Hon’ble Sudhanshu Dhulia, J. (Oral)

1. This is a tenant’s writ petition. The release application of the landlord/respondent no.1 was filed under Section 21(1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (from herein after referred to as the “Act No. XIII of 1972”) on 15.10.2001 before the Prescribed Authority/Civil Judge (Senior Division), Dehradun. In the said application, the landlord/respondent respondent no.1 had set up need for himself stating that he is retired from the post of Lieutenant Colonel from the Indian Army and he has to set up business for himself. He further stated that his son is also unemployed. In short, he set up the bona fide need for himself as well as for his son. This release application was dismissed by the Prescribed Authority on the grounds that the petitioner though retired from Indian Army on 31.07.2000 but has got reemployed for two years and since he is presently reemployed, thus, his bona fide need cannot be considered. As regarding the comparative hardship, the Prescribed Authority gave a finding that in case the shop is released in favour of the landlord, the tenant will have to face more hardship than the landlord. In short, the application of the landlord was rejected.

2. The landlord/respondent respondent no.1 preferred an appeal under Section 22 of the Act No. XIII of 1972, which has been allowed by the lower appellate court vide order dated 28.02.2011. By the time the matter came up for hearing before the lower appellate court, period of reemployment of the landlord was over, therefore, his bona fide need as well as bona fide need for his son was established before the lower appellate court. The lower appellate court also gave a finding on the comparative hardship in favour of the landlord stating that the tenant has two sons who are employed elsewhere and there is an adjoining shop which was in the name of his father, which is effectively being run and the fact of adjoining shop cannot be denied. Aggrieved, the tenant filed the present writ petition.

3. The learned senior counsel for the petitioner Mr. B.P. Nautiyal, at this stage, has raised an entirely new plea, a plea which was admittedly never raised by him either before the Prescribed Authority or before the lower appellate court. This new plea is that the alleged landlord is not in fact the landlord but he himself is a tenant in the property. The case of the petitioner/tenant is that the owner of the property is Guru Ram Rai Darbar Sahab and the respondent Lt. Col S.K. Sood himself is the tenant of Mahant Guru Ram Rai Darbar. In short, the petitioner has denied that the respondent no.1 is his landlord.

4. In view thereof, the short question before this court is whether this Court can allow the petitioner/tenant to raise such plea at this stage.

5. An objection has been raised to this plea by the learned counsel for the respondent/landlord Mr. Piyush Garg, who states that this plea is barred by Section 116 of the Indian Evidence Act, which reads as under:-

116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”

6. Interestingly, when the release application was filed by the landlord, the tenant could have raised this plea at the first instance, in his Written Statement stating that he is not the landlord of the property. He did not do that. Infact in so many expressive words he accepted that the applicant/respondent no.1 is his landlord and he is paying rent of Rs.50.00 (Rupees Fifty only) per month