MOHD. DAUD Vs. KAMAR JAHAN

JUDGEMENT

(1.) THE Petitioner is a tenant of a portion of house No. 105/120 Mohalla Chamanganj, Kanpur. The house belongs to the first Respondent, Shrimati Kamar Jahan, who resides in the remaining portion of the house. She moved an application under Section 3 of the U.P. (Temp.) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Act) for permission to file a suit for ejectment of the Petitioner on the ground that she needed the accommodation in possession of the Petitioner for her own personal use. This application was rejected by the Rent Control and Eviction Officer on 22nd June, 1971 and her revision petition was also rejected by the Commissioner, Allahabad Division, Allahabad on 20th January, 1972. Both these authorities held that her need was not greater than that of the tenant (Petitioner) and, as such, she was not entitled to eject him. On coming into force of U.P. Act No. 13 of 1972, the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 she again applied for a similar permission under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the new Act). Relying upon Explanation 4 to Section 21(1) the Prescribed Authority held that the need of the landlady shall be presumed to be genuine. He also rejected the objection of the Petitioner on the ground of want of proper verification. There was an appeal to the 3rd Respondent, the Second Additional District Judge, Kanpur. He held that the objection of the Prescribed Authority with regard to the proper verification of the Petitioner's pleadings was not a good ground for rejecting the Petitioner's objection. He, however, came to the conclusion that having regard to Explanation 4 to Section 21 of the New Act, Shrimati Kamar Jahan, the landlady was entitled to succeed. The Petitioner is aggrieved and has approached this Court under Article 226 of the Constitution.

(2.) IT is not disputed that the landlady's application under Section 3 of the old Act had earlier been rejected by the Rent Control and Eviction Officer as also by the Commissioner, Allahabad on the finding that her need was not greater than that of the tenant (Petitioner). This fact was mentioned by the land -lady herself in her application under Section 21 of the new Act and has been noticed by the Prescribed Authority. Before the Additional District Judge specific plea was taken that in view of Rule 18 of the Rules framed under the New Act, a second application for permission to file a suit against the Petitioner could not be entertained for a period of six months from the date of the commencement of the new Act. Admittedly the application under Section 21 moved by Shrimati Kamar Jahan, was within a period of six months from the date of the commencement of the new Act. The learned Second Additional District Judge, Kanpur, however, over -ruled this objection on the view that Rule 18 embodied a plea of res -judicata and, as such a plea had not been specifically raised the same should be deemed to have been waived by the Petitioner. He, therefore, refused to place reliance upon Rule 18.

(3.) SECTION 21 of the new Act enumerates the grounds upon which the Prescribed Authority may order the eviction of a tenant. Clause (a) provides that a Prescribed Authority may order the eviction of a tenant from a building which is bonafide required by the landlord for his own occupation. Explanation 4 then embodies a presumption that: