Qamruddin vs Nootan Kumar Dubey

Ashwani Kumar Mishra, J.—This petition has been filed by the petitioner tenant, challenging the order of eviction passed against him under section 21(1)(b) of the U.P. Act No.13 of 1972.

The respondent no.1 landlord initiated proceedings under section 21 of the Act for eviction on the ground that there has been a family partition, in which the tenanted portion has fallen in his share. It was pleaded that son of the landlord i.e. Rishi Kumar wanted to establish a shop for pump testing, by installing its machine etc., and for his requirement and need, the shop in question is required. It was further stated that the tenant had purchased a plot of land at Kalu Kuan, adjacent to main road, in which he has already raised construction of shop and house. It was further stated that Kalu Kuan is one of the busiest commercial area of Banda and tenant has alternative accommodation available, which is not being availed of. Further averments were made that there are other places available for running the shop and that the tenant also has residential accommodation where he can operate his shop.

Proceedings were contested by the petitioner tenant with the allegation that it was understood between the parties that proceedings for eviction would not be initiated as he had continued to pay rent @ Rs.2,000/- per month, in proceedings drawn earlier for eviction due to non payment of rent. It was also stated that son of the landlord was already running a service station in open portion behind the shop in question and that he can always run the shop from such premises. Further plea was taken that the shop in question is being run since long and the tenant would stand to loose goodwill if he is asked to shift the shop to another place. It was also stated that licence has been issued for the specific place to operate the gun shop and the tenant would loose licence if he is asked to shift his shop to any other place.

In support of their respective claim, parties have led oral and documentary evidence. The trial court after considering the materials brought before it found the bona fide need of the landlord and consequently decreed the suit for eviction. An appeal filed against such order has also failed with dismissal of Rent Appeal No.1 of 2015 vide order dated 30.9.2016. Aggrieved by the two orders, the petitioner tenant has preferred the present petition under Article 227 of the Constitution of India.

Sri W.H. Khan, learned senior counsel appearing for the petitioner tenant submits that the rent of the shop has been claimed by the landlord @ Rs.2,000/-, upon which house tax and water tax was also payable, and therefore, the total rent payable for the shop was above Rs.2,000/- and the provisions of the U.P. Act No.13 of 1972 were not attracted in the facts of the present case. It is also stated that the plea of bona fide need was not established and the genuine hardship faced by the tenant has also been ignored by the courts below. It is also stated that there is no consideration of the defence setup by the tenant and his evidence has also not been examined in correct perspective. It is also stated there was no affidavit of Rishi Kumar for whom the shop itself was sought to be required, and therefore, the bona fide need was not established.

Per contra, Sri Pandey, learned counsel appearing for the respondent no.1 landlord states that there was sufficient accommodation available with the tenant and he cannot be allowed to insist to run shop from the tenanted premises when he has alternative accommodation available with him. It is also stated that so far as the applicability of the U.P. Act No.13 of 1972 is concerned, such issue was not raised before either of the courts'' below, and therefore, such a plea ought not to be allowed to be raised for the first time in proceedings before this Court under Article 227 of the Constitution of India.

I have heard learned counsel for the parties and have perused the materials available on record.

Coming to the first limb of Sri Khan''s submission about non maintainability of the proceedings before the courts'' below on account of the fact that the rent of the shop was above Rs.2,000/-, this Court finds that no such issue was raised by the petitioner tenant before either of the courts'' below and such a plea has been taken for the first time before this Court. Much emphasis has been led by Sri Khan on the plaint averments, according to which, rent of the shop was Rs.2,000/- per month and it is claimed that house tax and water tax were also deposited upon it. It may be relevant, at this stage, to notice that the tenant has filed his written statement, in which it is stated that the rent of the shop was actually Rs.1,000/- per month, but as eviction was sought not on account of non payment of rent, therefore, he had under coercion deposited Rs.2,000/- per month. It is stated by Sri Khan that the tenant also deposited the amount of water tax and house tax, but there is no averment in the written statement that the amount of house tax and water tax was in addition to the amount of Rs.2,000/-. The issue with regard to applicability of the U.P. Act No.13 of 1972, which is doubted by the tenant is based upon contentions raised on facts. This Court finds that there is no clarity on the factual aspects and no pleading in that regard was raised in the written statement or memo of appeal before the District Judge. Since the factual plea is not raised in the written statement with regard to applicability of Act and no issue was framed on this count, and no evidence was led, therefore, this Court, at this stage, for the first time, would not be inclined to entertain such a plea.

Sri Khan has placed reliance upon judgment of the Apex Court in Om Agarwal v. Haryana Financial Corporation and others: 2015 All. CJ 994, wherein it is held that the question of jurisdiction which goes to root of the matter can be taken up at any stage by having recourse to the provisions contained under Order 7, Rule 11 CPC and once it was found that the suit itself was not maintainable, the provisions of sections 15 & 20 CPC would come to the aid and the suit can be dismissed on such ground. Learned counsel has also relied upon judgment of the Apex Court in Kesar Singh and Ors. v. Sadhu: (1996) 7 SCC 711. The Apex Court was seized of the matter relating to execution of a decree where it was found that the court itself had no jurisdiction to entertain the matter, and therefore, it was held that the plea of nullity on account of inherent lack of jurisdiction could be raised in the execution proceedings also. Learned counsel has also relied upon a decision of this Court in Bilal and another v. IInd Additional District and Sessions Judge and others: 2003 (52) ALR 410. Para 3 of the judgment is relied upon to contend that the facts, which are admitted, could be urged and raised directly before this Court in proceedings under Article 226 of the Constitution of India.

So far as the judgment relied upon by Sri Khan in Om Agarwal (supra) is concerned, this Court finds that the plea of jurisdiction sought to be raised in the present matter is dependent upon existence of certain facts, which are not undisputed or admitted. As has already been noticed above, the ratio of law laid down by the Apex Court in Om Agarwal (supra) will have no applicability in the facts of the present case. So far as the judgment in Kesar Singh (supra) is concerned, this decision again will have no applicability in the facts of the present case, particularly as the facts, on the basis of which, the plea of jurisdiction is sought to be raised, is not undisputed and no adjudication on such aspects have taken place.

Similarly, the judgment of this Court in Bilal (supra) also is distinguishable inasmuch as this Court found that the jurisdictional facts were clearly admitted in the matter and since it went to the root of the matter, as such, this Court permitted such plea to be raised for the first time before this Court. In this context, it is to be noticed that the provisions contained under section 2(g) of the Act provides that the Act shall not apply upon building whose monthly rent exceeds Rs.2,000/-. Although it is claimed by the landlord that the rent was Rs.2,000/-, but the same was denied and according to the tenant, the rent was only Rs.1,000/-. It is claimed that the amount of Rs.2,000/- deposited only in order to obviate possible dispute on that count. Nevertheless factum of rent at the rate of Rs.2,000/- was not admitted by the petitioner tenant. It is further not clear from the pleading before the courts'' below or the evidence led that the rent deposited was more than Rs.2,000/- inasmuch as the amount of house tax and water tax was paid over and above Rs.2,000/-, which was claimed as rent. Such factual issues since were not raised, as such, no finding on that count has been returned either.

In such circumstances, the tenant cannot be permitted to setup a plea of non applicability of provisions of the U.P. Act No.13 of 1972 on the ground of rent being over and above the amount stipulated under the Act.

So far as the other issue raised by the tenant with regard to comparative hardship is concerned, this Court finds that a specific plea was taken by the landlord in his written statement that petitioner tenant had purchased a plot of land, which was situated in Kalu Kuan, which is busy commercial locality and the tenant had constructed shop, which remains undisputed. What is stated is that the shop has been transferred. The plea taken in para 12 of the plaint has been vaguely denied in para 8 by stating that existence of a plot in favour of the tenant and its sale is undisputed. There is no specific denial by the tenant that he had not raised construction of shop or such shop had not been transferred. Faced with the specific averment made in the plaint, the courts'' below have drawn inference that tenant had alternative accommodation available with him, which was sold and is now insisting upon retaining tenanted premises. From the specific plea taken in the plaint and the manner, in which reply is given by the tenant in the written statement, leaves little room of doubt to form an opinion that the courts'' below were justified in holding that the tenant had alternative accommodation available with him.

So far as the aspect of bona fide need is concerned, the courts'' below have found that the son of the landlord wanted to run a shop for which he had no accommodation. Though it is stated that no specific affidavit has been filed by the son, but that would not be a fetter upon the plea taken by the landlord. The factum that the son of the landlord was not having any other space available to start shop for pump testing, by installing its machine, has not been shown to be false or lacking any substance. The contention of Sri Khan that two shops have been sold by the landlord would not be a material circumstance inasmuch as once it is found that bona fide need existed and the tenant had alternative accommodation available with him, which he had given up, no exception can be taken to the view taken by the courts'' below. Contention of Sri Khan that as per plaint averment, tenanted premises consisting in the nature of two shops, and at best one of the shops could have been got vacated, while retaining other shop of the landlord, also cannot be accepted. Size of each shop has been disclosed as 9x12 ft. The landlord has stated that his son intends to setup a shop for pump testing, by installing machine etc., and the area available for such purposes cannot be said to be excessive if the total area of shop is taken 18ft.x12 ft.

In view of the discussions aforesaid, this Court finds no error in the view taken by the courts'' below in passing decree for eviction of the tenant.

Petition accordingly fails and is dismissed. No order as to costs.