ORDER R.S. Dhavan, J. - This is a tenant's petition, consequent upon his eviction from a shop. A plea not raised before the two courts below is being raised before this Court. The merits of the plea, which is raised before this Court, cannot be commented upon nor it would be appropriate to do so. But, the plea, if it succeeds, does relate to the jurisdiction or the maintainability of an application under S. 21, moved by the landlord under U.P. Act XIII of 1972. In effect, the plea of learned counsel for the petitioner is that upon the facts found by the petitioner subsequently, if he had knowledge of them before, the application of the landlord under S. 21, aforesaid, would have been decided on an issue which could not be raised, as the facts were not within the tenants' knowledge. 2. The plea is that while the landlord filed an application under S. 21, subsequent to that he sold an accommodation, which was vacant, by a sale deed to someone else and thus, the landlord had an alternative accommodation but chose not to utilise it for his use, but instead resorted to evict the petitioner. If indeed this plea has merits then the petitioner ought to have raised it either before the trial court or the appellate court but has not done so and he cannot be permitted to debate this plea on merits before this Court. 3. If the contention of the petitioner is that the judgments of the two courts below have been occasioned by fraud then he can, if there is merits in the contention, take recourse to S. 44 of the Evidence Act, 1872 before an appropriate court. But such plea has to be proved beyond a reasonable doubt, and cannot be considered in the facts and circumstances of this case, in the jurisdiction under Article 226 of the Constitution of India. 4. This Court, thus, cannot express any more on this solitary issue argued on the petition. 5. The petition is, thus dismissed. 6. A certified copy of this order may be issued to learned counsel for the petitioner on payment of requisite charges today.