# Rajendra & Ors v. Mohd. Shahid

- **Citation:** (2023) 5 ILRA 277
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-05
- **Case number:** Matters Under Article 227 No. 3631 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-ors-v-mohd-shahid-50199
- **Pages:** 14

## Headnote

A. Tenancy Law - Ownership - Rent - U.P.
Urban Buildings (Regulation of Letting
Rent and Eviction) Act, 1972 - Sections
20(2)(a) & 34 - Slum Areas (Improvement
and Clearance) Act, 1962 - Section 23 -
Code of Civil Procedure: Order 6 Rule 14
and 15 - After receiving legal notice, it is
required
on
the
part
of
petitionerdefendant to raise objection about the
invalidity or infirmity of notice at the
earliest otherwise, it would deemed to
have been waved. (Para 20)

In the present case, the legal notice has details
of ownership, house number of property in
dispute alongwith boundary, which is not
disputed by the petitioner- defendant in its reply
dated 1.5.2014. The very same fact has been
mentioned in the plaint, which was also not
disputed by petitioner-defendant, in fact, there
was some dispute about the number of rooms in
tenancy for which amendment application
u/Order 6 Rule 17 of CPC has been filed in
written statement, which was rejected, but so
far as ownership is concerned, no application for
amendment in written statement has been filed.
(Para 19)
278 INDIAN LAW REPORTS ALLAHABAD SERIES
Once the content of legal notice has not been
disputed in its reply (dated 01.05.2014) and
further not raised objection while filing written
statement, same cannot be raised at this stage,
therefore, argument of petitioner has no
substance on this point. (Para 21)

B.(1) In light of provision of Sections 34
r/w Rules 22 of Rules, 1972 & 38 of U.P.
Act No. 13 of 1972, provision of Order 6
Rule 14 & 15 shall not be applicable in the
present case. (Para 25)

Section 34 of U.P Act No.13 of 1972 r/w Rule 22
of Rules, 1972 provides certain contingencies
upon which CPC is applicable, which does not
contemplate any such contingencies, which
invites attention of Order 6 Rule 14 & 15 of CPC.
(Para 23, 24)

From perusal of Section 38 of U.P. Act No. 13 of
1972, it is clear that provision of U.P. Act No.13
of 1972 shall prevail over the provisions of CPC
& Transfer of Property Act. (Para 25)

(2)
No
liberty
can
be
granted
to
petitioner-defendant to raise this issue at
this belated stage - Petitioner has not taken
this ground before the SCC Court as well as
Revisional Court. (Para 26)

C. For taking benefit of Section 20(4) of
U.P. Act No.13 of 1972, it is required to
deposit entire dues including amount for
time barred period. It is admitted case of
petitioner that he has not deposited the rent
from 1990 and after ex parte decree while
filing application u/Order 15 Rule 5 of CPC
complying of Section 17 of SCC Act, 1887, he
had deposited decretal amount only. (Para
30)

D. The supervisory jurisdiction under
Article 227 cannot be invoked to interfere
with the findings of fact recorded by the
courts below. At any rate, as long as the
findings are based upon some material which
are relevant for the purpose and no evidence
could be pointed to demonstrate that the
findings recorded by the Trial Court are
perverse, no interference can be made. (Para
32)

Petitioner argues that in the sale deed rent was
mentioned at the rate of Rs. 800/- whereas in
the legal notice as well as plaint, it was claimed
at the rate of Rs. 750/-, but respondent-plaintiff
could not proof the rent at the rate of Rs. 750/-,
therefore, order is bad on this ground. (Para 31)

There is concurrent finding of Courts about the
rate of rent at the rate of Rs.750/- i.e., in favour
of respondent-plaintiff. It is settled that in case
of concurrent finding of Court, scope of judicial
review is limited and narrow, therefore, no
interference is required under Article 227 of the
Constitution of India. (Para 33)

E. The declaration of an area as slum area
u/s
3
of
the
Act,
1962
does
not
automatically result in acquisition of the
properties situated in the said area.
Eviction
cannot
be
made
without
permission of Competent Authority, but so
far as decree or order for eviction is
concerned, there is no such provision in
Section 23 of Act, 1962. (Para 37)

Landlord can mai

## Text

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5 All. Rajendra & Ors. Vs. Mohd. Shahid
277
accompanied by any deposit nor any
application has been filed for dispensing
with deposit and seeking leave of the Court
for furnishing such security.

32. In the present case too, neither
application of petitioner under Order IX
Rule 13 of CPC was accompanied
alongwith deposit required under Section
17 of Act, 1887 nor having any application
to dispense with the deposit of Section 17
of
Act,
1887.
Even
in
restoration
application, there is no such prayer to grant
permission to comply the Section 17 of
Act, 1887. Therefore, in light of aforesaid
judgment, petitioner is not entitled for any
relief to comply the provision of Section 17
of Act, 1887 after filing of application
under Order IX Rule 13 of CPC read with
151 CPC.

33. This Court is of the firm view that
it is not the case of part compliance,
therefore, benefit of judgments of Shyam
Kumar Gupta (Supra) and Smt. Sushma
Agarwal (Supra) cannot be given to
petitioner.

34. Both the Courts have considered
each and every aspects and rightly came to
the conclusion that petitioner has never
complied the provision of Section 17 of
Act, 1887. Courts have also rightly taken
view that in case, it is treating to be
compliance, the same is not full compliance
as amount so required has not been
deposited.

35. In view of above facts mentioned
hereinabove as well as law laid by this
Court, the writ petition lacks merit and is,
accordingly, dismissed.

36. No order as to costs.
----------
(2023) 5 ILRA 277
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 3631 of 2023
(CIVIL)

Rajendra & Ors. ...Petitioners
Versus
Mohd. Shahid ...Respondent

Counsel for the Petitioners:
Sri Piyush Shukla

Counsel for the Respondent:
Sri Manish Tandon, Sri Atul Dayal (Sr.
Advocate)

A. Tenancy Law - Ownership - Rent - U.P.
Urban Buildings (Regulation of Letting
Rent and Eviction) Act, 1972 - Sections
20(2)(a) & 34 - Slum Areas (Improvement
and Clearance) Act, 1962 - Section 23 -
Code of Civil Procedure: Order 6 Rule 14
and 15 - After receiving legal notice, it is
required
on
the
part
of
petitionerdefendant to raise objection about the
invalidity or infirmity of notice at the
earliest otherwise, it would deemed to
have been waved. (Para 20)

In the present case, the legal notice has details
of ownership, house number of property in
dispute alongwith boundary, which is not
disputed by the petitioner- defendant in its reply
dated 1.5.2014. The very same fact has been
mentioned in the plaint, which was also not
disputed by petitioner-defendant, in fact, there
was some dispute about the number of rooms in
tenancy for which amendment application
u/Order 6 Rule 17 of CPC has been filed in
written statement, which was rejected, but so
far as ownership is concerned, no application for
amendment in written statement has been filed.
(Para 19)
278 INDIAN LAW REPORTS ALLAHABAD SERIES
Once the content of legal notice has not been
disputed in its reply (dated 01.05.2014) and
further not raised objection while filing written
statement, same cannot be raised at this stage,
therefore, argument of petitioner has no
substance on this point. (Para 21)

B.(1) In light of provision of Sections 34
r/w Rules 22 of Rules, 1972 & 38 of U.P.
Act No. 13 of 1972, provision of Order 6
Rule 14 & 15 shall not be applicable in the
present case. (Para 25)

Section 34 of U.P Act No.13 of 1972 r/w Rule 22
of Rules, 1972 provides certain contingencies
upon which CPC is applicable, which does not
contemplate any such contingencies, which
invites attention of Order 6 Rule 14 & 15 of CPC.
(Para 23, 24)

From perusal of Section 38 of U.P. Act No. 13 of
1972, it is clear that provision of U.P. Act No.13
of 1972 shall prevail over the provisions of CPC
& Transfer of Property Act. (Para 25)

(2)
No
liberty
can
be
granted
to
petitioner-defendant to raise this issue at
this belated stage - Petitioner has not taken
this ground before the SCC Court as well as
Revisional Court. (Para 26)

C. For taking benefit of Section 20(4) of
U.P. Act No.13 of 1972, it is required to
deposit entire dues including amount for
time barred period. It is admitted case of
petitioner that he has not deposited the rent
from 1990 and after ex parte decree while
filing application u/Order 15 Rule 5 of CPC
complying of Section 17 of SCC Act, 1887, he
had deposited decretal amount only. (Para
30)

D. The supervisory jurisdiction under
Article 227 cannot be invoked to interfere
with the findings of fact recorded by the
courts below. At any rate, as long as the
findings are based upon some material which
are relevant for the purpose and no evidence
could be pointed to demonstrate that the
findings recorded by the Trial Court are
perverse, no interference can be made. (Para
32)

Petitioner argues that in the sale deed rent was
mentioned at the rate of Rs. 800/- whereas in
the legal notice as well as plaint, it was claimed
at the rate of Rs. 750/-, but respondent-plaintiff
could not proof the rent at the rate of Rs. 750/-,
therefore, order is bad on this ground. (Para 31)

There is concurrent finding of Courts about the
rate of rent at the rate of Rs.750/- i.e., in favour
of respondent-plaintiff. It is settled that in case
of concurrent finding of Court, scope of judicial
review is limited and narrow, therefore, no
interference is required under Article 227 of the
Constitution of India. (Para 33)

E. The declaration of an area as slum area
u/s
3
of
the
Act,
1962
does
not
automatically result in acquisition of the
properties situated in the said area.
Eviction
cannot
be
made
without
permission of Competent Authority, but so
far as decree or order for eviction is
concerned, there is no such provision in
Section 23 of Act, 1962. (Para 37)

Landlord can maintain a suit for eviction against
tenant even if the tenanted property has been
acquired and an award has been passed in
respect thereof under the provision of the Land
Acquisition Act, 1894. In a suit for eviction, only
the relationship of landlord and tenant is to be
seen. (Para 36)

Section 23 of the Act, 1962 only provides that a
decree or order can be put in execution only
after obtaining the permission of the competent
authority. It does not prohibit the institution of
any suit. Even if is claimed that the land in the
slum area stood acquired, the building situated
in the said land does not automatically vest in
the acquiring authority. (Para 38)

Not only after declaration of slum area,
but even after acquiring the property in
dispute
after
notification,
suit
is
maintainable and decree can be passed.
(Para 34, 39)

Writ petition dismissed. (E-4)

Precedent followed:
5 All. Rajendra & Ors. Vs. Mohd. Shahid
279
1. University Book Depot through Jagannath Vs
Amit Mishra, Civil Revision No. 10 of 2009
decided on 29.05.2020.

2. Parwati Bai Vs Radhika, 2003 (2) RCJ 4 (Para
10)

3. Apollo Zipper India Ltd. Vs W. Newman and
Co. Ltd., 2018 (3) ARC 187 (Para 10)

4. Sanjay & anr. Vs Smt. Vimla Rani & ors.,
2015 (3) ARC 741 (Para 13)

5. Ghoorey Lal Vs Sheo Murti Gupta, 1994 (5)
SCC 339 (Para 14)

6. Anand Kumar Vs Dinesh Kumar, 2017 (3)
ARC 178 (Para 16)

7. Smt. Shakuntala & ors. Vs Shaukat Ali & anr.,
Matters Under Article 227 No. 6139 of 2022,
decided on 06.08.2022 (Para 17)

8. Smt. Phoola Devi & ors. Vs A.D.J. Court No.
14, Kanpur Nagar, 2020 (2) ARC 610 (Para 17)

9. Sheela Jawarai Nagori & anr. Vs Kantilal
Nathmal Baldota & ors., 2014 (3) ARC (5) (Para
17)

Precedent distinguished:

Asha Rani Gupta Vs Sri Vineet Kumar, Civil
Appeal No. 4682 of 2022 arising out of SLP
(Civil) No. 1319 of 2019 (Para 6)

Present petition challenges order dated
15.12.2022 passed by the Court of Judge,
Small Causes Court, Kanpur Nagar in
S.C.C. Suit No. 188 of 2014 and impugned
order dated 15.03.2023 passed by the
District Judge, Kanpur in S.C.C. Revision
No. 26 of 2023.

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

1. Heard Sri Piyush Shukla, learned
counsel for the petitioners and Sri Atul
Dayal, learned Senior Advocate assisted by
Sri Manish Tandon, learned counsel for the
respondents.

2. Present petition has been for setting
aside the impugned order dated 15.12.2022
passed by the Court of Judge, Small Causes
Court, Kanpur Nagar in S.C.C. Suit No.
188 of 2014 (Mohd. Shahid vs. Rajendra
and others) and impugned order dated
15.3.2023 passed by the District Judge,
Kanpur in S.C.C. Revision No. 26 of 2023
(Rajendra & others vs. Mohd Shahid)

3. Since, only legal question is
involved in the present petition, therefore,
with the consent of parties, petition is being
decided at the admission stage itself.

4. Learned counsel for petitioners
submitted that plaintiff-respondent has
served
legal
notice
dated
10.4.2014
claiming himself to be the owner of house
in question on the basis of sale deed
executed on 31.3.2013 by Jasmeet Singh.
On the very same basis, he has set up his
case and filed suit. In the plaint, it is clearly
mentioned that house in question has been
purchased by Jasmeet Singh. He next
submitted that under Section 20(2)(a) of the
U.P. Urban Buildings (Regulation of
Letting Rent and Eviction) Act, 1972
(hereinafter referred to as U.P. Act No. 13
of 1972), notice is required within 30 days.
In the present case, as the notice was sent
on the basis of ownership of sale deed
executed by Jasmeet Singh, therefore, it is
not fulfilling the requirement of Section
20(2)(a) of U.P. Act No. 13 of 1972,
therefore, notice is bad.

5. He next submitted that during the
course of cross examination, plaintiffrespondent has denied his signature on four
pages and he was not aware about the fact
written in the plaint as it was written in
English. In support of his contention, he
has placed reliance upon the provision of
Order 6 Rule 14 and 15 of CPC, which
280 INDIAN LAW REPORTS ALLAHABAD SERIES
provides
that
every
page
required
signatures of party and pleader.

6. He further submitted that petitioner
has fully complied the provision of Order
15 Rule 5 of CPC as well as Section 20(4)
of Act, 1972 by depositing the admitted
arrears of rent at the rate of Rs. 300/- per
month, but benefit of Section 20(4) of Act,
1972 has not been given to him. In support
of his contention he has placed reliance
upon the judgment of this Court in the case
of Asha Rani Gupta vs. Sri Vineet Kumar
passed in Civil Appeal No. 4682 of 2022
arising out of SLP (Civil) No. 1319 of
2019.

7. He next submitted that once he has
deposited the rent, he has entitled for
benefit of Section 20(4) of U.P. Act No. 13
of 1972. In support of his contention, he
has placed reliance upon the judgment of
this Court in the case of University Book
Depot through Jagannath vs. Amit Mishra
passed in Civil Revision No. 10 of 2009
decided on 29.5.2020.

8. He further submitted that he had
deposited the rent on month to month basis
at the admitted rate of Rs.300/- through out
the proceedings and same has neither been
considered nor any finding has been
recorded by the Court below. He further
submitted that in the notice, rent has been
claimed at the rate of Rs. 750/- whereas in
the sale deed, it is mentioned as Rs.800/-
and as per defendant-petitioner, rate is
300/-. Respondent-plaintiff could not proof
the rent at the rate of Rs. 750/-, therefore,
order is also bad on this ground.

9. He lastly submitted that vide
notification
dated
21.2.2021
area
in
question has been declared as slum area
under the provisions of Section 23 of U.P.
Slum Areas (Improvement and Clearance)
Act, 1962, therefore, as per Section 23 of
Act, 1962, no decree can be passed. He also
submitted that once the KDA is acquired
the land, plaintiff-respondent has losts its
ownership from house in question.

10. Mr. Atul Dayal, learned Senior
Advocate submitted that first of all legal
notice dated 10.4.2014 was given for entire
premises based upon the sale deed executed
by Jasmeet Singh, which has never been
disputed by the petitioner-defendant in its
reply dated 1.5.2014, therefore, there is no
illegality in the notice dated 10.4.2014. He
next submitted that facts so mentioned in
the legal notice dated 10.4.2014 about the
house number, ownership, property in
dispute alongwith boundary has not been
disputed in its reply dated 1.5.2014. He
further submitted that the same averment was
also made in the plaint about the description
of property, which was not disputed by the
defendant-petitioner in written statement and
application under Order 6 Rule 17 of CPC
has been filed for amendment in written
statement with regard to number of rooms in
tenancy, which was also rejected and
affirmed by the Revisional Court. He also
submitted that no other application under
Order 6 Rule 17 of CPC has been filed
disputing the ownership based upon the sale
deed dated 31.3.2013, therefore, same cannot
be raised at this stage. He next submitted that
in light of law laid down by the Apex Court
in the cases of Parwati Bai vs. Radhika
reported in 2003 (2) RCJ 4 & Apollo Zipper
India Ltd. vs. W. Newman and Co. Ltd.
Reported in 2018 (3) ARC 187 and if the
validity of notice has not been challenged in
written statement, the same cannot be
challenged at belated stage.

11. So far as applicability of Order 6
Rules 14 & 15 of CPC is concerned, he
5 All. Rajendra & Ors. Vs. Mohd. Shahid
281
firmly submitted that as per Section 34 of
U.P. Act No. 13 of 1972 read with Rule 22
of Rules 1972, same shall not be
applicable. In fact Sections 34 of U.P. Act
No.
13
of
1972
provides
certain
contingencies where the CPC is applicable.
He also submitted that Section 38 of U.P.
Act No. 13 of 1972 provides that provision
of U.P. Act No. 13 of 1972 shall prevail
over the provisions of CPC & Transfer of
Property Act. He further submitted that
provision of Order 6 Rule 14 & 15 of CPC
shall only be applicable in the civil suit
filed under the provision of CPC and would
not be applicable in summary proceedings
initiated under the U.P. Act No.13 of 1972.
Further, petitioner has also not taken this
ground in SCC Court as well as Revisional
Court, therefore, he cannot raise this issue
before this Court under Article 227 of
Constitution of India.

12.
Learned
counsel
for
the
respondents submitted that so far as benefit
of Section 20(4) of Act No. 13 of 1972 is
concerned, it is required on the part of
petitioner-defendant to deposit the entire
amount including the amount for time
barred period. In the present case, as per
admission of petitioner-defendant, he has
not deposited rent from 1990 and further
once the ex parte decree has been passed
against him while filing the application
under Order 15 Rule 5 of CPC in
compliance of Section 17 of Small Causes
Court Act, 1887, he has deposited the
decretal amount only.

13. So far as deposit of rent on month
to month basis is concerned, he submitted
that he has not deposited the same
regularly. This is also the finding of first
court that amount was not deposited in
accordance with Order 15 Rule 5 of CPC.
This was also affirmed in revision. In
support of his contention about the rent of
time barred period, he has placed reliance
upon the judgment of this Court in the case
of Sanjay and another vs. Smt. Vimla Rani
and 6 others reported in 2015 (3) ARC
741.

14. He next submitted that in case of
denial of title, petitioner-defendant cannot
take benefit of Section 20 (4) of U.P. Act
No.13 of 1972 in light of judgment of Apex
Court in the case of Ghoorey Lal vs. Sheo
Murti Gupta reported in 1994 (5) SCC 339
(Paragraph 1)

15. He next submitted that so far as
rate of rent at the rate of Rs. 750/- is
concerned, no doubt in the sale deed, it is
mentioned only Rs. 800/-, but in the legal
notice as well as plaint, he has claimed the
rent at the rate of Rs. 750/-. Against which,
petitioner-defendant could not produce any
evidence about the rate of rent at the rate of
Rs. 300/-.

16. He further submitted that there is
concurrent finding of Courts, therefore,
there is no scope of interference under
Article 227 of the Constitution of India. In
support of his contention, he has placed
reliance upon the judgment of this Court in
the case of Anand Kumar Vs. Dinesh
Kumar reported in 2017 (3) ARC 178
(Paragraph 18, 21, 22, 23 & 33)

17. He next submitted that even after
declaration of slum area vide notification
21.2.2021 under Section 23 of Act, 1962,
Court can pass the decree for eviction. Not
only this even in case of acquirement of
land after notification, suit is maintainable.
In support of his contention, he has placed
reliance upon the judgment of this Court as
well as Apex Court in the case of Smt.
Shakuntala and 3 others vs. Shaukat Ali
282 INDIAN LAW REPORTS ALLAHABAD SERIES
and another passed in Matters Under
Article 227 No. 6139 of 2022 decided on
6.8.2022, Smt. Phoola Devi and 4 others
vs. Additional District Judge Court No. 14,
Kanpur Nagar reported in 2020 (2) ARC
610 and Sheela Jawarai Nagori and
Another v. Kantilal Nathmal Baldota and
others reported in 2014 (3) ARC (5).

18. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
record as well as judgments relied upon by
the learned counsel for the parties.

19. First issue raised by learned
counsel for the petitioner about the service
of legal notice dated 10.4.2014 based upon
the sale deed dated 31.3.2013 executed by
Jasmeet Singh. His argument is that it is
based upon the sale deed executed by
Jasmeet Singh, therefore, it is not fulfilling
the requirement of Section 20(2) (a) of U.P.
Act No. 13 of 1972. The same was rebutted
by Mr. Atul Dayal, learned Senior Counsel
and he rightly submitted that there is no
illegality in the notice dated 10.4.2014. The
said legal notice is having detail of
ownership, house number of property in
dispute alongwith boundary, which is not
disputed by the petitioner-defendant in its
reply dated 1.5.2014. He has written the
very same fact in the plaint, which was also
not disputed by petitioner-defendant, in
fact, he is having some dispute about the
number of rooms in tenancy for which he
has filed amendment application under
Order 6 Rule 17 of CPC in written
statement, which was also rejected, but so
far
as
ownership
is
concerned,
no
application for amendment in written
statement has been filed.

20. Law is very well settled by the
Apex Court in the case of Parwati Bai
(supra) on the point that after receiving
legal notice, it is required on the part of
petitioner-defendant
to
raise
objection
about the invalidity or infirmity of notice at
the earliest otherwise, it would deemed to
have been waved. Relevant paragraph of
the said judgement is quoted hereinbeolw:-

"6. The singular question to be
examined in the present case is whether the
tenancy was terminated in accordance with
the provisions of Section 106 of the
Transfer of Property Act. The receipt of
notice by the defendant is admitted in the
written statement. The defendant has not
raised any specific objection as to the
validity of the notice. An objection as to
invalidity or infirmity of notice under
Section 106 T.P. Act should be raised
specifically and at the earliest; else it will
be deemed to have been waived even if
there exists one. It cannot, therefore, be
said that the notice in the present case
suffered from any infirmity. A copy of the
notice was exhibited and proved by the
plaintiff as Exh. P-4."

21. From perusal of above paragraph,
it is apparently clear that once the content
of legal notice has not been disputed in its
reply dated 1.5.2014 and further not raised
objection while filing written statement,
same cannot be raised at this stage,
therefore, argument of petitioner is having
no substance on this point.

22. Secondly, learned counsel for the
petitioner
raised
issue
about
the
applicability of Order 6 Rule 14 & 15 of
CPC in light of fact that four pages of
plaint was not signed by the plaintiffrespondent and he could not understood the
same as it was written in English. It was
also rebutted by learned Senior Counsel
with the submission that Order 6 Rule 14 &
5 All. Rajendra & Ors. Vs. Mohd. Shahid
283
15 of CPC shall not be applicable in the
present case in light of Section 34 of U.P
Act No.13 of 1972 read with Rule 22 of
Rules, 1972. He also argued that provision
of Section 38 of U.P. Act No. 13 of 1972
shall prevail over provisions of CPC &
Transfer of Property Act. Therefore,
Sections 34 & 38 of U.P. Act No. 13 of
1972 is mandatory provisions and same are
quoted herebelow:-

Section 34 of U.P. Act No. 13 of 1972.

34. Powers of various authorities
and procedure to be followed by them (1)
The DistrictMagistrate, the prescribed
authority or any 1 [appellate or revising
authority] shall for thepurposes of holding
any inquiry or hearing 2[any appeal or
revision] under this Act have thesame
powers as are vested in the Civil Court
under the Code of Civil Procedure, 1908
(Act No.V of 1908), when trying a suit, in
respect of the following matters namely-

(a) summoning and enforcing the
attendance of any person and examining
him on oath;

(b)
receiving
evidence
on
affidavits;

(c) inspecting a building or its
locality, or issuing commission for the
examination of witnesses or documents or
local investigation;

(d) requiring the discovery and
production of documents;

(e) awarding, subject to any rules
made in that behalf, costs or special costs
to any parts or requiring security for costs
from any party;

(f) recording a lawful agreement,
compromise or satisfaction and making an
order in accordance therewith;

(g) any other matter which may
be prescribed.

(2) The District Magistrate, the
prescribed authority or 3[appellate or
revising authority], while holding an
inquiry or hearing 4[any appeal or
revision] under this Act, shall be deemed to
be a Civil Court within the meaning of
5[Sections 345 and 346 of Code of
Criminal
Procedure,
1973]and
any
proceeding before him or it to be a judicial
proceeding
within
the
meaning
of
Sections193 and 228 of the Indian Penal
Code (Act No. XLV of 1860).

(3) Where any costs or other sum
of money awarded under this Act by the
District Magistrate or the prescribed
authority or 1[the appellate or revisional
authority] remains unpaid, he or it may
issue a certificate of recovery in respect
thereof in the prescribed form, and any
person in whose favour such certificate is
issued may apply to the Court of Small
Causes having jurisdiction under the
Provincial Small Cause Courts Act, 1887
(Act No. IX of 1887) for recovery of the
amount specified in the certificate. Such
court shall thereupon execute the certificate
or cause the same to be executed in the
same manner and by the same procedure as
if it were a decree for payment of money
made by itself in a suit.

(4) Where any party to any
proceeding
for
the
determination
of
standard rent of or for eviction from a
building dies during the pendency of the
proceeding, such proceeding may be
continued after bringing on the record:

(a) in the case of the landlord or
tenant, his heirs or legal representatives;

(b) in the case of unauthorised
occupant, any person claiming under him
found in occupation of the building.

(5) Where any person has been
evicted from a building in pursuance of any
order of the District Magistrate or the
prescribed authority or made on appeal
under this Act, the District Magistrate or
the prescribed authority, as the case may
284 INDIAN LAW REPORTS ALLAHABAD SERIES
be, may after service or publication of a
notice in that behalf on such persons and in
such manner as may be prescribed, remove
or cause to be removed or dispose of, in
such manner as may be prescribed, any
specific
property
remaining on
such
building.

(6) Affidavits to be filed in any
proceeding under this Act shall be made in
the same manner and conform to the same
requirements as affidavits filed under the
Code of Civil Procedure, 1908 (Act No. V
of 1908), and may be verified by any officer
or other person appointed by the High
Court under clause (b) or by an officer
appointed by any other court under clause
(c) of Section 139 of the said Code.

(7) The District Magistrate, the
prescribed authority or 2[the appellate or
revisional authority] shall record reasons
for every order made under this Act.

(8) For the purposes of any
proceedings under this Act and for
purposes connected therewith the said
authorities shall have such other powers
and
3[shall
follow
such
procedure,
principles of proof, rules of limitatin and
guiding principles as may be prescribed."

Rule 22 of Rules, 1972.

22. Powers under the Code of
Civil Procedure, 1908 (Section 34(1) (g).-
[The District Magistrate, the Prescribed
Authority or the Appellate or Revising
Authority shall, for the purposes of holding
any inquiry or hearing any appeal or
revision under the Act, shall have the same
powers as are vested in the Civil Court
under the Code of Civil Procedure, 1908
(Act No. V of 1908), when trying a suit, in
respect of the following matters, namely-

(a) the power to dismiss an
application, appeal or revision for default
and to restore it for sufficient cause;

(b) the power to proceed ex-parte
and to set aside, for sufficient cause, an
order passed ex parte;

(c) the power to award costs and
special costs to any successful party
against an unsuccessful party;

(d)
the
power
to
allow
amendment
of
an
application,
memorandum of appeal or revision;

(e) the power to consolidate two
or more cases of eviction by the same
landlord against different tenants;

(f) the power referred to in
Sections 151 and 152 of the Code of Civil
Procedure, 1908 (Act No. V of 1908) to
make an y order of the ends of justice or to
prevent the abuse of the process of the
authority concerned.]

Section 38 of U.P. Act No. 13 of 1972

"Act to override Transfer of
Property Act and Civil Procedure Code:-
The provisions of this Act shall have effect
notwithstanding
anything
inconsistent
therewith contained in the Transfer of
Property Act (ACT No.IV of 1882), or in the
Code of Civil Procedure, 1908 (Act No.V of
1908)."

23. Section 34 of U.P Act No.13 of
1972 read with Rule 22 of Rules, 1972
provides certain contingencies upon which
CPC is applicable, which does not
contemplate any such contingencies, which
invites attention of Order 6 Rule 14 & 15 of
CPC.

24. From perusal of the Sections 34 of
U.P. Act No. 13 of 1972, it is apparently
clear that provisions of CPC shall be
applicable in those circumstances, which
are referred in Section 34 read with rules
22 of Rules, 1972.
5 All. Rajendra & Ors. Vs. Mohd. Shahid
285

25. Further, from perusal of Section 38
of U.P. Act No. 13 of 1972, it is clear that
provision of U.P. Act No.13 of 1972 shall
prevail over the provisions of CPC &
Transfer of Property Act. Therefore, in light
of provision of Sections 34 read with Rules
22 of Rules, 1972 & 38 of U.P. Act No. 13
of 1972, provision of Order 6 Rule 14 & 15
shall not be applicable in the present case.

26. Not only this, petitioner has not
taken this ground before the SCC Court as
well as Revisional Court, therefore, no
liberty can be granted to petitionerdefendant to raise this issue at this belated
stage.

27. The third issue raised by the
learned counsel for the petitioner about the
compliance of Order 15 Rule 5 of CPC
read with Section 20(4) of U.P. Act No. 13
of 1972. It is argued that he has deposited
the rent on month to month basis at the
admitted rate of Rs.300/-, therefore, in light
of judgment of Apex Court in the case of
Asha Rani Gupta (supra) & University
Book Depot (supra), he is entitled for
benefit of Order 15 Rule 5 read with
Section 20(4) of U.P. Act, 1972. Relevant
paragraph of the said judgment is quoted
hereinbelow:-

"9.1 A few basic factors related
with the provisions of Order XV Rule 5
CPC could be noticed at once. As per these
provisions, in a suit by a lessor for eviction
of a lessee after the determination of lease
and for recovery of rent or compensation
for use and occupation, the defendant is
under the obligation: (1) to deposit the
entire amount admitted by him to be due
together with interest at the rate of 9% per
annum on or before the first hearing of the
suit; and (2) to regularly deposit the
monthly amount due within a week of its
accrual throughout the pendency of the
suit. The consequence of default in making
either of these deposits is that the Court
may strike off his defence. The expression
''first hearing' means the date for filing
written statement or the date for hearing
mentioned in the summons; and in case of
multiple dates, the last of them. The
expression ''monthly amount due' means the
amount due every month, whether as rent
or damages for use and occupation at the
admitted rate of rent after making no other
deduction except taxes, if paid to the local
authority on lessor's account. It is,
however, expected that before making an
order striking off defence, the Court would
consider
the
representation
of
the
defendant, if made within 10 days of the
first hearing or within 10 days of the expiry
of one week from the date of accrual of
monthly amount."

Relevant
paragraph
of
the
judgment of University Book Depot
(supra) is quoted hereinbelow:-

"In view of the aforesaid, this
Court is of the view that the Court below
erred in relying upon the decision in
Bhragu Dutt Singh(Supra) to reject the plea
of the revisionist for treating the amount
deposited by him under the proviso to
Section 17 of the Act, 1887 as a deposit
referred in Section 20(4) of the Act, 1972.
The legal position is settled that it was
permissible to treat such deposit as one
under Section 20 (4). After treating it to be
so, how far the requirements of Section 20
(4) of the Act, 1972 were satisfied was
another aspect which was required to be
considered by the Court below but it has
not done so. As regards the contention of
learned Counsel Mohd. Sayeed that no
application had been filed by the revisionist
for treating the aforesaid amount as one
under Section 20 (4), in view of the
decision in Lacchhi Ram, such request
286 INDIAN LAW REPORTS ALLAHABAD SERIES
could be oral or written. The essence of the
matter is as to whether there was a deposit
with the Court (custodia legis) on or prior
to the date of hearing or not. If it was, then
intimation of such deposit with a request to
treat it as a deposit under Section 20 (4)
and adjust it accordingly is sufficient. This
intimation and request could be made in
writing or orally. In fact, it would be better
if it is made in writing as it would avoid
unnecessary disputes on this issue, but even
if an oral request is made as was done in
this case at the time of arguments as has
been mentioned in the judgment itself, then,
in such an event, once cognizance of such
request has been taken by the Court below,
as has been done in this case, then, there
was no way this plea could be rejected as
impermissible.

28. From perusal of the same, it is
apparent
that
petitioner-defendant
is
required to deposit the rent at the admitted
rate.

29. Learned Senior Counsel disputed
the same and argued that petitionerdefendant is required to pay entire amount
including the amount for time barred
period.
Petitioner-defendant
has
not
deposited the rent from 1990 and after
passing the ex parte decree, he has
deposited
decretal
amount
only
in
compliance of Section 17 of SCC Act,
1887. He placed reliance upon the
judgment of this Court in the case of
Sanjay and another vs. Smt. Vimla Rani
(supra) relying upon the judgment of Apex
Court and this Court. Relevant paragraph of
the said judgement is quoted hereinbelow:-

"12.
In
the
plaint,
though
municipal
taxes
was
claimed
since
1.10.1970, but for purposes of valuation
and court fees, the arrears of last 3 years
alone was taken into consideration, as rest
of the amount had since become barred by
limitation. It is now no more res integra
that for taking benefit of provision of
Section 20(4) of the Act, the tenant has to
deposit even time barred rent. The phrase
"entire amount of rent and damages for use
and occupation of the building due from the
tenant" employed in Section 20(4) of the
Act includes even the claim in respect of
time barred rent as held by the Supreme
Court in Subhash Chandra vs. Additional
District & Sessions Judge, Saharanpur3
and in the Division Bench judgment of this
Court in Mahesh Chandra vs. II Addl.
District
Judge,
Meerut
and
others4.
Concededly,
Rs.1080/-
deposited
on
11.2.1997 represented the taxes of last three
years preceding the date of institution of
the suit in the year 1997. The house tax @
10% on the annual value was levied since
1970. However, the liability to pay water
tax @ 10% of the annual value accrued
since 15.7.1972, the date on which 'Act'
came into force. The arrears of municipal
taxes for the period between 15.7.1972
until before three years of the institution of
the suit, represents a huge sum, much more
than several months rent. The said amount
was admittedly not deposited at or before
the first date of hearing. Consequently, this
Court does not find any illegality in
concurrent findings entered by the courts
below that the petitioners have not
deposited the entire arrears of municipal
taxes and were thus not entitled to benefit
of Section 20(4) of the Act."

30. From perusal of the above
paragraph of the aforesaid judgment, it is
apparently clear that for taking benefit of
Section 20(4) of U.P. Act No.13 of 1972, it
is required on the part of petitionerdefendant to deposit entire dues including
amount for time barred period. It is
5 All. Rajendra & Ors. Vs. Mohd. Shahid
287
admitted case of petitioner that he has not
deposited the rent from 1990 and after ex
parte decree while filing application under
Order 15 Rule 5 of CPC complying of
Section 17 of SCC Act, 1887, he had
deposited decretal amount only, therefore,
in light of aforesaid judgment, benefit of
Section 20(4) of U.P. Act No. 13 of 1972
cannot be extended in favour of petitionerdefendant. Therefore, judgment of Asha
Rani Gupta & Universal Book (Supra) is
of no use in present controversy as well as
in such facts of the case.

31. Another argument of learned
counsel for the petitioner that in the sale
deed rent was mentioned at the rate of Rs.
800/- whereas in the legal notice as well as
plaint, it was claimed at the rate of Rs.
750/-, but respondent-plaintiff could not
proof the rent at the rate of Rs. 750/-,
therefore, order is bad on this ground. This
was also rightly rebutted by learned Senior
Counsel
for
respondent-plaintiff
and
submitted that though in sale deed, rent was
mentioned at the rate of Rs. 800/-, but in
the legal notice as well as in plaint, it was
claimed at the rate of Rs. 750/-. Against
which,
petitioner-defendant
could
not
produce any evidence about the rate of rent
at the rate of Rs.300/- as per his case.

32. He further submitted that there is
concurrent finding of Courts about the rate
of rent at the rate of Rs.750/- and in light of
law laid down by this Court in the case of
Anand Kumar (Supra), Court may not
interfere
under
Article
227
of
the
Constitution of India. Relevant paragraph
of
the
said
judgment
is
quoted
hereinbelow:-

"18.
Article
227
of
the
Constitution
confers
a
supervisory
jurisdiction on the High Courts over subordinate courts. The scope of judicial
review is limited and narrow. It is not to
correct the errors in the orders of the
courts below but to remove manifest and
patent errors of law and jurisdiction
without acting as an appellate authority.
Under this constitutional provision, a duty
has been cast upon the High Court to keep
the inferior courts and tribunals within the
bounds of their authority and to see that
they do what their duty requires and they
do it in a legal manner. Unless there was
any grave miscarriage of justice or flagrant
violation of law calling for intervention, it
is not for the High Court under Articles 226
and 227 of the Constitution to interfere. In
Waryam Singh and another Vs. Amarnath
and another AIR 1954 SC 215, (at Page571), Hon'ble Supreme Court held as
under:-

"This power of superintendence
conferred by Article 227 is, as pointed out
by Harries, C.J. in Dalmia Jain Airways
Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal.
193, to be exercised most sparingly and
only in appropriate cases in order to keep
the Subordinate Courts within the bounds
of their authority and not for correcting
mere errors".

22. This power is not in the
nature of power of appellate power
enabling the Court for re-appreciation of
evidence. The Court cannot alter the
conclusion reached by the Competent
Statutory Authority merely on the ground of
insufficiency of evidence vide: Union of
India & ors. Vs. Himmat Singh Chahar,
(1999) 4 SCC 521.

33. In the present set of facts,
concurrent findings of fact has been
recorded by both the courts below based on
consideration of oral and documentary
evidences that the disputed shop was
constructed in the year 1987/1988 and first
assessment was made effective from the
288 INDIAN LAW REPORTS ALLAHABAD SERIES
year 1992 and that the petitioner defendant
defaulted in payment of rent. These findings
are findings of fact based on consideration
of material on record. The findings so
recorded in the impugned judgment, do not
suffer from any manifest error to warrant
interference under Article 227 of the
Constitution of India inasmuch as the
petitioner defendant has completely failed
to demonstrate that the findings are so
perverse or so unreasonable that no Court
could ever have reached them. The power
under Article 227 is not in the nature of
appellate power enabling High Court to reappreciate evidence and to alter the
conclusion reached by the court below
merely on the ground of insufficiency of
evidence. No evidence could be pointed by
the petitioner defendant to demonstrate that
the findings recorded by the Trial Court are
perverse.
Therefore,
the
supervisory
jurisdiction under Article 227 cannot be
invoked to interfere with the findings of fact
recorded by the courts below. At any rate,
as long as the findings are based upon
some material which are relevant for the
purpose, no interference can be made.
Reference to various judgments of Hon'ble
Supreme Court as made above would
clearly indicate that no interference can be
made on the facts of the present case."

33. It is undisputed that there is
concurrent finding of Courts on this issue
in favour of respondent-plaintiff. From
perusal of above paragraphs of the
aforesaid judgment, it is clear that there is
concurrent finding of Court that scope of
judicial review is limited and narrow,
therefore, no interference is required under
Article 227 of the Constitution of India.

34. The last argument of learned
counsel for the petitioner about the
declaration of property in question is
notified as slum area under the provisions
of Section 23 of Act, 1962, therefore, no
decree can be passed. This was validly
opposed by learned Senior Counsel and
submitted that not only after declaration of
slum area, but even after acquiring the
property in dispute after notification, suit is
maintainable and decree can be passed. He
supported his argument of the judgment of
this Court in the case of Smt. Phoola Devi
(supra) & Smt. Shakuntala (supra).

35. To appreciate the controversy
Section 23 of Act is quoted hereinbelow:-

Section 23 of Act, 1962