Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972:
s.21(1)(a) – Application under – Seeking eviction of tenanted premises – On the ground of bona fide requirement for commercial purpose – Competent Authority as well as Appellate Court, giving concurrent finding held that the tenant was liable to be evicted – Writ appeal u/Art. 227 of Constitution – High Court held that the application for eviction for commercial need was not maintainable by virtue of proviso to s.21, because the premises in question was essentially for residential purpose – Review against the order dismissed – On appeal, held : The plea of maintainability was not raised either before the prescribed Authority or before the appellate Court – In absence of such plea or issue, such plea cannot be raised for the first time before the third court – Nature of tenancy (whether commercial or residential) is not a pure question of law, but is a question of fact and hence such question was first required to be pleaded and then proved – If a tenancy is for composite purpose, landlord has the right to seek eviction either for his residential need or commercial need – High Court exceeded its jurisdiction in interfering with concurrent findings of fact – Rent Control and Eviction.
Allowing the appeals, the Court
HELD: 1. The High Court committed jurisdictional error in setting aside the concurrent findings of the two Courts below and thereby erred in allowing the respondent’s writ appeal and dismissing the appellants’ application under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 as not maintainable. [Para 17][688-G]
2. If the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the Trial Court or the First Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding. It is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe. [Paras 21 and 22][689-C-D]
3. The respondent-tenant had not raised the plea of maintainability of the appellants’ application under Section 21(1)(a) of the Act, 1972 in his written statement before the Prescribed Authority. Since the respondent failed to raise the plea of maintainability, the Prescribed Authority rightly did not decide this question either way. The respondent also did not raise the plea of maintainability before the First Appellate Court in his appeal and, therefore, the First Appellate Court was also right in not deciding this question either way. [Paras 18, 19 and 20][689A-C]
4. The question as to whether the tenancy is solely for residential purpose or for commercial purpose or for composite purpose, i.e., for both residential and commercial purpose, is not a pure question of law but is a question of fact, therefore, this question is required to be first pleaded and then proved by adducing evidence. Therefore, such question could not have been decided by the High Court for the first time in third round of litigation in its writ jurisdiction simply by referring to some portions of the pleadings. [Paras 23 and 24][689-E-F]
5. If the tenancy is for composite purpose because some portion of tenanted premises was being used for residence and some portion for commercial purpose, i.e., residential and commercial, then the landlord will have a right to seek the tenant’s eviction from the tenanted premises for his residential need or commercial need, as the case may be. [Para 25][689-G]
6. High Court exceeded its jurisdiction in interfering in the concurrent findings of fact of the two Courts below while allowing the writ appeal entirely on the new ground of maintainability of the application without examining the legality and correctness of the concurrent findings of the two Courts below. The High Court should have seen that the concurrent findings of facts of the two Courts below were binding on the writ Court because these findings were based on appreciation of evidence and, therefore, did not call for any interference in the writ jurisdiction. [Paras 26 and 27][689-H; 690-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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