- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Sec tion 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 17-11-1981 passed by 1st Additional District Judge, Nainital, in Civil Appeal No. 145 of 1980, whereby judgment and decree passed by trial court in civil suit No. 76 of 1979, has been upheld.
(2.) BRIEF facts of the case are that plaintiff-appellant is a tenant in a shop situated in Mohalla Bhawani Ganj, Haldwani. The defendant- respondent No. 1 is the owner landlord of the building. Defendant- respondent No. 2 is Nagar Palika, Haldwani. The plaintiff instituted civil suit No. 76 of 1979 seek ing relief of injunction against the defendants restraining them from demol ishing the shop in question. It is pleaded in the plaint that the shop is in good and durable condition. It is further pleaded that before institution of the above suit, defendant No. 1 pressurized the plaintiff to vacant the shop and in stituted a Small Cause Suit No. 17 of 1974 for his eviction. However, the said S. C. C. suit was dismissed and the revi sion filed by the defendant No. 1 in said round of litigation, was also dismissed on 28-05-1977. Thereafter it is pleaded that the defendant No. 1 in collusion with defendant No. 2 got issued a notice dated 21-04-1979 under Section 263 of U. P Municipalities Act, 1916, to demolish the building in question alleging that the same is in a dangerous condition. Lastly, pleading that plaintiff cannot be ousted from the shop where in he is selling betel (PAAN), an injunc tion has been sought against the de fendants. The defendants-respondents contested the suit before the trial court. Defendant No. 1 in his written state ment has admitted that the plaintiff is his tenant in the shop in question on rent @ Rs. 21. 16 per month. It is also admitted by him that earlier a small cause suit for eviction of the plaintiff was instituted which was dismissed. But it is denied if the defendant No. 1 is in collusion with the defendant No. 2. It is pleaded in the written statement that the building in question is 125 years old and in dilapidated condition. It is fur ther pleaded that the notice under Sec tion 263 of U. P. Municipalities Act, 1916, was issued by the Nagar Palika after due inspection of the house in suit. The house is made of wood, mud and stones and may cause injury to inhabitants at any time. Defendant-re spondent No. 2 has also taken almost same pleas that the building in question is in a dilapidated condition and notice under Section 263 of U. P. Municipali ties Act, 1916 are issued after due in spection without colluding with any one. The trial court, after framing is sues, recording the evidence and hearing the parties, dismissed the suit hold ing that the building in question is in a dilapidated condition. Aggrieved by the judgment and decree of the trial court, plaintiff preferred civil appeal No. 145 of 1980 which was also dismissed. Hence this appeal.
(3.) I heard learned counsel for the parties and perused the entire record. This appeal was admitted by Allahabad High Court on following six substantial questions of law: "1. Whether a tenant of a building governed by U. P. Act 13 of 1972 is immune from eviction by the landlord except under provisions of sections 20 and 21 of the U. P. Act 13 of 1972? 2. Whether such a tenant is entitled to an injunction against the land lord restraining the latter from evicting him except under the provisions of U. P. Act 13 of 1972? 3. Whether the prescribed authority under section 21 of U. P. Act 13 of 1972 has alone the exclusive jurisdiction to determine whether the premises under tenancy are 'dilapidated' as to warrant the eviction of the tenant under sec tion 21 (l) (b) of the Act? 4. Whether the court below was bound by the finding on dilapi dated character given by the pre scribed authority in proceedings under section 21 (1) (b) of the U. P. Act 13 of 1972 being the finding of a tribunal of exclusive jurisdiction to decide cases of eviction of tenants from dilapi dated buildings under U. P. Act 13 of 1972? 5. Whether the court below erred in law in entering into the question of 'dilapidated' character of the building and giving a finding on it even though there was no issue framed on the point and the appellant had not led any evi dence on it in the bonafide be lief that the point was relevant only in proceedings under sec tion 21 of U. P. Act 13 of 1972? 6. Whether the admitted fact that notice under section 263 Munici palities Act was served on the landlord in response of the latter representing to the Board that the building was in dilapidated condition does not itself indicate that the landlord was using the device of a notice to circumvent section 21 (1) (b) U. P Act 13 of 1972 to obtain eviction of tenant? This appeal is received by this Court for disposal by transfer under Section 35 of U. P. Reorganization Act, 2000.;