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Uttarakhand High Court · body

2015 DIGILAW 257 (UTT)

MAJID KHAN v. GOPAL KRISHNA VERMA

2015-05-21

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Present petition is filed assailing the order dated 15.05.2015, passed by the Prescribed Authority/Civil Judge, (S.D.), Nainital in Rent Control Case No. 12 of 2012, whereby application moved by the tenant /defendant/petitioner herein to reject the application seeking release of the building for want of six months mandatory notice, under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972, was rejected. 2. 2. Brief facts of the present case, inter alia, are that when landlord purchased property, in question, vide sale deed dated 13.07.2009, petitioner herein was already in possession as tenant in the tenanted property which is part of the property purchased by the landlord; landlord got issued one notice on 20.11.2009, under Section 106 of the Transfer of Property Act, terminating the tenancy of the tenant on expiry of 30 days from the date of service of notice and asking the tenant to hand over vacant peaceful possession to the landlord after expiry of the statutory period of notice; landlord, thereafter, file one S.C.C. Suit for eviction of the tenant under Section 20 of the U.P. Act No. 13 of 1972 and has also filed present Rent Control Case No. 12 of 2012 in the Court of Prescribed Authority / Civil Judge (Senior Division), Nainital under Section 21 (1) (a) of the Act No. 13 of 1973 seeking eviction of the tenant on the ground of bona fide need of the landlord; tenant has filed written statement to the release application before the Prescribed Authority, however, for the reasons best know to the tenant, tenant did not take plea about the maintainability of the application for want of mandatory notice as required under Section 21 (1) of the Act No. 13 of 1972; thereafter, landlord led his evidence and tenant has also led his evidence; when matter was listed before the Trial Court/Prescribed Authority for final arguments, tenant moved application seeking amendment in the written statement incorporating the plea that application under Section 21 (1) (a) of the Act No. 13 of 1972 is not maintainable for want of six months mandatory notice; amendment so sought was rejected by the Prescribed Authority, vide order dated 28.10.2014; order dated 28.10.2014 rejecting the amendment application was challenged before this Court in WPMS No. 2457 of 2014, however, same was permitted to be withdrawn by the tenant, vide order date 10.11.2014; thereafter, tenant/petitioner herein moved an application on 11.12.2014 stating therein that landlord has not issued any mandatory notice of six months prior to the institution of the present application under Section 21 (1) (a) of the Act No. 13 of 1972, therefore, application moved under Section 21 (1) (a) of the Act No. 13 of 1972 seeking release of the building is not maintainable and, consequently, same may be rejected; application so moved by the tenant petitioner herein came to be dismissed vide order dated 15.05.2015; feeling aggrieved, tenant petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. I have heard Mr. Siddhartha Sah, Advocate for the petitioner, Mr. V.K. Kohli, Senior Advocate assisted by Mr. H.M. Bhatia, Advocate for the respondent and have carefully perused the record. 4. From the undisputed facts as narrated hereinabove, one thing is ample clear that defence regarding the maintainability of the release application under Section 21 (1) (a) of the Act No. 13 of 1972 was not taken at the earliest in the written statement and, for the first time, sought to be incorporated by way of amendment after evidence was over and case was fixed for final argument; thereafter, question of maintainability of the application for want of six months mandatory notice was raised by way of application moved on 11.12.2014. 5. In the case of Shri Tahir Vs. Gopal Krishan Verma reported in 2014 (2) U.D. 546 , arising from the other tenanted portion of the same building, this Court in paragraph Nos. 11 and 12 has held as under :- “In view of the judgments of Hon’ble Apex Court in the case of Martin and Harris (supra) and three-Judge Bench in the case of Nirbhai Kumar (supra), I find that settled position of law is that application under Section 21 (1) can be instituted before expiry of three years period from the date of purchase of property, however, shall be entertained and decided after expiry of three years from the date of purchase. To maintain application under Section 21 (1) of the Act, six months notice, as mandated by first proviso to Section 21 (1) of the Act is required to be served on tenant; such notice can be served either before the expiry of period of three years or after the expiry of period of three years from the date of purchase; and tenant if so wishes can waive such notice. If tenant raises objection that application seeking release of the building is not maintainable in view of non service of six months notice, it cannot be held that tenant has waived the notice. However, if tenant opts not to challenge the maintainability of the application at the earliest and opts to contest the application at its merit without challenging the maintainability of application, it must be held that tenant has waived the requirement of six months notice and in that event, he should not be permitted to take plea of maintainability at the later stage. In the case in hand, tenant has raised objection regarding the maintainability of the application even before filing of the written statement, therefore, in the peculiar facts and circumstances, it cannot be held that tenant has waived the requirement of service of six months’ notice.” 6. As per the dictum of this Court in the case of Shri Tahir (Supra), to maintain application under Section 21 (1) (a) of the Act, six months notice, as mandated by first proviso to Section 21 (1) of the Act is required to be served on tenant; such notice can be served either before the expiry of period of three years or after the expiry of period of three years from the date of purchase; and tenant if so wishes can waive such notice. If tenant raises objection that application seeking release of the building is not maintainable in view of non service of six months notice, it cannot be held that tenant has waived the notice. However, if tenant opts not to challenge the maintainability of the application at the earliest and opts to contest the application at its merit without challenging the maintainability of application, it must be held that tenant has waived the requirement of six months notice and in that event, he should not be permitted to take plea of maintainability at the later stage. 7. Undisputedly, in the present case, question of maintainability of the application was sought to be raised when matter was listed for final argument and it was never raised either in the written statement or soon thereafter before the evidence could be led by either of the parties. Therefore, it is held that petitioner/tenant has waived off his right to contend that application for release is not maintainable. 8. Mr. Siddhartha Sah, learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of Saleem Bhai and others Vs. State of Maharashtra and others reported in (2003) 1 SCC 557 , and has argued that plaint can be rejected at any stage of the suit. 9. There is no doubt about the settled position of law that if plaint is hit by Rule 11 Order 7 of the C.P.C., it can be rejected at any stage of the suit. 10. 9. There is no doubt about the settled position of law that if plaint is hit by Rule 11 Order 7 of the C.P.C., it can be rejected at any stage of the suit. 10. Section 34 and Rule 22 of the Act No. 13 of 1972 reads as under:- “Powers of various authorities and procedure to be followed by them. -(1) The District Magistrate, the prescribed authority or any [appellate or revising authority] shall for the purposes of holding any inquiry of hearing, [any appeal or revision] under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), 6 when trying a suit, in respect of the following matters namely,- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) receiving evidence on affidavits; (c) inspecting a building or its locality, or issuing commission for the examination of witnesses or documents or local investigation; (d) requiring the discovery and production of documents; (e) awarding, subject to any rules made in that behalf, costs or special costs to any parts or requiring security for costs from any party; (f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith; (g) any other matter which may be prescribed. (2) The District Magistrate, the prescribed authority or [appellate or revising authority], while holding an inquiry or hearing [any appeal or revision] under this Act, shall be deemed to be a Civil Court within the meaning of [Sections 345 and 346 of Code of Criminal Procedure, 1973] and any proceeding before him or it to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (Act No. XLV of 1860). (3) Where any costs or other sum of money awarded under this Act by the District Magistrate or the prescribed authority or [the appellate in revisional authority] remains unpaid, he or it may issue a certificate of recovery in respect thereof in the prescribed form, and any person in whose favour such certificate is issued may apply to the Court of Small Causes having jurisdiction under the Provincial Small Cause Courts Act, 1887 (Act No. IX of 1887) for recovery of the amount specified in the certificate. Such Court shall thereupon execute the certificate or cause the same to be executed in the same manner and by the same procedure as if it were a decree for payment of money made by itself in a suit. (4) Where any party to any proceeding for the determination of standard rent of or for eviction from a building dies during the pendency of the proceeding, such proceeding may be continued after bringing on the record— (a) in the case of the landlord or tenant, his heirs or legal representatives; (b) in the case of unauthorised occupant, any person claiming under him found in occupation of the building. (5) Where any person has been evicted from a building in pursuance of any order of the District Magistrate or the prescribed authority or made on appeal under this Act, the District Magistrate or the prescribed authority, as the case may be, may after service or publication of a notice in that behalf on such persons and in such manner as may be prescribed, remove or cause to be removed or dispose of, in such manner as may be prescribed, any specific property remaining on such building. (6) Affidavits to be filed in any proceeding under this Act shall be made in the same manner and conform to the same requirements as affidavits filed under the Code of Civil Procedure, 1908 (Act No. V of 1908), and may be verified by any officer or other person appointed by the High Court under clause (b) or by an officer appointed by any other Court under clause (c) of Section 139 of the said Code. (7) The District Magistrate, the prescribed authority or [the appellate of revisional authority] shall record reasons for every order made under this Act. (8) For the purposes of any proceedings under this Act and for purposes connected therewith the said authorities shall have such other powers and [shall follow such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed]. 22. Powers under the Code of Civil Procedure, 1908 [Section 34 (1) (g)]. (8) For the purposes of any proceedings under this Act and for purposes connected therewith the said authorities shall have such other powers and [shall follow such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed]. 22. Powers under the Code of Civil Procedure, 1908 [Section 34 (1) (g)]. – The District Magistrate, the Prescribed Authority or the Appellate or revising authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same power as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely – (a) the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause; (b) the power to proceed ex parte and to set aside, for sufficient cause, an order passed ex parte; (c) the power to award costs and special costs to any successful party against an unsuccessful party; (d) the power to allow amendment or an application, memorandum or appeal or revision; (e) the power to consolidate two or more cases of eviction by the same landlord against different tenants; (f) the power referred to in Sections 151 and 152 of the Code of Civil Procedure, 1908 to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned.” 11. Perusal of Section 34 and Rule 22 of the Act No. 13 of 1972 would make it clear that only few provisions of C.P.C. are made applicable in the cases arising under the provisions of U.P. Act No. 13 of 1972. I am afraid that order 7 Rule 11 of the C.P.C. is not made applicable in the rent control proceedings, therefore, provisions of Order 7 Rule 11 C.P.C. are not available to the tenant petitioner herein. 10 12. Moreover, as discussed herein before since, tenant/petitioner has waived off his right on the point of non service of mandatory six months’ notice, therefore, at the belated stage of final arguments in release application, he should not be permitted to move application for rejection of the release application. 13. In view of the discussion made herein before impugned order does not warrant any interference. 14. Consequently, writ petition fails and is hereby dismissed.