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. 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. Second, since the respondent failed to raise the plea of maintainability, the Prescribed Authority rightly did not decide this question either way. 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. 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. 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. 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. 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. 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. 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. 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. In the light of the aforementioned eight reasons, we are of the considered opinion that the impugned order is not legally sustainable. 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. 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 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.


Hon’ble Mr. Justice Abhay Manohar Sapre

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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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