# K.K. Gupta v. A.D.J. 2004 (2) A.R.C. 659

- **Citation:** (2006) 2 ILRA 839
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-24
- **Case number:** Civil Misc. Writ Petition No.18022 of 1986
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/k-k-gupta-v-a-d-j-2004-2-a-r-c-659-40611
- **Pages:** 6

## Headnote

letting of Rent & Eviction) Act 1972-S-20
(4)-Benefits claimed by the tenantdeposit made on 28.8.84, on the same
day written statement filed after taking
permission of the Trial Court-once with
the
permission
of
court
written
statement filed-No date prior to that can
be first date of hearing-held benefittenant
not
liable
to
entitled
for
ejectment.

Held: Para 5
840 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
As far as deposit in the suit giving rise to
the instant writ petition is concerned I
find that it was made on or before first
date of hearing. Deposit was made on
28.8.1984 and written statement was
filed
on
or
before
28.8.1984 after
permission/time being granted in that
regard by the trial court. I have held in
K.K. Gupta Vs. A.D.J. 2004 (2) A.R.C. 659
after discussing five authorities of the
Supreme Court that in case written
statement is filed after permission of the
court then no date prior to the date of
filing of written statement can be taken
to be date of first hearing. I accordingly
hold that tenant had deposited the entire
amount as required by Section 20(4) of
the Act on or before the first date of
hearing hence he was not liable to
ejectment on the ground of default.
Case law discussed:
2004 (2) ARC-659 S.C. relied on.

(B)
Code
of
Civil
Procedure-S-11Resjudicate-earliar
judgmentobservation made about no pleading
regarding denial of title-as has been
made
during
pendancy
of
suit-in
subsequent suit it can be treated as
opinion
of
court-held-principle
not
applicable.

Held: Para 6

After recording the finding that plea of
denial of title could not be considered it
was not all necessary for the revisional
court to express the opinion that what
the
tenant
stated
in
the
written
statement amounted to denial of title. By
maximum it can be treated to be an
opinion of the court. The Supreme Court
in R. Prasad Vs. Shri Krishna A.I.R. 1969
S.C. 316 has held that the expression of
the opinion of court does not operate as
resjudicata if that question was not in
issue before the court.
AIR 2000 SC-568
AIR 1974 SC-1126
AIR 1969 SC-316
AIR 1991 SC-264

(C) Constitution of India Art. 226Enhancement of Rent-while granting
relief the tenant-against eviction court is
empowered to enhance the monthly
rent-accommodation a shop-situated in
Muzaffarnagar adjacent to Delhi rate of
rent enhanced from Rs.65 to 1000/- per
month.

Held: Para 11

I
have
held
in
Khursheed
Vs.
A.D.J.2004(2)
A.R.C.
64
that
while
granting relief to the tenant against
eviction in respect of building covered by
Rent control act writ court is empowered
to enhance the rent to a reasonable
extent. The property in dispute is a shop
situate in Muzzaffar Nagar which is
adjacent to Delhi. Rate of rent of Rs.65/-
per month is highly inadequate. It is
virtually no rent. Accordingly, it is
directed that with effect from November,
2005 tenant-petitioner shall pay rent to
the landlord-respondent at the rate of
Rs.1,000/- per month.
Case law discussed:
2004 (2) ARC-64

## Text

2 All] Dhajja Ram V. VIth A.D.J., Muzaffar Narar and others
839
under the Rules i.e. U.P. Police Officers
of Subordinate Ranks (Punishment and
Appeal) Rules, 1991. Dispensation of the
departmental enquiry is an exception and,
therefore, the Section 8 (2) Proviso B
itself mandates that reasons for such
dispense must be recorded in writing.

6. From the impugned order it is
apparent that the mandate of Rule 8 (2)
Proviso (B) has not been carried out and
absolutely no reasons for dispensation
with the departmental enquiry before
dismissing the petitioner from service
have been recorded in writing as to why it
was not reasonably practicable to hold
such an enquiry In such circumstances the
order not being supported by sufficient
reasons recorded for dispensing with the
enquiry is hit by Rule 8 (2) Proviso (B),
and,
therefore,
cannot
be
legally
sustained.

7. It is settled law that availability of
statutory remedy is not an absolute bar for
entertainment of writ petitions.

8. In the facts and circumstances of
the case this Court is satisfied that it
would be more appropriate to exercise
discretion under Article 226 of the
Constitution of India instead of refusing
to do so on the ground of availability of
alternative
remedy.
Accordingly
the
objection raised by the Standing Counsel
is hereby turned out.

9. For the reasons recorded
hereinabove the impugned order dated
21.2.2006 is hereby quashed. However
since the petitioner was under suspension
prior to passing of the impugned order it
is provided that such suspension shall
continue till the respondents take a fresh
decision in the matter in accordance with
law. If a decision is taken to hold a
departmental
enquiry
against
the
petitioner in respect of charges, such
departmental
proceedings
must
be
completed within three months from the
date a certified copy of this order is filed
before
respondent
no.
2.
In
case
respondent no. 2 feels that departmental
proceedings
in
the
facts
and
circumstances
of
the
case
is
not
practicable, he shall record reasons for the
same in writing.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2005

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.18022 of 1986

Dhajja Ram

...Petitioner
Versus
VI th A.D.J., Muzaffar Nagar and others

 ...Respondents

Counsel for the Petitioner:
Sri Tarun Verma

Counsel for the Respondents:
Sri M.K. Rajvanshi
S.C.

(A) U.P. Urban Buildings (Regulation
letting of Rent & Eviction) Act 1972-S-20
(4)-Benefits claimed by the tenantdeposit made on 28.8.84, on the same
day written statement filed after taking
permission of the Trial Court-once with
the
permission
of
court
written
statement filed-No date prior to that can
be first date of hearing-held benefittenant
not
liable
to
entitled
for
ejectment.

Held: Para 5
840 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
As far as deposit in the suit giving rise to
the instant writ petition is concerned I
find that it was made on or before first
date of hearing. Deposit was made on
28.8.1984 and written statement was
filed
on
or
before
28.8.1984 after
permission/time being granted in that
regard by the trial court. I have held in
K.K. Gupta Vs. A.D.J. 2004 (2) A.R.C. 659
after discussing five authorities of the
Supreme Court that in case written
statement is filed after permission of the
court then no date prior to the date of
filing of written statement can be taken
to be date of first hearing. I accordingly
hold that tenant had deposited the entire
amount as required by Section 20(4) of
the Act on or before the first date of
hearing hence he was not liable to
ejectment on the ground of default.
Case law discussed:
2004 (2) ARC-659 S.C. relied on.

(B)
Code
of
Civil
Procedure-S-11Resjudicate-earliar
judgmentobservation made about no pleading
regarding denial of title-as has been
made
during
pendancy
of
suit-in
subsequent suit it can be treated as
opinion
of
court-held-principle
not
applicable.

Held: Para 6

After recording the finding that plea of
denial of title could not be considered it
was not all necessary for the revisional
court to express the opinion that what
the
tenant
stated
in
the
written
statement amounted to denial of title. By
maximum it can be treated to be an
opinion of the court. The Supreme Court
in R. Prasad Vs. Shri Krishna A.I.R. 1969
S.C. 316 has held that the expression of
the opinion of court does not operate as
resjudicata if that question was not in
issue before the court.
AIR 2000 SC-568
AIR 1974 SC-1126
AIR 1969 SC-316
AIR 1991 SC-264

(C) Constitution of India Art. 226Enhancement of Rent-while granting
relief the tenant-against eviction court is
empowered to enhance the monthly
rent-accommodation a shop-situated in
Muzaffarnagar adjacent to Delhi rate of
rent enhanced from Rs.65 to 1000/- per
month.

Held: Para 11

I
have
held
in
Khursheed
Vs.
A.D.J.2004(2)
A.R.C.
64
that
while
granting relief to the tenant against
eviction in respect of building covered by
Rent control act writ court is empowered
to enhance the rent to a reasonable
extent. The property in dispute is a shop
situate in Muzzaffar Nagar which is
adjacent to Delhi. Rate of rent of Rs.65/-
per month is highly inadequate. It is
virtually no rent. Accordingly, it is
directed that with effect from November,
2005 tenant-petitioner shall pay rent to
the landlord-respondent at the rate of
Rs.1,000/- per month.
Case law discussed:
2004 (2) ARC-64

(Delivered by Hon'ble S.U. Khan, J.)

1. This writ petition was dismissed
as abated after rejecting the substitution
application through order dated 7.5.2001.
The said order was set aside by the
Hon'ble Supreme Court in Civil Appeal
No.6711 of 2001 dated 24.9.2001 and
High Court was directed to decide the
writ petition on merit.

2. This is tenant's writ petition
arising out of suit for eviction filed by
landlord-respondent no.3 Kashi Ram
since deceased and survived by legal
representatives against tenant-petitioner
being SCC suit no.19 of 1984. Eviction
was sought on the ground of default and
denial of title through written statement
filed by the tenant petitioner in the earlier
2 All] Dhajja Ram V. VIth A.D.J., Muzaffar Narar and others
841
suit for eviction which had been filed by
the landlord against him being SCC suit
no.77 of 1980.

3. In the earlier suit (SCC suit no.77
of 1980) petitioner had filed written
statement. In the said written statement it
had been pleaded that apart from Kashi
Ram the plaintiff his brother Sagar Mal
was also owner landlord of the property in
dispute and suit was bad for non-joinder
of necessary party. The earlier suit was
dismissed for eviction on the ground that
entire arrears of rent had been deposited
by the tenant on the first date of hearing.
Kashi Ram who was also plaintiff of the
earlier suit was permitted to withdraw the
amount deposited by the tenant. Against
the said judgment and decree Kashi Ram -
plaintiff landlord filed SCC revision no.62
of 1982. The revision was dismissed on
15.9.1983
by
A.D.J./Special
Judge,
Muzaffar Nagar. In respect of question of
denial of title it was held in the said
judgment by the revisional court that the
allegation of the tenant in the written
statement that plaintiff alone was not the
landlord amounted to denial of title.
However, it was further observed that as
denial had taken place during the
pendency of the suit i.e. in the written
statement hence eviction on the ground of
denial of title could not be sought for and
granted in the same suit. It was further
observed that landlord could file a fresh
suit for eviction on the basis of the said
denial. In view of the said observations,
later suit for eviction giving rise to the
instant writ petition (SCC suit no.19 of
1984) was filed. In the second suit giving
rise to the instant writ petition tenant
pleaded that he had not denied the title of
the landlord Kashi Ram. Tenant further
pleaded that as landlord refused to accept
the rent hence he deposited the same in
the earlier concluded suit. Tenant on
28.8.1984 also deposited the entire
amount of rent, interest and cost of the
suit and claimed the benefit of Section
20(4) of the Act. In respect of denial of
title JSCC, held that the assertion of the
tenant in the written statement filed in the
earlier suit that Kashi Ram alone was not
the landlord did not amount to denial of
title. In respect of deposit of rent made by
the tenant in the earlier concluded suit
trial court held that the said deposit was
valid and in view of this tenant was not
defaulter when notice terminating the
tenancy and demanding the rent was
given by landlord to him i.e. notice dated
1.2.1984. In respect of benefit of Section
20(4) of the Act the trial court held that
the deposit was made by the tenant after
the first date of hearing hence he was not
entitled to the benefit of Section 20(4) of
the
Act.
The
trial
court
therefore
dismissed the suit on the ground that there
was no denial of title and notice of
termination of tenancy and demand of
rent was invalide as at the time of notice
tenant was not defaulter. The trial court
therefore dismissed the suit and permitted
the landlord to withdraw the amount
deposited by the tenant. The suit was
decided by trial court on 17.5.1985.
Against judgment and decree dated
17.5.1985 Kashi Ram landlord filed SCC
revision no.57 of 1985. Vith ADJ,
Muzaffar Nagar through judgment and
order
dated
7.10.1986
allowed
the
revision, set aside the judgment and
decree passed by the trial court and
decreed the suit for ejectment also hence
this writ petition by the tenant.

4. The revisional court held that
deposit of rent by the tenant in the
concluded suit was not valid hence at the
time of notice he was defaulter and notice
842 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
was therefore quite valid (it is admitted in
para-3 of the plaint that rent till 31.8.1983
had been paid by the tenant). In respect of
benefit of Section 20 (4) of the Act
revisional court did not say anything as
trial court itself had held that the first
deposit was beyond the first date of
hearing. In respect of invalidity of deposit
of rent in the concluded suit and validity
of notice of demand I fully agree with the
findings of the revisional court. Tenant
had no right to deposit rent in the
concluded suit hence notice of demand
was perfectly valid.

5. As far as deposit in the suit giving
rise to the instant writ petition is
concerned I find that it was made on or
before first date of hearing. Deposit was
made on 28.8.1984 and written statement
was filed on or before 28.8.1984 after
permission/time being granted in that
regard by the trial court. I have held in
K.K. Gupta Vs. A.D.J. 2004 (2) A.R.C.
659 after discussing five authorities of the
Supreme Court that in case written
statement is filed after permission of the
court then no date prior to the date of
filing of written statement can be taken to
be date of first hearing. I accordingly hold
that tenant had deposited the entire
amount as required by Section 20(4) of
the Act on or before the first date of
hearing hence he was not liable to
ejectment on the ground of default.

6. As far as question of denial is
concerned, it has been held by the
Supreme Court in C. Chandramohan Vs.
Sengottaiyan A.I.R. 2000 S.C. 568 that
mere assertion of tenant that landlord is
co-owner because of lack of knowledge of
deed does not amount to denial of his
title. If a tenant asserts that plaintiff is colandlord then it means that he is admitting
him to be landlord because a co-landlord
is also landlord. I therefore hold that the
allegation of the defendant in his written
statement filed in the previous suit (SCC
suit no.77 of 1980) does not amount to
denial of title.

Now
the
only
question
which
remains to be decided is as to whether
finding of the revisional court in the
judgment of the revision arising out of the
previous suit to the effect that tenant had
denied the title of the landlord Kashi Ram
amounts to res-judicata or not. The said
revision had been dismissed by the
revisional court hence there was no
occasion for the tenant to file appeal or
writ petition against the said judgment. It
has been held by the Supreme Court in
Ganga Bai Vs. Vijai Kumar A.I.R. 1974
S.C. 1126 that no appeal lies against a
mere finding. In the earlier judgment
revisional court had held that as there was
no pleading in respect of denial of title
and as denial of title had taken place
during pendency of suit hence no relief on
the basis of said ground could be granted
in that very suit. After recording the
finding that plea of denial of title could
not be considered it was not all necessary
for the revisional court to express the
opinion that what the tenant stated in the
written statement amounted to denial of
title. By maximum it can be treated to be
an opinion of the court. The Supreme
Court in R. Prasad Vs. Shri Krishna
A.I.R. 1969 S.C. 316 has held that the
expression of the opinion of court does
not operate as resjudicata if that question
was not in issue before the court.

7. The Supreme Court in Mahesh
Chandra Vs. Shiv Charan Das A.I.R.
1991
S.C.
264
has
held
that an
observation which was not only off the
2 All] Dhajja Ram V. VIth A.D.J., Muzaffar Narar and others
843
mark but unnecessary could not operate as
resjudicata. It was further held therein that
one of the tests to ascertain if a finding
operates as resjudicata is if the party
aggrieved could challenge it. It was held
that since the appeal was dismissed and
appellate
decree
was
not
against
defendant no. 2 and 3 they could not
challenge it by way of further appeal.

8. On this point a comparatively
recent authority of the Supreme Court
reported in Pawan Kumar Gupta vs. R.
Nagdeo A.I.R. 1999 SC 1823 also
requires consideration. The facts of the
said case were that in the suit for eviction
against the tenant, the tenant asserted that
plaintiff was not his landlord. However
the tenant in the alternative deposited the
entire arrears of rent on the first date of
hearing. The court held that the plaintiff
was the owner. However suit for eviction
was dismissed on the ground that entire
arrears of rent had been deposited on the
first date of hearing. In a subsequent suit
by the same plaintiff defendant sought to
assert again that plaintiff was not the
owner-landlord. In respect of applicability
of doctrine of resjudicata it was asserted
in the second suit by the tenant that as
earlier suit had been dismissed hence he
could not file appeal against the said
judgment and therefore any finding
recorded against the tenant in the earlier
judgment
would
not
operate
as
resjudicata. The Supreme Court did not
accept the said plea of the tenant. The
Supreme Court held that even though
word dismissed was used by the trial
court while deciding the earlier suit
however the plaintiff had been permitted
to withdraw the amount deposited by the
tenant hence in fact suit was decreed for
recovery of arrears of rent and tenant
could very well file appeal against the
said judgment and decree. In view of this
it was held that a finding in the earlier suit
that plaintiff was owner landlord operated
as resjudicata. Paragraph 19 of the said
authority is quoted below:

"Thus the second legal position is
this: If dismissal of the prior suit was on a
ground affecting the maintainability of the
suit any finding in the judgment adverse
to the defendant would not operate as res
judicata in a subsequent suit. But if
dismissal of the suit was on account of
extinguishments of the cause of action or
any other similar cause a decision made in
the suit on a vital issue involved therein
would operate as res judicata in a
subsequent suit between the same parties.
It is for the defendant in such a suit to
choose whether the judgment should be
appealed against or not. If he does not
choose to file the appeal he cannot
thereby avert the bar of res judicata in the
subsequent suit. "

9. In the instant case also in the
earlier judgment of the revisional court
plea of denial of title was not permitted to
be raised and refused to be adjudicated
upon on the ground that it had come into
existence during pendency of the suit and
not prior to filing of the suit. In this
manner it affected the maintainability of
the said plea i.e. that of denial of title
hence the observation of the revisional
court adverse to the tenant to the effect
that his allegation in the written statement
amounted to denial of title would not
operate as resuscitate. In the earlier suit it
was held that Kashi Ram alone was the
landlord and the plea of the tenant that
suit was bad for non joinder of Sagarmal
the other alleged co-landlord was decided
against the tenant. These findings operate
as resjudicata and in the subsequent suit
844 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
tenant could not be permitted to say that
Kashi Ram alone was not the landlord.
However the observation of the revisional
court in the earlier judgment that
allegation of the tenant amounted to
denial of title does not operate as
resjudicata.

10. Accordingly, judgment and
order passed by the revisional court being
erroneous in law is set aside and judgment
and decree passed by the trial court is
approved
even
though
on different
grounds. Writ petition is allowed.

11. I have held in Khursheed Vs.
A.D.J.2004 (2) A.R.C. 64 that while
granting relief to the tenant against
eviction in respect of building covered by
Rent control act writ court is empowered
to enhance the rent to a reasonable extent.
The property in dispute is a shop situate in
Muzzaffar Nagar which is adjacent to
Delhi. Rate of rent of Rs.65/- per month is
highly inadequate. It is virtually no rent.
Accordingly, it is directed that with effect
from November, 2005 tenant-petitioner
shall pay rent to the landlord-respondent
at the rate of Rs.1,000/- per month.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2006

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No.68636 of 2005

Jai Bhagwan Singh

...Petitioner
Versus
District Inspector of Schools, Gautambudh
Nagar and others ...Respondents

Counsel for the Petitioner:
Sri V.K. Goel

Counsel for the Respondents:
Sri A.P. Singh Raghav
Sri Ran Vijay Singh
S.C.

U.P. Intermediate Education Act 1921Chepter-III
Reg.
2-Section
16-GPromotion on class III post-Single Post
of Clerck-recognised aided Intermediate
College-whether such post can be filled
by way of promotion from class 4th
employees? Whether law laid down
reported in 1999 UPLBEC (III) 2315,
Palak
Dhari
Yadav
case
has
been
correctly decided?-On reference made by
Single Judge-D.B. onsward alternative
regarding filling the Single post by way
of promotion-but further held-the law
decided in Palak Dhari Case is not good
law.

Held: Para 12,16 & 18

Thus
a
bare
reading
of
note
of
Regulation 2 (2) of the Regulations
makes it clear that if there is only one
sanctioned post, the same is to be filled
up through the channel of promotion
since 50% of one shall be half and half
or more than half is to be deemed as
one,
as
per
the
legal
fiction
contemplated in the note.

Thus, we are of the view that in the
judgment of Palak Dhari Yadav's case,
reliance on the Post Graduate Institution
of Medical Education and Research,
Chandigarh (supra), was not a correct
reliance and the said reliance is clearly
misplaced. In Palak Dhari Yadav's case,
the learned Single Judge has incorrectly
taken the view that the rule making
authority while enacting Regulation 2
(2) read with Note did not visualise
reservation
of
only
one
post
for
promotion.

A single post of Class-III available in an
Intermediate College governed by the