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2013 DIGILAW 2378 (ALL)

MAHESH KUMAR v. PRADEEP KUMAR JAISWAL

2013-09-23

RAN VIJAI SINGH

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JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri A.C. Nigam, learned counsel for the petitioner. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 3.9.2013 passed by the learned Prescribed Authority/ACMM IX, Kanpur Nagar in Rent Case No. 12 of 2010 (Pradeep Kumar and another v. Mahesh Kumar) by which petitioner’s amendment application seeking amendment in the written statement has been rejected. 3. The facts giving rise to this case are that it appears, the respondents-landlords have filed release application No. 12 of 2010 under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 (in short, ‘the Act’) for release of the accommodation in dispute. To the aforesaid application, a written statement was filed. After closing of the evidence of the parties, on 13.8.2013 an application seeking amendment in the written statement was filed under Section 34(1)(g) of the Act praying the Court to permit the petitioner to amend the written statement by adding ground No. 14-A. To this application, an objection was filed by the respondents-landlords stating that the respondents could have raised the plea of 6 month’s notice while filing the written statement and now, at this stage, it cannot be permitted to raise because he has waived his right to raise the plea of notice. 4. Learned Prescribed Authority, taking note of the judgment of the Apex Court in B.K. Narayana Pillai v. Parameswaran Pillai and others, 2000 (1) SCC 712 , has rejected the petitioner’s amendment application holding that by not taking this objection at the initial stage, the petitioner has waived his right to raise the plea of six months notice and at the final hearing stage, he cannot be permitted to amend the written statement. 5. Sri Nigam submits that the requirement of six months’ notice is mandatory in view of the first Proviso to sub-section (1) (a) of Section 21 of the Act. For appreciating the controversy, it would be appropriate to go through the language used in the aforesaid proviso, which is reproduced hereunder: “21. 5. Sri Nigam submits that the requirement of six months’ notice is mandatory in view of the first Proviso to sub-section (1) (a) of Section 21 of the Act. For appreciating the controversy, it would be appropriate to go through the language used in the aforesaid proviso, which is reproduced hereunder: “21. (1) Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years.” 6. From the bare reading of the aforesaid Proviso, it would transpire that in case landlord has purchased the accommodation in dispute in which the tenant is residing since prior to its purchase, while seeking release of the accommodation under Section 21(1)(a) of the Act, he must give six months’ notice to the tenant to vacate the premises with the stipulation that the release application cannot be filed before expiry of three years from the date of purchase. It would also transpire that six month’s notice can be given even before the expiry of three years. 7. Sri Nigam submits that six months’ notice is necessary for filing a release application in each circumstance either the release application has been filed by a landlord who has purchased the building or other than this. From the bare reading of the Proviso, I find that learned counsel for the petitioner is misconstruing and misinterpreting the 1st Proviso to sub-section (1) (a) of Section 21 of the Act as the language used therein is unambiguous and clear and from its literal reading, it is clear that where the release application is filed by a landlord who has purchased the building, seeking release of accommodation in which tenant is residing, since prior to its purchase, the condition of six months’ prior notice is necessary and that will not be available to a landlord other than the landlord who has purchased the building. 8. 8. On being confronted as to whether the landlord, who has filed the release application, has purchased the building in question or he falls in the category of other landlord, Sri Nigam, from the perusal of the records, i.e., release application, written statement or even the amendment application, could not show that the release application has been filed by a landlord who has purchased the accommodation in dispute. Therefore, in my considered opinion, this proviso would not be attracted. 9. Sri Nigam further contended that the Court below has erred in rejecting the application by observing that the tenant has waived his right to raise the plea of six months prior notice. In his submissions, the plea can be taken before the final decision of the release application and the principle of waiver may come into play only after decision of the release application in case it is taken in the appeal. 10. There may be substance in the submissions of Sri Nigam, but here the first condition, i.e., release application has to be filed by a landlord who has purchased the building wherein the tenant is residing since prior to its purchase by the present landlord, is missing. The six months’ prior notice is required in a case where the landlord has purchased the building and filed an application seeking release of the accommodation. 11. In view of the foregoing discussions, I do not find any merit in the present writ petition and the same is hereby dismissed.