CHANDANI GUPTA Vs. KASTOORI DEVI AND ORS.

JUDGEMENT

(1.) This petition is directed against the orders passed by Courts below, whereby landlord's suit for eviction has been decreed. Petitioner, who is tenant of the premises in question, submits that the orders impugned are illegal, inasmuch as on the first day of proceedings of suit for eviction, tenant-petitioner has already deposited entire arrears of rent and other dues, for which notice under Section 106 of the Transfer of Property Act has been served upon her, and therefore, petitioner was entitled for grant of protection under Section 20(4) of U.P. Act No. 13 of 1972, and the suit for eviction could not have been decreed.

(2.) Substantiating this plea, learned counsel for the petitioner submits that after service of notice under Section 106 of the Act and during pendency of present proceedings, respondent-landlord initiated action for eviction citing personal need under Section 21(1)(a) of Act No. 13 of 1972, which was initially allowed, but the same was set aside in appeal, and aggrieved by the appellate Court, a writ petition No. 25616 of 2012 has been filed, in which a specific plea by the respondent-landlord has been set up that provisions of U.P. Act No. 13 of 1972 are applicable upon the premises. Learned counsel submits that respondent-landlord cannot be permitted to set up inconsistent plea and once he has pleaded that provisions of U.P. Act No. 13 of 1972 are applicable upon the premises in question, it is not open for respondent-landlord to take a contrary stand, and both the Courts below have erred in accepting such inconsistent plea. It is also submitted that petitioner-tenant has no other alternative accommodation, and therefore, aspect of comparative hardship was required to be examined, but the same has not been looked into.

(3.) Refuting the aforesaid submissions, learned counsel for the respondent-landlord submits that provisions of U.P. Act No. 13 of 1972 are not applicable upon the premises in question, inasmuch as building has been put to assessment for the first time in the year 1988, and therefore, by virtue of Section 2(2) of the U.P. Act No. 13 of 1972, provisions of the Act itself were not applicable. It is further submitted that filing of application under Section 21(1)(a) of the Act No. 13 of 1972 was a result of misconceived advise received by the landlord, after a plea had been set up by the tenant that provisions of Act No. 13 of 1972 are attracted. It is stated that landlord has already not pressed writ petition No. 25616 of 2012. Submission is that the plea set up by landlord cannot be said to be inconsistent. Once provisions of Act No. 13 of 1972 are not attracted, the issue of comparative hardship was not required to be examined, as it has been found that a notice under Section 106 of T.P. Act has been duly served, determining tenancy. Therefore, there is no error in the orders for eviction passed by the Courts below.