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2008 (1) U.D., 426
High Court of Uttarakhand
Hon'ble Rajesh Tandon, J.
Raghubir Singh Bisht (deceased) by L.Rs. and another............. Appellants
Vs.
Smt. Bindra Devi and others........... Respondents
Second Appeal No. 806 of 2001
Decided on : 14-12-2007.
SECOND APPEAL - TENANCY - SURRENDER - ALLOTMENT - JURISDICTION OF CIVIL COURT - U.P. URBAN BUILDINGS (REGULATION OF LETTING, RENT & EVICTION) ACT, 1972 - SECTION 16, 18, 37 - EXPLANATION I CLAUSE (B) - RULE 8, 9 - SUMMARY DISMISSAL OF SUIT - Held, the allotment order was passed without any notice to the landlord. It will amount to violation of natural justice. The procedure for allotment has also been interpreted by the Apex Court from time to time in various decisions. The order has been passed without any notice to the landlord. It will amount to violation of natural justice. The allotment order is nullity in the true sense, therefore, the mischief of the bar created by Section 37 of the Act No. XIII of 1972 does not come into picture at all. In the present case the order has been passed without any notice to the landlord. It will amount to violation of natural justice. The procedure for allotment has also been interpreted by the Apex Court from time to time in various decisions. The Apex Court has rightly held that if the order impugned is a nullity in the true sense, therefore, the mischief of the bar created by Section 37 of the Act No. XIII of 1972 does not come into picture at all. In the present case the order has been passed without any notice to the landlord. It will amount to violation of natural justice.
Fact of the Case:
The suit was filed by the plaintiffs/respondents for eviction of the defendants/appellants from the suit premises and for recovery of mesne profits. The plaintiffs/respondents alleged that they were the owners of the suit premises and the defendants/appellants were their tenants. The defendants/appellants had surrendered the tenancy in the year 1977 and the plaintiffs/respondents had demolished the entire structure in order to get fresh construction in accordance with the sanctioned plan. However, the defendant no.2 on 15th March, 1977 without the consent of the plaintiffs/respondents put a Tripal as the building was already demolished for fresh construction and started selling tea. Plaintiffs-respondents have sent a notice on 28-11-1978, which was served on 30-11-1978 but the defendants have neither vacated nor the damages were paid by the defendants. The defendants/appellants contested the suit and filed the written statement. The trial Court dismissed the suit. The appellate Court allowed the appeal and the decree for eviction was passed directing the dispossession of the appellants and also to pay mesne profits.
Finding of the Court:
The allotment order was passed without any notice to the landlord. It will amount to violation of natural justice. The procedure for allotment has also been interpreted by the Apex Court from time to time in various decisions. The Apex Court has rightly held that if the order impugned is a nullity in the true sense, therefore, the mischief of the bar created by Section 37 of the Act No. XIII of 1972 does not come into picture at all. In the present case the order has been passed without any notice to the landlord. It will amount to violation of natural justice.
Issues: 1. Whether on the facts of the present case, the defendant-appellant No.2 - son of the appellant no. 1 is also helping in the hotel business of the appellant No. 1 lower appellate Court was correct in holding that it will amount to surrender of tenancy 7 2. Whether in absence of any evidence on record and also specific plea by the plaintiff respondents, the lower appellate court was correct in holding that the tenancy has been surrendered by the defendant-appellant no. 17 3. Whether the learned lower appellate Court was correct in holding that since there is an allotment order in favour of the defendant No.2, so the same will amount to surrender of the tenancy by the defendant NO.17 4. Whether on the facts of the present case, particularly when the permission was granted (or repairing and only the roof of 15t floor was reconstructed with certain minor changes on the wall of the 1 5t floor, lower appellate Court was correct in holding that it amounts to a new construction 7 5. Whether the allotment order under the provisions of U.P.Act No. 13 of 1972 can be challenged in a regular suit under Section 9 C.P.C.7
Ratio Decidendi: The allotment order is nullity in the true sense, therefore, the mischief of the bar created by Section 37 of the Act No. XIII of 1972 does not come into picture at all. In the present case the order has been passed without any notice to the landlord. It will amount to violation of natural justice. The procedure for allotment has also been interpreted by the Apex Court from time to time in various decisions. The Apex Court has rightly held that if the order impugned is a nullity in the true sense, therefore, the mischief of the bar created by Section 37 of the Act No. XIII of 1972 does not come into picture at all. In the present case the order has been passed without any notice to the landlord. It will amount to violation of natural justice.
Final Decision: Appeal dismissed. Fixing the damages to the extent of Rs. 250/- per month, the Counter Claim is decided accordingly.
Heard Sri Sharad Sharma, counsel for the appellant and Sri B.C. Pande Sr. Advocate, assisted by Sri Naresh Pant, counsel for the respondent.
2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 10th August, 1992 passed by District Judge, Pauri Garhwal in First Appeal No. 597 of 1983 Smt. Bindra Devi and others Vs. Raghubir Singh Bisht and another arising out of Original Suit NO.47 of 1979 Smt. Bindra Devi and others Vs. Raghubir Singh Bisht and another.
3. Present Second Appeal was admitted on 28-8-1992 on the following substantial question of law:
"(1) Whether on the facts of the present case, the defendant-appellant No.2 - son of the appellant no. 1 is also helping in the hotel business of the appellant No. 1 lower appellate Court was correct in holding that it will amount to surrender of tenancy 7 (2) Whether in absence of any evidence on record and also specific plea by the plaintiff respondents, the lower appellate court was correct in holding that the tenancy has been surrendered by the defendant-appellant no. 17 (3) Whether the learned lower appellate Court was correct in holding that since there is an allotment order in favour of the defendant No.2, so the same will amount to surrender of the tenancy by the defendant NO.17 . (4) Whether on the facts of the present case, particularly when the permission was granted (or repairing and only the roof of 15t floor was reconstructed with certain minor changes on the wall of the 1 5t floor, lower appellate Court was correct in holding that it amounts to a new construction 7 (5) Whether the allotment order under the provisions of U.P.Act No. 13 of 1972 can be challenged in a regular suit under Section 9 C.P.C.7"
BACKGROUNDOFTHECASE
4. Heard counsel for both the parties.
5. Before going to the merits of the case, it may be pointed out that it is a case, where the litigation has started in the year, 1979 Le. more than 28 years have already passed and the defendants/appellants on one or other pretext are delaying the proceedings, although, he surrendered his tenancy in the year, 1977, however, the litigation is still going on.
6. The trial Court has dismissed the suit on 14-10-1983. The appellate Court has allowed the appeal on 10th August, 1992. The plaintiff has also filed the cross objection regarding the mesne profits.
FACTUAL MATRIX OF THE CASE 7. According to the plaint averments, late Sri Jodh Singh Negi predecessor of the plaintiffs/respondents constructed a house forty years back. In the year, 1942, one Raghubir Singh – defendant/appellant no. 1 was given the premises and he started a Hotel Business in that premises. Sri Jodh Singh Negi expired in the year 1973. The house was in a dilapidated condition, therefore, in the year, 1976, he got the map sanctioned for reconstruction of the building. However, in the year 1977, the defendant no. 1 surrendered the tenancy and started his own business in his own house. After the surrender of the tenancy, the predecessor of the plaintiffs demolished the entire structure in order to get fresh construction in accordance with the sanctioned plan.
8. However, the defendant NO.2 on 15th March, 1977 without the consent of the plaintiffs put a Tripal as the building was already demolished for fresh construction and started selling tea. Plaintiff-respondent has put a condition that after the house is reconstructed, only then the same shall be let out to the defendant no. 2. However, during the pendency of the construction work on 15th August, 1977, the defendant no. 2 along with his family members break opened the lock and obtained the possession forcibly. The proceedings under Section 145 were also drawn. However, after demolition and new construction, U.P. Act No. XIII of 1972 has no application on the building in dispute.
9. The plaintiffs have complained the matter to the District Magistrate, Garhwal on 2nd February, 1978, then t
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