R.L. Gulati, J. - (1.) THE Petitioner is a tenant of a portion of house No. 105/120 Mohalla Chamanganj, Kanpur. The house belongs to the first Respondent, Shrimati Kamar Jahan, who resides in the remaining portion of the house. She moved an application under Section 3 of the U.P. (Temp.) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Act) for permission to file a suit for ejectment of the Petitioner on the ground that she needed the accommodation in possession of the Petitioner for her own personal use. This application was rejected by the Rent Control and Eviction Officer on 22nd June, 1971 and her revision petition was also rejected by the Commissioner, Allahabad Division, Allahabad on 20th January, 1972. Both these authorities held that her need was not greater than that of the tenant (Petitioner) and, as such, she was not entitled to eject him. On coming into force of U.P. Act No. 13 of 1972, the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 she again applied for a similar permission under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the new Act). Relying upon Explanation 4 to Section 21(1) the Prescribed Authority held that the need of the landlady shall be presumed to be genuine. He also rejected the objection of the Petitioner on the ground of want of proper verification. There was an appeal to the 3rd Respondent, the Second Additional District Judge, Kanpur. He held that the objection of the Prescribed Authority with regard to the proper verification of the Petitioner's pleadings was not a good ground for rejecting the Petitioner's objection. He, however, came to the conclusion that having regard to Explanation 4 to Section 21 of the New Act, Shrimati Kamar Jahan, the landlady was entitled to succeed. The Petitioner is aggrieved and has approached this Court under Article 226 of the Constitution.
(2.) IT is not disputed that the landlady's application under Section 3 of the old Act had earlier been rejected by the Rent Control and Eviction Officer as also by the Commissioner, Allahabad on the finding that her need was not greater than that of the tenant (Petitioner). This fact was mentioned by the land -lady herself in her application under Section 21 of the new Act and has been noticed by the Prescribed Authority. Before the Additional District Judge specific plea was taken that in view of Rule 18 of the Rules framed under the New Act, a second application for permission to file a suit against the Petitioner could not be entertained for a period of six months from the date of the commencement of the new Act. Admittedly the application under Section 21 moved by Shrimati Kamar Jahan, was within a period of six months from the date of the commencement of the new Act. The learned Second Additional District Judge, Kanpur, however, over -ruled this objection on the view that Rule 18 embodied a plea of res -judicata and, as such a plea had not been specifically raised the same should be deemed to have been waived by the Petitioner. He, therefore, refused to place reliance upon Rule 18. Rule 18 provides: 18. Avoidance of Multiplicity of Proceedings (Sections 38(4) and 41) - (1) Where an application of a landlord against any tenant for permission to file a suit for eviction under Section 3 of the old Act, on any ground mentioned in Section 21(1) has been finally allowed or rejected on merits either before or after the commencement of the Act, whether by the District Magistrate or on revision by the Commissioner or the State Govt. or under Clause (i) or Clause (m) of Section 43(2) by the District Judge, and the landlord instead of filing a suit for eviction makes an application Under Section 21 on the same grounds within a period of six months from such decision or from the commencement of the Act whichever is later, the Prescribed Authority shall accept the finding in these proceedings as conclusive. Rule 18 is a statutory rule having the force of law. It embodies a legal presumption that if an application under Section 3 of the old Act has been rejected on merits, the findings recorded therein shall be presumed to be correct for a period of six months from the date of the said order or the commencement of the new Act whichever is later, The idea clearly is that no fresh litigation shall be permitted between a landlord and a tenant relating to the ejectment of a tenant for a period of six months from the date of the final order or from the date of the commencement of the new Act, and if such a litigation is launched the authorities under the New Act have been enjoined to accept the findings in the previous proceedings under the old Act as conclusive. This being the position the finding in the previous proceedings that the need of the landlord was not greater than that of the Petitioner has to be taken as conclusive because the application under Section 21 has been made within six months from the commencement of the new Act. Once the previous litigation is brought to the notice of the authority concerned it is his duty to give effect to the injunction contained in Rule 18. It is not necessary that a party must plead the applicability of Rule 18 by way of res -judicata. The duty has been cast upon the authority concerned to treat the findings in the earlier proceedings as conclusive. In the instant case, as stated earlier, the land -lady had mentioned herself in her application under Section 21 that she had previously applied for permission under Section 3 of the old Act which had been refused and the aid of Rule 18 had specifically been sought by the Petitioner before the learned Additional District Judge. In these circumstances the learned Judge was not right in refusing to consider the effect of Rule 18 on the ground that the Petitioner had failed to raise the plea of res -judicata based upon Rule 18. It is clear that the Petitioner did raise such a plea before the District Judge even if he had not specifically raised it before the Prescribed Authority. There could thus be no question of waiver.
(3.) SECTION 21 of the new Act enumerates the grounds upon which the Prescribed Authority may order the eviction of a tenant. Clause (a) provides that a Prescribed Authority may order the eviction of a tenant from a building which is bonafide required by the landlord for his own occupation. Explanation 4 then embodies a presumption that: In the case of a residential building - (iv) the fact that the building under tenancy is a part of a building, the remaining part whereof is in the occupation of the landlord for residentiad purposes, shall be conclusive to prove that the building is bonafide required by the landlord. Rule 18, however, is an exception to this provision in the sense that for a period of six months any finding with regard to the bonafide need of the landlord recorded in proceedings under Section 3 of the old Act shall be treated as conclusive in the proceedings under Section 21(1) of the New Act. That apart in the instant case there is no conflict between the provisions contained in Section 21(1)(a) read with Explanation 4 and Rule 18. Section 21(1)(a) read with Explanation 4 merely provides that where a tenant and landlord are residing in the same house, the bonafide need of the landlord may be presumed but a landlord cannot succeed merely by showing his bonafide need. It has been held in numerous cases by this Court that even in cases governed by Explanation 4 to Section 21(1) the need of the landlord and the tenant has still to be compared and the landlord can be permitted to eject his tenant only if his need is found to be greater. The finding recorded in proceedings under Section 3 of the old Act was that the need of the landlady was not greater than that of the tenant. The result would be that in spite of the fact that her need was bonafide having regard to Explanation 4 to Section 21, since her need was not greater than that of Petitioner, the latter could not be ejected. The Prescribed Authority as also the learned Second Additional District Judge have completely ignored this aspect of the matter inasmuch as they did not give any consideration to the need of the Petitioner.;