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Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, `the U.P Act’) for eviction of the respondent/tenant on the ground =the hardship appellants would suffer by not occupying their own premises would be far grater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement. 17. In the view that we have taken, the appeal succeeds. The impugned order is set aside to the extent it permits the respondent to retain possession of three rooms out of four rooms in his occupation. The respondent is directed to
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4495 OF 2006 MOHD. AYUB & ANR. … APPELLANTS Versus MUKESH CHAND … RESPONDENT JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. This appeal, by grant of special leave, is directed against the judgment and order dated 12.9.2005 passed … Continue reading
Uttar Pradesh Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972-s. 2(2)-Suit for eviction of tenanted premises-Seeking exemption of applicability of the Act-Claiming the premises to be new construction falling within exemption provision-Trial Court holding that the Act was not applicable as the premises would be deemed to be newly constructed-Revision application in terms of Provincial Small Cause Courts Act-High Court holding that the Act was applicable-Supreme Court setting aside the judgment of High Court and remitting for fresh consideration-High Court denied adduction of additional evidence and refused to interfere with the question regarding applicability of the Act in exercise of revisional jurisdiction-On appeal, held: The Act was not applicable as in the facts of the case, the construction would be deemed to be new-Adduction of additional evidence rejected on valid grounds-High Court rightly refused to interfere with the finding of fact in exercise of revisional jurisdiction-Provincial Small Causes Courts Act-s. 25. Provincial Small Causes Courts Act-s. 25-Revisional jurisdiction under-Scope of-Held: Such jurisdiction can be exercised only when a question of law arises-A pure finding of fact based on appreciation of evidence may not be interfered with-But, if such finding is based on irrelevant factors, it can be interfered with-Revisional jurisdiction under the Act is wider than the jurisdiction u/s 115 CPC-Code of Civil Procedure, 1908-s. 115. Pleadings-Inadequate pleadings-Effect of-Held: When parties go into trial knowing fully well about the issues involved, the judgment based on inadequate pleadings would not have effect. Appellant was the tenant and respondent was the landlord of the premises in question. Respondent filed a suit for eviction, rather than filing an application under Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, on the ground that the premises being a new construction, the Act was not applicable to the same under exemption provision i.e. Section 2(2) of the Act. One of the issues was with regard to applicability of the Act to the premises. Trial Court held that the property in question would be deemed to be newly constructed and hence the Act was not applicable on the same. Appellant filed Revision Application thereagainst in terms of Section 25 of Provincial Small Causes Courts Act. High Court though approved finding of fact by trial Court, but relying on a judgment, held that the Act would be applicable as period of 10 years [the exempted period by Section 2 (2)] have lapsed during the pendency of the suit. In appeal Supreme Court set aside the order holding that the judgment relied on by the High Court, had been overruled by another decision. The matter was remitted to High Court for disposal in accordance with law. Before High Court, appellant filed an application for adduction of additional evidence in terms of Order 41 Rule 27 CPC. High Court refused to exercise its discretionary jurisdiction stating that the requirements of the said provision had not been fulfilled and regarding applicability of the Act, it held that the finding of fact arrived at by the Court below, cannot be interfered with in exercise of revisional jurisdiction. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1.1. Appellant’s application for adduction of additional evidence has been rejected on valid grounds by the High Court. It, for cogent and sufficient reasons, refused to exercise its discretionary jurisdiction. There is no reason to interfere therewith. Even if the purported admission made by the respondent, a subsequent pleading was to be taken into consideration, still then the respondent was required to be cross-examined. Another round of litigation would have started. [Para 19] [109-D-E] 1.2. The revisional jurisdiction of the High Court under Section 25 of the Provincial Small Causes Courts Act is wider than Section 115 CPC. But the fact that a revision is provided for by the statute, and not an appeal, itself is suggestive of the fact that ordinarily revisional jurisdiction can be exercised only when a question of law arises. However, that does not mean that under no circumstances finding of fact cannot be interfered therewith. A pure finding of fact based on appreciation of evidence although may not be interfered with but if such finding has been arrived at upon taking into consideration irrelevant factors or therefor relevant fact has been ignored, the revisional court will have the requisite jurisdiction to interfere with a finding of fact. Applicability of the provisions of Section 2(2) of the Act may in that sense involve determination of mixed question of law and fact. [Paras 20 and 21] [109-E-H] Suresh Kumar Jain v. Shanti Swarup Jain and Ors., [1997] 9 SCC 298, Sudha Rani Garg (Smt.) v. Jagdish Kumar (Dead) and Ors., [2004] 8 SCC 329 and Sanjay Kumar Gulati v. N.P. Singh and Anr., [2005] 12 SCC 396, relied on 2.1. What would amount to a new construction, being essentially a question of fact, would depend upon the nature and extent of the additions and alterations made in the whole building. It does not confine to a floor where the tenanted premises is situate. Where several tenants are inducted in different parts of the same building, it would be difficult to hold that one part of the building shall be governed by the Act and the other part would not be. Clause (c) of the Explanation I makes the legal position absolutely clear. [Para 18] [109-A-C] 2.2. The allegation contained in the plaint that the constructions were made in the year 1975 and tax was assessed with effect from 1.4.1978, being the issue involved in the suit, have been gone into by the trial court at great details. A finding of fact has been arrived at with reference to clause (c) of explanation 1 of Section 2(2) of the Act. Such a finding was based on the appreciation of evidence. [Para 26] [112-E-G] 2.3. The provisions of Section 2(2) contain a deeming provision. By reason thereof, a legal fiction has been created. It therefore, must be given its full effect. [Para 28] S.M.S.Pharmaceuticals Ltd. v. Neeta Bhalla and Anr., [2007] 4 SCC 70, Ramesh Chandra Sharma v. Punjab National Bank and Anr., (2007) 8 SCALE 240, referred to. 2.4. It is true that respondent could have made more elaborate pleadings; but no grievance was made in regard thereto. The parties knew the stand taken by the other. The issue involved in the suit was a simple one namely whether the construction was an old one or a new one. Even in the revision application, no such question was raised. Such a ground was taken before this Court for the first time. There is also nothing to show that the appellant has been prejudiced in any manner whatsoever. It is a well settled principle of law that when parties have gone into trial knowing fully well the issue involved, inadequate pleading, if any, may not be sufficient to set aside the judgment. [Para 29] [113-C-E] Raju Ramachandran, Mohit Choudhary and Dr. Kailash Chand for the Appellant. Jaideep Gupta, Pramod Dayal and Nikunj Dayal for the Respondents.
CASE NO.: Appeal (civil) 4348 of 2007 PETITIONER: Shri Mundri Lal RESPONDENT: Smt. Sushila Rani & Anr DATE OF JUDGMENT: 18/09/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U D G M E N T CIVIL APPEAL NO. 4348 OF 2007 [Arising out of SLP (Civil) No. 84 of 2007] S.B. SINHA, J … Continue reading
Code of Civil Procedure, 1908/Provincial Small Cause Courts Act, 1887- Order 9 Rule 13/Section 17(1)/Proviso-Ex-parte decree by Court of Small Causes for deposit of arrears of rent and eviction-Application by respondent to set aside the decree-Failure by respondent to deposit decretal amount or make a previous application seeking permission to furnish security-Application to furnish security filed subsequently and after delay- Maintainability of the main application-Held, the law is mandatory and not directory for deposit of decretal amount or filing a previous application- Hence, application for setting aside decree not maintainable on account of failure to comply with proviso. Appellant-landlord filed a suit before a Court of Small Causes for recovery of arrears of rent and for eviction against respondent-tenants under Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The suit was decreed ex-parte for recovery of arrears of rent and eviction. The appellant executed the decree and obtained possession of the premises with police help. The respondents filed an application before the trial court seeking setting aside of the ex-parte decree under Order 9 Rule 13 of CPC. Along with the application, the respondents neither deposited the decretal amount before the trial court nor filed an application seeking permission to furnish security of the decretal amount. During the course of hearing, the appellant contended that the application filed by the respondents was not maintainable and liable to be dismissed for non-compliance with the proviso to section 17 of the Provincial Small Cause Courts Act, 1887 (PSCC Act). The respondents then filed an application before the trial court seeking permission to furnish security for the decretal amount the trial court dismissed both the applications. The Court of Additional District Judge, in a revision preferred by the respondents, condoned the delay and directed the trial court to accept security and decide the application filed under Order 9 Rule 13 CPC on merits. A Writ Petition filed before High Court by the appellant was dismissed. In appeal to this Court, the appellant contended that the proviso to section 17 of the PSCC Act is mandatory and hence the non-compliance therewith cannot be condoned; and that, even assuming the court has power to condone the delay, no sufficient cause was made by the respondents. =Allowing the appeal, the Court HELD : 1.1. The object behind establishing the Courts of Small Causes conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by adopting summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation. The jurisdiction to entertain and hear an application to set aside a decree passed ex-parte or for a review of judgment by Courts of small Causes is sought to be qualified and narrowed down by imposing condition as to deposit or giving security for performance or compliance by enacting proviso to section 17(1) of the Provincial Small Cause Courts Act, 1887 (PSCC Act). [149-G; 150-A] 1.2. A bare reading of the provision shows that the legislature has chosen to couch the language of the proviso in a mandatory form and there is no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex-parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the court of the amount due from the applicant under the decree or in pursuance of the judgment. The proviso as to deposit can be dispensed with by the court in its discretion subject to a previous application by the applicant seeking direction of the court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. It may be filed at any time up to the time of presentation of application for setting aside ex-parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the court to make a prompt order. The delay on the part of the court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the court. [151-B-D] 1.3. The application for setting aside ex-parte decree was not accompanied by the deposit in the court of the amount due and payable by the applicant under the decree. The applicant also did not move any application for dispensing with deposit and seeking leave of the court for furnishing such security for the performance of the decree as the court may have directed. The application for setting aside the decree was therefore incompetent. [151-F] Mohammad Ramzan Khan v. Khubi Khan, AIR (1938) Lahore 18 (DB); Murari Lal v. Mohammad Yasin, AIR (1939) Allahabad 46; Mt. Shikhani v. Bishambhar Nath, AIR (1941) Oudh 103; Jagdamba Prasad and Ors., v. Ram Das Singh and Anr., AIR (1943) Allahabad 288; Roshan Lal v. Brij Lal Amba Lal Shah, AIR (1944) Oudh 104; Vembu Amal v. Esakkia Pillai, AIR (1949) Madras 419; Khetra Dolai v. Mohan Bissovi, AIR (1961) Orissa 37; Dhanna v. Arjun Lal, AIR (1963) Rajasthan 240; Krishan Kumar v. Hakim Mohd. (1978) ALJ 738; Sharif v. Suresh Chand and Ors., (1979) AWC 256; Roop Basant v. Durga Prasad and Anr., (1983) 1 ARC 565; Mohd. Islam v. Faquir Mohammed, (1985) 1 ARC 54; Krishan Chandra Seth v. Dr. K.P. Agarwal and Anr.,(1988) 1 ARC 310; Mamta Sharma v. Hari Shankar Srivastava and Ors., (1988) 1 ARC 31; Mohd Yasin v. Jai Prakash, (1988) 2 ARC 575; Purshottam v. Special Additional Sessions Judge, Mathura and Ors. (1991) 2 ARC 129; Ram Chandra (deceased L.Rs.) and Ors. v. IXth Additional Distric Judge, Varanasi and Ors., AIR (1991) Allahabad 223; Sagir Khan v. The District Judge, Farrukhabad and Ors., (1996) 27 ALR 540; Mohammad Nasem v. Third Additional District Judge, Faizabad and Ors., AIR (1998) Allahabad 125; Beena Khare v. Vllth Additional District Judge, Allahabad and Anr, (2000) 2 ARC 616; Surendra Nath Mittal v. Dayanand Swarup and Anr., AIR (1987) Allahabad 132; Chigurupalli Suryanarayana v. The Amadalayalasa Co-operative Agricultural Industrial Society Ltd., AIR (1975) A.P. 196 and Tarachand Hirachand Porwal v. Durapa Tavanappa Patravali, AIR (1943) Bombay 237, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5109 of 1999.
CASE NO.: Appeal (civil) 5109 of 1999 PETITIONER: KEDARNATH Vs. RESPONDENT: MOHAN LAL KESARWARI & ORS. DATE OF JUDGMENT: 10/01/2002 BENCH: R.C. Lahoti & Brijesh Kumar JUDGMENT: R.C. Lahoti, J. The landlord-appellant filed a suit for recovery of arrears of rent and for eviction against the tenant-respondents on the ground available under Clause (a) of … Continue reading
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