# Alok Kumar Jain v. Indra Bhushan Sawhney

- **Citation:** (2025) 11 ILRA 1402
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-04
- **Case number:** Matters Under Article 227 No. 4383 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-kumar-jain-v-indra-bhushan-sawhney-52754
- **Pages:** 7

## Headnote

in terms of Sections 39(1) & 39(2) or 39(3) of
the Act No. 16 of 2021 i.e. under Section 7(xi-b)
of Act, 1870 or Schedule-II Item No. 1-b of Act.

Head Notes
The Uttar Pradesh Regulation of Urban
Premises Tenancy Act, 2021- Section
10(1), 39(1); 4(3),20(2), 27 ,6(4), 6(5),
14(2), 20(2) and 26(3) ;The Court-fees
Act, 1870- 7(xib), Schedule-II Item No. 1b- After provisions of Section 39(1) of Act
No. 16 of 2021, insertion of sections 39(2)
&
39(3)
are
purposefully
and
not
uselessly. In case, there is no Sections
39(2) & (3), the meaning would have been
that Act, 1870 shall be applicable in toto
in every applications either it is a suit for
recovery of possession or an application,
but the legislation was conscious of the
fact, therefore, inserted Sections 39(2)
and 39(3) of Act No. 16 of 2021, which
provide difference between the both and
according to that, any application for
recovery of possession filed before the
Rent
Authority
and
memorandum
of
appeal presented before the Rent Tribunal
shall be treated to be a suit between the
landlord and tenant meaning thereby
except for recovery of possession, any
other application would not be treated to
be a suit between the landlord and tenant
and for those applications, court fees shall
be charged as in the matter of an
interlocutory application presented in Civil
Court-Petition allowed.

Held- court fees in terms of Section 39(2) of Act
No. 16 of 2021 shall only be applicable for the
applications filed for recovery of possession i.e.
proviso of Sections 4(3), 20(2) and 27 of Act
No. 16 of 2021 or any other applications for
recovery of possession. So far as other
applications, which have been filed under
Sections 10, 6(4), 6(5), 14(2), 20(2) and 26(3)
of Act No. 16 of 2021 or any other applications
identical to same, court fee shall be charged in
accordance with Section 39(3) of Act No. 16 of

## Text

1402 INDIAN LAW REPORTS ALLAHABAD SERIES
that, in fact, no judicial mind was applied
before the passing of impugned order of
summoning. Such order cannot be accepted
as a proper legal judicial order passed
after following due procedure of law.
Therefore it is liable to be quashed.

15. In Anita Malhotra v. Apparel
Export Promotion Council, (2012) 1 SCC
520 the Apex Court had hld as under:

"20. As rightly stated so, though
it is not proper for the High Court to
consider the defence of the accused or
conduct a roving enquiry in respect of
merits of the accusation, but if on the face
of the document which is beyond suspicion
or doubt, placed by the accused and if it is
considered that the accusation against her
cannot stand, in such a matter, in order to
prevent injustice or abuse of process, it is
incumbent on the High Court to look into
those document/documents which have a
bearing on the matter even at the initial
stage and grant relief to the person
concerned by exercising jurisdiction u/s
482 of the Code."

9. In light of this legal position, I
have gone through the impugned order. A
perusal of this order indicates that learned
Magistrate
had
written
nothing,
concerning the facts of the case. The
accused
person
of
complaint
were
summoned for offences mentioned in that
application. No reason was mentioned in
the impugned order, and the same clearly
lacks the reflection of application of
judicial discretion or mind. Nothing is
there which may show that learned
Magistrate, before passing the order which
is under challenged had considered facts
of the case and evidence or law.
Therefore, it appears that, in fact, no
judicial mind was applied before passing
of impugned order of summoning. Such
order cannot be accepted as a proper legal
judicial order passed after following due
procedure of law.

10. Considering the averment of
present case as well as affidavit supporting
it,
the
incorrect
and
unbelievable
complaint case, false implication of the
applicants by informant in his complaint
and
considering
the
vagueness
of
information mentioned in complaint, and
in light of verdict mentioned in aforesaid
rulings of Hon'ble Apex Court, this
appears to be a case in which applicants
should succeed and the impugned orders
as are liable to be set-aside.

11.
Accordingly,
the
present
application succeeds and is allowed. The
impugned
summoning
order
dated
19.02.2013 and order dated 30.08.2017
passed in Revision No.66 of 2014 are
hereby set-aside and the matter requires
reconsideration.

12.
The
present
application
is,
accordingly,
succeeds.
The
case
is
remanded back to the concerned Learned
Magistrate with direction to pass afresh
reasoned and speaking order, in accordance
with law.
----------
(2025) 11 ILRA 1402
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2025

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 4383 of 2024

Alok Kumar Jain ...Petitioner
Versus
Indra Bhushan Sawhney ...Respondent
11 All. Alok Kumar Jain Vs. Indra Bhushan Sawhney
1403
Counsel for the Petitioner:
Sudeep Harkauli

Counsel for the Respondent:
Balwinder Singh Suri, C.S.C., Mukesh
Kumar Pandey

Issue for Consideration
Whether petitioner is required to pay court fees
in terms of Sections 39(1) & 39(2) or 39(3) of
the Act No. 16 of 2021 i.e. under Section 7(xi-b)
of Act, 1870 or Schedule-II Item No. 1-b of Act.

Head Notes
The Uttar Pradesh Regulation of Urban
Premises Tenancy Act, 2021- Section
10(1), 39(1); 4(3),20(2), 27 ,6(4), 6(5),
14(2), 20(2) and 26(3) ;The Court-fees
Act, 1870- 7(xib), Schedule-II Item No. 1b- After provisions of Section 39(1) of Act
No. 16 of 2021, insertion of sections 39(2)
&
39(3)
are
purposefully
and
not
uselessly. In case, there is no Sections
39(2) & (3), the meaning would have been
that Act, 1870 shall be applicable in toto
in every applications either it is a suit for
recovery of possession or an application,
but the legislation was conscious of the
fact, therefore, inserted Sections 39(2)
and 39(3) of Act No. 16 of 2021, which
provide difference between the both and
according to that, any application for
recovery of possession filed before the
Rent
Authority
and
memorandum
of
appeal presented before the Rent Tribunal
shall be treated to be a suit between the
landlord and tenant meaning thereby
except for recovery of possession, any
other application would not be treated to
be a suit between the landlord and tenant
and for those applications, court fees shall
be charged as in the matter of an
interlocutory application presented in Civil
Court-Petition allowed.

Held- court fees in terms of Section 39(2) of Act
No. 16 of 2021 shall only be applicable for the
applications filed for recovery of possession i.e.
proviso of Sections 4(3), 20(2) and 27 of Act
No. 16 of 2021 or any other applications for
recovery of possession. So far as other
applications, which have been filed under
Sections 10, 6(4), 6(5), 14(2), 20(2) and 26(3)
of Act No. 16 of 2021 or any other applications
identical to same, court fee shall be charged in
accordance with Section 39(3) of Act No. 16 of
2021. In case of inconsistency, in the light of
Section 42 of Act No. 16 of 2021, provisions of
Act No. 16 of 2021 shall prevail over the matter.
To make it clear, provision of Act, 1870 shall
only be applicable to the extent not inconsistent
to Act No. 16 of 2021.(Para 14 & 19)
Petition allowed. (E-15)

Case Law Cited

List of Acts
The Uttar Pradesh Regulation of Urban
Premises Tenancy Act, 2021;The Courtfees Act

List of Keywords
Court fees; 4(3), 20(2) and 27 of Act No. 16 of
2021; 10, 6(4), 6(5), 14(2), 20(2) and 26(3) of
Act No. 16 of 2021; provision of Act, 1870 shall
only be applicable to the extent not inconsistent
to Act No. 16 of 2021

Case Arising From
Execution Case No. 127 of 2023 for execution of
order, which is pending since long without any
positive order for execution.

Direct the respondent no. 2 to charge
court fee as per section 39(3) of the Act, &
not at the arbitrary enhanced rate as
mentioned in the order dated 28.05.2024
and 29.05.2024

Appearances for Parties
Counsel for Petitioner :SUDEEP HARKAULI
Counsel for Respondent :BALWINDER SINGH
SURI, C.S.C., MUKESH KUMAR PANDEY

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Sudeep Harkauli,
learned counsel for petitioner and Sri I.P.
Srivastava,
learned
Additional
Chief
Standing Counsel for State-respondent.

2. Present petition has been filed
seeking following reliefs:-
1404 INDIAN LAW REPORTS ALLAHABAD SERIES
 "(i) To direct the court below to
decide the Execution Case No. 127 of 2023
within a time bound period of 30 days. (ii)
To direct the Rent Authority, Agra to
strictly comply with the timelines specified
in the Act in the cases pending before it."

3. Brief facts of the case are that
earlier mother of petitioner (now deceased)
has filed Case No. 696 of 2022 under
Section 10(1) of Uttar Pradesh Regulation
of Urban Premises Tenancy Act, 2021
(hereinafter referred to as 'Act No. 16 of
2021'), which was decreed in favour of
petitioner vide order dated 22.07.2022. As
the order was not complied with, therefore,
petitioner has filed Execution Case No. 127
of 2023 for execution of order, which is
pending since long without any positive
order for execution. At this stage, petitioner
has filed present petition to expedite the
execution case. During the pendency of this
petition, this Court has passed several
orders. Ultimately execution case has
proceeded and further vide order dated
28.05.2024,
Executing
Court
has
determined the amount of rent i.e. Rs.
62,60,720/- and further vide order dated
29.05.2024
directed
the
applicant/petitioner to deposit the court
fee of Rs. 4,69,983/-. At this stage,
petitioner
has
filed
amendment
application dated 30.05.2024 for certain
amendments along with prayer. This
Court vide order dated 31.05.2024
allowed the amendment application. In
compliance of order, amendment was
carried out and amended prayer is being
quoted below:-

 "(i)(a). Direct the respondent no.
2 to charge court fee as per section 39(3) of
the Act, & not at the arbitrary enhanced
rate as mentioned in the order dated
28.05.2024 and 29.05.2024"
4. Learned counsel for petitioner
submitted that Section 39 of Act No. 16 of
2021 provides for court fees. Section 39(1)
of Act No. 16 of 2021 clearly provides that
The Court-fees Act, 1870 (hereinafter
referred to as 'Act, 1870') shall apply in
respect of applications or appeals presented
before the Rent Authority or Rent Tribunal
as the case may be. Section 39 (2) of Act
No. 16 of 2021 further clarifies that for the
purpose of computation of court fees,
application for recovery of possession
made
to
the
Rent
Authority
and
memorandum of appeal presented before
the Rent Tribunal shall be deemed to be
suit between the landlord and tenant. He
further submitted that Section 39(3) of Act
No. 16 of 2021 further clarifies that other
applications presented before the Rent
Authority, for that court fees shall be same
as that of an interlocutory application
presented in a Civil Court.

5. He firmly pointed out that in
present controversy, application was filed
before the Rent Authority under Section 10
of Act No. 16 of 2021 to determine the
revise rent as there was dispute and it has
nothing to do with the recovery of
possession, therefore, in execution of order
passed upon this application, court fees
shall be governed by the provisions of
Section 39(3) of Act No. 16 of 2021. He
next submitted that court fees for the first
category i.e. for recovery of possession
may be charged as per Section 7(xi-b) of
the Act, 1870 whereas for the second
category i.e. for all other applications, it
may be charged under Schedule-II Item No.
1-b of the Act, 1870. He also pointed out
that recovery of possession is provided in
proviso to Section 4(3), Section 20(2) and
Section 27 Act No. 16 of 2021 whereas for
other applications falling within second
category, (applications other than for
11 All. Alok Kumar Jain Vs. Indra Bhushan Sawhney
1405
recovery of possession), it is provided
under Sections 6(4), 6(5), 10, 14(2), 20(2)
and 26(3) of Act No. 16 of 2021.

6. He further clarified that from
perusal of Act No. 16 of 2021, it is clear
that various kinds of applications may be
moved under the provisions of this Act and
only application moved for recovery of
possession shall be treated as a suit
between the landlord and tenant for the
purpose of calculating court fees. He firmly
pointed out that undisputedly in present
case, application was filed under Section 10
of Act No. 16 of 2021 and execution case
has been filed for payment of rent fixed by
the Rent Authority, therefore, for the
purpose of court fees, it shall be governed
by the provisions of Section 39(3) of Act
No. 16 of 2021. His next argument is that
Section 42 of Act No. 16 of 2021 gives
overriding effect to the provisions of Act
No. 16 of 2021 and in case of inconsistency
between Act No. 16 of 2021 and Act, 1870,
the provisions of Act No. 16 of 2021 shall
prevail and to be given effect.

7. He also submitted that before the
Rent Authority or Rent Tribunal, many
cases are pending for disposal and Sections
33(2), 35(2) & 36(3) of Act No. 16 of 2021
provide time bound manner to decide the
application, appeal or execution etc., as the
case may be. He prayed that direction may
be issued to the Rent Authority to decide
the case within the time limit prescribed in
the Act No. 16 of 2021.

8. Per contra, Sri I.P. Srivastava,
learned Additional Chief Standing Counsel
for State-respondent vehemently opposed
the submissions advanced by counsel for
petitioner and his first argument is that
there is no prayer for setting aside the
orders dated 28.05.2024 & 29.05.2024. He
further submitted that Section 39(1) of Act
No. 16 of 2021 shall apply in respect of
applications or appeals to be presented
before the Rent Authority or Rent Tribunal
as the case may be. His next argument is
that court fee shall be paid in accordance
with Section 39(1) of Act No. 16 of 2021
read with Section 7(xi-b) of Act, 1870 in
the proceeding under Section 10(1) of Act
No. 16 of 2021 and not as per Schedule-II
Item No. 1-b of the Act, 1870. He also
submitted
that
once
by
way
of
application/order
dated
28.05.2024,
claimed/determined rent of Rs. 62,60,720/-,
he is liable to pay the court fees of Rs.
4,69,983/- and in light of Section 11 of Act,
1870, order dated 22.07.2022 and recovery
amount determined on 28.05.2024 to the
tune of Rs. 62,60,720/- shall not be
executed until court fees has not been paid
before the execution court.

9. In his rejoinder argument,
learned counsel for petitioner submitted
that in Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (hereinafter referred to as 'Act,
1972'), there is no provision of court fees,
therefore, provisions of Act, 1870 was
applicable in toto. So far as Act No. 16 of
2021 is concerned, there is provision of
court fees, therefore, court fees shall be
charged in accordance with Section 39 read
with Section 42 of Act No. 16 of 2021.

10.
I
have
considered
rival
submissions advanced by counsels for
parties and perused the records, provisions
of law.

11. The first objection of counsel
for respondent is that petitioner has not
challenged the orders dated 28.05.2024 and
29.05.2024 by which rent was determined
and court fee was fixed. Vide order dated
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
28.05.2024, rent was determined and report
of Court Munsarim was called, therefore,
there is no occasion for the petitioner to
challenge the same. Further, validity of
orders dated 28.05.2024 and 29.05.2024
depend upon the interpretation of Section
39 of Act No. 16 of 2021 read with Section
7 (xi-b), Schedule-II Item No. 1-b of the
Act, 1870. After interpretation of above
noted sections, in case orders are not found
inconsonance with the interpretation so
made by the Court, that would be remanded
back to pass fresh order and in case it is in
accordance with interpretation of Court,
that would remain in operation, therefore,
in light of such facts, there is no need to
challenge the orders.

12. It is undisputed between the
parties that application was filed under
Section 10(1) of Act No. 16 of 2021 and
after order of the Rent Authority, execution
case has been filed for execution of order.
Now, question before the Court is as to
whether petitioner is required to pay court
fees in terms of Sections 39(1) & 39(2) or
39(3) of the Act No. 16 of 2021 i.e. under
Section 7(xi-b) of Act, 1870 or Schedule-II
Item No. 1-b of Act, 1870. For proper
adjudication of the case. Sections 10 & 39
of Act No. 16 of 2021 are being quoted
below:-

 "10.
Rent
Authority
to
determine the revised rent in case of
dispute.-

 (1) In case of any dispute
between the landlord and the tenant
regarding revision of Rent, the Rent
Authority may, on an application made by
the landlord or tenant, determine the
revised rent and other charges payable by
the tenant and also fix the date from which
such revised rent becomes payable.
 (2) In determining the rent to be
revised, the Rent Authority may be guided
by the prevailing market rent in the
surrounding areas let out on rent.

 (3) Once a determination under
this section has been made, no application
for fresh determination shall lie for a period
of one year after the said determination.

 (4) The Rent Authority may
determine provisional rent during the
proceedings for revision of rent which shall
be subject to final determination.

 39. Court fees.-

 (1)The provisions of the Court
Fees Act, 1870 (Act. no.7 of 1870) shall
apply in respect of applications or appeals
to be presented before the Rent Authority
or Rent Tribunal, as the case may be.

 (2)
For
the
purposes
of
computation of court fees, the application
for recovery of possession made to the Rent
Authority and the memorandum of appeal
presented before the Rent Tribunal, shall be
deemed to be a suit between the landlord
and the tenant.

 (3) The court fees for the
application filed before the Rent Authority
shall be same as that of an interlocutory
application presented in a Civil Court."

13. From the perusal of Section 10
of Act No. 16 of 2021, it is apparently clear
that it is to determine the revise rent in case
of dispute and it has nothing to do with the
recovery of possession.

14. Now, coming to Section 39 of
Act No. 16 of 2021; the same is having
three parts i.e. Sections 39 (1), (2) & (3).
11 All. Alok Kumar Jain Vs. Indra Bhushan Sawhney
1407
Section 39(1) of Act No. 16 of 2021
provides general application of provisions
of Act, 1870 in respect of all applications
or appeals to be presented before the Rent
Authority or Rent Tribunal as the case may
be. Sections 39(2) & (3) made distinctions
between the applications. Section 39(2)
says that in case application for recovery of
possession made to the Rent Authority or
memorandum of appeal presented before
the Rent Tribunal, it shall be deemed to be
a suit between the landlord and tenant and
accordingly, court fees shall be computed.
Section 39(3) further clarifies that all other
applications filed before the Rent Tribunal,
court fees shall be same as that of an
interlocutory application presented in Civil
Court. After provisions of Section 39(1) of
Act No. 16 of 2021, insertion of sections
39(2) & 39(3) are purposefully and not
uselessly. In case, there is no Sections
39(2) & (3), the meaning would have been
that Act, 1870 shall be applicable in toto in
every applications either it is a suit for
recovery of possession or an application,
but the legislation was conscious of the
fact, therefore, inserted Sections 39(2) and
39(3) of Act No. 16 of 2021, which provide
difference between the both and according
to that, any application for recovery of
possession filed before the Rent Authority
and memorandum of appeal presented
before the Rent Tribunal shall be treated to
be a suit between the landlord and tenant
meaning thereby except for recovery of
possession, any other application would not
be treated to be a suit between the landlord
and tenant and for those applications, court
fees shall be charged as in the matter of an
interlocutory application presented in Civil
Court.

15. Now coming to Section 7(xi-b)
of Act, 1870. For ready reference, same is
quoted below:-
 "between landlord and tenant.-
(xi) In the following suits between landlord
and tenant:-

 (b) to enhance the rent of a tenant
having a right of occupancy,"

16. Section 7(xi-b) of Act, 1870
deals between landlord and tenant. No
doubt, until the promulgation of Act No. 16
of 2021, when the cases are governed by
the Act, 1972 or any other Act, provisions
of Section 7(xi-b) of Act, 1870 was also
applicable in case of enhancement of rent
of tenant having a right of occupancy, but
now Act No. 16 of 2021 came into force
having specific provisions of Sections 39 &
42 of Act No. 16 of 2021. For ready
reference, Section 42 of Act No. 16 of 2021
is being quoted below:-

 "42.
Overriding
effect.-The
provisions of this Act shall have effect
notwithstanding
anything
inconsistent
therewith contained in any other law of the
State of Uttar Pradesh for the time being in
force."

17. From perusal of Section 42 of
Act No. 16 of 2021, it is apparently clear
that in case of inconsistency with any other
law for the time being in force, provisions
of this Act shall have overriding effect,
therefore, legal position is that unless the
Act No. 16 of 2021 was not promulgated,
all tenancy disputes are governed by Act,
1972 or SCC Act and provisions of Section
7(xi-b) of Act, 1870 shall be applicable, but
once Act No. 16 of 2021 came into force
with the provisions of Sections 39 and 42,
which classify the application for court fees
in two parts; i.e. recovery of possession and
other
applications,
therefore,
for
the
recovery of possession, any application
either before the Rent Authority or
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
memorandum of appeal before the Rent
Tribunal shall be treated to be a suit
between the landlord and tenant and court
fees shall be charged in accordance with
Section 7(xi-b) of Act, 1870, but for other
applications as mentioned in Section 39(3)
of Act No. 16 of 2021, court fees shall be
charged as in the matter of interlocutory
application filed before the civil court i.e.
Schedule-II Item No. 1-b of the Act, 1870.
Further, in light of Section 42 of Act No.
16 of 2021, in case of inconsistency,
provisions of Act No. 16 of 2021 would
prevail.

18. So far as Section 11 of Act, 1870 is
concerned, it shall also not be applicable in light
of Section 39 of Act No. 16 of 2021 read with
Section 42 of Act No. 16 of 2021 .

19. Therefore, in the light of law
discussed herein-above, this Court is of the firm
view that court fees in terms of Section 39(2) of
Act No. 16 of 2021 shall only be applicable for
the applications filed for recovery of possession
i.e. proviso of Sections 4(3), 20(2) and 27 of
Act No. 16 of 2021 or any other applications for
recovery of possession. So far as other
applications, which have been filed under
Sections 10, 6(4), 6(5), 14(2), 20(2) and 26(3)
of Act No. 16 of 2021 or any other applications
identical to same, court fee shall be charged in
accordance with Section 39(3) of Act No. 16 of
2021. In case of inconsistency, in the light of
Section 42 of Act No. 16 of 2021, provisions of
Act No. 16 of 2021 shall prevail over the
matter. To make it clear, provision of Act, 1870
shall only be applicable to the extent not
inconsistant to Act No. 16 of 2021.

20. Therefore, under such facts,
calculation of court fees calculated by
respondent no. 2- A.D.M./Rent Authority, Agra
vide orders dated 28.05.2024 and 29.05.2024 is
incorrect. Matter is remitted back to respondent
no. 2- A.D.M./Rent Authority, Agra to recalculate the court fees in light of Section 39(3)
of Act No. 16 of 2021 read with Schedule-II
Item No. 1-b of the Act, 1870, maximum
within two weeks from the date of production
of certified copy of this order. Earlier orders
dated 28.05.2024 and 29.05.2024 shall abide by
the new orders passed by Rent Authority.

21. He shall further proceed to decide
the execution case at the earliest not more than
30 days as provided in Section 36(3) of Act No.
16 of 2021.

22. So far as another argument of
counsel for petitioner about the disposal of case
in a time bound manner in concerned,
needless to say that once there is provision in
Act No. 16 of 2021 for disposal of different
applications, appeal and execution cases,
Rent Authority or Rent Tribunal, as the case
may be, is bound to decide the case strictly in
accordance with Act No. 16 of 2021.
Therefore, Rent Authority and Rent Tribunal
are directed to decide not only the cases of
petitioner, but other cases pending before
them strictly in a time limit prescribed by the
provisions of Act No. 16 of 2021.

23. With the aforesaid observations,
petition is allowed.
----------
(2025) 11 ILRA 1408
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 10979 of
2023

Ghanshyam & Ors. ...Petitioners
Versus
Tulsi & Ors. ...Respondents