JUDGMENT A. K. Yog, J.
1. Virendra Pal Gupta, is the tenant of a shop situate in Upper Bazar, Opposite Raj Talkies, Modinagar, Tehsll and District Ghazlabad. Sri Mahavir Prasad and his wife Smt. Srimatl Devi (respondent Nos. 3 and 4) are the landlord. Release application was filed under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 Act No. XIII of 1972) (for short called 'the Act') on the ground that landlord required bona fide said shop for settling his son. Parties led evidence and after hearing them, Prescribed Authority came to the conclusion that need of the landlord was bona fide. But rejected the release application on the ground that tenant shall suffer more hardship as compared to the landlord, in case release application was allowed.
2. Landlord filed Rent Control Appeal No. 87 of 1988 under Section 22 of the Act. Appellate Authority (III Additional District Judge, Ghazlabad/Respondent No. 1) after perusing relevant evidence and material on record as well as hearing the parties came to the conclusion that landlord wanted the shop in question for establishing his son who was unemployed. Learned appellate Authority also observed that tenant had made no effort to find alternative accommodation. The appellate Authority further found that Prescribed Authority did not adopt correct approach in appreciating the evidence while recording findings on the question of comparative hardship. Appellate Authority, consequently, allowed the appeal.
3. The tenant-petitioner, Virendra Pal Gupta, has, therefore, filed this petition.
4. On 30th April, 1998, the learned single Judge granted 24 hours time to file supplementary affidavit. Order dated 4.5.1998 shows that counsel for the respondents was granted time for filing counter-affidavit. Thereafter petitioner was required to file rejoinder-affidavit and case was directed to be listed on 21st May, 1998.
5. Bench was pleased to pass interim order. 'Till that date the petitioner shall not be evicted from the shop in question". Interim order has been extended from time to time.
6. A supplementary affidavit has been filed. Contesting Respondent Nos. 3 and 4 (Landlord) filed counter-affidavit along with stay vacation application. A rejoinder-affidavit has also been filed against the same.
7. In para 2 of the supplementary affidavit, petitioner for the first time asserted that as per allegations or pleadings set out tn the release application, the release application is not maintainable in view of Hon'ble Full Bench decision in 1993 (2) ARC 204 Nootan Kumar and others v. IInd A. D. J., Banda and others. Even in view of the said decision, the U. P. Act No. XIII of 1972 is not applicable on the petitioner-tenant". It is urged that an agreement entered into between landlord and tenant in violation of provisions of Act will be void and cannot be enforced.
8. Contesting respondent Nos. 3 and 4 vide para 26 of the counter-affidavit denied para 2 of the supplementary affidavit. It is stated-that the contents of paragraph No. 2 of the supplementary affidavit are incorrect and not admitted, the landlords purchased land in question (on which the shop in dispute is situated) by registered sale-deed dated 26.4.1974 from a private person and the shop in question was constructed in 1974-75, and U. P. Act No. XIII of 1972 was not applicable, when the shop was let out to the petitioner tenant in 1983. Application under Section 21 (1) (a) of the Act was filed when the Act became applicable to the shop in dispute.
9. That admittedly the shop in dispute was given on rent through a written rent note dated 30.10.1983 executed between petitioner/tenant and the land lords-respondents. Since the Act XIII was not applicable to the building no allotment order under Section 16 of the Act was necessary.
10. That the landlord respondents completed the construction of the building consisting shop and the first assessment was made w.e.f. 1.4.1975. The Act, therefore, became applicable on 1.4.1985. The release application under Section 21 (1) (a) of the Act was filed on 24.4.1985. i.e., after the Act became applicable to the building. True copy of the said first Tax Assessment-List for 1975-76 is being filed herewith as Annexure-C.A. 7. It is, significant to mention here that the petitioner tenant never raised aforesaid plea before the Court below. For the first time, petitioner wants to raise the said plea before this Hon'ble court. It is an attempt to mislead the Court. Petitioner-tenant cannot be permitted to raise the aforesaid legal plea under Article 226 of the Constitution of India, which is discretionary jurisdiction. Thus, the present writ petition is devoid of merit and deserves to be dismissed with costs throughout.
11. It is to be noted that petitioner has occupied the shop in dispute illegally and he is not entitled to get any relief by invoking discretionary and equitable jurisdiction with regard to it under Article 226 of the Constitution of India, particularly when substantial justice has been done by the Courts below.
12. Written statement of the tenant against release application has been filed (Annexure-2 to the writ petition). Perusal of it shows that landlord-tenant relationship is admitted and it is not pleaded at any stage that provisions of the Act were applicable when shop was let out to the said tenant.
13. It is interesting to note that in paragraphs 6 and 7 of the release application, landlord categorically pleaded execution of an agreement on the basis of which petitioner claims to have got possession and status as tenant. In the written statement, in reply, there is no averment that provisions of the Act were applicable when he entered into agreement which is thus void. It may be noted that shop could not be validly let out if the provisions of the Act were applicable when landlord allowed petitioner to enter into the shop on the basis of agreement in breach of the Act. The pleading now sought to be raised by means of supplementary affidavit, will require parties to amend their pleadings, lead evidence and thereafter adjudication of new issues.
14. No doubt, the plea now raised relying upon the decision of Nootan Kumar (supra), is a new plea, which is taken for the first time in writ proceedings and that too by filing a supplementary affidavit.
15. Evidently such a pleading is an afterthought and require determination of facts. Such pleadings, therefore, cannot be allowed for the first time at this stage.
16. Learned counsel for the petitioner relied upon the decision in AIR 1954 SC 340, Kiran Singh and others v. Chaman Paswan and others (para 6) and held that ratio laid down is that the decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. The Supreme Court observed that defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. The Supreme Court further observed that Court is 'coram non judice', and its judgment and decree would be nullified.
17. On behalf of the petitioner, as mentioned above, reliance has been placed on the case in Nootan Kumar and others v. IInd Additional District Judge, Banda and others, 1993 (2) ARC 204.
18. In the instant case, it is to be noted, that Prescribed Authority had jurisdiction to adjudicate the matter before it. The question whether shop, when let out, was covered or not covered by the provisions of the Act, is the bone of contention now in present writ proceedings, but unfortunately this issue was not raised before Courts below. No effort was made to get the same adjudicated at the relevant stage. The petitioner-tenant having accepted the applicability of the Act and also having contested the release application on merit up to appellate stage without a murmur, cannot be allowed now to raise this issue for the first time. Petitioner having waived his right to raise this plea at the relevant stage, having non suited landlord by requiring him to contest proceedings, ever since 1985 till date, he has non-suited to raise new plea, for the first time and which would require adjudication of question of fact.
19. This position has not been contested on behalf of the petitioner. The above view is fully supported by the observation of Supreme Court in para 12A of its judgment in the case of Martin and Harris Limited. v. VIth Additional District Judge and others, 1998 (1) ARC 109, which is reproduced :
"Consequently it must be held that the provision of six months' notice before initiation of proceeding under Section 21 (1) of the Act, though is mandatory and confers protection to the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for the reasons best known to it, consciously being alive to the clear factual situation that the suit was filed on that ground prior to the expiry of six months' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting a favourable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the state of writ petition in the High Court such a contention was sought to be taken for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit being premature having been filed before the expiry of six months from the date of the notice."
20. On behalf of the contesting landlord, respondent Nos. 3 and 4. It is submitted that concurrent finding of fact on the question of bona fide and genuine need of the landlord as well as finding of fact based on good evidence on the question of comparative hardship cannot be assailed in writ proceedings. He has placed reliance on the decisions reported in.
1. 1987 (1) ARC 333, Raghunandan Prasad Garg v. Prescribed Authority, Meerut and others.
2. 199O (1) AKC 300, Bashiruddin and others v. XIth Additional District Judge, Varanasi and others.
3. 1997 (29) ALR 622, Arvind Kumar v. IInd Additional District Judge, Etawah and others.
21. I am in agreement with the view expressed in the aforequoted decisions. Findings of fact cannot be Interfered with, particularly when the same have been arrived at by the Court below by appraisal of evidence and by adopting correct approach, and that these findings have not been shown to be perverse.
22. Learned counsel for the contesting respondents-landlord has relied upon 1989 (1) ARC 169, Pyare Lal v. 1st Additional District Judge, Kanpur and another. In this Case learned single Judge had taken the view that question of commencement of tenancy cannot be raised for the first time in the writ petition.
23. Similarly in the case in 1997 (2) ARC 468. M/s. Punjab Cycle and Rickshaw Company, Varanasi and another v. District Judge, Varanasi and others, (para 7) it is observed that question whether provisions of the Act were applicable or not at particular time Involves determination of question of fact and hence such a plea cannot be allowed to be raised for the first time in the writ petition.
24. In view of the above, I find no manifest error apparent on the face of record warranting Interference with the impugned judgment and order dated 11.2.1998 passed by IIIrd Additional District Judge, Ghazlabad/ Respondent No. 1 in Rent Control Appeal No. 87 of 1988, Mahaufr Prasad v. Virendra Pal Gupta.
25. Writ petition fails and is accordingly, dismissed.