# Prakash Chandra v. Sri Ritesh Bhargava

- **Citation:** (2020) 8 ILRA 84
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-20
- **Case number:** Writ A No. 20793 of 2019
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-chandra-v-sri-ritesh-bhargava-45893
- **Pages:** 24

## Headnote

A. Civil Law - Rent Control and Eviction -
Vacation of shop - U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972: Sections 21(a), 21(2), 30; U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Rules, 1972: Rule
16(2)(a) & (b); Hindu Succession Act,
1956: Section 3.

Bonafide need - Landlord is the best
judge of his need and Court may not
interfere in the matter. It is the choice
of the landlord to choose the place for
the business, which is most suitable for
him. (Para 49, 50)

In the present case, undisputedly landlord is
not having any another accommodation
whereas petitioner is having alternative
accommodation at 49/99 Naughara, Kanpur
Nagar.

B.
Comparative
hardship
-
It
is
necessarily required on the part of
tenant to make full endeavour to search
alternative accommodation to prove his
comparative hardship after receiving
copy of release application.

The fact that the petitioner never made any
effort
for
searching
alternative
accommodation coupled with law laid down
by the Apex Court as well as this Court, no
relief can be granted to the petitioner on the
ground of comparative hardship. (Para 53 to
55)

C. Evidence Law - Evidence Act, 1872-
Section 58 - Admissions in pleading or
judicial admissions, admissible u/s 58 of
the Evidence Act, 1872 made by the
parties or their agents at or before the
hearing of the case, stand on a higher
footing than evidentiary admissions.
Any admissions made by the party to
the suit in earlier proceeding are also
admissible against him. (Para 44)

Petitioner tenant has never disputed tenancy
and also filed case u/s 30 of the Act, 1972 in
the capacity of tenant, therefore, he cannot
be permitted to take new plea and further no
denial of tenancy is required by the landlordrespondent in light of Section 58 of the
Evidence Act, 1872. (Para 46)

Petitioner never raised the issue before the
Prescribed Authority or Appellate Authority,
where it could be proved by placing evidence
whether he is tenant or not, therefore, he
cannot be permitted to raise this issue before
the High Court in the writ petition. The
contention of the learned counsel for the
petitioner is also not acceptable that he has
raised the issue in the written statement that
tenancy is continued from 1960, which was
not denied by landlord-respondent in light of
S. 58 of Evidence Act. Once the tenancy is
accepted, there was no need to landlord to
deny the same as the facts admitted need not
be
proved.
(Para
47)
8 All. Prakash Chandra Vs. Sri Ritesh Bhargava
85
D. Co-owner has full right to file suit for
eviction against the tenant and even
consent of co-owner is not required to
file suit. (Para 56)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

_Characters 0–39,702 of 80,160. This is a partial read: ask again with offset=39702 for what follows._

84 INDIAN LAW REPORTS ALLAHABAD SERIES
evaluate OMR Answer sheet of such
petitioners who have answered in Part-II of
the OMR Answer sheet the questions of the
two subjects opted by them, but inadvertently
also marked one or two circles of another
subject. Those petitioners who are found
successful
in
the
aforesaid
written
examination, shall be called for interview.
Thereafter, their results shall be declared in
accordance with law.
----------
(2020)08ILR A84
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2020

BEFORE
THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 20793 of 2019

Prakash Chandra ...Petitioner
Versus
Sri Ritesh Bhargava ...Respondent

Counsel for the Petitioner:
Sri Pramod Kumar Srivastava, Sri Deepak
Singh

Counsel for the Respondent:
Sri Krishna Mohan Garg

A. Civil Law - Rent Control and Eviction -
Vacation of shop - U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972: Sections 21(a), 21(2), 30; U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Rules, 1972: Rule
16(2)(a) & (b); Hindu Succession Act,
1956: Section 3.

Bonafide need - Landlord is the best
judge of his need and Court may not
interfere in the matter. It is the choice
of the landlord to choose the place for
the business, which is most suitable for
him. (Para 49, 50)

In the present case, undisputedly landlord is
not having any another accommodation
whereas petitioner is having alternative
accommodation at 49/99 Naughara, Kanpur
Nagar.

B.
Comparative
hardship
-
It
is
necessarily required on the part of
tenant to make full endeavour to search
alternative accommodation to prove his
comparative hardship after receiving
copy of release application.

The fact that the petitioner never made any
effort
for
searching
alternative
accommodation coupled with law laid down
by the Apex Court as well as this Court, no
relief can be granted to the petitioner on the
ground of comparative hardship. (Para 53 to
55)

C. Evidence Law - Evidence Act, 1872-
Section 58 - Admissions in pleading or
judicial admissions, admissible u/s 58 of
the Evidence Act, 1872 made by the
parties or their agents at or before the
hearing of the case, stand on a higher
footing than evidentiary admissions.
Any admissions made by the party to
the suit in earlier proceeding are also
admissible against him. (Para 44)

Petitioner tenant has never disputed tenancy
and also filed case u/s 30 of the Act, 1972 in
the capacity of tenant, therefore, he cannot
be permitted to take new plea and further no
denial of tenancy is required by the landlordrespondent in light of Section 58 of the
Evidence Act, 1872. (Para 46)

Petitioner never raised the issue before the
Prescribed Authority or Appellate Authority,
where it could be proved by placing evidence
whether he is tenant or not, therefore, he
cannot be permitted to raise this issue before
the High Court in the writ petition. The
contention of the learned counsel for the
petitioner is also not acceptable that he has
raised the issue in the written statement that
tenancy is continued from 1960, which was
not denied by landlord-respondent in light of
S. 58 of Evidence Act. Once the tenancy is
accepted, there was no need to landlord to
deny the same as the facts admitted need not
be
proved.
(Para
47)
8 All. Prakash Chandra Vs. Sri Ritesh Bhargava
85
D. Co-owner has full right to file suit for
eviction against the tenant and even
consent of co-owner is not required to
file suit. (Para 56)

Writ petition dismissed. (E-4)

Precedent followed:

1. Rajasthan St. Road Transport Corporation
& anr. Vs Bajrang Lal, (2014) 4 SCC 693 (Para
25)

2. S.U. Ashram Vs ADJ, [2016 (1) ARC 861
(Para 26, 43, 49)

3. Heeralal Vs Kalyan Mal & ors., AIR 1998
Supreme Court, 618 (Para 27, 43)

4. Nagindas Ramdas Vs Dalpatram Iccharam
@ Brijram & ors., AIR 1974 Supreme Court
471 (Para 28, 43)

5. Thimmappa Rai Vs Ramanna Rai & ors.,
(2007) 14 SCC 63 (Para 29, 43)

6. Rishi Kumar Govil Vs Maqsoodan & ors.,
(2007) 4 SCC, 465 (Para 30, 50)

7. Arvind Kumar Mishra Vs Jitendra Kumar
Gupta & ors., [2016 (1) ARC 634 (Para 31)

8. Salim Khan Vs IV A.D.J., Jhansi & ors.,
2006 (1) ARC 588 (Para 31, 53)

9. Ganga Devi Vs D.J., Nainital & ors., 2008
(2) ARC 584 (Para 31, 53)

10. Sarju Prasad Vs VIII A.D.J., Faizabad &
ors., 2007 (2) AWC 1068 (L.B.) (Para 32, 51,
54)

11. Bachchu Lal Vs IXth A.D.J. Kanpur & ors.,
2006 (4) AWC 3467 (Para 33, 54)

12. India Umbrella Manufacturing Co. & ors.
Vs Bhaganamdei Agarwalla (Dead) by Lrs.
Savitri Agarwalla (Smt) & ors., (2004) 3 SCC,
178 (Para 34, 56)

13. Shabbir Ahmed Vs Syed Mohammad Ali
Ahmed Kabir, 2016 (1) ARC 275 (Para 35, 56)
14. K.V.S. Ram Vs Bangalore Metropolitan
Transport Corporation, (2015) 12 SCC 39
(Para 36, 57)

Precedent distinguished:
1. Ramesh Chandra Yadav Vs Second
Additional District Judge, Jalaun at Orai &
ors., 2013 (1) AWC, 566 (Para 10, 41)

2. Kiran Singh Vs Chaman Paswan, 1954 AIR
(SC) 340 (Para 11, 41)

3. Gurucharan Singh Vs Kamla Singh & ors.,
1977 AIR, 5 (Para 12, 41)

4. G.M. Contractor Vs Gujarat Electricity
Board, 1972 AIR (SC) 792 (Para 13, 41)

5. Chandra Bhushan Khanna &ors. Vs Brij
Nandan Singh and another, 1978 AIR (Ald)
459 (Para 14, 41)

6. Chiranjilal Shrilal Goenka (Deceased)
Through Lrs. Vs. Jasjit Singh, (1993) 2 SCC
507 (Para 15, 41)

Petition
challenges
order
dated
24.09.2019,
passed
by
Additional
District
Judge,
Kanpur
Nagar
and
judgment and order dated 06.04.2017,
passed by prescribed Authority/Judge,
Small Causes Court, Kanpur.

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

1. Heard Sri Pramod Kumar
Srivastava and Sri Deepak Singh, learned
counsel for the petitioner and Sri K.M.
Garg, learned counsel for the respondent.

2. By way of present writ petition,
the petitioner is challeging the order
dated
24.09.2019
passed
by
XII
Additional District Judge, Kanpur Nagar
in Rent Appeal No. 26 of 2017-Prakash
Chandra Vs. Ritesh Bhargawa and
judgment and order dated 06.04.2017
passed by prescribed Authority/Judge
Small Causes Court, Kanpur in Rent
86 INDIAN LAW REPORTS ALLAHABAD SERIES
Case No. 18 of 2014 (Ritesh Bhargawa
Vs. Prakash Chandra), under Section
21(a) of Uttar Pradesh (Urban Buildings
(Regulation of Letting, Rent and Eviction
Act), 1972 (U.P. Act No. 13 of 1972)
(hereinafter referred to as the Act, 1972).

3. The brief facts of the case are
that the landlord-respondent has filed
release application under Section 21(a) of
the Act, 1972 on the ground of bonafide
need for vacation of shop No. 50/05
Naughara, Kanpur Nagar, which was
registered as Rent Case No. 19/14 in the
court of Prescribed Authority. After
issuance of notice, pleadings have been
exchanged by fililng written statement,
affidavit and rejoinder affidavit. The
Prescribed Authority has framed three
issues, which are as follows:-

(i)
Whether
there
is
a
relationship of landlord or tenant betwen
the parties?

(ii)
Whether
the
need
of
landlord of the shop in question is
bonafide?

(iii) Whether the comparative
hardship of the landlord is greater than
the tenant?

4. Considering the entire pleadings
as well as evidence on record, release
application
was
allowed
by
the
Prescribed Authority vide order dated
6.4.2017 with direction to the tenantpetitioner to vacate the shop in question
within 60 days. Against the said order,
Rent Appeal No. 26 of 2017 was
preferred and after hearing both the
parties, same was dismissed by the
Appellate Authority vide order dated
24.9.2019 affirming the judgment of the
Prescribed Authority with direction to
vacate the shop in question within 60
days. Hence, this writ petition.

5. Sri P.K. Srivastava, learned
counsel for the petitioner has assailed
both the orders on three grounds; the first
ground is the maintainability of release
application, second ground is bonafide
need and third ground is comparative
hardship. The main emphasis is about the
maintainaibility of the writ petition.

6.

Learned
counsel
for
the
petitioner submitted that original tenant
of the disputed shop was Sri Laxmi
Chandra, grandfather of the petitioner,
who took the shop in tenancy from the
grandfather of the landlord-respondent in
the year 1960. Sri Laxmi Chandra died in
the year 1979 leaving behind surviving
two
sons
including
father
of
the
petitioner and three daughters. After
death of Laxmi Chandra, shop was
inherited to his legal heirs as provided
under Section 3 of the Hindu Succession
Act, 1956. Father of the petitioner is still
alive and petitioner is not tenant,
therefore, the Prescribed Authority lacks
jurisdiction and release application filed
by respondent under Section 21(a) of the
Act, 1972 against the petitioner is not
maintainable. He next submitted that he
has taken specific plea in written
statement that the shop in question was
let out in tenancy of grandfather of
petitioner in the year 1960. Earlier rent
was being paid at the rate of Rs. 30/- per
month and later on from time to time,
rent was increased and lastly it was being
paid at the rate of Rs. 1300/- per month.
He next submitted that there is no denial
of this fact in replica, therefore, under the
provisions of Order 8 Rule 5 C.P.C., it is
treated to be correct. He next submitted
that though this plea of maintainability
was not taken either in the written
statement filed in the rent case or rent
appeal
filed
before
the
appellate
8 All. Prakash Chandra Vs. Sri Ritesh Bhargava
87
authority, but it goes to the gross root of
the case, therefore, it was open for him to
take this plea at any stage even before the
last court. He again submitted that once
the
release
application
filed
under
Section 21(2) of the Act, 1972 is not
maintainable, the Prescribed Authority
has no jurisdiction to pass the impugned
order. Orders of the Prescribed Authority
as well as Appellate Authority are nulity
and cannot be sustained in the eye of law.

7.

Learned
counsel
for
the
petitioner
next
submitted
that
the
Prescribed Authority has not given
correct finding for bonafide need in
favour of the landlord-respondent. He
further
submitted
that
the
release
application has been filed on the ground
that the shop in question is needed as his
business is growing. It is never stated that
he wants the disputed shop to grow his
business. The courts below made out a
new case for the landlord-respondent that
he needs the shop in question to grow his
business and released the shop for such
alleged need. The court below further
committed an error in holding the need of
the landlord-respondent as bonafide only
because the petitioner did not search
alternative accommodation during the
pendency of the case. The landlordresdpondent has failed to adduce any
documentary evidence with regard to his
growing business. He also submitted that
there was pleading in the written
statement that the landlord do not need
the shop in question for growing his
bussiness,
but
the
same
was
not
considered and perverse finding has been
given. He next submitted that paragraph
32 of the counter affidavit filed by
petitioner before Prescribed Authority
has not specifically been denied by the
respondent in his rejoinder affidavit. He
has taken specific plea that the landlordrespondent is having sufficient additional
space i.e. big underneath and staircase,
which can also be used for storing
purposes, which was not denied in
written statement, therefore, under the
provisions of Order 8 Rule 5 C.P.C. it
would be treated as correct.

8. He next submitted that so far as
comparative hardship is concerned, the
courts below have decided this issue on
the ground that the petitioner has not
made any effort to search any alternative
accommodation. This may be one of the
circumstance, but not the sole ground to
decide the comparative hardship against
the tenant. Rule 16(2)(a) & (b) of U.P.
Urban Buildings (Regulation of Letting
Rent
and
Eviction)
Rules,
1972
(hereinafter referred to as the Rules, 1972)
framed under the Act, 1972 provides
guidelines to the court for deciding the
comparative
hardship
and
finding
recorded on the issue of comparative
hardhsip is contrary to Rule 16(2) of the
Rules, 1972. He also submitted that the
petitioner
has
an
alternative
accommodation, therefore, under such
legal facts, the order dated 6.4.2017
passed by the Prescribed Authority is bad
in law and liable to be set aside.

9.

Learned
counsel
for
the
petitioner further submitted that the
landlord-respondent is not the sole owner
of the shop in question and there are
other co-owners of the shop in question,
therefore, he cannot maintain release
application alone without having the
consent of other co-owners. In case
respondent is co-owner of the shop in
question, even then he can not file release
application to vacate the shop in question
under the settled provisions of law.
88 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In support of his arguments,
learned counsel for the petitioner has
cited judgments of the Apex Court as
well as this Court. He has placed reliance
upon the judgment of this Court in the
case of Ramesh Chandra Yadav Vs.
Second
Additional
District
Judge,
Jalaun at Orai and others, 2013 (1)
AWC, 566. Paragraph 7 of the said
jujdgment is quoted below:-

"7. He, however, could not dispute
that the building in question having been
constructed and completed in 1977, in 1983,
ten years having not passed, Act No. 13 of
1972 was not applicable by virtue of Section
2 (2) of Act, 1972. That being so the
Prescribed Authority under Section 21 of Act,
1972 lacked patent jurisdiction. A jurisdiction
cannot be conferred even by consent of
parties. It is an elementary principle. Where
a Court has no jurisdiction over the subject
matter of the action in which an order is
made, such order is wholly void, for
jurisdiction cannot be conferred by consent
of parties. No waiver or acquiescence on
their part can make up the patent lack or
defect of jurisdiction. If the decision/order of
Court/authority
is
void
for
want
of
jurisdiction over the subject matter, it cannot
operate as res judicata; so as to make that
judgment conclusive between the parties,
since the essential pre-requisite is that it
should be the judgment of a Court of
competent jurisdiction within the meaning of
Section 11 of the Civil Procedure Code.
Something
which
is
wholly
without
jurisdiction, that is nullity in the eyes of law,
no principle of law would come to confer any
kind of effectiveness to such proceedings so
as to have any legal consequences."

11. Next judgment relied upon by
learned counsel for the petitioner is
Kiran Singh Vs. Chaman Paswan, 1954
AIR (SC) 340. Paragraph 6 of the said
judgment is quoted below:-

"6.
The
answer
to
these
contentions must depend on what the
position in law is when a Court
entertains a suit or an appeal over which
it has no jurisdiction, and what the effect
of section II of the Suits Valuation Act is
on that position. It is a fundamental
principle well established that a decree
passed by a Court without jurisdiction is
a nullity, and that its invalidity could be
set up whenever and wherever it is
sought to be enforced or relied upon,
even at the stage of execution and even in
collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or
territorial, or whether it is in respect of
the subject-matter of the action, strikes at
the very authority of the Court to pass
any decree, and such a defect cannot be
cured even by consent of parties. If the
question now under consideration fell to
be' determined only on the application of
general principles governing the matter,
there can be no doubt that the District
Court of Monghyr was coram non judice,
and that its judgment and decree would
be nullities. The question is what is the
effect of section 11 of the Suits Valuation
Act on this position."

12. He has placed reliance upon the
judgment of the Apex Court in the case
of Gurucharan Singh Vs. Kamla Singh
and others, 1977 AIR, 5. Paragraphs 8
and 9 of the said judgment are quoted
below:-

"8. Before we examine this
quintessential aspect presented before us
will complex scholarship by Shri S. C.
Misra we Had better make. short shrift of
certain other questions raised by him. He
8 All. Prakash Chandra Vs. Sri Ritesh Bhargava
89
has desired ` us, by way of preliminary
objection, not to give quarter to the plea,
founded on s. 6 of the Act, to non-suit his
client, since it was a point raised be nova
at Letters Patent state. The High Court
have thought to this objection but
overruled it, if we may say so rightly. The
Court narrated the twists and turns of
factual and legal circumstances which
served lo extenuate the omission to urge
the point earlier but hit the nail on the
head when it held that it was well-settled
that a pure question of law going to the
root of the case and based on undisputed
or proven facts could be raised even
before the Court of last resort, provided
the opposite side was not taken by
surprise
or
otherwise
unfairly
prejudiced. Lord Watson, in Connecticut
Fire Insurance Company v. Kavanach,(1)
stated the law thus:

"When a question of law is
raised for the first time in a Court of last
resort upon the construction of a
document or upon facts either admitted
or proved beyond controversy, it is not
only competent but expedient in the
interest of justice to entertain the plea.
The expediency of adopting that course
may be doubted when the plea cannot be
disposed
of
without
deciding
nice
questions of fact in considering which the
Court of ultimate review is placed in a
much less advantageous position than the
courts below. But their Lordships have
no hesitation in holding that the course
ought not any case to be followed unless
the Court is satisfied that the evidence
upon which they are asked to decide
establishes beyond doubt that the facts if
fully investigated would have supported
the new plea." (1) [1892] A. C. 473, 480.

17-L925SupCI /75 We agree
with the High Court that the new plea
springs from the common case of the
parties, and nothing which may work
injustice by allowance of this contention
at the late stage of the Letters Patent
Appeal has been made out to our
satisfaction. Therefore, we proceed to
consider the impact and applicability of
s.6 of the Act to the circumstances of the
present case."

13. He has also placed reliance
upon the judgment of the Apex Court in
the case of G.M. Contractor Vs. Gujarat
Electricity Board, 1972 AIR (SC) 792.
Paragraph 2 of the said judgment is
quoted below:-

"2. It is stated that this ground
goes to the very root of the matter but
was not raised before the High Court.
The appellants objected to this fresh
ground being allowed to be taken up, but
we consider that as this ground goes to
very root of the matter it should be
allowed
after
the
appellants
are
compensated by costs."

14. He has also placed reliance
upon the judgment of this Court in the
case of Chandra Bhushan Khanna and
others Vs. Brij Nandan Singh and
another, 1978 AIR (Ald) 459. Paragraph
5 of the said judgment is quoted below:-

"5. As noticed earlier, the
nature of the suit has to be determined on
the allegations made in the plaint. In the
present case the plaintiff came to the
court
on
the
allegation
that
the
relationship of lessor and lessee, which
existed between the plaintiff and Ram
Ratan Lal Khanna, was terminated by a
valid notice before the latter's death. On
the termination of his tenancy he could
claim only the protection provided by
U.P. Act No. 3 of 1947. On his death,
90 INDIAN LAW REPORTS ALLAHABAD SERIES
however, his heirs did not inherit any
right or interest in the property as the
statutory
tenancy
rights
which
Sri
Khanna had after the termination of his
contractual tenancy was not inheritable.
There is no assertion in the plaint that
the plaintiff and the defendants stood in
the relationship of lessor and lessee at
any stage. On the plaint allegation it is
obvious that the suit was not cognizable
by the Court of Small Causes as
envisaged in Article 4 of the second Sch.
The suit was rightly instituted in the
court of Munsif and its transfer to the
Court
of
Small
Causes
on
the
enforcement of U.P. Act No. 37 of 1972
was illegal. It is true that both the parties
submitted to the illegal transfer of the
suit to the Court of Small Causes and no
objection to the jurisdiction of the court
was raised either in the trial court or in
the revisional court but since the Court
of
Small
Causes
lacked
inherent
jurisdiction to entertain the suit, the
acquiescence or even consent of the
parties could not confer jurisdiction on
it. Acquiescence waiver or consent of the
parties may be relevant in objections
relating to the pecuniary or territorial
jurisdiction of the court but these factors
have no relevance where the court lacks
inherent jurisdiction. The Privy Council
in Ledgard v. Bull (1886) 1'3 Ind App
134) observed as follows:--

"When the Judge has no
inherent jurisdiction, over the subject
matter of a suit, the parties cannot by
their mutual consent, convert it into a
proper judicial process, ................ But
there are numerous authorities which
establish that when, in a cause which the
Judge is competent to try, the parties
without objection join issue, and go to
trial upon the merits, the defendant
cannot
subsequently
dispute
his
jurisdiction upon the grounds that there
were
irregularities
in
the
initial
procedure, which if objected to at the
time, would have led to the dismissal of
the suit."

Jurisdiction
cannot
be
conferred on a court by consent,
acquiescence or waiver where there is
none nor can it be ousted where it is.
Lack of inherent jurisdiction strikes at
the very authority of the court to pass any
decree, and renders the decree a nullity.
Since: the Judge Small Causes lacked
inherent jurisdiction to try the present
suit, the decree passed by the courts
below must be held to be a nullity."

15. The next judgment relied upon
by learned counsel for the petitioner is
Chiranjilal Shrilal Goenka (Deceased)
Through Lrs. Vs. Jasjit Singh, 1993 (2)
SCC 507. Paragraph 18 of the said
judgment is quoted below:-

"18. It is settled law that a
decree passed by a court without
jurisdiction on the subject matter or on
the grounds on which the decree made
which goes to the root to its jurisdiction
of lacks inherent jurisdiction is a corum
non judice. A decree passed by such a
court in a nullity and is nonest. Its
invalidity can be set up whenever it is
sought to be enforced or is acted upon as
a foundation for a right, even at the stage
of execution or in collateral proceedings.
The defect of jurisdiction strikes at the
very authority of the court to pass decree
which cannot be cured by consent or
waiver of the party. In Bahadur Singh &
Anr. v. Muni Subrat Dass & Anr.,
[1969] 2 SCR 432 an eviction petition
was filed under the Rent Control Act on
the ground of nuisance. The dispute was
referred to the arbitration. An award was
8 All. Prakash Chandra Vs. Sri Ritesh Bhargava
91
made directing the tenant to run the
workshop upto a specified time and
thereafter to remove the machinery and
to deliver vacant possession to the
landlord. The award was signed by the
arbitrators, the tenant and the landlord.
It was filed in the court. A judgment and
decree were passed in terms of the
award. On expiry of the time and when
the tenant did not remove the machinery
nor
delivered
vacant
possession,
execution was levied under Delhi and
Ajmer Rent Control Act. It was held that
a decree passed in contravention of Delhi
and Ajmer Rent Control Act was void
and the landlord could not execute the
decree. The same view was reiterated in
Smt. Kaushalya Devi and Ors. v. KL.
Bansal, AIR 1970 SC 838. In Ferozi Lal
Jain v. Man Mal & Anr., AIR 1979 SC
794 a compromise dehore grounds for
eviction was arrived at between the
parties under section 13 of the Delhi and
Ajmer Rent Control Act. A decree in
terms thereof was passed. The possession
was not delivered and execution was
laid. It was held that the decree was
nullity and, therefore, the tenant could
not be evicted. In Sushil Kumar Mehta
v. Gobind Ram Bohra (dead) through
his Lrs. JT 1989 (SUPPI.) SC.329 the
Civil Court decreed eviction but the
building was governed by Haryana
Urban (Control of Rent & Eviction Act
11 of 1973. It was held that the decree
was without jurisdiction and its nullity
can be raised in execution. In Union of
India v. M/S. Ajit Mehta and Associates.
Pune and Ors., AIR 1990 Bombay 45 a
Division Bench to which Sawant, J. as he
then was, a member was to consider
whether the validity of the award could
be questioned on jurisdictional issue
under section 30 of the Arbitration Act.
The Division Bench held that Clause 70
of the, Contract provided that the Chief
Engineer shall appoint an engineer
officer to be sole arbitrator and unless
both parties agree in writing such a
reference shall not take place until after
completion of the works or termination
or
determination
of
the
Contract.
Pursuant to this contract under section 8
of the Act, an Arbitrator was appointed
and award was made, Its validity was
questioned under section 30 thereof. The
Division Bench considering the scope of
Sections 8 and 20(4) of the Act and on
review of the case law held that Section 8
cannot be invoked for appointment of an
Arbitrator unilaterally but be available
only under section 20(4) of the Act.
Therefore, the very appointment of the
Arbitrator without consent of both
parties was held void being without
jurisdiction. The Arbitrator so appointed
inherently lacked jurisdiction and hence
the award made by such Arbitrator is
nonest. In Chellan Bhai's case Sir C.
Farran, Kt., C.J. of Bombay High Court
held that the Probate Court alone is to
determine whether probate of an alleged
will shall issue to the executor named in
it and that the executor has no power to
refer the question of execution of Will to
arbitration. It was also held that the
executor having propounded a Will, and
applied for probate, a caveat was filed
denying the execution of the alleged Will,
and the matter was duly registered as a
suit, the executor and the caveatrix
subsequently cannot refer the dispute to
arbitration, signing a submission paper,
but such an award made pursuant thereto
was held to be without jurisdiction."

16. Sri K.M. Garg, learned counsel
for the respondent has vehemently
opposed the submission raised by learned
counsel for the petitioner and submitted
92 INDIAN LAW REPORTS ALLAHABAD SERIES
that so far as maintainability of the release
application is concerned, in the written
statement, petitioner has admitted that he is
tenant in the aforesaid shop at the rate of Rs.
1300/- per month and in subsequent
paragraph of the written statement, it is also
stated that he is paying rent continuously and
regularly to the landlord-respondent. He is
not defaulter in payment of rent and no rent is
due against the tenant. In the written
statement, it is also stated that there are other
co-owners of the shop in question, therefore,
as tenant he has filed Misc. Case No.
672/70/2014 (Prakash Chandra Gupta Vs.
Ritesh Bhargav), under Section 30 of the Act,
1972, which is pending for disposal. He next
submitted that the petitioer can not go beyond
his pleadings taken in written statement. No
application at any point of time has been filed
by petitioner to amend the written statement
and even before the appellate authority, he
has not taken this ground. Now at this stage,
the ground taken by the petitioner contrary to
his pleadings in the written statement, is not
acceptable. In fact, he is taking a new plea
after specifically accepting himself to be a
tenant before the Prescribed Authority and
Appellate Authority and taking entirely a
new ground before the writ Court cananot be
accepted at this stage.

17. He further submitted that even
assuming it without admitting that the
petitioner-tenant is not a tenant, then he
has no locus standi to maintain this writ
petition as he is not the person aggrieved
with the order passed by the courts
below. Therefore, this writ petition is
liable to be dismissed on the ground of
maintainability and no relief can be
granted in his favour.

18. He also submitted that in case
the respondent being co-owner of the
shop in question is not the exclusive
owner, even though he can file the
release application to release the shop in
question under the settled provisions of
law.

19. He next submitted that
admissions
in
the
pleadings
are
admissible under Section 58 of the Indian
Evidence Act and the same is binding on
the party that makes them waiver of
provision. It is not required to be proved.

20. So far as bonafide need is
concerned,
he
submitted
that
the
respondent has space in his shop which is
below the stairs and the landlordrespondent is using this space to keep the
goods relating to the packaging. The
courts below after considering the
evidence on record have categorically
recorded finding that the shop in question
is required bonafidely to the landlordrespondent. He next submitted that
undisputedly the petitioner-tenant is
having alternative accommodation for
doing his business at 49/99 Naughara,
Kanpur Nagar, therefore, the courts
below have rightly decided the issue of
bonafide need in favour of the landlordrespondent. He next submitted that in
light of law laid down by the Apex Court
as well as this Court, landlord is best
judge of his need and the Court may not
interfere in the matter. The courts below
have also considered that the petitioner
has not made any effort to search the
alternative space and recorded finding in
favour of the landlord while deciding the
bonafide need.

21. He further submitted that so far
as comparative hardship is concerned, as
per finding recorded by the prescribed
Authority, it is undisputed fact that the
petitioner has not made any effort to
8 All. Prakash Chandra Vs. Sri Ritesh Bhargava
93
search alternative space coupled with the
fact that the landlord is owner of another
accommodation
at
49/99
Naughara,
Kanpur Nagar. Therefore, courts below
have rightly decided this issue in favour
of landlord-tenant.

22. He next submitted that writ of
certiorari
can
only
be
issued
for
correcting the errors of jurisdiction
committed by inferior court or tribunal.
Writ of certiorari is not supervisory
jurisdiction and the Court cannot be
treated to act an appellate court.

23. He also submitted that while
deciding the comparative hardship , the
courts below have considered the Rule
16(2)(b) of Rules, 1972 provides for
considering the need of landlord also and
order of the Prescribed Authority is in
accordance
with
same.
Once
the
petitioner
is
having
alternative
accommodation, Rule 16 of the Rules,
1972 would not be applicable.

24. In support of this contention, he
has
placed
reliance
upon
several
judgments of the Apex Court as well as
this Court.

25. He has placed reliance upon a
judgment of Apex Court in the case of
Rajsthjan
State
Road
Transport
Corporation and another Vs. Bajrang
Lal, (2014) 4 Supreme Court Cases 693.
Paragraphs 14 and 15 of the said
judgment are quoted below:-

"14. It is settled proposition of
law that a party has to plead the case
and produce/adduce sufficient evidence
to substantiate his submissions made in
the plaint and in case the pleadings are
not complete, the Court is under no
obligation to entertain the pleas. (Vide:
M/s. Larsen & Tourbo Ltd. & Ors. v.
State of Gujarat & Ors., AIR 1998 SC
1608; National Building Construction
Corporation v. S. Raghunathan & Ors.,
AIR 1998 SC 2779; Ram Narain Arora v.
Asha Rani & Ors., (1999) 1 SCC 141;
Smt. Chitra Kumari v. Union of India &
Ors., AIR 2001 SC 1237; and State of
U.P. v. Chandra Prakash Pandey, AIR
2001 SC 1298.)

15. In M/s. Atul Castings Ltd. v.
Bawa Gurvachan Singh, AIR 2001 SC
1684, this Court observed as under:-

"12.
The
findings
in
the
absence of necessary pleadings and
supporting evidence cannot be sustained
in law."

(See also: Vithal N. Shetti &
Anr. v. Prakash N. Rudrakar & Ors.,
(2003) 1 SCC 18; Devasahayam (Dead)
by L. Rs. v. P. Savithramma & Ors.,
(2005)
7
SCC
653;
Sait
Nagjee
Purushotam & Co. Ltd. v. Vimalabai
Prabhulal & Ors., (2005) 8 SCC 252,
Rajasthan Pradesh V.S. Sardarshahar &
Anr. v. Union of India & Ors., AIR 2010
SC 2221; Ritesh Tiwari & Anr. v. State of
U.P. & Ors., AIR 2010 SC 3823; and
Union of India v. Ibrahim Uddin & Anr.
(2012) 8 SCC 148)."

26. Next judgment relied upon by
learneada counsel for the respondent is
S.U. Ashram Vs. ADJ, [2016 (1) ARC
861. Paragraphs 14, 15, 17 and 18 are
quoted below:-

"14.
Second
ground
of
challenge to the maintainability of the
release application urged by the learned
counsel for the petitioner is that the
release application has been filed against
an unknown entity i.e. the petitioner no.
2. The necessary party is the petitioner
94 INDIAN LAW REPORTS ALLAHABAD SERIES
no. 1 who has not been impleaded in the
release application. The petitioner no. 1
is a registered society which has opened
its Branch Office namely Shri Gandhi
Ashram,
Mandawar.
The
release
application against Shri Gandhi Ashram,
Mandawar was not maintainable and the
order of eviction passed against it can
not be executed against the petitioner no.
1 which is a legal entity being a
registered co-operative society.

15. This objection of the
learned counsel for the petitioner is not
acceptable for the simple reason that in
paragraph 1 of the written statement filed
by the petitioner nos. 2 had admitted the
landlord-tenant relationship.

16. Now on the merits of the
release application, the application has
been filed for the need setup by the
landlord therein that he required the
shop in question for his business. The
tenant contested the release application
on the ground that the landlord had
another shop at Chandak which is a near
by place but has not been able to
establish that the landlord was in vacant
possession
of
any
other
shop
at
Mandawar where the landlord wanted to
do his business.

17. It is well-settled that it is
choice of the landlord to do his business
at a particular place. The tenant or the
Court for that matter cannot be a guide
to instruct the landlord to do his business
at Chandak itself. Moreover the finding
of fact is that there is categorical refusal
of the landlord that he was doing grocery
business in a shop at Chandak which
could not be rebutted by the tenant by
leading cogent evidence.

18.
On
the
comparative
hardship, the categorical finding is that
the opposite party had failed to establish
that it had made an effort to get an
alternative place. The record proves that
other shops were available in the vicinity
which could have been taken on rent by
the opposite party/tenant."

27. Next judgment relied upon by
learned counsel for the respondent is
Heeralal Vs. Kalyan Mal and others,
AIR
1998
Supreme
Court,
618.
Paragraphs 9 and 10 of the said
judgment are quoted below:-

"9. Now it is easy to visualize
on the facts before this Court in the said
case that the defendant did not seek to go
behind his admission that there was an
agreement of 25th January 1991 between
the parties but the nature of agreement
was sought to be explained by him by
amending the written statement by
submitting that it was not agreement of
sale as such but it was an agreement for
development of land. The facts of the
present case are entirely different and
consequently the said decision also
cannot be of any help for the learned
counsel for the respondents. Even that
apart the said decision of two learned
judges of this Court runs counter to a
decision of a Bench of three learned
judges of this court in the case of Modi
Spinning & Weaving Mills Co. Ltd. &
Anr. v. Ladha Ram & Co. [(1977) 1 SCR
728: (AIR 1977 SC 680). In that case
Ray, CJ., Speaking for the Bench had to
consider
the
question
whether
the
defendant can be allowed to amend his
written
statement
by
taking
an
inconsistent plea as compared to the
earlier
plea
which
contained
an
admission in favour of the plaintiff. It
was held that such an inconsistent plea
which
would displace
the
plaintiff
complete from the admissions made by
the defendants in the written statements
8 All. Prakash Chandra Vs. Sri Ritesh Bhargava
95
cannot be allowed. If such amendments
are allowed in the written statement
plaintiff will be irretrievably prejudiced
by being denied the opportunity of
extracting
the
admission
from
the
defendants. In that case a suit was filed
by the plaintiff for claiming a decree for
Rs. 1,30,000/- against the defendants.
The defendants in their written statement
admitted that by virtue of an agreement
dated 07th April 1967 the plaintiff
worked as their stockist-cum-distributor.
After three years the defendants by
application under order Vi Rule 17
sought amendment of written statement
by substituting paragraphs 25 and 26
with a new paragraph in which they took
the
fresh
plea
that
plaintiff
was
mercantile
agent
cum-purchaser,
meaning thereby they sought to go
behind their earlier admission that
plaintiff was stockist- cum-distributor.
Such amendment was rejected by the
Trial Court and the said rejection was
affirmed by the High Court in Revision.
The said decision of the High Court was
upheld by this Court by observing as
aforesaid. This decision of a Bench of
three learned judges of this the written
statement contains an admission in
favour of the plaintiff, by amendment
such admission of the defendants cannot
be allowed to be withdrawn if such
withdrawal would amount to totally
displacing the case of the plaintiff and
which would cause him irretrievable
prejudice. Unfortunately the aforesaid
decision of three member Bench of this
Court was not brought to the notice of
the Bench of two learned judges that
decided the case in Akshaya Restaurant
(supra). In the latter case it was observed
by the Bench of two learned judges that it
was settled law that even the admission
can be explained and even inconsistent
pleas could be taken in the pleadings.
The
aforesaid
observations
in
the
decision in Akshaya Restaurant (1995
AIR SCW 2277) (supra) proceed on an
assumption tat it was the settled law that
even the admission can be explained and
even inconsistent pleas could be taken in
the pleadings. However the aforesaid
decision of the three member Bench of
this Court in Modi Spinning (AIR 1977
SC 680) (supra) is to the effect that while
granting such amendments to written
statement no inconsistent or alternative
plea can be allowed which would
displace the plaintiff's case and cause
him irretrievable prejudice.

10. Consequently it must be
held that when the amendment sought in
the written statement was of such a
nature as to displace the plaintiff's case it
could not be allowed as ruled by a three
member Bench of this Court. This aspect
was unfortunately not considered by
latter Bench of two learned Judges and
to the extent to which the latter decision
took a contrary view qua such admission
in written statement, it must be held that
it was per incuriam being rendered
without being given an opportunity to
consider the binding decision of a three
member Bench of this Court taking a
diametrically opposite view."

28. Next judgment relied upon by
learned counsel for the respondent is
Nagindas
Ramdas
Vs.
Dalpatram
Iccharam alias Brijram and others, AIR
1974 Supreme Court 471. Paragraph 26
of the said judgment is quoted below:-

"26.