Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1526

IN THE HIGH COURT OF ALLAHABAD
Neeraj Tiwari, J.
Smt. Prema Devi – Petitioner
Versus
Devi Deen (Since Deceased) And Others – Respondents
Matters Under Article 227 No. -3002 of 2019
Decided On : 04-09-2023

Advocates:
Advocate Appeared:
For the Petitioner: Arvind Kumar Yadav, Nikhil Kumar
For the Respondent: Girish Singh

The central legal point established in the judgment is the evidentiary value of admissions made in pleadings and the principle of approbate and reprobate.

Headnote:
Vacancy Order - Rent Revision - U.P. Act No. 13 of 1972, Section 12(3), Section 16(2), Section 14 - The court discussed the applicability of Section 12(3) of U.P. Act No. 13 of 1972 and the legal principle of approbate and reprobate in the context of written statements filed in another court. The court also considered the bonafide need requirement under Section 16(2) and the statutory tenant provision under Section 14. The judgment highlighted the importance of admissions made in pleadings and their evidentiary value in subsequent proceedings.
Fact of the Case:

The case involved a challenge to an order allowing a rent revision, based on a release application and vacancy order. The petitioner argued that the revision was allowed without reversing the finding of the Regulatory Authority and without considering specific pleas.
Finding of the Court:

The court found that the written statement filed by the tenant in another court, admitting to residing in a permanent alternative accommodation, constituted valid evidence and deemed vacancy had to be treated. The court also held that the bonafide need defense was not available and the statutory tenant provision did not apply in this case.
Issues: The issues revolved around the applicability of U.P. Act No. 13 of 1972, the evidentiary value of written statements in other courts, and the legal principles of approbate and reprobate.
Ratio Decidendi: The court relied on the legal principle that admissions made in pleadings can be used as evidence in other suits, and the doctrine of estoppel against approbation and reprobation.
Final Decision: The impugned order was set aside, and the petition was allowed.

JUDGMENT :

1. Heard Sri Nikhil Kumar, learned counsel for the petitioner and Sri Ashish Kumar, learned counsel for the respondents.

2. Present petition has been filed challenging the impugned order dated 23.01.2019 passed by 9th Additional District and Sessions Judge, Kanpur Nagar in Rent Revision No. 70 of 2011.

3. Brief facts of the case are that a release application was filed, which was registered as Case No. 1 of 2009 upon which vacancy order dated 10.03.2010 has been passed and thereafter, release order dated 08.06.2011 has also been passed. Against the said orders, respondent-defendant had filed Rent Revision No. 70 of 2011, which was allowed vide order dated 23.01.2019.

4. Learned counsel for the petitioner submitted that impugned order is bad on two grounds. Firstly, without reversing the finding of Rent Control & Regulatory Officer (hereinafter referred to as “Regulatory Authority”), revision has been allowed. He next submitted that vacancy order and release order have been passed on the ground that petitioner is having her own house and residing in that also. He pointed out that Suit No. 893 of 1993 is pending between respondent-defendant and his sister in which he has filed written statement on oath with specific averment that he is living as sole owner in the said House No. 85/183. A vacancy order has been passed relying upon the admission made by the respondent-defendant in the said suit, but without reversing this finding, impugned order has been passed. Once, it is admitted in proceeding pending before another Court about the ownership of house as well as residence cannot be ignored by the Revisional Court without giving any specific finding upon that. Secondly, in paragraph 13 of the affidavit filed along with the petition, petitioner has taken specific plea that respondent-defendant is residing in House No. 85/183. This fact has also been admitted in paragraph 13 of the counter affidavit filed before this Court, but without considering the same, impugned order has been passed. In support of his contention, he has placed reliance upon the judgment of the Apex Court in the matter of Basant Singh Vs. Janki Singh and others; [1967] 1SCR1 as well as judgment of this Court in the matter of Dr. Dinesh Chandra Vs. Krishna Kumar Goel in Civil Revision No. 214 of 2013 decided on 27.05.2013. He has also placed reliance upon the judgment of Apex Court in the matter of Premlata @ Sunita Vs. Naseeb Bee and others; (2022) 6 Supreme Court Cases 585.

5. He next submitted that remand order cannot be passed in routine manner except if there is exceptional circumstances to pass such order.

6. Sri Ashish Kumar, learned counsel for the respondents-defendants (tenant) vehemently opposed and submitted that Section 12(3) of U.P. Act No.13 of 1972 provides that vacancy can only be declared in case alternative accommodation is vacant. In the present case, same is not vacant as there is dispute between the defendant and his sister upon which Court has passed the order of status quo, therefore, in light of Section 12(3), there is no illegality in the order.

7. He next submitted that as per Section 16 (2) of U.P. Act No. 13 of 1972, it is required on the part of rent authority to consider the bonafide need, which has not been considered by the SCC Court, therefore, revision has rightly been allowed. He next submitted that in light of Section 101 of Indian Evidence Act, 1872, it is required on the part of plaintiff to establish his own case and any affidavit/ statement filed in another Court cannot be read as evidence against the defendant. In support of his contention, he has placed reliance upon the judgment of this Court in the case of Gopal Singh vs. Rent Control and Eviction Officer, Dehradun and others passed in Civil Misc. Writ Petition No. 29155 of 1991 decided on 8.2.1993.

8. Learned counsel for the respondents further submitted that in light of Section 14 of U.P. Act No. 13 of 1972, defendant is statutory tenant, therefore, no proceeding