Order VII Rule 11 CPC Not Available In UP Tenancy Act Proceedings; Objections Must Be Raised In Reply: Allahabad High Court

The Allahabad High Court has held that an application under Order VII Rule 11 of the Code of Civil Procedure, or any analogous preliminary objection seeking termination of the proceedings at the threshold, cannot be entertained in proceedings under the U.P. Regulation of Urban Premises Tenancy Act, 2021. Section 33 of the Tenancy Act provides that, save as otherwise provided in the Act, CPC shall not apply to proceedings before the Rent Authority or the Rent Tribunal. Section 34 confers on them certain specified powers of a civil court, such as summoning witnesses, discovery and production of documents and receiving evidence on affidavits.Dr. Justice Yogendra Kumar Srivastava rejected the submission that exclusion of Order VII Rule 11 deprives a respondent of the right to question the maintainability of the proceedings and held,“The distinction between the availability of a substantive defence and the procedural vehicle for asserting such defence must be kept in view. While the independent remedy of seeking rejection of the proceedings by invoking Order VII Rule 11 stands excluded by virtue of Section 33, every objection relating to maintainability, jurisdiction, limitation, existence of the landlord-tenant relationship or any other legal or factual issue remains fully available to the respondent.”It added,“ Such objections are liable to be incorporated in the reply contemplated by the Act and are required to be examined and adjudicated by the Rent Authority while deciding the proceedings on their own merits. Thus, what stands excluded is not the defence itself but only a distinct procedural mechanism borrowed from the Code of Civil Procedure”.Petitioner-tenant was facing an eviction application instituted by the respondent-landlord before the Rent Authority under Section 21(2) of the Act. He raised a preliminary objection, contending that in the absence of a written tenancy agreement no relationship of landlord and tenant existed between the parties, and that the proceedings were in any event barred by Section 38(2) of the Act.The Rent Authority rejected the objection, holding that the definition of “tenant” under the Act was wide enough to take in any person in occupation of the premises, and that Section 38(2) only kept questions of title out of proceedings under the Act without denuding it of jurisdiction to entertain an eviction application. The remaining objections, it held, raised disputed questions of fact and law which could not be decided as preliminary issues.In appeal, the Rent Tribunal held that no such preliminary objection was maintainable under the Act and every objection had to be incorporated in the reply. Finding, however, that some of the Rent Authority's observations could prejudice the tenant, it partly allowed the appeal and directed that his objections be treated as part of his reply and decided independently at final disposal.Before the High Court, the tenant submitted that a written tenancy agreement was a jurisdictional precondition to proceedings under Section 21(2), and in its absence the Rent Authority could not entertain the eviction application.Rejecting the contention, the Court held that the Rent Authority draws its jurisdiction from the statute and not from any agreement between the parties. It held that a written tenancy agreement may evidence the terms of the tenancy or the relationship between the parties, but is not the source of the jurisdiction the Authority exercises.“Jurisdiction cannot be made to depend upon the existence or non-existence of a document unless the statute expressly so provides”.The Court held that no provision of the Act confines the landlord's remedy to a tenancy evidenced by a written agreement.“Had the legislature intended to make the existence of a written tenancy agreement a condition precedent to the maintainability of proceedings, it would have incorporated such a requirement in express terms. The Court cannot supply a jurisdictional condition which the legislature has consciously omitted”.Distinguishing between the existence of jurisdiction and the proof of jurisdictional facts, it held that a dispute over such facts does not divest the Authority of jurisdiction to enquire into and determine them. On the preliminary objection, the Court held that the Act is a self-contained enactment governing both the rights of landlords and tenants and the procedure before the Rent Authority and the Rent Tribunal, and that its scheme is one of simplified, summary and time-bound adjudication. Section 34, it held, incorporates only limited procedural powers, and Order VII Rule 11 is neither expressly incorporated nor capable of being read in by implication.“Where a special statute expressly excludes the operation of the general procedural law and selectively incorporates only specified provisions or powers, the Court cannot, by a process of interpretation, import additional provisions of the excluded enactment merely because they may appear to be convenient ...

Order VII Rule 11 CPC Not Available In UP Tenancy Act Proceedings; Objections Must Be Raised In Reply: Allahabad High Court

Upasna Agrawal

Written tenancy agreement is not necessary to maintain eviction proceedings, Court further held.

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Upasna Agrawal

Order VII Rule 11 CPC Not Available In UP Tenancy Act Proceedings; Objections Must Be Raised In Reply: Allahabad High Court

Upasna Agrawal

Written tenancy agreement is not necessary to maintain eviction proceedings, Court further held.

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INR 1099+GST

Tags

Upasna Agrawal

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