1999 Supreme(All) 1447

IN THE HIGH COURT OF ALLAHABAD
A. K. Yog, J.
VIRENDRA PAL GUPTA - Appellant
Versus
III ADDITIONAL DISTRICT JUDGE, GHAZIABAD - Respondents
C. M. W. P. 15343 Of 1998
Decided On : 09/17/1999

A party cannot be allowed to raise a new plea, which is taken for the first time in writ proceedings and that too by filing a supplementary affidavit, and a party cannot be allowed to raise a new plea, for the first time and which would require adjudication of a question of fact, after having accepted the applicability of the Act and contested the release application on merit up to the appellate stage without raising the issue.

Headnote:

U. P. URBAN BUILDINGS (REGULATION OF LETTING, RENT AND EVICTION) ACT, 1972 - SECTION 21 (1) (A) - BONA FIDE NEED OF LANDLORD - COMPARATIVE HARDSHIP - APPLICABILITY OF ACT - WAIVER OF RIGHT TO RAISE PLEA - NEW PLEA IN WRIT PROCEEDINGS - JURISDICTION OF COURT - VALIDITY OF DECREE - NULLITY - CONSENT OF PARTIES - CORAM NON JUDICE - ACT VOID - AGREEMENT IN BREACH OF ACT - JURISDICTIONAL DEFECT - PLEADING AFTERTHOUGHT - ADJUDICATION OF QUESTION OF FACT - WAIVER OF PROTECTION - CONCURRENT FINDING OF FACT - INTERFERENCE IN WRIT PROCEEDINGS - COMMENCEMENT OF TENANCY - DETERMINATION OF QUESTION OF FACT - RAISING PLEA FOR THE FIRST TIME IN WRIT PETITION.

Fact of the Case:

Tenant Virendra Pal Gupta occupied a shop in Upper Bazar, Opposite Raj Talkies, Modinagar, Tehsil and District Ghaziabad, owned by landlords Mahavir Prasad and Smt. Srimatl Devi. The landlords filed a release application under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972) on the ground that they required the shop bona fide for settling their son. The Prescribed Authority rejected the application on the ground that the tenant would suffer more hardship compared to the landlord. The landlords filed an appeal, which was allowed by the appellate authority, finding that the landlord's need was bona fide and the tenant had not made efforts to find alternative accommodation.

Finding of the Court:

The court held that the tenant could not raise the plea that the provisions of the Act were not applicable when the shop was let out, for the first time in writ proceedings, as it was an afterthought and required determination of facts. The court also held that the tenant had waived his right to raise this plea by accepting the applicability of the Act and contesting the release application on merit up to the appellate stage without raising the issue. The court further held that the concurrent findings of fact on the question of bona fide need of the landlord and comparative hardship could not be interfered with in writ proceedings, as they were based on good evidence and the approach adopted by the court below was correct.

Issues: 1. Whether the tenant could raise the plea that the provisions of the Act were not applicable when the shop was let out, for the first time in writ proceedings? 2. Whether the tenant had waived his right to raise this plea by accepting the applicability of the Act and contesting the release application on merit up to the appellate stage without raising the issue? 3. Whether the concurrent findings of fact on the question of bona fide need of the landlord and comparative hardship could be interfered with in writ proceedings?

Ratio Decidendi: 1. The court held that the tenant could not raise the plea that the provisions of the Act were not applicable when the shop was let out, for the first time in writ proceedings, as it was an afterthought and required determination of facts. The court relied on the principle that a party cannot be allowed to raise a new plea, which is taken for the first time in writ proceedings and that too by filing a supplementary affidavit. 2. The court held that the tenant had waived his right to raise this plea by accepting the applicability of the Act and contesting the release application on merit up to the appellate stage without raising the issue. The court relied on the principle that a party cannot be allowed to raise a new plea, for the first time and which would require adjudication of a question of fact, after having accepted the applicability of the Act and contested the release application on merit up to the appellate stage without raising the issue. 3. The court held that the concurrent findings of fact on the question of bona fide need of the landlord and comparative hardship could not be interfered with in writ proceedings, as they were based on good evidence and the approach adopted by the court below was correct. The court relied on the principle that concurrent findings of fact cannot be interfered with in writ proceedings, particularly when the same have been arrived at by the Court below by appraisal of evidence and by adopting a correct approach, and that these findings have not been shown to be perverse.

Final Decision: The court dismissed the writ petition, holding that the tenant could not raise the plea that the provisions of the Act were not applicable when the shop was let out, for the first time in writ proceedings, as it was an afterthought and required determination of facts. The court also held that the tenant had waived his right to raise this plea by accepting the applicability of the Act and contesting the release application on merit up to the appellate stage without raising the issue. The court further held that the concurrent findings of fact on the question of bona fide need of the landlord and comparative hardship could not be interfered with in writ proceedings.