# Babu Ram v. Additional District Judge

- **Citation:** (2001) 1 ILRA 381
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-ram-v-additional-district-judge-39142
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
381
against was passed or that he applied for
adducing above evidence and the court
had refused to admit the same. It is also
not the case of the petitioner that the
evidence sought to be adduced before
Revisional court was not within the
knowledge of the petitioner. Moreover, if
additional evidence sought to be adduced
was taken, the Revisional Court had to
record a finding of fact, which was
beyond
the
scope
of
revisional
jurisdiction as the Revisional Court had
no jurisdiction to interfere with the
finding of fact and has held in the case of
Babu Ram vs. Additional District Judge,
Dehradun (supra) Under Section 25 of
Provincial Small Causes Courts Act, the
Court cannot admit additional evidence
for reappraisal of the evidence or for
setting aside a finding of fact.

12. There is also nothing on record
to show that the additional evidence
sought to be adduced was essential in the
interest of justice. Contrary to it, the
admission of additional evidence would
have amounted in filling the lacunae in
the case of the petitioner. As such, the
admission of additional evidence as
rightly
refused.
The
petition
has,
therefore, no force and is, accordingly,
dismissed summarily.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
,9,/ 6,'(
'$7(' $//$+$%$' -$18$5<
'$7(' $//$+$%$' -$18$5<
%()25(
%()25(
7+( +21·%/( 23 *$5* -
7+( +21·%/( 23 *$5* -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

0V %DWD ,QGLD /WG
«3HWLWLRQHU
9HUVXV
UG
$GGLWLRQDO
'LVWULFW
-XGJH
0X]DIIDUQDJDU DQG RWKHUV 5HVSRQGHQWV
&RXQVHO IRU WKH 3HWLWLRQHU
6KUL .5 6LQJK
6KUL .1 7ULSDWKL
&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL $UMXQ 6LQJKDO
6KUL $WXO 'D\DO

83
8UEDQ
%XLOGLQJV
5HJXODWLRQ
RI
OHWWLQJ UHQW DQG (YLFWLRQ $FW 6
 D ± $SSOLFDWLRQ RI UHOHDVH E\ ODQG
ORUG
RZQHU ± 'RFWYLQH RI (OHFWLRQ ±
$SSUREDWH DQG UHSUHEDWH ± $SSOLFDELOLW\
+HOG 3DUD DQG
, KDYH JLYHQ D WKRXJKWIXO FRQVLGHUDWLRQ
WR WKH PDWWHU DQG ILQG WKDW WKH ODQG ODG\
PD\ QRW EH SUHYHQWHG IURP ILOLQJ D IUHVK
DSSOLFDWLRQ IRU UHOHDVH E\ LQYRNLQJ WKH
SUHYLVLRQV RI VHFWLRQ D RI WKH $FW
%XW WKH IDFW UHPDLQV WKDW WKH ODZ GRHV
QRW
SHUPLW
WKH
ODQG
ODG\
WR
ERWK
DSSUREDWH DQG UHSUREDWH 7KLV SULQFLSOH
LV EDVHG RQ WKH GRFWULQH RI HOHFWLRQ
ZKLFK
SRVWXODWHV
WKDW
QR
SDUW\
FDQ
DFFHSW DQG UHMHFW WKH VDPH LQVWUXPHQW
DQG WKDW QR SDUW\ FDQ DFFHSW DQG UHMHFW
WKH VDPH LQVWUXPHQW DQG WKDW 3D SHUVRQV
FDQQRW VD\ DW WKH WLPH WKDW D WUDQVDFWLRQ
LV
YDOLG
DQG
WKHUHE\
REWDLQ
VRPH
DGYDQWDJH WR ZKLFK KH FRXOG RQO\ EH
HQWLWOHG RQ WKH IRRWLQJ WKDW LW LV YDOLG
DQG WKHQ WXUQ URXQG DQG VD\ LW LV YRLG IRU
WKH
SXUSRVH
RI
VHFXULQJ
VRPH
RWKHU
DGYDQWDJH
,Q
WKH
FRQVSHFWXV
RI
WKH
DERYH
GLVFXVVLRQ WKH RUGHU RI UHOHDVH SDVVHG
RQ LQ 3$ &DVH QR RI
 DQG DV FRQILUPHG E\ RUGHU GDWHG
 LQ 5HQW $SSHDO QR RI
 FDQQRW EH LQWHUIHUHG ZLWK LQYRNLQJ
WKH ZULW MXULVGLFWLRQ XQGHU $UWLFOH RI
&RQVWLWXWLRQ RI ,QGLD 7KH ZULW SHWLWLRQ LV
DFFRUGLQJO\ GLVPLVVHG
&DVH /DZ 'LVFXVVHG
 $5&
$,5 6&
$,5 6&
$,5 6&
$,5 6&
1All] M/s Bata India Ltd. V. 3rd A.D.J., Muzaffarnagar and others
382
 835&&
 835&&
 835&&
 $5&
 $5&
 6&& ±
$,5 $OO :W
 6&&
 $&-
 $5&
 $5& 6&
 V $5&
 $5&
 $5&
 $5& 6&
 $5&

By the Court

1.

The
dispute
relates
to
premises/shop no. 37 Martinganj, Shamli
Road,
Muzaffarnagar,
of
which
admittedly the respondent no. 3 Smt.
Urmila Devi is the owner of the shop in
dispute while the petitioner Bata India
Limited is the tenant. The application for
release under Section 21(1) (a) of U.P.
Act no. 13 of 1972 was lied by the land
lady
respondent
no.
3
against
the
petitioner in the year 1992. It was
registered as P.A. Case no. 30 of 1992.
The said application was allowed by the
Prescribed Authority by an order dated
10.05.1994 holding that the need of the
land lady respondent no. 3 was bonafide
and genuine and that the balance of
hardship tilts in her favour. Aggrieved,
the tenant petitioner preferred a Rent
Appeal no. 23 of 1994 under section 22 of
the
Act
which
was
dismissed
on
08/12/1995. It is in these circumstances
that the petitioner tenant has come before
this court by means of this writ petition
under Article 226 of Constitution of India
with the prayer that the order of release
passed in favour of respondent no. 3 and
as confirmed in appeal under section 22
of the Act be quashed.

2. Counter and rejoinder affidavits
have been exchanged.

3. Heard Sri K.R. Singh, learned
counsel for the petitioner and Sri Atul
Dayal appearing on behalf of respondent
no. 3.

4. To begin with, it may be pointed
out that the conclusion that the need of the
land lady to occupy the disputed shop in
bonafide and genuine and the question of
hardship are finding of fact which cannot
be canvassed or challenged in writ
jurisdiction, Sri Atul Dayal, therefore,
pointed out that the order of release which
has become final, cannot be disturbed by
this Court in writ jurisdiction and in
support of his contention he placed
reliance of the decisions in the case of
Kamla Sarin vs. Shyam Lal and others -
1984 (2) All. R.C. 344; in the case of
Munni Lal and another versus Prescribed
Authority and another A.I.R. 1978, S.C.
29; in the case of Natthu Lal vs. Radhey
A.I.R. 1974 S.C., 1696; in the case of
Babhutmal Raichand versus Laxmibai,
A.I.R. 1978 S.C. 1296; in the case of Smt.
Labkhkumar
Bhagwani
Shaha
vs.
Janardan Mahadeo Kalan A.I.R. 1983
S.C. 535, in the case of Ram Rakesh Pal
and others versus 1st Additional District
Judge and others 1976 U.P.R.C. 376; in
the case of Jagan Prasad vs. District Judge
and others 1976 U.P.R.C.C. 342; in the
case of Laxmi Narain vs. IInd Additional
District Judge and others 1977 U.P.R.C.C.
230,; in the case of Smt. Nirmala Tandon
vs. Xth Additional District Judge, Kanpur
nagar - 1996 (2) A.R.C. page 409 and in
the case of Kamleshwar Prasad versus
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
383
Pradumanju Agarwal 1994 (1) A.R.C.
627.

5. Sri K.R. Singh, learned counsel
for the petitioner made attempts to point
out that certain subsequent events had
occurred on account of the construction of
certain new shops by the land lady. Sri
Atul Dayal pointed out that in view of the
decision of Kamleshwar Prasad (supra) it
was held that the order of release as
confirmed in appeal acquires the status of
a final decree which cannot be disturbed
by consideration of the subsequent events
in the writ jurisdiction, as the rights of the
parties
under
a
final
decree
are
determined with reference to the facts and
circumstances as obtaining by the time by
which the appeal confirming the decree
came into existence.

6. The sheet anchor of the case of
the petitioner as canvassed by Sri K.R.
Singh is that prior to the filing of the P.A.
Case no. 30 of 1992 the respondent no. 1
filed a release application under section
21(1)(a) of the Act which was registered
as P.A. Case no. 74 of 1983 and during
the
pendency
of
the
said
release
application, the parties came to terms and
on the basis of the compromise arrived at
between them, a decree for eviction
pursuant to the release order on the
subsequent application filed in the year
1992 could not be passed. A copy of the
compromise filed and verified before the
prescribed Authority in P.A. Case no. 74
of 1983 is no record. It contemplates that
the petitioner shall pay enhanced amount
of rent in the following manner:
For the period

Amount
From 01/01/1984to31/12/1989
Rs. 950.00
 per month
From01/01/1990to31/12/1994
Rs.12000.00
 per month
From 01/01/1995 to 31/12/1999
Rs. 1500.00
 per month
From 01/01/2000 to 31/12/2004
@ Rs. 950.00
 per month

7. The amount of rent payable by the
petitioner was to be enhanced every five
years in a graduated manner as indicated
above. The compromise contemplated
that the land lady respondent no. 3 shall
not evict the petitioner till 31/12/2004, if
he pays the rent which was to be
enhanced in a phased manner either every
five years.
8. Sri Atul Dayal pointed out that
the compromise in question could not be
acted upon, as it was not registered.
According to him, the registration of the
compromise was compulsory in view of
the decision of the Apex Court in the case
of Bhoop Singh Versus Ram Singh Major
and others (1995) 5 Supreme Court Cases
709. Sri K.R. Singh pointed out that the
said decision does not apply to the facts of
the present case as the law laid down in
the
said
case
with regard to the
compulsory registration of a compromise
decree was in the wake of the fact that
certain new rights, title or interest in
presenting in immovable property of
value of Rs.100 or above were created. I
have also wadded through the said
decision and find that it does not apply to
the facts of the present case on all fours.
In Sardar Iqbal Singh versus Ram Nath
Chowdhary and another A.I.R. 1982
Rajasthan (Jaipur Bench) page 116, it was
held that a compromise decree was not
required to be registered as no fresh
tenancy was created. In Hari Shankar
versus Durga Devi and another, AIR 1977
Allahabad 455, the circumstances in
which a compromise decree is required to
be compulsory registered have been laid
down. In this connection are a reference
may also be made to the decision of the
Apex Court in the case of S. Noordeen
1All] M/s Bata India Ltd. V. 3rd A.D.J., Muzaffarnagar and others
384
versus V.S.Thiru Venkita Reddiar and
others (1996) 3 Supreme Court Cases
289, in which it has been laid down that a
compromise decree dealing with the
immovable property is required to be
registered.

9. In the instant case undoubtedly
the petitioner was the tenant of the
respondent no. 3. The release petition was
filed in the year 1983 treating the
petitioner to be the tenant. By virtue of
the compromise which was made part of
the release petition, no new right of
tenancy were created in favour of the
petitioner and even the genuineness and
bonafide nature of the need of the land
lady was determined. A decree on the
basis of the compromise cannot be said to
be vitiated on account of its non
registration, which under the law, was not
required.

10. Sri Atul Dayal took pains to
make out a point that inspite of the
compromise between the parties in earlier
release petition no. 74 of 1983, the land
lady was not debarred form making a
fresh application for release, if on account
of certain circumstances she required the
accommodation to satisfy her personal
need. The crux of the submission made on
behalf of the land lady was that statutory
right to get the tenanted shop released,
could not defeated or nullified, merely
because a compromise was earlier arrived
at
between
the
parties
in
release
proceedings. Sri Atul Dayal fortified his
submission by placing reliance on Motilal
versus VII Additional District Judge,
1990 A.C.J. 84 Haji Mohd. Amin vs. VII
Additional District Judge 1988 (20 A.R.C.
416 (D.B.); Smt. Nai Bibi versus Late
Ram Narain and others 1978 A.R.C. 226
(SC); Mohd. Ahmad Vs. III Additional
Judge, 1995 (2) A.R.C. 12 Bakride vs. III
Additional District Judge 1989 (2) A.R.C.
261 and Ashok Kumar Sheth versus IV
Additional District Judge, 1993 (1)
A.R.C.

11. I have given a thoughtful
consideration to the matter and find that
the land lady may not be prevented from
filing a fresh application for release by
invoking the provisions of section 21(1)
(a) of the Act, but the fact remains that the
law does not permit the land lady to both
approbate and reprobate. This principle is
based on the doctrine of election which
postulates that no party can accept and
reject the same instrument and that " a
person cannot say at one time that a
transaction is valid and thereby obtain in
some advantage, to which he could only
be entitled on the footing that it is valid,
and then turn round and say it is void for
the purpose of securing some other
advantage.

12. The above observation flew
from the decision of the Apex Court in the
case of R.N. Gosain versus Yashpal Dhir
1993 (1) A.R.C. page 1 (S.C.). In Rama
Shankar Tewari versus Ram Raghubir
Jaiswal and others 1993(2) A.R.C. page 1
(S). In Rama Shankr Tewari versus Ram
Raghubir Jaiswal and others 1993 (2)
A.R.C. page 548, this Court has taken the
vide that it is the duty of the court to
prevent the beneficiaries from taking
undue and impermissible advantages by
turning does to suit the exigencies of the
case. It is an indubitable fact that the land
lady has been accepting the enhanced
amount of rent as contemplated in the
compromise which forms part of the order
passed in release application no. 74 of
1983 After a period of every five years,
who is getting the advantage of enhanced
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
385
rent. This advantage was available to her
under the compromise arrived at between
the parties. The land lady therefore cannot
play loose and fast or in the common
parlance she cannot be permitted to blow
hot and cold. She has to abide by the
conditions contained in the compromise
and the order of release passed in the
subsequent P.A. Case no. 30 of 1992,
which has become final, should not be
implemented prior to 31/12/2004. On
equitable consideration she is bound to
permit the petitioner tenant to continue as
a tenant in the shop in dispute till
31/12/2004. She is accepting the rent at
enhanced rates on the condition that the
tenant shall continue in possession atleast
up to 31/12/2004.

13. In the conspectus of the above
discussion, the order of release passed on
10/05/1994 in P.A. Case no. 30 of 1992
and
as
confirmed
by
order
dated
08/12/1995 in Rent Appeal no. 23 of
1994, cannot be interfered with by
invoking the writ jurisdiction under
Article 226 of constitution of India. The
writ petition is accordingly dismissed.

14. However, the implementation of
the order of release dated 10/05/1994 is
deferred till 31/12/2004 in view of the
compromise arrived at between the parties
in P.A. Case no. 74 of 1983 pursuant to
which the respondent no. 3 land lady is
accepting enhanced rent. In case the
petitioner does not vacate the premises on
or before 31/12/2004, the release order
shall become enforceable according to
law.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( %+$*:$1 ',1 -
7+( +21·%/( %+$*:$1 ',1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

0V 6DNHW %ULFNV 7UDGHUV 5DPZDSXU
.XVKPL %D]DU *RUDNKSXU
«3HWLWLRQHU
9HUVXV
$GGLWLRQDO &RPPLVVLRQHU /HJDO 7UDGH
7D[ 2WKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 5DMHV .XPDU
&RXQVHO IRU WKH 5HVSRQGHQWV
6&

83 7UDGH 7D[ $FW 6HFWLRQ '
&RPSRXQGLQJ
6FKHPH*RYHUQPHQW
E\
H[HUFLVLQJ SRZHU XV ' SURYLGHG WKH
FXW RII GDWH IRU PDNLQJ WKH DSSOLFDWLRQ ±
 GD\V EH\RQG WLPHFDQQRW EH FRQGRQHG
E\ WKH FRXUW E\ DSSO\LQJ WKH SURYLVLRQV
RI /LPLWDWLRQ $FW
&DVH ODZ 'LVFXVVHG
$,5 6&
 837&

By the Court

1. The petitioner seeks a writ of
certiorari quashing the order dated 20th
April, 1996 whereby the application of
the petitioner for compounding has been
rejected on the ground that the application
was filed beyond time.

2. The petitioner is partnership firm
and is carrying on the business of
manufacturing and sales of bricks. The
petitioner for the year 1994-95 moved an
application
on
5th
may,
1995
for
compounding
under
compounding