DHARAMJEET KAUR Vs. RAKESH KUMAR RASTOGI

JUDGEMENT

(1.) SANJAY Misra, J. The respondent No. 1 herein is the landlord of flat No. 10 forming part of house No. 118/181 Kunj Bihari, Kaushalpuri, Gomti No. 5, Kanpur Nagar. The said flat is in the tenancy of the petitioner who has succeeded from her late husband. The respondent No. 1 is living in an ancestral house No. 74/142 Dhankutti, Kanpur with his parents and other co-sharers of the Hindu Undivided Family where a family partition took place by virtue of an award of arbitrator in the year 1984. The father of respondent No. 1 was allotted certain share in the ancestral house and the respondent No. 1 was allotted the flat in question. However, respondent No. 1 continued to live with his father and moved an application under Section 21 (1) (a) of U. P. Act No. XIII of 1972 on 12-7-1996 for release of the flat in question in his favour. The matter was contested before the prescribed authority and a report of the Advocate Commissioner dated 5-3- 1998 was also obtained. The prescribed authority rejected the release application of respondent landlord mainly on the ground that he had a share in the ancestral house and, therefore, he cannot be said to be living with his father as a licensee. Feeling aggrieved, the respondent landlord filed Rent Appeal No. 99 of 1999 under Section 22 of the Act which has been allowed by the lower appellate Court by the judgment and order dated 17-5- 2000. The tenant has challenged the said judgment and order by means of this writ petition.

(2.) PLEADINGS of the parties have been exchanged in the form of affidavits.

(3.) LEARNED Counsel for the petitioner has placed reliance upon a decision of the Hon'ble Supreme Court in the case of Smt. Raj Rani Mehrotra v. II Addl. District Judge and Ors. , reported in 1980 ARC page 311, and has contended that when the plea of Rule 16 (1) (d) was raised before the High Court then even if it was not raised before the Court below the same should be considered or if evidence is required the matter should be remanded back to the trial Court for leading fresh evidence.