- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 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 seeking relief of injunction against the defendants restraining them from demolishing 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 vacate the shop and instituted a Small Cause Suit No. 17 of 1974 for his eviction. However, the said S. C. C. suit was dismissed and the revision filed by the defendant No. 1 in said round of litigation, was also dismissed on 28-5-1977. Thereafter, it is pleaded that the dependent No. 1 in collusion with defendant No. 2 got issued a notice dated 21-4-1979 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 wherein he is selling betel (PAAN), an injunction has been sought against the defendants. The defendants-respondents contested the suit before the trial Court. Defendant No. 1 in his written statement 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. 1. It is pleaded in the written statement that the building in question is 125 years old and in dilapidated condition. It is further pleaded that the notice under Section 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-respondent No. 2 has also taken almost same pleas that the building in question is a dilapidated condition and notice under Section 263 of U. P. Municipalities Act, 1916 are issued after due inspection without colluding with any one. The trial Court, after framing issue, recording the evidence and hearing the parties, dismissed the suit holding 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 Create PDF with GO2pdf for free, if you wish to remove this line, click here to buy Virtual PDF Printer This Software is licensed to: :-REg Copyright Capital Law Infotech
(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 landlord 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 Section 21 (1) (b) of the Act? (4) Whether the Court below was bound by the finding on dilapidated character given by the prescribed 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 dilapidated 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 evidence on it in the bona fide belief that the point was relevant only in proceedings under Section 21 of U. P. Act 13 of 1972? (6) Whether the admitted fact that notice under Section 263 Municipalities 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?";