- (1.) A. P. Singh, J. This Second Appeal has been filed by the defendant under Section 100 of the Code of Civil Procedure questioning the legality of the judgment and decree passed by the IV the Additional District Judge, Nainital in Civil Appeal No. 30 of 1984.
(2.) WHEN the appeal was admitted by this court, following substantial question of law was formulated:- "whether the defendant-appellant is tenant or licensee is involved is a question of fact and law. " The facts of the case; in brief, are that the appellant was allowed to occupy flat No. 2 in ground-floor of Santosh Bhavan Hotel Building in the town of Nainital from 15. 12. 1971 for a period upto approximately 1973 after having executed 'visitors' Contract Form', which is filed as paper No. 60-C, payment of Rs. 1000 and Rs. 83 per month under the rules and regulations incorporated on the back of the said form. It was alleged in the plaint filed by plaintiff respondent that the defendant had agreed to pay Rs. 1800 towards lodging charges from 1979 onwards however he did not give anything, in writing towards payment of the enhanced rate of charges for the flat in his occupation though he continued to give assurances in that regard. It was further alleged that flat No. 2 was a part of 'santosh Bhavan Hotel Building' which was a lodging house and to which the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of the 1972) (hereinafter referred to in this judgment as 'the Act') are not applicable. Since the stay of defendant was not round to be in the interest of 'santosh Bhavan Hotel Building', hence his stay in it was terminated by the plaintiff vide registered letter dated 4. 5. 1981 calling upon the defendant to vacate flat No. 2 and to hand over possession to the plaintiff within one month from the date of the receipt of the notice. The defendant, however, failed to vacate flat No. 2 and also did not pay the lodging charges and damages for his overstay in the flat. It was, inter alia, on these allegations that the suit was filed seeking eviction of the appellant from flat No. 2. which is subject-matter of the suit and also for payment of charges and damages etc. The defendant denied that flat No. 2 was a part of a lodging house or a hotel. It was further alleged that the same was not being used for a long time as lodging house, but was being let out to tenants, who were living permanently in different flats of the said hotel. He further alleged that he was in exclusive possession of flat No. 2 and the plaintiff-landlord had no control on his possession over the flat. It was further asserted that he was having his own furniture, fixtures, telephone connection, as well as electric and gas connections in the said flat. Various other pleas were also raised.
(3.) THE question which arises in the case but had not been framed by the court in this appeal at the time of admission of the appeal - whether flat No. 2 is a lodging house or a simple tenament which is governed by the provisions of the Act. THE question which has been framed as substantial question of law, with profound respect to the learned Judge, is not the question which need be answered in this appeal. Sole question relevant for the case is whether the appellant is or is not a tenant of flat No. 2 which is in his occupation. If the answer to the question is in the affirmative the suit must fail; if the question is answered in the negative, the suit must succeed. The trial Court, however, considered the case primarily on the question as to whether status of the defendant-appellant was that of a licensee or of a lessee. After analysing the evidence on the record of the suit including accounts books, fixtures and fittings put up in the flat No. 2, it came to the conclusion that the defendant was not a licencee but a lessee of flat No. 2. It accordingly dismissed the suit holding that the provisions of the Act were clearly attracted and no suit for the eviction of the appellant was maintainable. The question which was considered and answered by the trial Court in the suit could arise in a case under Section 2-A and not in a case which is covered by Section 3 (a) of the Act.;