1. Heard, Sri Mohd. Shakeel, learned counsel for the petitioner and Sri P.S. Mehra,learned counsel for the respondents.
2. The petitioner has approached this Court by means of the present petition under Article 227 of the Constitution of India for setting aside judgment and order dated 05.02.2016(Annexure No.2) passed by the Prescribed Authority/II Add. Judge Small Causes Court no.18, Lucknow in P.A. Case No.10/2008(Smt. Shashi Srivastava & Another versus Ravi Ahuja), by means of which the case has been allowed and the judgment and order dated 17.09.2019 (Annexure No.1) passed by Additional District Judge/Special Judge(P.C. Act) No.9, Lucknow in Rent Appeal No.8/2016(Ravi Ahuja versus Rajeev Kumar and another), by means of which the appeal has been dismissed.
3. The brief facts of the case, for adjudication of the present petition, are that the respondents had purchased the land in dispute bearing House No. 289/323 measuring an area of 1000 sq. ft,Moti Nagar, P.S. Naka Hindola, Lucknow through registered sale deed dated 06.07.2000 from the previous owners and landlords, Smt. Sushila Devi, Hanuman Prasad, Satya Narain and Ram Narain. The entire first floor of the said house was in occupation of the petitioner, as a tenant, since before its purchase by the respondents. The respondents had moved an application under Section 21(1)(a) of the Act No.13 of 1972; Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act 1972(hereinafter referred to as the Act of 1972) on 19.01.2008 before the prescribed authority seeking release of the first floor of the house in question from the petitioner on the ground of their as well as their family's bonafide need. In the said application, the respondents had categorically averred that the petitioner had illegally occupied two rooms, store and some covered space on the ground floor, which was earlier in the tenancy of Nanku Ram and deemed vacant under provisions of Section 12 of Act of 1972. As such, the applicants had filed an application under 16(1)(b) of the Act of 1972 before the City Magistrate,Rent Control Lucknow.
4. The petitioner had filed a written statement on 24.04.2008 admitting that the respondents were the co-owners and landlords of the house in question and the petitioner was their tenant with respect to the entire first floor of the said house. He had also contended that apart from the first floor, two rooms on the ground floor were also in his tenancy. The averments made in the release application pertaining to bona fide need and comparative hardship were denied. After a long time, the petitioner had filed additional written statement on 24.01.2011, in which interalia it was averred by him that as per the sale deed dated 06.07.2000, the respondents had purchased only 350 sq. ft covered area which was situated on the ground floor and since the first floor of the house in question was not purchased by the respondents, the release application on their behest was not maintainable. The respondents filed their replication denying the averments made in the written statement and the additional written statement.
5. After considering the pleadings of the parties and the evidence adduced before it, the prescribed authority allowed the application by means of the judgment and order dated 05.02.2016 and directed to the petitioner to hand over the possession of the property under his tenancy to the respondents. The petitioner had filed an appeal which has been dismissed by means of the judgment and order dated 17.09.2019 by the Additional District Judge. Hence the present petition has been filed.
6. The first issue raised by learned counsel for the petitioner was that the petitioner is not the tenant of the respondents on the ground that the petitioner had filed a suit for permanent injunction, in which the respondents have filed written statement denying the relationship of the landlord and tenant between the petitioner and the respondents. It was vehemently denied and it was submitted that the petitioner has admitted his tenancy before the prescribed authority. The respondents purchased 1000 sq. ft. of House No.329/223, Moti nagar,P.S.Naka Hindola,Lucknow i.e. the property in dispute by means of registered sale deed dated 06.07.2000. The petitioner had filed a suit for permanent injunction on 01.09.2009 without impleading the respondents in the suit whereas the respondents had purchased the property under the tenancy of the petitioner also. Subsequently, the respondents were impleaded in the said suit and they had filed written statement stating therein that there is no relationship of landlord and tenant between the petitioner and the respondents. It was specifically mentioned in paragraph 3 of the written statement that the defendants no.1 to 4 have not informed to the respondents about the tenancy of the plaintiff, i.e., the present petitioner. Therefore it appears that the said plea was taken due to lack of knowledge as it was not informed to the respondents by the sellers.
7. In the proceedings under Section 21(1)(a) of the Act of 1972 before the prescribed authority, a plea has specifically been taken in paragraph 3 that the petitioner is the tenant of the applicants i.e. the respondents on the first floor. It comprises of one big room, one store and kitchen, two verandahs, and one half store and terrace. The petitioner in his written statement has admitted in paragraph 4 of the written statement that the answering opposite party i.e. the petitioner is tenant of entire first floor portion of the property in question alongwith two rooms on the ground floor in the aforesaid building on a monthly rent of Rs.85/-.In the written statement it has been admitted in paragraph 6 that the opposite party is the legal tenant of House No289/323,Moti Nagar, P.S. Naka Hindola, Lucknow of entire first floor. It has further been admitted in paragraph 10 and 18 of the written statement. The petitioner himself filed his affidavit of evidence. In the said affidavit also, the petitioner had not denied the tenancy. It has further been stated that the respondents have got released the ground floor of the house under Section 16(1)(b) of the Act of 1972 in Case No.57/62/116/210. Therefore the petitioner himself has admitted the tenancy.
8. It is a settled proposition of law that the admission is the best piece of evidence. Once the petitioner admitted the tenancy, the contention of learned counsel for the petitioner is misconceived and not tenable and liable to be rejected. The findings recorded by the prescribed authority and the appellate authority in this regard does not suffer from any illegality or error.
9. The Hon'ble Supreme Court in the case of Union of India versus Ibrahim Uddin; (2012) 8 SCC 148 has held that the admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.
10. The Hon'ble Supreme Court in the case of Udham Singh versus Ram Singh and another;(2007) 15 SCC 529 has held that admission is the best evidence against the person who is said to have made it.
11. The next issue raised by learned counsel for the petitioner was that the respondents have purchased only a part of the portion of House No.289/323, Moti Nagar, P.S. Naka, Lucknow and the portion under the tenancy of the petitioner does not fall in the said portion because he had purchased only 1000 sq. ft in which 350 sq. ft at ground floor is the covered area and the first floor has not been purchased by him. It was vehemently denied by learned counsel for the petitioner and it was submitted that the portion in the tenancy of petitioner was also included in the portion purchased by the respondents. The boundaries of the area purchased by the respondents has been given in the sale deed executed in favour of the respondents. The petitioner has not denied the boundaries of the area purchased by the respondents given in the sale deed. The petitioner is not party to the sale deed and he is also not claiming himself to be the owner of the house. Therefore he has no right of questioning the sale deed. This Court also does not find that only the lower portion was purchased by the respondents. The petitioner has also failed to demonstrate that the portion in his tenancy is not included in 1000 sq. ft. purchased by the respondents. Therefore the contention of learned counsel for the petitioner is mis-conceived and not tenable. The prescribed authority has also recorded a categorical finding that the contention of learned counsel for the petitioner is not tenable.
12. The next contention submitted by learned counsel for the petitioner was that there was no bona fide need of the petitioner as the petitioner has also got released the portion of the house which was earlier in the tenancy of Nanku Ram is mis-conceived and not tenable. The respondents have shown in their application under Section 21(1)(a) that the respondents i.e. the husband and wife, their two daughters, who are studying in M.A. and M.B.A. respectively and one son studying in Class 11 are residing in the said house. They have only room in the basement which is used as godown and two rooms of average size, kitchen and small verandah on the ground floor, which have fallen short and insufficient for the increased growing family members of the respondents. Therefore they need the portion under the tenancy of the petitioner as their growing children require one room each. One room is required for entertaining the visitors, one room for the guests and tutor room. The petitioner had unauthorizedly occupied the portion of the ground floor earlier in the tenancy of Nanku Ram. The respondents had filed application for release of the said portion and the city Magistrate passed an order on 03.04.2012, whereby the portion on the ground floor of the house in question, illegally occupied by the petitioner was released in favour of the respondents. It was only after the petitioner contested it upto the Hon'ble Supreme Court and after passing of the order by the Hon'ble Supreme Court,he had vacated the said portion and handed over it to the respondents. The said portion is not sufficient looking to the need of the respondents. The petitioner has not denied the number of family members of the respondents and he could also not deny the need of the respondents. He has only taken a plea that the suit has been filed only to get the possession and enhancement of rent. Therefore the petitioner has not denied the bonafide need of the respondents and he has also failed to show that the respondents have any other space in the city of lucknow, which is available for them. Therefore, this Court is of the view that the respondents have successfully proved their case and bonafide requirement of the portion, in the tenancy of the petitioner.
13. Section 21(1)(a) of the Act of 1972 provides that the prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust. Therefore, the application of the respondents has rightly been allowed by the prescribed authority and the appeal filed by the petitioner has also been dismissed in accordance with law.
14. The next issue raised by learned counsel for the petitioner was that the petitioner had moved an application for spot inspection on 23.05.2014 for ascertaining the truth, which was dismissed by means of the order dated 23.08.2014 with the observation that after adducing the entire evidence of the parties, if this Court finds that local inspection is necessary then appropriate order will be passed but thereafter without passing any order in pursuance of the order dated 23.06.2014 and ascertaining the real truth of relationship of landlord and tenant and extent of accommodation whether covered from sale deed or not, the learned trial court allowed the release application. It was vehemently opposed by learned counsel for the respondents and it was submitted that subsequently, the petitioner had moved an application for local inspection before prescribed authority and then before appellate authority, which were dismissed. The petitioner had approached this Court and the writ petition was also dismissed but all these facts have not been disclosed in the present petition. Therefore it suffers from material concealment of facts and taking a false plea.
15. The petitioner had filed an application for local inspection on 23.05.2014. The said application was rejected by means of the order dated 23.08.2014 on the ground that the respondents had filed their evidence long back and inspite of last opportunity being given for filing his evidence, the petitioner failed to file the same. Instead he moved an application for spot inspection. The prescribed authority held that the petitioner cannot be permitted to collect the evidence by local inspection and after the evidence of the petitioner was over, if need be, appropriate orders of local inspection may be passed.
16. The petitioner moved another application on 19.09.2014 for local inspection. After filing of the objection by the respondents, the said application was also rejected by means of the order dated 17.04.2015. During pendency of the appeal the petitioner had again moved an application for inspection on 14.03.2016, which was rejected by means of the order dated 28.10.2016. The petitioner challenged the same before this Court in petition Rent Control No.28539 of 2016(Ravi Ahuja versus Rajeev Kumar & Anr.).The said petition was dismissed by the judgment and order dated 18.04.2018 upholding the order passed by the apppellate authority on the application for inspection on 28.10.2016. Therefore this issue was final between the parties and is not considerable in this petition. However the petitioner has not disclosed all these facts in this petition and tried to allege that prescribed authority has allowed his release application without complying its own order dated 24.04.2014 passed on the application of the petitioner for local inspection. Therefore this Court is of the view that the present petition suffers from material concealment of fact and infact taking a false plea which is not available to the petitioner.
17. This Court is of the view that doors of justice will be closed for a litigant whose case is based on false or suppression of material facts. Fraud and justice never dwell together. They are opposite to each other. Concealment and suppression of material facts is nothing but a fraud to obtain the order in his favour. It is a settled proposition of law that one who has not come with clean hands is not entitled for any relief. Therefore on this ground itself the petitioner is not entitled for any relief or interference by this Court.
18. The Hon'ble Supreme Court in the case of M/S S.J.S. Business Enterprises vs State Of Bihar And Ors; MANU/SC/0236/2004 / (2004) 7 SCC 166 has held that as a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it.
19. The Hon'ble Supreme court in the case of Commissioner of Customs Versus Aafloat Textiles India Pvt. Ltd. others; (2009) 11 SCC 18, has held that suppression of a material document would also amount to a fraud on Court. The Hon'ble Supreme Court, in the case of S.P.Chengalvaraya Naidu (Dead) by LRs Versus Joganath (Dead) by LRs and others; (1994) 1 SCC 1, has held that "fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago and a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law.
20. In view of above, this Court is of the considered view that the impugned orders have rightly been passed by reasoned and speaking orders after considering the pleadings of the parties and evidence on record. There is no illegality or error in the impugned orders. The petition is misconceived, lacks merit and suffers from material concealment and taking false plea. It is liable to be dismissed with cost.
21. The petition is, accordingly, dismissed with a cost of Rs.20,000/-.
22. The petitioner shall vacate the portion in his tenancy and hand over it to the respondents alongwith the aforesaid cost of Rs.20,000/- within a period of six weeks from today.