DEEPAK TANDON & ANR. versus RAJESH KUMAR GUPTA

Citation: [2019] 3 S.C.R. 684 · Decided: 07-02-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 3 S.C.R.
DEEPAK TANDON & ANR.
v.
RAJESH KUMAR GUPTA
(Civil Appeal Nos. 1537-1538 of 2019)
FEBRUARY 07, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972:
s.21(1)(a) – Application under – Seeking eviction of tenanted
premises – On the ground of bona fide requirement for commercial
purpose – Competent Authority as well as Appellate Court, giving
concurrent finding held that the tenant was liable to be evicted –
Writ appeal u/Art. 227 of Constitution – High Court held that the
application for eviction for commercial need was not maintainable
by virtue of proviso to s.21, because the premises in question was
essentially for residential purpose – Review against the order
dismissed – On appeal, held : The plea of maintainability was not
raised either before the prescribed Authority or before the appellate
Court – In absence of such plea or issue, such plea cannot be raised
for the first time before the third court – Nature of tenancy (whether
commercial or residential) is not a pure question of law, but is a
question of fact and hence such question was first required to be
pleaded and then proved – If a tenancy is for composite purpose,
landlord has the right to seek eviction either for his residential need
or commercial need – High Court exceeded its jurisdiction in
interfering with concurrent findings of fact – Rent Control and
Eviction.
Allowing the appeals, the Court
HELD: 1. The High Court committed jurisdictional error
in setting aside the concurrent findings of the two Courts below
and thereby erred in allowing the respondent’s writ appeal and
dismissing the appellants’ application under Section 21(1)(a) of
the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 as not maintainable. [Para 17][688-G]
[2019] 3 S.C.R. 684
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2. If the plea is not taken in the pleadings by the parties
and no issue on such plea was, therefore, framed and no finding
was recorded either way by the Trial Court or the First Appellate
Court, such plea cannot be allowed to be raised by the party for
the first time in third Court whether in appeal, revision or writ,
as the case may be, for want of any factual foundation and finding.
It is more so when such plea is founded on factual pleadings and
requires evidence to prove, i.e., it is a mixed question of law and
fact and not pure jurisdictional legal issue requiring no facts to
probe. [Paras 21 and 22][689-C-D]
3. The respondent-tenant had not raised the plea of
maintainability of the appellants’ application under Section 21(1)(a)
of the Act, 1972 in his written statement before the Prescribed
Authority. Since the respondent failed to raise the plea of
maintainability, the Prescribed Authority rightly did not decide
this question either way. The respondent also did not raise the
plea of maintainability before the First Appellate Court in his
appeal and, therefore, the First Appellate Court was also right in
not deciding this question either way. [Paras 18, 19 and 20][689-
A-C]
4. The question as to whether the tenancy is solely for
residential purpose or for commercial purpose or for composite
purpose, i.e., for both residential and commercial purpose, is not
a pure question of law but is a question of fact, therefore, this
question is required to be first pleaded and then proved by
adducing evidence. Therefore, such question could not have been
decided by the High Court for the first time in third round of
litigation in its writ jurisdiction simply by referring to some
portions of the pleadings. [Paras 23 and 24][689-E-F]
5. If the tenancy is for composite purpose because some
portion of tenanted premises was being used for residence and
some portion for commercial purpose, i.e., residential and
commercial, then the landlord will have a right to seek the tenant’s
eviction from the tenanted premises for his residential need or
commercial need, as the case may be. [Para 25][689-G]
6. High Court exceeded its jurisdiction in interfering in
the concurrent findings of fact of the two Courts below while
DEEPAK TANDON v. RAJESH KUMAR GUPTA
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SUPREME COURT REPORTS
[2019] 3 S.C.R.
allowing the writ appeal entirely on the new ground of
maintainability of the application without examining the legality
and correctness of the concurrent findings of the two Courts below.
The High Court should have seen th

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