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2009 DIGILAW 3852 (ALL)

Chandrapal v. Gopal Das

2009-12-22

SHISHIR KUMAR

body2009
JUDGMENT HON. SHISHIR KUMAR, J. Heard Sri H.M. Srivastava learned counsel for the petitioner and Sri Kshitij Shailendra, learned counsel appearing for the respondents. 2. This writ petition has been filed for quashing the order passed by the respondent-authorities dated 20.3.2009, Annexure-9 to the writ petition as well as the order dated 16.9.2009, Annexure-11 to the writ petition. 3. It appears that respondent being a landlord filed an application for release of the said accommodation which is in possession of the petitioner consisting of one room. The Prescribed Authority after considering the claim of the parties, has come to the conclusion that the need of the landlord is genuine and bonafide, as such the application was allowed and the appeal filed by the petitioner has been dismissed. Hence, the present writ petition. 4. Sri H.M. Srivastava, learned counsel appearing for the petitioner submits that being a trust property, unless and until there is a permission by the competent court, the part of the property of the trust cannot be sold, therefore, suit filed by respondent was not maintainable. 5. The second argument raised by the petitioner is that the Judge Small Cause Court was having no jurisdiction to decide the suit, as soon as the title of the landlord has been disputed. Further the Court should have considered the hardship of the petitioner, the same has not been considered. The petitioner has placed reliance upon the judgment of the Apex Court in the case of Kiran Singh Versus Chaman Paswan reported in AIR 1954 S.C.340. Placing reliance upon the aforesaid judgment, learned counsel for the petitioner submits that the decree passed, if it is without jurisdiction, the question of jurisdiction can be raised at any time, even at the stage of High Court. In spite of the fact this point was not raised before the Prescribed Authority as well as before the Appellate Authority, the same can be raised, as the decree passed by the court is nullity. Further submission has been made that no notice under Section 106 of Transfer of Property Act before filing the application under Section 21 (1) (a) of Act No. XIII of 1972 was given and therefore, in view of the settled principle of law, the application itself is not maintainable. 6. Further submission has been made that no notice under Section 106 of Transfer of Property Act before filing the application under Section 21 (1) (a) of Act No. XIII of 1972 was given and therefore, in view of the settled principle of law, the application itself is not maintainable. 6. Sri H.M. Srivastava, learned counsel for the petitioner further submits that the need of the petitioner has not been compared in view of the fact that in Suit No. 496 of 2001 which was filed by the petitioner for injunction, there was an averment that the property in question was being used for residential purposes. It has been submitted that the landlord has to stand on his own legs. If something has been said by the petitioner in a separate proceeding, that cannot be taken into consideration and the need and hardship of the petitioner has to be taken into consideration while deciding the case on merits.. 7. On the other hand, Sri Kshitij Shailendra, learned counsel for the respondents has brought to the notice of this Court Section 21 of the Code of Civil Procedure which is being quoted below: "21.Objections to jurisdiction.--[1] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. [(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity and unless there has been a consequent failure of justice." 8. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity and unless there has been a consequent failure of justice." 8. Taking support of the aforesaid provision, learned counsel for the respondent submits that if no objection regarding the jurisdiction or otherwise has been taken before the Court below, appellate court and the revisional court, it has to be taken at the first stage in the earliest possible opportunity. Sri Shailendra has brought to the notice of the Court regarding the written statement filed on behalf of the petitioner and has submitted that from the perusal of the written statement there is no averment to this effect that it is a trust property and the respondent who has filed the suit is not the owner and landlord of the property and no document in support thereof was ever filed. Therefore, in view of Section 21 of the Code of Civil Procedure, no objection can be taken up now Further submission has been made that in Suit No. 496 of 2001 the petitioner himself has admitted being the plaintiff that the property in question was being used for the residential purposes, therefore, in this suit he cannot change the stand that it is being used for commercial purpose. Further as regards the comparative hardship, it has been submitted that the petitioner himself in affidavit filed before court has admitted this fact that he is having a residential property within 3 kms. radius of Nagar Palika, Hathras, therefore, the proviso of Section 21 will come into play. Therefore, in view of the settled principle, the need of the tenant will not be compared. 9. I have considered the submissions made on behalf of the parties and perused the record. The contention of the petitioner cannot be accepted in view of the fact that the petitioner has not raised any point before the court below regarding denial of the title of the respondent-landlord. Further there was no averment in the written statement or in the pleadings that it was a trust property and the respondent who has filed the suit, is not the owner and landlord of the property in question. Further there was no averment in the written statement or in the pleadings that it was a trust property and the respondent who has filed the suit, is not the owner and landlord of the property in question. In my opinion in view of Section 21 of the Code of Civil Procedure, unless ans until the objection is taken at the preliminary stage regarding the jurisdiction, that cannot be taken before this Court while exercising the powers under Article 226 of the Constitution of India. As regards the admission made in the earlier suit that it is a residential property. The plaint was verified by the petitioner, there it will be treated to be an admission of petitioner. Therefore, in my opinion, the stand taken in the said suit cannot be changed by the petitioner in the present proceeding by saying that the property in question is a commercial one and as the application has been filed for residential purpose, therefore, it is not maintainable. As regards the service of notice, a finding has been recorded to this effect that notice was properly given. Petitioner in his statement it has admitted that he is having a residential house within 3 kms. of the municipal limits of district-Hathras. If that is so in my opinion, explanation of Section 21(1) (a) of Act No. XIII of 1972 will come into play and as such need of the tenant will not be compared. In my opinion the findings recorded by the courts below are findings of fact and need no interference by this Court while exercising the powers under Article 226 of the Constitution of India. 10. The writ petition is devoid of merit and is hereby dismissed. 11. At last the learned counsel appearing for the petitioner submits that some reasonable time may be granted to the petitioner-tenant to vacate the said premises. 10. The writ petition is devoid of merit and is hereby dismissed. 11. At last the learned counsel appearing for the petitioner submits that some reasonable time may be granted to the petitioner-tenant to vacate the said premises. Accordingly, six months' time is granted to the petitioner to vacate premises in dispute subject to condition that the petitioner will submit an affidavit in the shape of undertaking within three weeks from today before the Prescribed Authority specifically indicating therein that he will handover peaceful possession of said accommodation without inducting any third person within a period of six months and will pay the arrears of rent as well as current rent, then and in that condition, the Prescribed Authority will grant six months time to the petitioner to vacate the said premises. 12. No order is passed as to costs.