# Khem Chandra Rajvanshi v. Satish Chandra & Ors

- **Citation:** (2024) 12 ILRA 211
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-09
- **Case number:** Matters Under Article 227 No. 13677 of 2024
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khem-chandra-rajvanshi-v-satish-chandra-ors-54526
- **Pages:** 7

## Headnote

Law-The
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972-Section 2(2)-The Code
of Civil Procedure,1908-Section 21- In case
of pecuniary jurisdiction, a question raised that
higher court could not have decided the matter
because the court in lower rank had the
jurisdiction, would not be maintainable as such
exercise would not amount to such failure of
justice so as to suggest that if he if such
irregularity is not arrested, it will lead to a
miscarriage of justice---Explanation to second
proviso to Section 2(2) makes it absolutely clear
that qua completion of a building, the first
assessment thereof by concerned municipality
would be the most relevant of the documents, if
otherwise there is no other document to the
contrary.

Petition partly allowed. (E-15)

List of Cases cited:

## Text

12 All. Khem Chandra Rajvanshi Vs. Satish Chandra & Ors.
211
landlord respondent that release was
maintainable against respondent no. 2 as
well, being heir of Late Hansraj as no
independent tenancy could be established
in
favour
of
partnership
firm
or
proprietorship firm.

28. In so far as question of notice is
concerned,
since
petitioner's
own
admission is that respondent no. 2 was not
residing and he did not receive notice,
respondent no. 2 would have been best
person to deny the same. Petitioner has
himself admitted that Vijay Kalra, his
brother was not tenant and he was tenant
and had contested the matter through out,
now he could not be permitted to take plea
of no notice. The order to proceed ex parte
after acknowledgement of notice and
service at the end of landlord by the
Prescribed authority was never put to
challenge by either Vinod Kalra respondent
no. 1 impleaded in release application, nor
even by present petitioner. Hence, this
Court would not go into question of service
of notice upon respondent no. 1 at this
stage.

29. In view of above, the petition lacks
merit and is accordingly dismissed with no
order as to cost.
----------
(2024) 12 ILRA 211
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 13677 of 2024

Khem Chandra Rajvanshi ...Petitioner
Versus
Satish Chandra & Ors. ...Respondents

Counsel for the Petitioner:
Abhinav Gaur, Vibhu Rai

Counsel for the Respondents:
Rahul Sahai

Civil
Law-The
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972-Section 2(2)-The Code
of Civil Procedure,1908-Section 21- In case
of pecuniary jurisdiction, a question raised that
higher court could not have decided the matter
because the court in lower rank had the
jurisdiction, would not be maintainable as such
exercise would not amount to such failure of
justice so as to suggest that if he if such
irregularity is not arrested, it will lead to a
miscarriage of justice---Explanation to second
proviso to Section 2(2) makes it absolutely clear
that qua completion of a building, the first
assessment thereof by concerned municipality
would be the most relevant of the documents, if
otherwise there is no other document to the
contrary.

Petition partly allowed. (E-15)

List of Cases cited:

1. M/s Pankaj Hotel & anr.Vs Bal mukund and
18 others: SCC Revision No.171 of 2017 decided
on 30 August 2017

2. Om Prakash Agarwal Since Deceased thr.
LRs. & ors. Vs Vishan Dayal Rajpoot &
anr.:2018(3)ARC 652.

3.
Shekhar
Vs
Harishankar
Azad
(Since
deceased) & ors.:2019(3) AWC 2500.

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Advocate assisted by Sri Vibhu Rai,
learned counsel for the petitioner and Sri
Rahul Sahai, learned counsel for the
landlord-respondent.

2. The petitioner before this Court has
questioned the order passed by the Judge,
212 INDIAN LAW REPORTS ALLAHABAD SERIES
Small
Causes
(Civil
Judge,
Senior
Division, Mathura) in Small Causes Case
No.4 of 2006 on the ground of it being
nullity for want of requisite pecuniary
jurisdiction to try the suit. The judgment of
the District Judge, Mathura in SCC
Revision No.14 of 2022 is also challenged
for affirming the order of the trial judge.

3. It transpires from the record that
while the SCC Suit came to be filed in the
year 2006 and remained pending disposal,
an amendment was brought in vide
notification of the State Government dated
07.12.2015 by the State raising pecuniary
jurisdiction of the Civil Judge (Junior
Division)
to
Rs.25,000/-.
While
the
petitioner
did
not
questioned
the
continuance of the suit proceedings before
Civil Judge (Senior Division) in a capacity
of Judge, Small Causes, he suddenly filed a
misc. application before the Judge, Small
Causes that pecuniary jurisdiction of the
Civil Judge (Junior Division) having being
raised, the matter was rendered triable only
by that Court and, therefore, the matter be
transmitted. The respective parties were
heard upon the said application and that
came to be rejected on the ground that
amendment raising pecuniary limit being
prospective in nature, would not be
applicable to the pending suits. The said
order was further challenged in revision
unsuccessfully
as
the
revision
was
dismissed on 09.11.2021 affirming the
order of the trial judge.

4. These two above orders rejecting
preliminary objection as to maintainability
of the suit proceedings before the Civil
Judge
(Senior
Division)
were
not
challenged any further and became final
between the parties. The parties thereafter
contested the suit on merits and agreed to
the points framed for determination which
were seven in number but no such issue
was framed as to the maintainability of suit
for want of pecuniary jurisdiction, and it
appears obviously so, because in the misc.
case preliminary objection was already
rejected by the trial court and that was
affirmed in revision. After the suit was
decreed holding the petitioner to be in
default of payment of rent and resultantly
recovery of arrears of rent and eviction was
ordered, while challenging the same in a
SCC Revision, this point of pecuniary
jurisdiction was raised again and the only
plea taken was that the court had passed the
decree traveling beyond its jurisdiction. No
such point was addressed to as no such
point was framed again and the court
proceeded to examine the judgment of the
trial court only upon the points framed by
that trial judge. Now this petition has been
filed questioning the judgment and decree
on the ground that it has rendered nullity
for want of pecuniary jurisdiction of the
court passing it.

5. In support of his submission learned
Senior Advocate for the petitioner has
argued that if the court was not having
pecuniary jurisdiction to try a suit, then the
very judgment of it was liable to be
rendered a nullity. In support of his
submission he has placed reliance upon a
coordinate bench judgment of this court in
the case of M/s Pankaj Hotel and another
versus Bal mukund and 18 others: SCC
Revision No.171 of 2017 decided on 30
August 2017 and also the judgment of the
Supreme Court in the case of Om Prakash
Agarwal Since Deceased thr. LRs. and
others v. Vishan Dayal Rajpoot and
another:2018(3)ARC 652.

6.
Mr.
Trivedi,
learned
Senior
Advocate has sought to urge further that if
there is inherent lack of jurisdiction then a
12 All. Khem Chandra Rajvanshi Vs. Satish Chandra & Ors.
213
judgment cannot be clothed with validity
and, therefore, the judgment and decree
passed by the trial judge as well as order
passed in revision deserve to be set aside.

7. Yet another argument has been
advanced by Learned Senior Advocate that
regarding arrears of rent, the findings
arrived at by the trial the judge is not based
upon any cogent material so as to be
sustained inasmuch as there being already a
deposit of Rs.70,000/- in advance towards
the security, the same could have been
adjusted against the arrears and despite the
fact that this plea was taken in revision, yet
the court sitting in revision did not consider
this aspect of the matter and so manifestly
erred in affirming the judgment of the trial
court.

8. On the plea of applicability of Act
No.13 of 1972 the finding of the trial court
has also been questioned and the plea taken
is that it was a specific stand taken in the
written statement that construction of the
shop had taken place prior to 1984 and the
tenant were already there, but the court
proceeded to record its finding only on the
basis of the assessment by Municipal
Corporation.

9. Meeting the arguments advanced as
above by Mr. Rahul Sahai,learned
Advocate
appearing
for
landlord/respondent has submitted that in
view of the provisions as contained under
Section 21 of the CPC, the jurisdiction of a
Court could be questioned only at the
earliest possible opportunity and if not
taken or even if upon being raised is
rejected, then if the judgment on merit has
come up, it will not be a nullity. However,
in the event if for coram non judice a
judgment rendered leads to any failure of
justice, then it then it is liable to be held
as nullity. Mr. Sahai argued that the
notification
enhancing
pecuniary
jurisdiction of the Civil Judge (Junior
Division) took place on 07.12.2015 and yet
for a pretty long two and half years no
objection was raised questioning the trial of
the suit byCivil Judge (Senior Division)
and it was only in July 2008, that a
miscellaneous application came to be filed
questioning the jurisdiction ofCivil Judge
(Senior Division). So According to him
even after the notification was brought in
U.P. Civil Laws Amendment Act 1972,
petitioner sat idle for two and half years
and contested the suit on its own merits. He
further submits that except for pecuniary
jurisdiction, a technical aspect of the matter
in trying the suit, the entire writ petition is
silent as to what kind of failure of justice
has taken place. He submitted that failure
of justice means that if the court did not
have the jurisdiction to try the subject
matter of the suit, then ofcourse, the
judgment would be beyond jurisdiction
whatsoever and would result in a nullity.
But in the instant case, as he argues, but for
this pecuniary jurisdiction aCivil Judge
(Senior Division) was competent enough to
try the suit as Judge, Small Causes. Still
further, as he submits, theCivil Judge
(Senior Division) was being higher court in
rank with larger pecuniary jurisdiction
could have adjudicated lis of lesser
jurisdiction having territorial jurisdiction in
the matter however, Civil Judge (Junior
Division) could not have tried a suit
maintainable in the court of Civil Judge
(Senior Division). Sri Sahai, has also relied
upon a judgment of the Supreme Court in
the case of Om Prakash Agrawal (supra).

10. On the point of non applicability
of Act No.13 of 1972, Sri Sahai submits
that no evidence was led by tenantdefendant to prove that the building was an
214 INDIAN LAW REPORTS ALLAHABAD SERIES
old construction and that too raised prior to
1985. He argued that it was the landlord
who had taken the plea that construction
was new one made after 1985 and had the
initial burden to discharge by leading
material in support thereof and it is the first
assessment in the year 1987 by the
municipality that became the relevant
factor which could not be disputed. He
submitted that there was no evidence in
rebuttal and, therefore, in view of the
relevant provisions of Act No.13 of 1972 it
became the relevant material to be relied
upon.
He
submitted
that
there
are
concurrent findings of fact regarding
applicability of Act No.13 of 1972 and so
this court may not interfere with the same,
more especially in the absence of any
material placed by the petitioner before the
courts below in support of the argument
advanced on his behalf. He submitted that
since the Act No.13 of 1972 was not
applicable, the tenancy stood terminated
with the issuance of notice under section
106 of the Transfer of Property Act, 1872
and service therefore, and, therefore, tenant
deserved eviction.

11. Insofar as the argument regarding
arrears of rent is concerned, he submitted
that the answering respondent-landlord is
ready to forego arrears.

12. Having heard learned counsel for
the parties and having perused the record,
in my considered view once the trial court
had rejected miscellaneous application filed
by the petitioner raising objection as to the
maintainability of the suit before the Civil
Judge (Senior Division) and that order
having been affirmed in revision with no
further challenge, the controversy stood
concluded
between
the
parties
and,
therefore, there was no opportunity left any
further with the petitioner to raise this
objection further before trial court and in
revision as well.

13. I also find that there was no such
issue/point framed by the Judge, Small
Causes, nor any point had been framed to
be considered by the court sitting in
revision. Insofar as the Division Bench
judgment in the case of M/s Pankaj Hotel
(supra)
is
concerned,
it
has
been
categorically held therein that jurisdictional
issue has to be raised at the very first
available opportunity in view of provisions
contained under Section 21 of the Code of
Civil Procedure and if no question as to
pecuniary jurisdiction could be raised
successfully, no such plea could be
entertained at the stage of appeal. The court
had observed that the court lacking
pecuniary jurisdiction would not render the
proceeding a nullity and that is why the
conditions laid down under Section 21 are
to be satisfied. Vide paragraph 49(v) the
Court observed thus:

"(v) The Code of Civil Procedure
has made a distinction between law of
inherent jurisdiction and objection to
territorial
jurisdiction
and
pecuniary
jurisdiction. Whereas an inherent lack of
jurisdiction may make the decree passed by
that court to be one without jurisdiction or
void in law, a decree passed by a court
lacking territorial jurisdiction or pecuniary
jurisdiction does not automatically become
void. At best, it is voidable in the sense that
it can be challenged in appeal therefrom
provided the conditions of Section 21 of the
Code of Civil Procedure are satisfied. No
objection to the pecuniary jurisdiction of
the court could be raised successfully in an
appeal against the decree unless it had
been raised at the earliest opportunity and
failure of justice or prejudice was shown.
The
proceeding
in a
court
lacking
12 All. Khem Chandra Rajvanshi Vs. Satish Chandra & Ors.
215
pecuniary jurisdiction is not a nullity and
therefore to annul the proceeding the
conditions laid out in Section 21 of the
Code are to be satisfied. The party
aggrieved will have to demonstrate that on
account of the proceeding in a court having
no pecuniary jurisdiction there had been a
consequent failure of justice."

14. Applying the above principle to
the facts of the case, I find that the
petitioners having already raised objections
as to the jurisdiction of the Civil Judge
(Senior Division) and having failed to
succeed at the stage of trial court and
revision, and they having not further
challenged it before this Court, could not
have raised this point any further either
before the trial judge or in revision while
questioning the judgment and decree
passed by the trial court. Since the Court
observes that the proceeding would not get
automatically
rendered
nullity
if
preliminary objection is not raised or raised
but rejected and not questioned any further
by getting a point framed in suit would
render the jurisdiction of the trial court to
try a suit valid and the judgment and decree
shall be taken to have been lawfully passed.

15. One of the points argued before
the Court was that principle of res judicata
would not apply and if the judgment is
nullity for want of jurisdiction, the
judgment and decree can still be challenged
before this court raising the issue. The
argument is based upon the principle that
the jurisdiction goes to the root of the
matter.

16. In my considered view, the
question of jurisdiction would go to the
root of the matter provided the court
hearing the suit could not have tried the
subject matter for being barred by any law
or for the reason that it had no jurisdiction
at all or for the reason that the jurisdiction
would vest in a higher court, may be for
higher pecuniary jurisdiction or otherwise
under any special Act but there is no such
case in hand. The higher court has decided
the case having a jurisdiction to try an SCC
case maybe of a lesser evaluation. This is a
settled legal position that higher court can
try a suit of lesser valuation but not vice
versa. Vide paragraph 53 in Om Prakash
Agarwal (supra), the court has held thus:

"53. This Court in (1993) 2
SCC130,
R.S.D.V.
Finance
Company
Private Limited vs. Shree Vallabh Glass
Works Ltd. had again considered Section
21 of the Code of Civil Procedure. In
paragraphs 7 and 8, following has been
laid down:-

?7???It may be further noted that
the learned Single Judge trying the suit had
recorded a finding that the Bombay Court
had jurisdiction to entertain and decide the
suit. Sub-section (1) of Section 21 of the
Code of Civil Procedure provides that no
objection as to the place of suing shall be
allowed by any appellate or revisional
court unless such objection was taken in
the court of first instance at the earliest
possible opportunity and in all cases where
issues are settled at or before such
settlement and unless there has been
consequent failure of justice. The above
provision clearly lays down that such
objection as to the place of suing shall be
allowed by the appellate or revisional court
subject to the following conditions:

(i)That such objection was taken
in the court of first instance at the earliest
possible opportunity;

(ii) in all cases where issues are
settled then at or before such settlement of
issues;
216 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) there has been a consequent
failure of justice.

8. In the present case though the
first two conditions are satisfied but the
third condition of failure of justice is not
fulfilled. As already mentioned above there
was no dispute regarding the merits of the
claim. The defendant has admitted the
depositof Rs 10,00,000 by the plaintiff, as
well as the issuing of the five cheques. We
are thus clearly of the view that there is no
failure of justice to the defendant by
decreeing of the suit by the learned Single
Judge of the Bombay High Court, on the
contrary it would be totally unjust and
failure of justice to the plaintiff in case
such objection relating to jurisdiction is to
be maintained as allowed by the Division
Bench of the High Court in its appellate
jurisdiction.?

17. Thus, it is to be kept in mind while
proceeding is barred before a court of law,
an order would, therefore, be a nullity
whether point of jurisdiction is raised or not
raised at the initial stage and, therefore, it it
can be said that it can be raised at any stage
as it goes to the root of the matter. But in
case of pecuniary jurisdiction, a question
raised that higher court could not have
decided the matter because the court in
lower rank had the jurisdiction, would not
be maintainable as such exercise would not
amount to such failure of justice so as to
suggest that if he if such irregularity is not
arrested, it will lead to a miscarriage of
justice.

18. Coming to non applicability of
Act No.13 of 1972, I find explanation to
second proviso to Section 2(2) makes it
absolutely clear that qua completion of a
building, the first assessment thereof by
concerned municipality would be the most
relevant of the documents, if otherwise
there is no other document to the contrary,
like sanctioned map etc.(Shekhar v.
Harishankar Azad (Since deceased) and
others:2019(3) AWC 2500). It has come
to be returned as a finding of fact that the
municipal assessment of the year 1987
was brought on record and there was no
counter evidence led by the petitioner in
rebuttal so as to disbelieve the municipal
assessment and reject the pleadings raised
that construction was new one. The
concurrent findings have come to be
returned and I do not see any perversity in
those findings.

19. Now since the Act No.13 of 1972
has been held to be not-applicable, the
tenancy stood terminated with the service
of notice issued under Section 106 of
Transfer of Property Act 1872 and the
petitioner,
therefore,
was
liable
to
eviction.

20. Insofar as the advance security
amount is claimed to be deposited by the
petitioner, which could have been adjusted
against the arrears of rent and, therefore,
the findings are perverse, since Sri Rahul
Sahai has submitted that the landlord
respondent is ready to forgo, the amount
of arrears of recovery of rent, I do not
want to go into that question on merits and
on the basis of concession by Sri Sahai, in
my view the judgment and degree for
arrears of rent deserve to be set aside.

21. In view of the above, this petition
partly succeeds and is allowed. While the
judgment and decree for eviction is upheld
but insofar as recovery of arrears of rent
has been directed, to that extent it is set
aside.

22. There will, however, be no order
as to cost.
12 All. Smt. Munni Devi Vs. Smt. Shashikala Pandey
217
----------
(2024) 12 ILRA 217
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 15798 of 2024

Smt. Munni Devi ...Petitioner
Versus
Smt. Shashikala Pandey ...Respondents

Counsel for the Petitioner:
Prakhar Tandon

Counsel for the Respondents:
Shiv Kumar Yadav

Civil Law-The Constitution of India,1950Artcle 227-The revisional court did not apply
its mind at all to the argument advanced by
respective parties before it and after recording
their argument simply concluded in paragraph
11 of the judgment that he did not find any
error or illegality in the order assailed hence the
revision-petition was liable to be dismissed---
Every judge who has to adjudicate the points on
the issue raised in the matter, is not only
required to refer to the arguments advanced on
behalf of respective parties but also to deal with
the same to arrive at a conclusion as to whether
the judgment assailed is suffering from any
error of law or facts or there is some gross error
in assessment and analysis of the evidence by
the court whose order has been challenged---
Matter remitted.

Petition allowed. (E-15)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Prakhar Tandon, learned
counsel for the petitioner and Sri Utpal
Chatterjee and Sri Shiv Kumar Yadav,
learned
counsel
for
the
respondentlandlord.

2. By means of this petition filed
under Article 227 of Constitution of India,
petitioner has assailed the judgment and
decree passed by the Judge, Small Cause
dated 29.02.2024 in SCC Suit No.190 of
2013 as well as the order dated 07.11.2024
dismissing his revision-petition.

3. The sole argument advanced by
learned counsel for the petitioner for
assailing the order passed in revision is that
the revisional court did not apply its mind
at all to the argument advanced by
respective parties before it and after
recording their argument simply concluded
in paragraph 11 of the judgment that he did
not find any error or illegality in the order
assailed and hence the revision-petition was
liable to be dismissed.

4. Upon a pointed query made to
learned counsel appearing for the landlordrespondent, as to how he could be
defending the order passed in revisionpetition, Sri Utpal Chatterjee, one of the
learned Advocates for the respondent very
fairly concedes that the recital as contained
in paragraph 11 of the judgment cannot be
said to be an adjudication as a result of
application of mind by the presiding judge
and therefore, requested that this order may
be set aside and matter may be remitted to
the court below for a decision afresh on
merits.

5. Having heard learned counsel for
the respective parties and having perused
the order passed by the Judge, Small
Causes, namely, Dr. Amit Verma, the
Additional District and Sessions Judge,
Court No.16, Kanpur Nagar, I find that the
concerned judge has not rendered at all due
application of his mind which was very
much required by a judge adjudicating a lis.
A mere reference to the arguments of the