings. (Para 21 , 22 , 23 )
5. Appeals allowed, High Court order set aside, and lower court orders restored, granting the tenant three months to vacate subject to rent payment. (Para 16 , 29 , 30 )
6. Can a plea of maintainability based on mixed questions of law and fact be raised for the first time in a writ petition?
No. If a plea is not taken in the pleadings and no issue was framed or finding recorded by the Trial Court or First Appellate Court, it cannot be raised for the first time in a third court, such as in appeal, revision, or writ. (Para 21 , 22 )
7. Is the determination of whether a tenancy is for residential, commercial, or composite purpose a question of law or fact?
It is a question of fact. Therefore, such a question must be first pleaded and then proved by adducing evidence before the court can decide upon it. (Para 23 , 24 )
8. Can a landlord seek eviction for commercial need if the tenanted premises are used for composite purposes?
Yes. If the tenancy is for composite purpose—meaning some portion is used for residence and some for commercial purpose—the landlord has the right to seek eviction for either residential or commercial need. (Para 25 )
9. When can a writ court interfere with the concurrent findings of fact of two lower courts?
Concurrent findings of fact based on the appreciation of evidence are binding on the writ court and generally do not call for interference in writ jurisdiction. (Para 26 , 27 )
JUDGMENT :
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 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.
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 50-60 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.
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 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 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
