R. R K. Trivedi, J. - (1.) IN this revision Sri K N. Rai has put in appearance for plaintiff opposite party Town Area, Bilariaganj, Tehsil Sagari. District Azamgarh. I have heard learned counsel for the revisionist Sri S. N. Srivastava and the learned counsel for the plaintiff opposite partv. Both the learned counsel are agreed that this revision may be disposed of tinally at this stage
(2.) THE facts giving rise to this revision are that the defendant-revisionist was in tenant of accommodation in dispute, which is owned by Town Area, Bilariaganj, Tehsil Sagari, District Azamgarh, (here-in-after referred to as 'Town Area') since April 1988. This accommodation was let out at the rent of Rs. 240/- p.m. Town Area filed S. C. C. Suit No. 3 of 1989 for ejectment of the revisionist interalia on the ground that his tenancy is on a rent of Rs. 600/- p.m THE accommodation consists of five rooms, the defendant has failed to pay the rent in spite of the notice served on him. He also made certain alterations in the building. It was further claimed that the Town Area has no accommodation for its office which is being run in a rented room. THE accommodation in dispute is well suited and sufficient and suitable for the office of the Town Area It was claimed that the Town Area is in urgent tenancy has been terminated. However, the defendant has neither paid the rent nor has vacated the accomodation in dispute. The suit was contested by the defendant revisionist interalia on the allegations that he is tenant since January iv87 and the rent agreed from very beginning was Rs. 240/- p m The official-in-charge of the Town Area demanded rant of the house at the rate of Rs. 700/- p.m. in the arbitrary manner and it was enhanced unilaterally. A notice to this effect was served on the defendant which was replied by him and the rent due was sent by money order. The plaintiff Town Area has, however, refused to accept the amount sent by money order. He has not committed default nor his tenancy has been terminated The notice served on him is illegal. His tenancy rights are not effected. The suit has been filed only due to enmity and for purposes of harassment. The trial court after giving full opportunity of adducing evidence and hearing to both the parties has decreed the suit vide judgment and decree da'ed 8th January, 199!. The findings recorded by the learned Judge, Small Cavses are that agreed rate of rent was throughout Rs. 240/- p.m. and there is no evidence that it was enhanced by agreement of both the sides. The fi din? has also been recorded that the defendant revisionist carried the same alteration. The notice served on the defendant revisionist has been found to be legal and valid. The trial court has recorded the reasons that since the provisions of Act No. 13 of 1972 are not applicable to the accommodation in dispute and the Town Area is in need of the accommodation in dispute for its use, the suit deserves to be decreed.
(3.) LEARNED counsel for the applicant revisionist has argued that the suit of the Town Area was barred under Section 15 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. The revision has been pressed by the learned counsel only on this ground. It is relevant to mention here that this plea was neither raised before the court below even in written statement filed by the defendant revisionist nor has been taken in the memo of revision. I have perused all the 11 grounds taken in memo of revision. There is no ground taken on the bans of Section 15 of the aforesaid Act. Learned counsel cannot be legally permitted to argue on question which was not raised either in the written statement or in the memo of revision filed before this court. However, Sri S. N. Srivastava placed reliance in a case Vasantkumar Radhakisan Vora v. The Board of Trustees of the Port of Bombay, AIR 1991, SC 14. In this case Honourable Supreme Court has observed thus i "It is undoub'edly true as held by catena of decision of this court that a pure question of law, untramelled by question of fact, which goes to the roots of the jurisdiction, could be permitted to be raised for the first time in an appeal under Art 136 of the Constitution. We are afraid, we cannot permit, the appellant to raise this point for the following reasons : Firstly, except making a bald averment in the written statement that the "suit is not maintainable" nothing has been pleaded in detail in the written statement. Admittedly this point was neither taken in the writ petition nor argued into High Court. It is not even raised in the grounds of appeal in this court nor even in points raised in the synopsis of the case. It is stated that remotely it was raised in the rejoinder. Since it is a mixed question of facts and law and not being a pure question of law, we cannot permit to raise the point for the first time, that too, when it would prejudice the respondent of their case at this stage. We accordingly decline to go into the question" Considering, in the light of the aforesaid observations of Honourable Supreme Court, in my opinion, in the present case also the defendant revisionist cannot be permitted to raise the plea regarding bar of the suit under Section 15 of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. Section 15 of the Act reads as below : "15. Bar of jurisdiction-No court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of section 7 or the damages payable under sub-section (2) of that section or the costs awarded to the State Government or the corporate authority under sub-section (5) of section 9 or any portion of such rent, damages or costs." A perusal of Section 15 shows that for applying the bar of Section 15 it is to be determined as a matter of fact that the occupation of the defendant applicant was unauthorised and thus it is a mixed question of fact and law and cannot be permitted to be raised at this stage, it is already noticed above that the plea regarding Section 15 was not taken in the written statement nor has been raised in the memo of revision filed in this court. The defendant revisionist contested the suit fully and when the decision has gone against him this plea has been sought to be raised for the first time during arguments. In these facts and circumstances the defendant revisionist cannot be allowed to raise this plea.;