KHURSHEEDA Vs. XVIIITH ADDITIONAL DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) S. U. Khan, J. This is tenant's writ petition arising out of SCC Suit No. 531 of 1984 instituted by landlord respondent against tenant petitioner. The plaintiff in the suit is described as Mumtazul Haq through Waqf Mutawalli. When the suit was filed U. P. Act No. 13 of 1972 was squarely applicable to the building in dispute. In the plaint of the suit several grounds mentioned under Section 20 (2) of the Act for seeking relief of ejectment were taken. Additional JSCC, Allahabad dismissed the suit through judgment and decree dated 22-11-2000 by holding that plaintiff failed to prove existence of any ground for ejectment mentioned in the plaint. Against the aforesaid judgment and decree landlord respondent filed revision under Section 25 of PSCC Act being SCC Revision No. 1233 of 2000. The Revisional Court by order dated 9- 5-2001 allowed the revision and decreed the suit of the landlord respondent by holding that by virtue of amendment through which Section 2 (1) (bbb) was added in the Act the building in dispute was exempted from operation of the Act.

(2.) ACCORDING to the said Clause of Section 2 (1) of the Act nothing in the Act shall apply to any building belonging to or vested in Waqf including Waqf-Alul-Aulad. The said Clause was inserted by U. P. Act No. 5 of 1995 with effect from 26-9-1994. Before the Revisional Court no argument was raised by landlord respondent who was revisionist before Revisional Court, regarding findings of the Trial Court on the issues of default in payment of rent and material alteration etc. The only point argued before the Revisional Court was that Rent Control Act was not applicable by virtue of the aforesaid Clause (bbb ). Revisional Court also allowed the revision only on that ground by holding that the Act was not applicable and the notice of termination of tenancy was valid and the same was served upon the tenant.

(3.) LEARNED Counsel for the landlord respondent has very vehemently argued that in the release application which he had filed against the tenant petitioner under Section 21 of the Act, tenant- petitioner successfully asserted that Rent Contract Act was not applicable. On this assertion and plea the tenant won from the Trial Court as well as Appellate Court and the matter is pending in this Court in the form of Writ Petition No. 41362 of 2002. In this regard the legal position is quite settled, jurisdiction cannot be conferred by consent. The doctrine of approbate and reprobate cannot therefore be applied to the question of jurisdiction particularly when it is based upon pure question of law.