The Supreme Court bench of Justices A M Sapre and Dinesh Maheswari found fault with a judgment of Allahabad High Court for setting aside an eviction order on the ground of maintainability, which was raised for the first time in HC in proceedings under Article 227 of the Constitution of India.
"it is a settled law that 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", held the SC.
The appellant before the SC was a landlord, who had sought eviction of his tenant under U.P. Urban Buildings (Regulation of Letting,Rent and Eviction) Act, 1972 on the ground of bona fide need for commercial use. The original authority ordered eviction, which was affirmed by the first appellant authority. This led the tenants to petition the HC under Article 227.
The High Court held that the pleadings of the parties indicated that the tenancy in question was essentially for residential purpose and therefore, landlord's petition for eviction for commercial need was not permissible by virtue of proviso to Section 21 of the Act, 1972.
Holding the approach of the HC in upsetting concurrent findings of courts below to be erroneous, the SC observed that the issue whether tenancy was residential or commercial was a question of fact and law, which could have been settled only in trial.
It noted that the plea of maintainability was not at all raised in pleadings in the original authority. It was a mixed question of fact and law, which could not have been decided by High Court under Art.227 jurisdiction.
"...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", observed the judgment authored by Justice Sapre.