# Smt. Prema Devi v. Devideen & Ors

- **Citation:** (2023) 9 ILRA 915
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-04
- **Case number:** Civil Revision No. 214 of 2013
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prema-devi-v-devideen-ors-50793
- **Pages:** 7

## Headnote

Civil Law - Constitution of India,1950 -
Article
227
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Sections 12(3), 14 & 16(2) -
Indian Evidence Act, 1872 - Section 17 -
Deemed Vacancy and Revisional Order -
Petitioner challenged the revisional order dated
23.01.2019, which allowed Rent Revision No. 70
of 2011, setting aside vacancy and release
orders dated 10.03.2010 and 08.06.2011,
respectively, under U.P. Act No. 13 of 1972. The
vacancy order was based on the respondenttenant's admission in a written statement in Suit
No. 893 of 1993, claiming ownership and
residence in House No. 85/183. Petitioner
argued that the revisional court erred by not
addressing this admission and remanding the
matter
without
reversing
the
Regulatory
Authority's findings, citing Basant Singh and
Premlata @ Sunita. Respondents contended that
Section 12(3) requires a vacant alternative
accommodation, which was under dispute, and
raised issues of bonafide need under Section
16(2) and statutory tenancy under Section 14,
citing Gopal Singh. The court held that the
tenant's admission of permanent residence in
another property triggered deemed vacancy
under Section 12(3), and the tenant could not
approbate and reprobate, as per Basant Singh
916 INDIAN LAW REPORTS ALLAHABAD SERIES
and Premlata @ Sunita. The revisional court's
failure to address the admission rendered its
order unsustainable. Respondents' reliance on
Sections 14 and 16(2) was inapplicable due to
the deemed vacancy. Revisional order set aside,
petition allowed. (Paras 15-24)

Petition allowed.

List of Cases cited:

## Text

9 All. Smt. Prema Devi Vs. Devideen & Ors.
915
detailed in paragraph 4 of the affidavit have
been made by the revisionist to the
respondent.

17. Though it is true that the
respondent has also averred in his objection
with regard to payment made by him for
purchase of land without placing any
material on record, but this Court may note
that the revisionist has made assertion of
payment on affidavit without placing any
material on record to establish bona fide of
payment by him which has been denied by
the respondent in his objection. Both the
parties have failed to produce any material
on record in support of their claim.

18. In such view of the fact, this Court
finds that the defence set up by the respondent
in his objection is triable issue which entitles
the defendant to unconstitutional leave to
contest the suit as contemplated under Order
37 Rule 5 of C.P.C.

19. It would also be appropriate at this
stage to consider the first proviso to Order 37
Rule 3(5) of C.P.C. which mandates the Court
not to refuse the leave to defend unless it is
satisfied that the facts disclosed by the
defendant do not indicate that he has a
substantial defence to raise or that defence
intended to be put up by the defendant is
frivolous and fictitious. In the instant case,
the revisionist has failed to demonstrate that
the facts disclosed by the respondent in his
objection do not disclose that he has
substantial defence to raise. In such view of
the fact, this Court finds that the subordinate
Court has not committed any illegality or
jurisdictional error in granting unconditional
leave to the respondent.

20. In such view of the fact, the
revision is dismissed without any order as
to costs.
----------
(2023) 9 ILRA 915
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters U/A 227 No. 3002 of 2019 (Civil)

Smt. Prema Devi ...Petitioner
Versus
Devideen & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Kumar Yadav, Sri Nikhil Kumar

Counsel for the Respondents:
Sri Girish Singh, Sri Ashish Kumar

Civil Law - Constitution of India,1950 -
Article
227
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Sections 12(3), 14 & 16(2) -
Indian Evidence Act, 1872 - Section 17 -
Deemed Vacancy and Revisional Order -
Petitioner challenged the revisional order dated
23.01.2019, which allowed Rent Revision No. 70
of 2011, setting aside vacancy and release
orders dated 10.03.2010 and 08.06.2011,
respectively, under U.P. Act No. 13 of 1972. The
vacancy order was based on the respondenttenant's admission in a written statement in Suit
No. 893 of 1993, claiming ownership and
residence in House No. 85/183. Petitioner
argued that the revisional court erred by not
addressing this admission and remanding the
matter
without
reversing
the
Regulatory
Authority's findings, citing Basant Singh and
Premlata @ Sunita. Respondents contended that
Section 12(3) requires a vacant alternative
accommodation, which was under dispute, and
raised issues of bonafide need under Section
16(2) and statutory tenancy under Section 14,
citing Gopal Singh. The court held that the
tenant's admission of permanent residence in
another property triggered deemed vacancy
under Section 12(3), and the tenant could not
approbate and reprobate, as per Basant Singh
916 INDIAN LAW REPORTS ALLAHABAD SERIES
and Premlata @ Sunita. The revisional court's
failure to address the admission rendered its
order unsustainable. Respondents' reliance on
Sections 14 and 16(2) was inapplicable due to
the deemed vacancy. Revisional order set aside,
petition allowed. (Paras 15-24)

Petition allowed.

List of Cases cited:

1. Basant Singh Vs Janki Singh & ors., (1967) 1
SCR 1
2. Dr. Dinesh Chandra Vs Krishna Kumar Goel,
Civil Revision No. 214 of 2013

3. Premlata @ Sunita Vs Naseeb Bee & ors.,
(2022) 6 SCC 585

4. Gopal Singh Vs Rent Control and Eviction
Officer, Dehradun & ors., Civil Misc. Writ Petition
No. 29155 of 1991

5. Chetar Sen Jain Vs A.D.J., III, Dehradun &
ors., ARC 1992 (2)

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

1. Heard Sri Nikhil Kumar, learned
counsel for the petitioner and Sri Ashish
Kumar,
learned
counsel
for
the
respondents.

2. Present petition has been filed
challenging the impugned order dated
23.01.2019 passed by 9th Additional District
and Sessions Judge, Kanpur Nagar in Rent
Revision No. 70 of 2011.

3. Brief facts of the case are that a
release application was filed, which was
registered as Case No. 1 of 2009 upon which
vacancy order dated 10.03.2010 has been
passed and thereafter, release order dated
08.06.2011 has also been passed. Against the
said orders, respondent-defendant had filed
Rent Revision No. 70 of 2011, which was
allowed vide order dated 23.01.2019.

4. Learned counsel for the petitioner
submitted that impugned order is bad on
two grounds. Firstly, without reversing the
finding of Rent Control & Regulatory
Officer
(hereinafter
referred
to
as
"Regulatory Authority"), revision has been
allowed. He next submitted that vacancy
order and release order have been passed
on the ground that petitioner is having her
own house and residing in that also. He
pointed out that Suit No. 893 of 1993 is
pending between respondent-defendant and
his sister in which he has filed written
statement on oath with specific averment
that he is living as sole owner in the said
House No. 85/183. A vacancy order has
been passed relying upon the admission
made by the respondent-defendant in the
said suit, but without reversing this finding,
impugned order has been passed. Once, it is
admitted in proceeding pending before
another Court about the ownership of house
as well as residence cannot be ignored by
the Revisional Court without giving any
specific finding upon that. Secondly, in
paragraph 13 of the affidavit filed along
with the petition, petitioner has taken
specific plea that respondent-defendant is
residing in House No. 85/183. This fact has
also been admitted in paragraph 13 of the
counter affidavit filed before this Court, but
without considering the same, impugned
order has been passed. In support of his
contention, he has placed reliance upon the
judgment of the Apex Court in the matter
of Basant Singh Vs. Janki Singh and
others; [1967] 1SCR1 as well as judgment
of this Court in the matter of Dr. Dinesh
Chandra Vs. Krishna Kumar Goel in Civil
Revision No. 214 of 2013 decided on
27.05.2013. He has also placed reliance
upon the judgment of Apex Court in the
matter of Premlata @ Sunita Vs. Naseeb
Bee and others; (2022) 6 Supreme Court
Cases 585.
9 All. Smt. Prema Devi Vs. Devideen & Ors.
917

5. He next submitted that remand
order cannot be passed in routine manner
except if there is exceptional circumstances
to pass such order.

6. Sri Ashish Kumar, learned counsel
for the respondents- defendants (tenant)
vehemently opposed and submitted that
Section 12(3) of U.P. Act No.13 of 1972
provides that vacancy can only be declared
in case alternative accommodation is
vacant. In the present case, same is not
vacant as there is dispute between the
defendant and his sister upon which Court
has passed the order of status quo,
therefore, in light of Section 12(3), there is
no illegality in the order.

7. He next submitted that as per
Section 16 (2) of U.P. Act No. 13 of 1972,
it is required on the part of rent authority to
consider the bonafide need, which has not
been considered by the SCC Court,
therefore,
revision
has
rightly
been
allowed. He next submitted that in light of
Section 101 of Indian Evidence Act, 1872,
it is required on the part of plaintiff to
establish his own case and any affidavit/
statement filed in another Court cannot be
read as evidence against the defendant. In
support of his contention, he has placed
reliance upon the judgment of this Court in
the case of Gopal Singh vs. Rent Control
and Eviction Officer, Dehradun and
others passed in Civil Misc. Writ Petition
No. 29155 of 1991 decided on 8.2.1993.

8.

Learned
counsel
for
the
respondents further submitted that in light
of Section 14 of U.P. Act No. 13 of 1972,
defendant is statutory tenant, therefore, no
proceeding may be initiated against him. In
support of his contention, he has placed
reliance upon the judgment of Apex Court
in the case of Chetar Sen Jain vs.
Additional District Judge III, Dehradun
and other reported in ARC 1992 (2)

9. In his rejoinder argument, Mr.
Nikhil Agarwal, learned counsel for the
petitioner submitted that the plea of
bonafide as well as maintainability of
release
application
has
never
been
questioned in written statement filed
against the release application or in
revision, therefore, at this stage, same
cannot be raised upon which learned
counsel for the respondents submitted that
it is pure legal issue, therefore, he can raise
the same at any point of time.

10. I have considered the rival
submissions advanced by learned counsel
for the parties and perused the provisions of
law as well as judgments cited above.

11. Basic fact of the present case is
undisputed that Original Suit No. 893 of
1993 is pending between the respondentdefendant and his sister in which he has
filed written statement on oath with
specific averment that he is living as sole
owner in the said House No. 85/183.

12. Now the question before the
Court is that what would be sanctity of
statement
given
by
the
respondentdefendant in Original Suit No. 893 of
1993 on oath and applicability of Section
12 (3) of U.P. Act 13 of 1972. For
reference, Section 12 (3) of U.P. Act 13 of
1972 is being quoted below;

"(3) In the case of a residential
building if the tenant or any member of his
family builds or otherwise acquires in a
vacant state or gets vacated a residential
building in the same city, municipality,
notified area or town area in which the
building under tenancy is situate, he shall
918 INDIAN LAW REPORTS ALLAHABAD SERIES
be deemed to have ceased to occupy the
building under his tenancy:

Provided that if the tenant or any
member of his family had built any such
residential building before the date of
commencement of this Act, then such tenant
shall be deemed to have ceased to occupy
the building under his tenancy upon the
expiration of a period of one year from the
said date.

[Explanation- For the purposes
of this sub-section :--

(a) a person shall be deemed to
have otherwise acquired a building, if

he is occupying a public building
for residential purposes as a tenant,
allottee or licensee;

(b) the expression 'any member of
family' in relation to a tenant, shall

not include a person who has
neither been normally residing with nor
is

wholly
dependent
on
such
tenant.]1"

13. The language of Section 12 of
U.P. Act 13 of 1972 is very much clear that
in case, tenants or his family members,
have
taken
a
residence,
not
being
temporary, deemed vacancy shall be
treated.

14. So far as written statement or
admission before any other Court of law is
concerned, this matter was considered time
and again by the Apex Court as well as this
Court.

15. Apex Court has considered this
issue in the matter of Basant Singh
(Supra) and has taken a view that
admission made by a party in a pleading
may be used as evidence against him in
other suits. Paragraph 6 of the said
judgment is quoted below;

"Thus, even under the English
law, a statement in a pleading sworn,
signed or otherwise adopted by a party is
admissible against him in other actions. In
Marianski v. Cairns(1) Macq. 212., the
House of Lords decided that an admission
in a pleading signed by a party was
evidence against him in another suit not
only with regard to a different subjectmatter
but
also against
a different
opponent. Moreover, we are not concerned
with the technicalities of the English law.
Section 17 of the Indian Evidence Act, 1872
makes no distinction between an admission
made by a party in a pleading and other
admissions. Under the Indian law, an
admission made by a party in a plaint
signed and verified by him may be used as
evidence against him in other suits. In
other suits, this admission cannot be
regarded as conclusive, and it is open to
the party to show that it is not true."

16. This issue was before this Court in
the matter of Dr. Dinesh Chandra (Supra)
and
while
considering
the
different
judgments of Apex Court, Court has held
that no one can be permitted to approbate
and reprobate. Relevant paragraphs are
being quoted below;

"No one can be permitted to
approbate and reprobate. It is doctrine of
estoppel. When petitioner obtained benefit
of the agreement in his writ petition against
electricity
authorities,
he
cannot
be
permitted to say that the agreement is not
binding upon him or is not admissible in
evidence. No reservation was made in the
said writ petition regarding any clause of
the tenancy agreement. No one can be
permitted to say that he must be given
benefit of an agreement to which he is
signatory but if there is anything against
him in the said agreement, then the same
9 All. Smt. Prema Devi Vs. Devideen & Ors.
919
shall not be read against him due to the
reason that the agreement is not on
sufficiently stamped paper and is not
registered even though required to be
registered. Permitting such contradictory
pleas to be raised will amount to granting
premium on dishonesty. "

17. This issue was again before the
Apex Court in Premlata @ Sunita (Supra)
and after considering in detail, Apex Court
has taken the very same view that no one
can
be
permitted
to
approbate
and
reprobate and to take just contrary stand
taken earlier. Relevant paragraph is quoted
below;

"At the outset, it is required to be
noted and it is not in dispute that the
plaintiff instituted the proceedings before
the Revenue Authority under Section 250 of
the MPLRC. These very defendants raised
an objection before the Revenue Authority
that
the
Revenue Authority
has
no
jurisdiction to deal with the matter. The
Tehsildar accepted the said objection and
dismissed the application under Section
250 of the MPLRC by holding that as the
dispute is with respect to title the Revenue
Authority would not have any jurisdiction
under MPLRC. The said order passed by
the Tehsildar has been affirmed by the
Appellate Authority (of course during the
pendency of the revision application before
the High Court). That after the Tehsildar
passed an order rejecting the application
under Section 250 of the MPLRC on the
ground that the Revenue Authority would
have no jurisdiction, which was on the
objection raised by the respondents herein
-
original
defendants,
the
plaintiff
instituted a suit before the Civil Court.
Before the Civil Court the respondents -
original defendants just took a contrary
stand than which was taken by them before
the Revenue Authority and before the Civil
Court the respondents took the objection
that the Civil Court would have no
jurisdiction to entertain the suit. The
respondents - original defendants cannot
be permitted to take two contradictory
stands
before
two
different
authorities/courts.
They
cannot
be
permitted to approbate and reprobate once
the objection raised on behalf of the
original defendants that the Revenue
Authority would have no jurisdiction came
to
be
accepted
by
the
Revenue
Authority/Tehsildar and the proceedings
under Section 250 of the MPLRC came to
be dismissed and thereafter when the
plaintiff instituted a suit before the Civil
Court it was not open for the respondents -
original defendants thereafter to take an
objection that the suit before the Civil
Court would also be barred in view of
Section 257 of the MPLRC. If the
submission on behalf of the respondents -
defendants is accepted in that case the
original plaintiff would be remediless. The
High Court has not at all appreciated the
fact that when the appellant - original
plaintiff
approached
the
Revenue
Authority/Tehsildar he was nonsuited on
the
ground
that
Revenue
Authority/Tehsildar had no jurisdiction to
decide the dispute with respect to title to
the suit property. Thereafter when the suit
was filed and the respondents -defendants
took a contrary stand that even the civil
suit would be barred. In that case the
original plaintiff would be remediless. In
any case the respondents - original
defendants
cannot
be
permitted
to
approbate and reprobate and to take just a
contrary stand than taken before the
Revenue Authority. Therefore, in the facts
and circumstances of the case, the learned
trial Court rightly rejected the application
under Order 7 Rule 11 CPC and rightly
920 INDIAN LAW REPORTS ALLAHABAD SERIES
refused to reject the plaint. The High Court
has committed a grave error in allowing
the application under Order 7 Rule 11 CPC
and rejecting the plaint on the ground that
the suit would be barred in view of Section
257 of the MPLRC. The impugned
judgment and order passed by the High
Court is unsustainable and is liable to be
set aside. "

18. Argument of learned counsel for
the respondents-defendants (tenant) about
the applicability of Section 12(3) of U.P.
Act No.13 of 1972 cannot be accepted as
there is no dispute on the point that written
statement filed in Original Suit No. 893 of
1993, it is admitted that respondents-
defendants (tenant) is residing in House
No. 85/183 in the capacity of owner. In
light of judgment given by Apex Court as
well as this Court, he cannot take a
different stand and be permitted for
approbate and reprobate. Therefore, this
Court is of the view that once, written
statement has been filed by the tenant in
Original Suit No. 893 of 1993, it has to be
treated a valid evidence and deemed
vacancy has to be treated.

19. So far as Section 16 (2) of U.P.
Act No. 13 of 1972 is concerned, it requires
bonafide need. In the present case, this
defense is not available. Once it is held that
tenant is having his own residence in light
of Section 12(3) of U.P. Act No. 13 of
1972, judgment of Gopal Singh (Supra) is
of no use in the present matter only for the
reasons that in the said case, facts are
entirely different and in written statement,
there
are
two
factual
averments
contradictory to each other.

20.

Learned
counsel
for
the
respondents made submission about the
applicability of Section 14 of U.P. Act No.
13 of 1972 and as per the said section,
defendant is statutory tenant, therefore, no
proceeding can be initiated against him.
This argument can also not be accepted for
the very simple reason that once, in light of
Section 12(3) of U.P. Act No. 13 of 1972,
respondents-
defendants
(tenant)
had
occupied permanent accommodation, there
is no occasion to consider the applicability
of Section 14 of U.P. Act No. 13 of 1972.

21. So far as judgment of Chetar Sen
Jain (Supra) is concerned, in that case,
facts are entirely different as the issue was
related to before the commencement of
U.P. Act No. 13 of 1972 and also in part,
tenancy was admitted. In that case, earlier
tenant was residing at the place in dispute
and thereafter vacated the same, but along
with new oral agreement, he had retained
the accommodation in question for godown
purpose. Therefore, Court in light of new
enactment i.e. U.P. Act No. 13 of 1972 had
decided the case in favour of tenant.

22. Learned Revisional Court while
remanding the matter before Regulatory
Authority, has not given any finding as to
why admission made in Original Suit No.
893 of 1993 by respondents-defendants
(tenant)
about
having
permanent
accommodation
cannot
be
accepted.
Therefore, revisional order is bad and
cannot be sustained. If Revisional Court is
of the view that affidavit given in Original
Suit No. 893 of 1993 cannot be accepted,
there must have been specific finding to
this effect along with reasons, which is
missing in the impugned order.

23. Therefore, in light of Section
12(3) of U.P. Act No. 13 of 1972 as well as
law laid down by the Apex Court and this
Court, I am of the firm view that any
affidavit given before any Court of law be
9 All. Indian Oil Corporation Ltd. & Anr. Vs. The Commercial Court, Varanasi & Anr.
921
read as conclusive evidence in subsequent
proceeding before any Court of law, if
related to that controversy.

24. In present case, it is admitted by
the respondents-defendants (tenant) in
Original Suit No. 893 of 1993 that he is
having
permanent
alternative
accommodation, therefore, no case is made
out to quash the order of Regulatory
Authority and remand the matter for fresh
consideration.

25. Therefore, in light of facts as well
as law discussed herein above, impugned
order dated 23.01.2019 passed by 9th
Additional District and Sessions Judge,
Kanpur Nagar is bad in law and is hereby
set aside.

26. Accordingly, petition is allowed.
No order as to costs.
----------
(2023) 9 ILRA 921
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters U/A 227 No. 7573 of 2022 (Civil)

Indian Oil Corporation Ltd. & Anr.
 ...Petitioners
Versus
The Commercial Court, Varanasi & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Pramod Kumar Rai, Sri Anil Sharma (Sr.
Advocate)

Counsel for the Respondents:
Sri Pranab Kumar Ganguli, Sri Manish Goyal
(Sr. Advocate)
Civil Law - Constitution of India,1950 -
Article 227 - Arbitration and Conciliation
Act, 1996 - Sections 5, 33, 34, 36 &
85(2)(a) - Arbitration Act, 1940 - Sections
3, 14 & 28 - Code of Civil Procedure, 1908
- Sections 2(2) & 47 - Arbitral Award and
Execution - Petitioners challenged the order
dated 08.08.2022 rejecting objections under
Section 47 CPC in execution proceedings of an
arbitral award and the additional award dated
21.02.2006.
Arbitration
began
under
the
Arbitration Act, 1940, but continued under the
Arbitration and Conciliation Act, 1996, per the
arbitrator's order dated 14.04.2002, based on
the arbitration clause allowing statutory reenactments. Petitioners argued the arbitrator
lacked jurisdiction under the 1996 Act absent
party agreement and that the additional award
was time-barred, citing Thyssen Stahlunion
GMBH.
Respondents
countered
that
the
arbitration clause permitted the 1996 Act's
application,
petitioners
acquiesced
by
not
objecting earlier, and an arbitral award is not a
decree under Section 2(2) CPC, rendering
Section 47 objections invalid, citing Paramjeet
Singh Patheja. The court held that the
arbitration clause's provision for statutory reenactments satisfied Section 85(2)(a) of the
1996 Act, allowing proceedings under the 1996
Act, as supported by Thyssen Stahlunion GMBH
(Rani Constructions). Petitioners' failure to
challenge the 1996 Act's applicability earlier
estopped them. An arbitral award, not a decree,
cannot be challenged under Section 47 CPC, and
objections were barred post-Section 34 stage,
per Larsen & Toubro Limited. Petition dismissed
with costs of Rs. 1,00,000. (Paras 31-48)

Petition dismissed.

List of Cases cited:

1. Thyssen Stahlunion GMBH etc. Vs Steel
Authority of India Ltd., (1999) 9 SCC 334

2. N D Nayak Vs St. of Goa, (2003) 6 SCC 56

3. Neeraj Munjal Vs Atul Grover Minor, (2005) 5
SCC 404

4. Kiran Singh & ors. Vs Chaman Paswan & ors.,
AIR 1954 SC 340