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Allahabad High Court · body

2022 DIGILAW 1676 (ALL)

Mohd. Siddique v. Mohd. Nafees

2022-10-18

AJIT KUMAR

body2022
JUDGMENT : 1. Heard Sri Atul Dayal, learned Senior Advocate assisted by Iqbal Ahmad, learned counsel for the petitioner and Sri Pavan Kumar, learned counsel for the respondent. 2. The short question involved in the present case is as to whether in the event of not taking an objection qua maintainability of release application under Section 21(1)(a) for the reasons that six months period had not expired after service of notice by the landlord who is admittedly subsequent purchaser of the rented property, the tenant would be taken to have waived his right of protection prescribed under first proviso to sub-section (1) of Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘Act, 1972’). 3. The proposition of law in respect of the above legal issue is well settled. In the case of Martin & Harris Ltd. v. VIth Additional District Judge and others, (1998) 1 SCC 732 ; the Supreme Court had an occasion to interpret the provision and in paragraph 9 of the said judgment it has been held that application may not be entertained but would certainly be maintainable even if it has been pre-maturely filed i.e. before expiry of six months’ notice. Paragraph 9 of the judgment runs as under: “9. Even that apart there is an internal indication in the first proviso to Section 21(1) that the legislature has made a clear distinction between 'entertaining of an application for possession under Section 21(1) (a) of the Act and `filing' of such application. so far as the filling of such application is concerned it is clearly indicated by the Legislature that such application cannot be filled before expiry of six months form the date on which notice is given by the landlord to the tenant seeking eviction under Section 21(1) (a) of the Act. The words, `the landlord has given a notice in that behalf to the tenant not less than six months before such application', would naturally mean that before filing of such application or moving of such application before the prescribed authority notice must have preceded by at least six months. similar terminology is not employed by the Legislature in the very same proviso so far as three years' period for entertaining such application by the prescribed authority is concerned. similar terminology is not employed by the Legislature in the very same proviso so far as three years' period for entertaining such application by the prescribed authority is concerned. Therefore, it must necessarily mean that when the prescribed authority is required to entertain an application on the grounds mentioned in Clause (a) of Section 21(1) a stage must be reached when the Court applies its judicial mind and takes up the case for decision on merits concerning the grounds for possession mentioned in clause (a) of Section 21(1) of the Act. Consequently on the very scheme of this Act it cannot be said that the word 'entertain' as employed by the Legislature in the firs proviso to Section 21(1) of the Act would mean 'Institution' of such proceedings before the prescribed authority or would at least mean taking cognizance of such an application by the prescribed authority by issuing summons for appearance to the tenant-defendant. It must be half that on the contrary the term 'entertain' would only show that by the time the application for possession on the grounds mentioned in clause (a)) of Section 21(1) is taken up by the prescribed authority for consideration on merits, at least minimum three years' period should have elapsed since the date of purchase of the premises by the landlord.” 4. On the question whether a decree being passed by a prescribed authority granting release in favour of the landlord even in case an application for release was filed pre-maturely would be a nullity, the court vide paragraph 10 of the judgment held that decree of the trial court having been passed much after three years’ period created as a moratorium in respect of the right of the landlord to get tenanted property released, would not be nullity for want of jurisdiction. 5. Interpreting the law on the point qua entertainability/maintainability of the application for release the court observed that it must be held that when the Legislature has provided that no application under Section 21(1) (a) of the Act shall be entertained by the prescribed authority on grounds mentioned in clause (a) of Section 21(1) of the Act before expiry of three years from date of purchase of property by the landlord it must necessarily mean consideration by the prescribed authority of the grounds mentioned in clause (a) of Section 21(1) of the Act of merits. On the facts of the present case, as we have seen earlier, that stage was reached after 1988 when the prescribed authority on the basis of the affidavit evidence led before it took up the plaintiff's case for consideration on merits of the grounds under Section 21(1) (a) of the Act and at that stage more than three years had expired. from the date on which the respondent-landlord had purchased the property. Consequently no fault can be found with the decision of the High Court to the effect that the prescribed authority was justified in entertaining the consideration of the grounds under Section 21(1) (a) of the Act at that stage and the decree passed on the said ground, therefore, cannot be said to be a nullity, nor can the entertaining of such application on the ground under Section 21(1) (a) of the Act be said to be illegal. The first point for consideration is, therefore, answered in the negative, in favour of the respondent landlord and against the appellant. 6. On the question of waiver of protection by a tenant in the event objection was not raised as to entertainability of the application before expiry of six months period, the court held that the tenant has to raise objection at the very threshold when the notice of the case was served upon him and then he is faced with the release application, he should take the objection but in the event he failed to do so, in such an event it would be taken as lost opportunity of the respondent-tenant as he failed to pursue this objection any further. The court observed, looking to the facts of that case where instead of taking objection to the entertainability of the application, the tenant joined the issues on merits seeking permission to cross-examine the plaintiffs on merit of the case. So, ultimately the court held that the provision for six months' notice before initiation of proceedings under Section 21 (1) of the Act, though is mandatory and confers protection to the tenant concerned, it can be waived by him. So, ultimately the court held that the provision for six months' notice before initiation of proceedings under Section 21 (1) of the Act, though is mandatory and confers protection to the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for the reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on the ground prior to the expiry of six months' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting a favorable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High Court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit being premature having been filed before the expiry of six months from the date of the suit notice. 7. The case of Martin Harris (supra) came to be considered subsequently in the case of Mahesh Kumar Agarwal (Dead) By LRs. v. Naresh Chandra and others, 2022 (1) CRC 662 SC; and the view was reiterated vide paragraph 8 of the judgment. In the case of Mahesh Kumar (supra) the landlord had purchased the property 4th January, 1997 from the previous landlord and moved an application under Section 21(1) (a) in the year 2008, which was preceded by a legal notice dated 22nd December, 2007. 8. The argument advanced on behalf of the landlord in the said case that even if the notice fell foul of the mandate of the proviso the conduct in that case of the tenant would be taken to have waived his right of protection. In that case also neither in reply to the notice nor, in the written statement any such objection was taken. In that case also neither in reply to the notice nor, in the written statement any such objection was taken. The court followed the earlier judgment of Martin Harris (supra) and vide paragraph 9 held thus: “(9) In view of the judgment of this Court in Martin & Harris Ltd. (supra), where this Court has taken the view interpreting the very same provision with which we are concerned, that the objection relating to defective notice is capable of being waived, we are of the view that the appellant should not be denied the benefit of the said view. We further notice that, on facts, the present case stands on a more sturdier footing. In Martin & Harris Ltd. (supra), the tenant had, in fact, raised objection, which he did not press, whereas, in the facts of this case, the tenant has not raised any objection in not only the reply notice, but even in the written statement before the Rent Controller. What fortifies us further is that even in the appeal before the appellate Court, the tenant did not urge the ground. If at all there is a case for waiver, this would be one.” 9. In the case of Pradeep Kumar @ Pradeep and another v. Smt. Meena Devi Sahu and another, 2019 (3) ARC 408; a concurrent Bench of this Court followed the judgment in the case of Martin Harris (supra). In the said case the purchaser of the property vide registered sale deed dated 22nd January, 2010 became the landlady. The intimation of the same was sent to him to the tenant same day but he did not pay the rent. On 3rd August, 2010 the defendant-landlady terminated the tenancy and demanded arrears of rent and ultimately she filed release application on 28th October, 2010 and Section 21(1)(a) of the Act No.-13 of 1972 setting up a bona fide need and also for default in payment of rent. 10. Written statement was filed in the said case by the tenant denying the ownership of the landlady. However, an objection was taken in the written statement vide paragraph 21 that the release application was premature one as three years period had not expired. The court in the aforesaid case framed three questions vide paragraph 10 which runs as under: “10. Written statement was filed in the said case by the tenant denying the ownership of the landlady. However, an objection was taken in the written statement vide paragraph 21 that the release application was premature one as three years period had not expired. The court in the aforesaid case framed three questions vide paragraph 10 which runs as under: “10. (a) Whether under the facts and circumstances of the case the release application filed by the plaintiff-landlady/respondent No.1 before expiry of three years from the date of purchase of the house was barred by the 1st proviso to Section 21(1) of U.P. Act No.13 of 1972? (b) Whether under the facts and circumstance of the case, the defendant-tenant/petitioner has waived the condition of six months notice required under the 1st proviso to Section 21(1) of U.P. Act No.13 of 1972? (c) Whether under the facts and circumstance of the case the comparative hardship of the disputed house has been rightly held to be in favour of the plaintiff-landlady/respondent No.1?” 11. Question Nos. (a) and (b) are relevant for the purpose of the present case. Vide paragraphs 14 and 17 the court answered the question Nos.(a) and (b) against the tenant. Paragraphs 14 and 17 run as under: “14. From the bare reading of 1st proviso to Section 21(1) of U.P. Act No.13 of 1972 and principles of law laid down by Hon'ble Supreme Court in the case of Martin & Harris Ltd.(supra) and Vithalbhai Pvt. Ltd. (supra), it can be safely concluded that the phrase "entertain" used in the 1st proviso to Section 21(1)(a) of U.P. Act No.13 of 1972 would mean that the period of three years since the date of purchase by the landlord must have expired when the Prescribed Authority is required to entertain the release application on the grounds mentioned in Clause (a) of Section 21(1) of U.P. Act 13 of 1972. This would be a stage reached when the Court applies its judicial mind and takes up the case for decision on merits concerning the grounds mentioned in clause (a) of Section 21(1) of the Act. This would be a stage reached when the Court applies its judicial mind and takes up the case for decision on merits concerning the grounds mentioned in clause (a) of Section 21(1) of the Act. The word "entertained" mentioned in the first proviso to Section 21(1) in connection with the grounds mentioned in Clause (a) would necessarily mean entertain the grounds for consideration for the purpose of adjudication of merits and not at any stage prior thereto i.e. neither at the stage at which the application is filed in the office of the Prescribed Authority nor at the stage when summons is issued to the tenant. The crux of the conclusion is that by the time the application for possession on the grounds mentioned in Clause (a) of Section 21(1) is taken up by the Prescribed Authority for consideration on merits, at least minimum three years' period should have elapsed since the date of purchase of the premises by the landlord/landlady. In the present set of facts, the disputed house was purchased by the plaintiff-landlady/respondent no.1 on 21.01.2010 and the case has been taken up for consideration on merit and was decided by the Prescribed Authority on 16.04.2016. Therefore, the 1st proviso to Section 21(1) of the Act stood complied with. Question No.(a) is answered accordingly. “17. From the discussion made above and the law laid down by Hon'ble Supreme Court as aforequoted, it can be safely concluded that requirement of six months notice under the 1st proviso to Section 21(1) of U.P. Act No.13 of 1972, is mandatory but it can be waived by the tenant. These proceedings under Section 21(1)(a) of the Act are neither of public nature nor it involves any public interest. It would be between landlord and tenant. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and called for adjudication by the Prescribed Authority. Six months' breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived. This type of protection to the tenant would naturally be personal to him and could be waived. In the present set of facts the defendant-tenant/petitioner neither raised any objection nor filed an application under Order VII Rule 11(d) of the Civil Procedure Code for dismissal of the release application on the ground that it is premature or barred by the proviso to Section 21(a) of the Act. This clearly established that the defendant-tenant/petitioner has waived the protection of six months' notice as provided in the proviso to Section 21(1) of the Act. Therefore, the submission of learned counsel for the defendant-tenant/petitioner deserves rejection and is hereby rejected. If an objection would have been raised before the Prescribed Authority in the very beginning then the plaintiff-landlady/respondent would have an opportunity to take leave of the Court to withdraw the release application and to file a fresh release application after expiry of six months period.” 12. The court then vide paragraph 20 summarized the legal position on the provision as contained in the first proviso to Section 21(1)(a) vide paragraph 20 thus: “20. The legal position and conclusions stated above are briefly summarized as under:- (i) The phrase "entertained" used in the 1st proviso to Section 21(1)(a) of U.P. Act No.13 of 1972 would mean that the period of three years since the date of purchase by the landlord must have expired when the Prescribed Authority is required to entertain the release application on the grounds mentioned in Clause (a) of Section 21(1) of U.P. Act 13 of 1972. This would be a stage reached when the Court applies its judicial mind and takes up the case for decision on merits concerning the grounds mentioned in clause (a) of Section 21(1) of the Act. The word "entertained" would necessarily mean entertain the grounds for consideration for the purpose of adjudication of merits and not at any stage prior thereto i.e. neither at the stage at which the application is filed in the office of the Prescribed Authority nor at the stage when summons is issued to the tenant. The word "entertained" would necessarily mean entertain the grounds for consideration for the purpose of adjudication of merits and not at any stage prior thereto i.e. neither at the stage at which the application is filed in the office of the Prescribed Authority nor at the stage when summons is issued to the tenant. The crux of the conclusion is that by the time the application for possession on the grounds mentioned in Clause (a) of Section 21(1) is taken up by the Prescribed Authority for consideration on merits, at least minimum three years' period should have elapsed since the date of purchase of the premises by the landlord/landlady. In the present set of facts, the disputed house was purchased by the plaintiff-landlady/respondent no.1 on 21.01.2010 and the case has been taken up for consideration on merit and was decided by the Prescribed Authority on 16.04.2016. Therefore, the 1st proviso to Section 21(1) of the Act stood complied with. Question No.(a) is answered accordingly. (ii) requirement of six months notice under the 1st proviso to Section 21(1) of U.P. Act No.13 of 1972, is mandatory but it can be waived by the tenant. These proceedings under Section 21(1)(a) of the Act are neither of public nature nor it involves any public interest. It would be between landlord and tenant. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and called for adjudication by the Prescribed Authority. Six months' breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived. (iii) In the present set of facts the defendant-tenant/petitioner neither raised any objection nor filed an application under Order VII Rule 11(d) of the Civil Procedure Code for dismissal of the release application on the ground that it is premature or barred by the proviso to Section 21(a) of the Act. This clearly established that the defendant-tenant/petitioner has waived the protection of six months' notice as provided in the proviso to Section 21(1) of the Act.” 13. This clearly established that the defendant-tenant/petitioner has waived the protection of six months' notice as provided in the proviso to Section 21(1) of the Act.” 13. Now coming to the facts of the case in hand, I find that premises in question was purchased by the petitioner on 5th July, 2001 from the erstwhile owner and landlord. It was pleaded in the release application by the petitioner that the son of the petitioner No.-2 was jobless person and, therefore, landlord needed the shop to settle him in some business of phone and mobile repair works. On different occasions the request was made to the tenant to vacate the shop but he refused to do the same and instead demanded Rs.1 lac for vacating the shop. Although more than three years had already expired and the tenant was admitting the petitioner to be landlord yet landlord issued notice on 8th March, 2011 to the opposite party to release the shop and respondent having not done so in spite of service of notice, release application was filed. In the written statement filed by the tenant respondent he admitted himself to be tenant of Mohd. Siddique and Mohd. Zubair, namely, the landlord – petitioners. 14. He disputed the bona fide need set up by the landlord and claimed that release application was filed only with an intention to get the rent further increased. An additional written statement was also filed stating therein that he had never been served with notice dated 8th March, 2011. However, in the entire affidavit, written statement and additional written statement, he has not taken any plea that the release application was not entertainable in view of non compliance of provision of six months’ advance notice. This plea was not even taken in appeal. As per the recitals made in the body of the judgment by the appellate court wherein it is clearly recorded that main ground taken in appeal to assail the order of the prescribed authority is that prescribed authority has not appropriately appreciated the evidence on record and that the order passed by the prescribed authority was against the law inasmuch as the prescribed authority has not referred to various provisions of the Act, 1972 which were cited by the tenant appellant and had those provisions being considered the landlord was liable to be non-suited. It was also further pleaded that the order was not well reasoned one and was absolutely contrary to the facts pleaded. The judgment was also assailed on the point that the comparative hardships were not correctly evaluated. 15. The recitals in the judgment do not indicate as to what provisions of law were pleaded in defence and were not considered as per the memo of appeal which was summarized in the judgment by the appellate court. However, the appellate court had proceeded to decide that since six months’ notice did not precede to release application, therefore, there was non compliance of statutory provision and hence the release application was barred. 16. It is worth noticing that respondent is duly represented by Sri Pawan Kumar, learned Advocate, who has filed vakalatnama on 26th July, 2019 but no counter affidavit has been filed in the matter. 17. Applying the legal principle on the point of maintainability of release application beyond the period of three years of purchase of the property by the landlord inasmuch as the requirement of law to have six months’ notice before presenting the release application, I find that this case is fully covered by the judgments that have been referred to hereinabove in this judgment. 18. It is a case where the property was purchased by the present landlord much much ago and the tenant in his written statement has admitted the present landlords to be his landlords, the notice I find to have been issued to the tenant respondent on 8th March, 2011 by the landlord to the tenant by registered post and the Central Information Officer of Postal Department, Kanpur Division, Kanpur certified that notice stood delivered on 10th March, 2011 upon the noticee. 19. The above certificate of the postal department has been issued on 14th March, 2013, which has been brought on record by means of supplementary affidavit which has not been disputed by filing any counter affidavit. The RTI information (information obtained under Right to Information Act, 2005) was also placed before the prescribed authority which has been discussed. The release application was filed in April, 2012 whereas the notice was sent by the registered post on 8th March, 2011 delivered on 10th March, 2011. 20. The RTI information (information obtained under Right to Information Act, 2005) was also placed before the prescribed authority which has been discussed. The release application was filed in April, 2012 whereas the notice was sent by the registered post on 8th March, 2011 delivered on 10th March, 2011. 20. I, therefore, do not find any fault with the findings of the trial court regarding service of notice, inasmuch as no plea of six months’ notice as such having been taken in the objection/ written statement filed to the release application, the tenant would be taken to have waived his right of protection under the proviso. 21. The moratorium of three years period having already expired because the property was purchased by the present landlord way back in the year 2001, and the fact that the tenant respondent was admittedly paying the rent to landlord-respondents, tenant by his own and statement made in the written statement, the release application was maintainable. So, judgment granting release application having been passed on 23rd December, 2014, it would not got rendered as null and void or bad for corum non judis as the prescribed authority concerned had the jurisdiction to entertain the release application and pass order thereupon. 22. In view of the above, therefore, the judgment passed by the court of appeal dated 31st May, 2016 holding that release application was barred by proviso to Section 21 (1) of the Act, 1972, cannot be sustained in law both on facts and legal premise, and the same is hereby set aside. 23. Accordingly, writ petition succeeds and is allowed and the order passed by the Prescribed Authority is hereby confirmed. No order as to cost.