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2003 DIGILAW 349 (PNJ)

Jangiro Devi v. Kailasho Devi

2003-02-26

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. The present revision petition is by the tenant aggrieved against the order of ejectment passed by the appellate authority whereby the tenant was ordered to be ejected on the ground that the building has be- come unsafe and unfit for human habitation. 2. The premises were let out to the petitioner at the monthly rent of Rs. 10/-. As per the case set up by the landlord in the ejectment petition that the rent note was executed for a period of 11 months commencing from 26.10.1971. The landlord has sought ejectment, inter-alia, on the ground that the house in question had fallen down and is unsafe for human habitation. The petitioner-tenant herein has relied upon recital in an agreement dated 26.10.1971 to the effect that she is entitled to stay in the property till her life. She also stated that the detailed facts and circumstances as to why such a condition in the agreement was introduced. It was explained that father-in-law of the tenant has executed Will in favour of the tenant. However, after the death of her father-in-law, she was forced to mortgage the property in favour of Sh. Munshi Ram, father-in-law of the landlady and later on she was compelled to sell the house in favour of the landlady. The sale deed was executed by her husband as attorney: It has been pointed out that Munshi Ram and his son were responsible for spoiling the life of the husband of the respondent on account of his drinking and other bad habits. Since the husband of the respondent became a spend thrifts and indulged in bad habits, ultimately, she was given severe beatings in order to force her to sell the said house. The tenant could not withstand the pressure, abuses and beating of her husband and succumbed to the pressure which resulted in sale of the said house in favour of the petitioner by the respondents husband. The detailed circumstances have been further mentioned to the effect that the tenant was allowed to sit in the house in question as a tenant as a special case. 3. The detailed circumstances have been further mentioned to the effect that the tenant was allowed to sit in the house in question as a tenant as a special case. 3. The learned Rent Controller dismissed the ejectment petition relying upon the agreement dated 26.10.1971 whereas the appellate authority reversed such finding on the ground that such a condition in the agreement is violative of the provisions of Hary-and Urban (Control of Rent & Eviction) Act, 1973 and is against public policy. 4. A perusal of the rent note Ex.R3 alongwith endorsement at the foot of such rent note shows that the demised premises have been rented out to the tenant for the period of 11 months. It is further recited that if the tenant continues to pay rent, then the tenant Jangiro Devi will not be ejected during her life-time. However, the endorsement at the foot of the rent note would show that the landlady has undertaken not to mortgage or sell the house. It is further stated that even if the house falls, still the tenant Jangiro Devi will not be asked to vacate the premises. She will continue to reside even if it is a vacant piece of land. It is further recited that in case of necessity, she can raise jhopari (hutment). In view of the recitals in the said rent note, the question which arises is whether the landlady is competent to seek ejectment of the tenant on the ground that the building has become unfit and unsafe for human habitation?. 5. The Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as the Act ) has been enacted to regulate the tenancy in the Urban areas so as to protect the tenant from whimsical action of the landlady to seek their eviction in the area governed by the Act. The tenant can be evicted only on the grounds mentioned in the Statue. However, certain rights have been given to landlord to seek ejectment of the tenant including exemption from the Act in the newly constructed building. Certain rights have been given to the parties to seek fixation of fair rent. The Act has tried to strike balance between the rights of the landlord and tenant. However, certain rights have been given to landlord to seek ejectment of the tenant including exemption from the Act in the newly constructed building. Certain rights have been given to the parties to seek fixation of fair rent. The Act has tried to strike balance between the rights of the landlord and tenant. However, whether an agreement by the landlord not to enforce one or other grounds to eject can be said to be an agreement against the public policy and, thus, void, is a question which arises in the present case. 6. The Act has provided different grounds of ejectment including bona fide requirement, non-payment of rent, material impairment of the value of the building and building becoming unsafe and unfit for human habitation as well as sub-letting without the written consent of the landlord as well as the tenant, The user of the premises without the written consent of the landlord is another ground of ejectment, However, it is always open to the landlord to waive one or other ground of ejectment. The Honble Supreme Court in Lachoo Mal v. Radhey Shayam, A.I.R. 1971 S.C. 2213 has the occasion to consider the agreement by which the tenant has to vacate the premises for reconstruction and the redeliver the same after reconstruction. It was found that the landlord can waive the exemption benefit available for new constructions made after 1.1.1951. It was found that the general principle is that every one has right to waive and to agree to waive the advantage of law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed without infringing any public right or public policy. The relevant quote from the judgment reads as under:- "6. The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely far the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanctions the non-observance of the statutory provision in cuilibet licet renuntiare juris pro se introducto. (See Maxwell on interpretation of Statutes, Eleventh, Edition pages 375 and 376). Thus the maxim which sanctions the non-observance of the statutory provision in cuilibet licet renuntiare juris pro se introducto. (See Maxwell on interpretation of Statutes, Eleventh, Edition pages 375 and 376). If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy. In Halsburys laws of England, Volume 8, Third Edition, it is stated in paragraph 248 at page 143: "As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an act of parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may. however, be imposed in such terms and they can not be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void." 8. We are unable to hold that the performance of the agreement which was entered into between the parties in the present case would involve an illegal or unlawful act. In our judgment Section 1-A was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the Section. No question of policy much less public policy was involved and such a benefit or advantage could always be waived. That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June, 1962 was unlawful in view of the Section 23 of the Contract Act." 7. Subsequently, in Brijendra Nath and Anr. That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June, 1962 was unlawful in view of the Section 23 of the Contract Act." 7. Subsequently, in Brijendra Nath and Anr. v. Harsh Wardhan and Ors., A.I.R. 1980 S.C. 293, the question, arose whether the landlord by conduct can waive his right to seek ejectment on the ground that the tenant has materially impaired the value and utility of the building. In the said ease, the ejectment of the tenant was sought on the ground that construction of wooden balcony is material alteration in the premises whereas the tenant alleged that predecessors in title of present landlord has served two notices and construction of balcony was not one of the grounds for eviction. It was agreed that even if any right has accrued the landlord waived such right of eviction. The relevant finding of the Supreme Court reads as under:- "On the question of waiver, in Maxwell on the Interpretation of Statutes it is observed as under:- "In Style Shoes Ltd. v. Prices Tailors Ltd., (1960) Ch. 396 a notice to determine an existing tenancy under the Landlord and Tenant Act, 1954 had not, it was argued, been served "by leaving it for the tenants at their last known place of abode in England" as required by Section 23(1) of the Act. The tenants had in fact received the notice, had intimated to the landlords that they would not be willing to give up possession of the premises, and had issued an originating summons for a new tenancy. On the facts, Wynn-Parry, J. held that the notice had been properly served : but he added that, even if it had not been duly served, the tenants must in the circumstances be taken to have waived any invalidity in the service." It clearly goes to show that if a party gives up the advantage he could take a position of law it is not open to him to change and say that it can avail of that ground. In Dowsons Bank Ltd.s case (A.I.R. 1935 P.C. 79) their lordships were considering the question of waiver as a little different from estoppel and they observed as under:- "On the other hand, waiver is contractual and may constitute a cause of action: it is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal agrees to waive his principals rights then (subject to any other question such as consideration) the principal will be bound, but he will be bound by contract." 8 In view of the principles laid down in the above precedent, I am of the opinion that the landlady has waived right to seek ejectment on the ground that the building was become unsafe and unfit for human habitation. By waiving her right, the landlady has not violated any of the provisions of the Statute. She has given up her right to seek ejectment on that ground. Waiver of such right is not violating any provisions of the Rent Act or any other Statue. In view of the writing contained in rent note Ex.R3, the landlady is estopped to seek ejectment of the tenant. 9. In view of the above, the order passed by the appellate Court is suffering from material irregularity and illegality. Consequently, the present petition is allowed, and the ejectment petition is dismissed.