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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL Nos. 1537­1538 OF 2019 (Arising out of S.L.P.(C) Nos.15585­15586 of 2017)

Deepak Tandon & Anr.  ….Appellant(s)

VERSUS

Rajesh Kumar Gupta        ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.  

1. Leave granted.

2. These appeals are filed against the final

judgment and  order  dated  03.08.2016  passed  by

the High Court of Judicature at Allahabad in Writ

Appeal No.32311 of 2014 and the order dated

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24.03.2017 in  Civil  Misc. Review  Application  No.

275082 of 2016 in Writ Appeal No. 32311 of 2014.   

3. A few relevant facts need mention hereinbelow

to appreciate the short controversy involved in these

appeals.

4. The appellants are the applicants and the

respondent is the opposite party in the application

filed by the appellants herein under Section 21(1)(a)

of the U.P. Urban Buildings (Regulation of Letting,

Rent and Eviction) Act, 1972 (hereinafter referred to

as ‘The Act, 1972”) before the Prescribed Authority,

Allahabad.

5. The appellants are the owners and the

landlord  of the  House  No.  18/15,  Hastings  Road

(1/5 Nyay Marg), Tandon Quarters, Allahabad

(hereinafter referred to as “suit house”). They have

let  out  the suit  house  to the respondent  as  their

tenant on monthly rent.

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6. The appellants filed an application (P.A.

No.20/2011) before the Prescribed Authority under

Section 21(1)(a) of the Act, 1972 against the

respondent(tenant) seeking his eviction from the

suit house. The eviction was sought on the ground

of the appellants’  bona fide  need for doing and

continuing  with their business operations in the

suit  house. The  appellants alleged  inter alia  that

presently they are carrying on their business

operations in a tenanted premises, which is hardly

50­60 mtr. away from the suit house. The

appellants alleged that they have no other suitable

accommodation of their own in the city where they

can do their business and hence the application in

question seeking release of the suit house for their

personal bona fide need.  

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7. The respondent filed his reply. The respondent,

however, admitted that the appellants are carrying

on their  business operations  in the  place  pointed

out by them but, according to him, they were not

paying any rent for use and occupation of the said

place to its owners because the owners of the said

house were in relation with them. The respondent

then pointed out that the appellants also have their

own one shop in the city, which is still lying vacant

and, therefore, the appellants can accomplish their

need by using the said shop.  

8. The Prescribed Authority, by order dated

10.01.2013,  allowed  the  application.   It  was held

that, there exists a relationship of the landlord and

tenant between the  parties in relation to the  suit

house; the appellants’ need for carrying on their

business operation is bona fide; and the appellants

do require the suit house to carry on their business

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in the suit house. It was also held that the place

pointed out by the respondent where the appellants

could carry on their business operation  was not

sufficient and, therefore, the respondent was liable

to be evicted from the suit house to enable the

appellants to do and carry on their business

operations in the suit house.

9. The respondent felt aggrieved by the said order

and filed appeal (Rent Control Appeal No.52/2013)

before the District Judge, Allahabad. By order dated

30.05.2014,   the District Judge dismissed the

appeal and affirmed the order of the Prescribed

Authority.

10. The respondent felt aggrieved by the said order

and carried the  matter to the  High  Court  under

Article 227 of the Constitution of India. By

impugned  order, the  Single Judge of  High  Court

allowed the writ appeal and set aside the orders of

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the  Appellate  Court  and Prescribed Authority  and

dismissed the appellants’ application filed under

Section 21 (1)(a) of the Act, 1972.

11. The High Court allowed the writ appeal mainly

on the ground that the application filed by the

appellants under Section 21(1)(a)  of  the Act, 1972

was not maintainable. The High Court held that the

pleadings of the parties indicate that the tenancy in

question was essentially for residential purpose

because out of four rooms, the respondent was

using three rooms for residence and one room for

shop,  whereas the appellants sought respondent's

eviction for their commercial need which, according

to the High Court, was not permissible by virtue of

proviso to  Section 21 of the Act,  1972.  The High

Court, therefore, did not examine the findings of the

two Courts below on merits, which were answered

in appellants’  favour.

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12. Against the said order, the appellants filed the

review application before the High Court, which was

also dismissed.

13. The appellants  (applicants­landlord)  have felt

aggrieved by the orders of the High Court in appeal

and the review and filed these appeals  by way of

special leave in this Court.

14. So, the short question, which arises for

consideration in these appeals, is whether the

Single Judge was justified in allowing the

respondent's writ appeal and was, therefore,

justified in dismissing the appellants’ application

filed under Section 21 (1)(a) of the Act, 1972 as not

maintainable.

15. Heard Mr. Avi Tandon, learned counsel for the

appellants and Mr. Nitin Bhardwaj, learned counsel

for the respondent.  

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16. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are constrained to allow the appeals, set aside the

impugned order and restore the orders of the

Prescribed Authority and the Appellate Court

(District Judge).

17. In our considered opinion, 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 Act, 1972 as not

maintainable. This we say for the following reasons.

18. First, it is not in dispute that the respondent

(opposite party) 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.  

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19. Second, since the respondent failed to raise

the plea of maintainability, the Prescribed Authority

rightly did not decide this question either way.

20. Third, the respondent again 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.  

21. Fourth, it is a settled law that 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.

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22. Fifth, 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.

23. Sixth, 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.  

24. It is for this reason, 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.  

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25. In any case and without going into much

detail, we are of the view that 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.  

26. Seventh, the 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, which was

impugned in the writ appeal.  

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27. Eighth, 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.  

28. In the light of the aforementioned eight

reasons, we are of the considered opinion that the

impugned order is not legally sustainable.

29. In view of the foregoing discussion, the appeals

succeed and are hereby allowed. The impugned

order is set aside.  As  a consequence, the orders

passed  by the Prescribed  Authority and the first

Appellate Authority are restored.

30. The respondent is, however, granted three

months’ time to vacate the suit house from the date

of this order subject to the condition that he

furnishes the usual undertaking in this Court and

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pays to the appellants the entire arrears of rent up

to date as per the agreed rate of rent or the rent

determined by the Prescribed Authority in its order

in the Court below and further pay three months’

rent at the same rate by way of use and occupation

in advance along with the arrears of rent.            

                                    .………...................................J.                                    [ABHAY MANOHAR SAPRE]                                       

    …...……..................................J.              [DINESH MAHEHSWARI]

New Delhi; February 07, 2019

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