1. Heard Shri Arpit Agarwal, learned counsel on behalf of the petitioner and Shri Dinesh Pathak, learned counsel for the respondent.
2. This writ petition has been filed under Article 226 of the Constitution of India challenging the orders dated 26.02.2015 passed by the Prescribed Authority/Additional Chief Judicial Magistrate, Court No. 1, Pilibhit in P.A. Case No. 15 of 2012 (Thakur Murli Manohar Ji Maharaj Viraajman Mandir vs. Vinod Kumar) and order dated 07.03.2018 passed by the learned District Judge, Pilibhit in P.A. Appeal No. 05 of 2015 (Vinod Kumar vs. Thakur Murli Manohar Ji Maharaj Viraajman Mandir).
3. On the basis of the pleading on record it is evident that the respondent-landlord had initially filed a S.C.C. Suit No. 10 of 2004 (Thakur Murli Manohar Ji Maharaj vs. Krishna Avatar) praying for eviction of the tenant Krishna Avatar, the father of the petitioner herein before the Small Causes Court/Civil Judge (Junior Division), Pilibhit. The landlord had prayed for a decree of eviction as well as arrears of rent @ Rs.1377.68 per month w.e.f. 20.09.2004 to 08.10.2004 and also for damages @ Rs.20/- per day till the date of giving of peaceful and vacant possession of the property in dispute.
4. It was submitted by the landlord, who was the plaintiff in the aforesaid S.C.C. Case No. 10 of 2004 that the plaintiff was a public charitable trust/public religious institution and, therefore, U.P. Act No. 13 of 1972 would not apply. The defendant-Krishna Avatar had not given rent w.e.f. 01.12.1987 onwards. A notice was issued to him under Section 106 of the Transfer of Property Act on 19.08.2004 demanding arrears of rent and determining the tenancy. Krishna Avatar refused to pay up or to vacate the premises, hence the need arose to file the S.C.C. Suit.
5. The petitioner's father, who was initially arrayed as defendant in the S.C.C. Suit was later on substituted by the petitioner and his mother Vimla Devi. The defendants raised a preliminary objection regarding the maintainability of the suit. It was contended that the disputed property although belongs to the Mandir Thakur Murli Manohar Ji Maharaj (herein after referred to as the 'Temple'). The Temple itself was not a public charitable trust nor a public religious institution. It was a private Temple for which a Gift Deed had been executed in the year 1889 by one Munna Lal s/o. Girdhari Lal r/o. Mohalla Bhainsbhand, District Pilibhit. Munnalal had gifted all his properties to the Temple and founded a Trust for its management. Munnalal continued to be the Manager of the said Trust till his death and thereafter his brother managed the property and thereafter his nephew. It was a private Temple and, therefore, not exempted from the application of U.P. Act No. 13 of 1972. It was also alleged that the house/shop in dispute being built before the cut off date as mentioned in the deed was governed by the U.P. Act No. 13 of 1972. Therefore, the S.C.C. Suit was not maintainable. Evidence was led by both the parties. The tenant filed a copy of the Gift Deed of 1889 and also a copy of a Will of 1948.
6. The landlord also led evidence and stated that the Temple was a public property, it was being run on donations given by the public, it was situated adjacent to a public road, it remain opened on all 365 days in a year from 8:00 a.m. onwards and there was no restriction on devotees coming to the Temple and offering puja/archana and, therefore, it could not be held to be a private Temple.
7. The learned Small Causes Court framed 06 issues for decision of the S.C.C. Suit. The first such issue was "whether the property in dispute was amenable to the provisions of U.P. Act No. 13 of 1972." Since the first issue related to a jurisdictional fact, all other issues arising out of non-payment of arrears of rent or alleged material alteration by the tenant of the property in dispute or the user of the disputed property for purposes other than the one for which it was leased out were secondary issues.
8. After considering evidence led by the plaintiff and the defendant the learned Small Causes Court came to the conclusion that the temple was a private religious institution and not a public charitable trust or public religious institution.
9. The property in dispute not being a building or vested in public charitable trust or public religious institution, it was not covered under the exemption clause of U.P. Act No. 13 of 1972 under Section 2 (1) (bb). The Court referred to the judgment cited by the defendant namely Radha Kant Deo vs. Commissioner of Hindu Religious Endowment, AIR 1981 SC 798 and the judgment of this Court following Radha Kant Deo namely Ram Dulare vs. IVth Additional District Judge, Varanasi & Others reported in 1996 (2) ARC 459.
10. It also referred to the fact that the management of the Temple and its properties remained in the hands of one family only and no Management Committee or Trust was ever formed by the original owner of the Temple, after gifting his property to the deity.
The decree of the Small Causes Court in SCC Case No. 10 of 2004 was challenged in Appeal. However, the appeal was also dismissed.
11. The landlord thereafter filed a Release Application under Section 21 (1) (A) of the U.P. Act No. 13 of 1972 registered as P.A. Case No. 15 of 2012 before the Prescribed Authority/Additional Chief judicial Magistrate, Pilibhit. The landlord stated in the application that the property in dispute was required by the temple for construction of a Satsang Hall and an Atithi Grih. The landlord was a religions institution and it needed the property in dispute to celebrate religious functions for the benefit of the public at large. The landlord had sufficient means to carry out fresh construction after demolishing the disputed property and there were other devotees in the neighbourhood who were willing to make donations so that Satsang Hall and Atithi Grih are constructed for the use of public at large.
12. The petitioner-defendant filed objections that the provisions of the Act No. 13 of 1972 are not applicable to the property in dispute besides there were no bona fide need of the said house as there existed vacant property within the Temple premises itself which could sufficiently cater to the need of the Mandir. The petitioner-tenant referred to the registered Gift Deed made out by Munnalal s/o. Girdhari Lal giving all his property to the deity and creating a Trust as a public religious trust under the provisions of Hindu Religious Endowment Act.
13. After exchange of pleadings the landlord led evidence and filed affidavits in support of his application by at least 05 persons of the locality. The petitioner-tenant also filed affidavit of himself and 02 other persons of the locality and also filed a copy of the trust deed dated 14.03.1889 registered on 23.03.1989 and the Will dated 24.11.1948.
14. The petitioner-tenant also filed a certified copy of the application of the respondent-landlord filed in P.A. Case No. 24 of 2011 (Thakur Murli Manohar Ji Maharaj vs. Sushma w/o. Ramesh Chandra) and the affidavit filed in support thereof and copy of the ex parte decree dated 15.03.2012.
15. The affidavit of Rameshwar Dayal, the Manager of the Temple in S.C.C. Case No. 10 of 2004 stated that the Temple was a public religious institution and, therefore, exempted under the provisions of U.P. Act No. 13 of 1972. It was alleged by the petitioner-tenant that the landlord could not resile from the affidavit filed in S.C.C. Case No. 10 of 2004.
16. The Prescribed Authority allowed the Release Application filed by the respondent-landlord by his order dated 26.02.2015. The petitioner-tenant being aggrieved filed P.A. Appeal No. 05 of 2015 which was also rejected by the learned District Judge, Pilibhit on 07.03.2018.
17. This writ petition has, therefore, been filed challenging both the orders on the ground that the Temple is a public religious trust and the disputed property is exempted from the applicability of the Act. The Prescribed Authority had no jurisdiction to entertain the application for Release and it committed a grave error in law in applying the principle of res judicata and estoppel. The Prescribed Authority also erred in law in adjudicating the issue no. 1 with regard to applicability of the Act on the basis that the petitioner had deposited rent under Section 30 of the Act in the Court. It has been submitted that mere deposit of rent under Section 30 of the Act does not make the provision of the Act applicable to the building.
18. It has also been submitted that the landlord had got a house released in his favour on 15.03.2011 in P.A. Case No. 24 of 2011 for construction of residence of Pujari and Satsang Hall but till date no construction over the same was done by the landlord, although there was sufficient space available for construction of Satsang Hall after construction of residence of Pujari in the already vacated premises. The landlord had alternative accommodation/properties for fulfilling the need as disclosed in the Release Application.
When the present writ petition came up as fresh for hearing, a Caveat had been filed on behalf of the landlord by Shri Dinesh Pathak and he was also heard.
19. Learned counsel for petitioner while raising a challenge to the judgment and order dated 26.02.2015 passed by learned Prescribed Authority/Additional Chief Judicial Magistrate, Court No. 1, Pilibhit in P.A. Case No. 15 of 2012 and the judgment and order dated 07.03.2018 passed by learned District Judge, Pilibhit in P.A. Appeal No. 5 of 2015 has submitted before this Court that both the learned Courts below have decided the issue of applicability of U.P. Act No. 13 of 1972 to the premises in question on the basis of principle of res judicata.
20. The petitioner is living in the house in question and also running a shop therein which was taken on rent by his father from the then Sarvarakar of the Mandir. The respondent Temple filed SCC Suit No. 10 of 2004 for eviction of the petitioner-tenant on the grounds of default in payment of rent. The petitioner took an objection that the SCC Suit was not maintainable as the tenanted premises were covered under the U.P. Act No. 13 of 1972. The learned Judge, Small Causes Court had decided the issue against the landlord and held that provisions of the U.P. Act No. 13 of 1972 shall apply and Suit was dismissed on the ground of maintainability alone. Against the aforesaid judgment of Judge, Small Causes Court a SCC Revision was filed, which SCC Revision was also rejected. The findings returned by the SCC Court and the Revisional Court with regard to the applicability of the U.P. Act No. 13 of 1972 have been treated to be binding on the petitioner on the principle of res judicata in the judgements impugned.
21. The learned counsel for petitioner has submitted that under Clause (bb) to Section 2(1) application of the Act is exempted on any building belonging to or vested in a public charitable or public religious institutions. He has read out several passages of the plaint and written submission and the replication filed thereafter on behalf of the parties to submit that the plaintiffs had admitted that the Temple is a public institution and is connected with religious feelings/faith of public at large. Moreover, the property in question was to be vacated for a public need i.e. for establishment of a Dharamshala/rest house as well as residential accommodation for Pujari and a Prayer Hall. The need was public and the institution was also public as has come out in the plaint and the replication and in other affidavits filed by the parties before the learned Courts below.
22. The learned counsel for petitioner has submitted that the principle of res judicata as applied by learned Courts below could not have been applied. As per Section 11 of the C.P.C. a finding on an issue in a suit between the same parties or between the parties under whom any of them claims under the same title shall not be tried in a court competent to try such subsequent suit which issue has been previously raised and has been heard and has been finally decided by such Court. According to the learned counsel for the petitioner the Explanation under Section 11 also makes it clear that a finding recorded in an earlier litigation shall not be reopened in a later litigation between the same party or the parties contesting under the same title, only if the court which tried the earlier Suit is competent to try the later suit. In this case the SCC Court was admittedly incompetent to try the Rent Control Case filed under the U.P. Act No. 13 of 1972 before the Prescribed Authority.
23. The learned counsel for petitioner has also referred to a judgment of the Hon'ble Supreme Court in Smt. Isabella Johnson Versus M.A. Susai, AIR 1991 SC 993 wherein a three Judges Bench decision in Mathura Prasad Bajoo Jaiswal and Ors. Vs. Dossibai N.B. Jeejeebhoy reported in (1970) 3 SCR 830 has been relied upon to observe that for the principles of res judicata to be applicable a Court which has no jurisdiction in law cannot be conferred with jurisdiction by applying the said principle. There can be no estoppel on a pure question of law and it was argued that in this case question of jurisdiction being a pure question of law the principles of res judicata would not apply.
24. Learned counsel for the petitioner has also placed reliance upon a judgment rendered by the Supreme Court in Smt. Marua Dei Alias Maku and Others Vs. Murlidhar Nanda and Others reported in AIR 1999 SC 329 wherein the judgment rendered by the Supreme Court in Radha Kant Deo Versus Commissioner of Hindu Religious Endowment reported in AIR 1981 SC 798 which has been relied upon by the learned Courts below, has been considered and the Hon'ble Supreme Court has upheld the findings of fact recorded by the High Court in the judgment impugned before it with regard to the Temple in question being public religious institution.
25. The learned counsel for respondents, Shri Dinesh Pathak, on the other hand, has pointed out from the orders impugned that the principles of res judicata would certainly apply as in the earlier SCC Suit and SCC Revision filed by the Temple for eviction of the petitioner herein he had taken a plea that the Temple in question is a private religious institution and not a public religious institution and therefore, not exempted from the operation of U.P. Act No. 13 of 1972. Shri Dinesh Pathak, therefore, submits that the petitioner cannot now be allowed to approbate and reprobate as the SCC Suit and Revision were dismissed on his plea of U.P. Act No. 13 of 1972 being applicable to the temple properties, the Rent Control Case has, therefore, been filed before the Prescribed Authority namely PA Case No. 15 of 2002.
26. The learned counsel for the respondents has also disputed the submissions made by the learned counsel for the petitioner with regard to the language of Section 11 of C.P.C. and its interpretation by the counsel for petitioner.
27. The counsel for petitioner, on the other hand, in rejoinder has submitted that the defendant can and will take all pleas even contradictory ones and there is no bar for the defendant raising a contradictory plea. It is on the plaintiff that the responsibility rests for establishing that the suit or rent control case has been filed before the Court of competent jurisdiction. He has also submitted that if a case is decided in his favour and a finding comes against him then in a subsequent case, for example, in this case, the finding recorded by the Judge, Small Causes Court and the Revisional Court regarding the temple being a public religious institution, cannot be held to debar the tenant from subsequently raising such an issue because it is a pure question of law and not a mixed question of fact and law as held by learned Courts below.
Having heard the learned counsel for the parties and having gone through the judgment and orders impugned, this Court finds that for deciding the controversy raised in this writ petition, the applicability or otherwise of the principle of res judicata will have to be considered by this Court. The landlord had claimed the applicability of the Act solely on the basis of the judgment passed by the learned Small Cause Court in S.C.C. Case No. 10 of 2004 decided on 12.11.2004.
28. The learned counsel has referred to Section 11 of the Code of Civil Procedure to buttress his argument. Section 11 along with its explanations is being quoted herein below :-
"11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanations :-
Explanation I. The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II. For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V. Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI. Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII. The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII. An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
29. It has been argued that the principle of res judicata would be applicable only if the decision/judgment is that of a Court in the former suit which is competent to try the subsequent suit. It has also been argued that the decision of the earlier S.C.C. Case cannot be applied as res judicata for the reason that the S.C.C. Court which has adjudicated the former suit is incompetent to adjudicate the subsequent suit and several judgments of the Hon'ble Supreme Court have been referred to argue that where there is an inherent lack of jurisdiction for trying an issue, the judgment/order rendered by a Court without jurisdiction is a nullity in law and will not act as res judicata.
30. In the written submission given by the learned counsel for the petitioner-tenant, reference has been made to the judgments of the Hon'ble Supreme Court in Sushil Kumar Mehta vs. Gobind Ram Bohra reported in (1990) 1 SCC 193 and in Smt. Isabella Johnson vs. M.A. Susai reported in AIR 1991 SC 993. Besides the judgment rendered by the Hon'ble Supreme Court in Chief Justice of Andhra Pradesh And Another vs. I.V.A. Dikshituli And Others reported in 1979 (1) SCR 26 and in Ramnik Vallabhdas Madhvani vs. Taraben Pravinlal Madhvani reported in 2004 (1) SCC 497.
31. It has been argued that the matter in issue between the parties may be the same and the parties may be the same but the previous Court was incompetent to try the later suit and, therefore, its finding on the particular issue would not amount to res judicata in the subsequent case.
32. I have considered the law as laid down in the afore-cited judgments.
33. There is no dispute that an order passed without jurisdiction is a nullity in law and would not amount to res judicata in a subsequent suit before a Court of competent jurisdiction.
34. Res judicata has been explained by the Hon'ble Supreme Court in several decisions rendered by it including the decisions cited before this Court. Res judicata means 'a thing adjudicated' i.e. an issue finally settled by a judicial decision. The Code of Civil Procedure deals with res judicata in Section 11. On an analysis of the provisions of Section 11, the following essential requirements need to be fulfilled to apply the bar of res judicata on any suit or issue :-
(a) The matter must be directly and substantially in issue in the former suit and in the later suit.
(b) The prior suit should be between the same parties or persons.
(c) Parties should have litigated under the same title in the earlier suit.
(d) The matter in issue in subsequent suit must have been heard and finally decided in the first suit.
(e) The Court trying the former suit must have been competent to try the particular issue in question.
35. In the SCC Case No. 10 of 2004 the issue that was raised specifically and decided by the learned Civil Judge (Junior Division) was whether the property in dispute belonged to a temple which was a public charitable trust or a public religious institution or it belonged to a temple which was a private religious institution.
36. At the time when the said issue was raised before the SCC Court it was certainly competent to decide the issue after leading of evidence by both the parties for and against it. The issue once decided however, has led the petitioner-defendant arguing before this Court that since the learned SCC Court has held that the property was amenable to provisions of U.P. Act No. 13 of 1972, it amounted to the learned Trial Court holding that it had no jurisdiction to try the issue itself. This interpretation though ingenious is a perverse interpretation to say the least.
37. The learned SCC Court was not deciding whether it had jurisdiction to try the issue raised before it. It was deciding whether the property in dispute was amenable to the provisions of U.P. Act No. 13 of 1972 so that the plaintiff may be directed to approach the Prescribed Authority under the Act. The finding on the issue having been rendered after leading of evidence by both the parties will act as an estopple in all further proceedings before any other Court.
38. This Court in writ jurisdiction cannot allow a litigant to approbate and reprobate at the same time. The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of the C.P.C. In this respect the observations of the Hon'ble Supreme Court in Satyadhyan Ghosal vs. Deorajni Debi reported in AIR 1960 SC 941 relied on in UPSRTC vs. State of U.P. & Others reported in (2005) 1 SCC 444 are apposite. In Paragraph 7 of Satyadhyan Ghosal vs. Deorajni Debi (Supra) the Supreme Court has observed thus :-
"7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What is says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. The principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct."
39. The findings regarding the character of the property in dispute and the character of the temple was challenged by the landlord-respondent in Revision which was also dismissed by the learned Revisional Court. It became final between the parties. It was not a pure question of law as referred to in the judgment in Mathura Prasad Baju Jaiswal vs. Dossibai N.B. Jeevohy reported in 1970 (1) SCC 613.
40. It was a finding on the mixed question of law and fact. The fact regarding a gift deed registered in the year 1889 and the running of the temple out of funds provided by a single family were findings of fact and not purely a question of law. The issue was heard and finally decided by the Court trying such suit. It was a jurisdictional fact and once it was decided by the Court, it became final between the parties.
41. Even otherwise this Court sitting in writ jurisdiction would not interfere in such an order which does substantial justice between the parties. It is well settled that the jurisdiction of the High Court under Article 226 of the Constitution of India is equitable and discretionary. The power under that Article can be exercised by the Court "to reach injustice where-ever it is found."
42. In Veerappa Pillai vs. Raman & Raman Ltd. reported in AIR 1952 SC 192 a Constitution Bench of the Hon'ble Supreme Court has held that under Article 226 of the Constitution of India, the High Court could issue a writ in "grave cases where the subordinate tribunals or bodies or officers are at wholly without jurisdiction or in excess of it or in violation of principles of natural justice or refuse to exercise a jurisdiction or there is an error apparent on the face of the record and such act, omission, error or excess has resulted in manifest injustice".
43. In the case of Sangram Singh vs. Election Tribunal, Kota reported in AIR 1955 SC 425 dealing with the scope of writ jurisdiction it was observed by the Hon'ble Supreme Court thus :-
"that however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not and should not act as Court of Appeal under Article 226 of the Constitution of India. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense."
44. The Prescribed Authority in this case rightly held that the tenant having once raised the defence of the property in dispute belonging to a private religious temple and not to a public charitable or religious institution, could not now resile from his own contention.
45. The Trial Court had found that there was no trustee appointed and there was a gift deed in existence. The temple was not functioning as public charitable trust, it was being run by a particular family. Such finding was a factual finding recorded by Civil Judge (J.D.).
46. At the stage of appeal against the order of the Prescribed Authority also the learned District Judge, Pilibhit considered the judgments cited by the learned counsel for the petitioner-tenant regarding the temple being a private religious institution or a public religious institution and came to a conclusion that the finding of the Trial Court and the Revisional Court had not been challenged further and thus attained finality.
47. The learned District Judge has referred to the judgment of the Hon'ble Supreme Court in the case of State of Karnataka vs. All India Manufacturers Organisation & Others reported in (2006) 4 SCC 683 where it has observed that "Res judicata is a doctrine based on the larger public interest and is founded on two grounds: one being the maxim nemo debet bis vesari pro una et eadem causa ('No one ought to be twice vexed for one and the same cause") and second, public policy that there ought to be an end to the same litigation. It is well settled that Section 11 of the Civil Procedure Code, 1908 is not the foundation of the principle of res judicata, but merely statutory recognition thereof and hence, the Section is not to be considered exhaustive of the general principle of law. The main purpose of the doctrine is that once a matter has been determined in a former proceeding, it should not be open to parties to re-agitate the matter again and again. Section 11 CPC recognises this principle and forbids a court from trying any suit or issue, which is res judicata, recognising both "cause of action estoppel" and "issue estoppel".
48. The learned Appellate Court had also considered the arguments raised by the learned counsel for the petitioner that the finding of the SCC Suit was based on erroneous exercise of jurisdiction and rule of res judicata would not apply. The Court considered the judgment relied upon by the appellant in Mathura Prasad Baju Jaiswal (supra) and referred to the observations made by the Hon'ble Supreme Court in paragraph 10 that it is only a pure question of law which may not act as res judicata in a subsequent litigation between the same parties. However, a mixed question of law and fact like that which was raised and decided regarding whether the property in question belonged to a temple which was a private or public religious institution was rendered after appreciation of evidence and in Mundari Lal vs. Shushila Rani reported in 2007 (6) ALJ 357, the Hon'ble Supreme Court considered the position of mixed question of fact and law and in a similar situation had held that the question of applicability of Section 2(2) of the Act No. 13 of 1972 involves a mixed question of law and fact and refused to interfere in the finding recorded after appreciation of available evidence.
49. In the case in hand the learned SCC Court after appreciating evidence available on record and observations of the Supreme Court in Radhakant Dev vs. The Commissioner of Hindu Religious Endowment, Orissa reported in AIR 1981 SC 798 decided that the respondent-landlord was a private religious institution. Such a finding was affirmed in revisional jurisdiction.
50. Consequently, on facts and on appreciation of the position in law, the learned District Judge, Pilibhit had held in the judgment dated 07.03.2018 that such a finding should not be re-opened again and the temple once declared a private religious institution remained of the same character and, therefore, was not outside the applicability of U.P. Act No. 13 of 1972.
51. With regard to the arguments raised by the learned counsel for the petitioner that even contradictory pleas can be taken by the defendant as the bar to taking contradictory pleas is only for the plaintiff, it is settled law that the defendant can make variation in pleadings at a later stage and also lead evidence in the same suit in the case of changed circumstances. Fresh pleadings can be incorporated by way of amendment of pleadings and not otherwise in the same suit.
52. In Usha Balashaheb Swami & Others vs. Kiran Appaso Swami & Others reported in 2007 (5) SCC 602, the Hon'ble Supreme Court held that Order 16 Rule 17 CPC permits the Court to allow at any stage of proceedings, alteration and amendment of pleadings if it is of the view that such amendment may be necessary for determining the real question in controversy between the parties. The Courts are usually liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment not a bona fide one. A prayer for amendment of the plaint and a prayer for amendment of the written statement stands on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute the cause of action or the nature of plaint applies to amendments to the plaint. It has no counterpart in the principle relating to amendment of the written statement. In a case of amendment of a written statement the Courts would be more liberal in allowing the application than that of a plaint as the question of prejudice would be far less in the former than the latter. Hence, addition of a new ground of defence or substituting or altering a defence or taking in-consistent pleas in a written statement can be allowed as long as the amended pleadings do not result in causing grave and irretrievable prejudice to the plaintiff or displacing him completely, nor by seeking amendment to the written statement would it be open to a party to wriggle out of an admission as admission is a material piece of evidence which would be in favour of a person who would be entitle to take addition of that admission. However, the admission can be explained and it would be permissible to add a rider and/or proviso thereto while keeping the admission intact.
53. It is evident from the pleadings on record that the tenant at first took the plea of applicability of the Rent Control Act when SCC Suit was filed by the landlord saying that the temple in question was a private temple. The Judge, Small Causes Court, on examination of evidence and after considering the pleadings of the landlord, came to a conclusion that it was not a public religious institution and the property belonged to a private temple. The finding recorded by the Small Causes Court shall be binding upon the Judge in any proceeding taken under the Provincial Small Causes Court Act by the landlord. However, when the Release Application was filed the tenant pleaded that it was not a private temple but was a public religious institution. If the tenant's case is to be believed as has been argued by the learned counsel for the petitioner, it would in effect mean that the landlord would be rendered remedy-less. The tenant's assertion before the Judge, Small Causes Court could have been explained by him in the rent control proceedings. However, since there is an admission and a finding recorded on a statement made by the tenant, it would amount to an abuse of process of the Court to allow the tenant to wriggle out of this admission and resile from his own statement made in eviction proceedings under the Provincial Small Causes Court Act at this stage. Writ jurisdiction is not meant for dishonest and unscrupulous litigants.
54. This Court does not find any infirmity in the appreciation of facts and the law by the learned Prescribed Authority or by the learned District Judge. This writ petition is hence liable to be dismissed and is dismissed.
55. The petitioner-tenant is directed to handover the vacant and peaceful possession of the property in dispute to the respondent-landlord within a period of one month from today.
56. Since the orders impugned have not been interfered with by this court, the landlord-respondent shall also be entitled the benefits arising out the impugned judgments.
Dated : 30 .11.2018 VR