SC: A plea can’t be raised for the first time in the third round of litigation.

Today, i.e. on 7th February 2019, the Hon’ble Supreme Court in the matter of Deepak Tandon & Anr. v. Rajesh Kumar Gupta pronounced that if a plea is not taken in the pleadings by the parties and no issue on such plea is, therefore, framed and no finding is recorded either way by the Trial Court or the First Appellate Court, then such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding.

The Hon’ble Supreme Court observed that:

If a plea is not taken in the pleadings by the parties and no issue on such plea is, therefore, framed and no finding is recorded either way by the Trial Court or the First Appellate Court, then such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding. It is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe (This inference has been drawn on the basis of Para 21 & Para 22)

The question as to whether the tenancy is solely for residential purpose or for commercial purpose or for composite purpose, i.e., for both residential and commercial purpose, is not a pure question of law but is a question of fact, therefore, this question is required to be first pleaded and then proved by adducing evidence. The High Court for the first time in third round of litigation in its writ jurisdiction cannot decide this question. (This inference has been drawn on the basis of Para 23 & Para 24)

If the tenancy is for composite purpose i.e. if some portion of tenanted premises is being used for residence and some portion for commercial purpose, i.e., residential and commercial, then the landlord will have a right to seek the tenant’s eviction from the tenanted premises for his residential need or commercial need, as the case may be. (This inference has been drawn on the basis of Para 25)

Copy of judgement: Judgement_07-Feb-2019

-Tushar Kaushik

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