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2025 DIGILAW 53 (ALL)

Pramod Kumar Goyal v. Saroj Sharma

2025-01-16

AJIT KUMAR

body2025
JUDGMENT : Ajit Kumar, J. 1. Heard Sri Nawal Kishore Mishra, learned counsel for the petitioners and Sri Rishabh Agrawal, learned counsel appearing for the landlord-respondent. 2. This petition filed under Article 227 of the Constitution of India raises challenge to the order passed by the Prescribed Authority directing for release of the demised premises in favour of the landlord-respondent and also the order passed in appeal affirming the order passed by the said authority. Admittedly, release application has been filed to set up a plea for need of the son of the landlord-respondent which came to be contested basically on the point that there was no bona fide need so as to warrant release of the premises. 3. The Prescribed Authority has ordered for release of the demised premises and, therefore, the landlord-respondent challenged the judgment in appeal taking an additional ground that the release application itself was not maintainable as the mandatory requirement of 6 months' notice to maintain a release application as contemplated under Section 21(1)(a) was not fulfilled and, therefore, release application was hit by the first proviso to Section 21(1) of Act No.13 of 1972. 4. Here before this Court also the same point is pressed with an additional plea that the findings returned by the Prescribed Authority on the point of bona fide need was not justified and rather perverse in view of the documents as brought on record which had gone unnoticed by the Prescribed Authority. 5. In support of his legal argument as to entertainability/maintainability of release application by the Prescribed Authority, learned counsel for the petitioner has placed reliance upon the judgment of this Court in the case of Manju Sharma and others v. Sudha Sharma and others , 2019 (8) ADJ 818 and also the certain observations made in the judgment by the Supreme Court in the case of Martin & Harris Ltd. v. VIth Additional District Judge and others, (1998) 1 SCC 732 . 6. In support of his second submission as to the findings returned upon the point of bona fide need, learned counsel for the petitioner has drawn attention of the Court to the cross-examination of the landlord-respondent in O.S. No.684 of 2013 instituted by the petitioner against the landlord seeking an injunction from any unlawful dispossession from the tenanted premises. 6. In support of his second submission as to the findings returned upon the point of bona fide need, learned counsel for the petitioner has drawn attention of the Court to the cross-examination of the landlord-respondent in O.S. No.684 of 2013 instituted by the petitioner against the landlord seeking an injunction from any unlawful dispossession from the tenanted premises. He has also pleaded that looking to the plaint allegations more especially paragraph no.5 thereof, there was no bona fide need. 7. Countering the submission advanced by the learned counsel for the petitioner on the first plea, Sri Rishabh Agrawal, learned Advocate has placed reliance upon the judgment in the case of Martin & Harris Ltd. (supra) as well as the subsequent judgment of a co-ordinate bench of this Court in the case of Zila Congress Committee and another v. Girish Kumar Juneja, 2019 SCC Online All 5169 and submitted that mandatory requirement of 6 months' notice though is there to maintain release application before the Prescribed Authority but to that effect objection has to be taken specifically by the defendant-tenant in the very beginning failing which it would be taken that he has waived his right to raise objections to join issues on merits with the plaintiff by filing his objections. 8. It is submitted that in the written objections that had been filed by tenant-petitioner to the release application, there was no such objection taken. Insofar as the case of Manju Sharma (supra) is concerned, it is argued by Sri Rishabh Agrawal that, that was a case more on the point of requirement of 6 months' notice which the Prescribed Authority had held to be not mandatory relying upon the judgment in the case of Anwar Hasan and by that time that matter came to be decided by this Court in Manju Sharma Case, the judgment in Anwar Hussain case had already stood overruled and it is in that background that the order came to be set aside. 9. Insofar as the second argument is concerned, Sri Rishabh Agrawal submitted that affidavit that is being relied upon was in a suit earlier filed by the tenant-petitioner when there was no release application filed and even if in a suit for injunction any such plea has been taken, that cannot be read into present case. 9. Insofar as the second argument is concerned, Sri Rishabh Agrawal submitted that affidavit that is being relied upon was in a suit earlier filed by the tenant-petitioner when there was no release application filed and even if in a suit for injunction any such plea has been taken, that cannot be read into present case. Case was filed specifically taking plea of bona fide need and in support of this an affidavit was also filed. He further argued that the plaint has to be read in its entirety in order to culled out intention for bringing in the suit and the relief claimed in that regard. 10. Having heard learned counsel for the respective parties and having perused the record, insofar as the first point regarding maintainability of the release application for want of 6 months' notice is concerned, I find that the notice in the present case was sent to the petitioner on 12.08.2015 to which the petitioner had made a reply on 10.09.2015 and suit came to be filed on 29.09.2015 so naturally it was much before the expiry of 6 months'period but in the objection that was filed by the present petitioner in the release application, I do not find there to be any whisper quantifying maintainability of the release application for non- compliance of the mandatory requirement of 6 months' notice instead, what I find is that in the entire pleadings that have been raised in the objections and have been brought on record as Annexure No.6 to the petition, the only plea taken is with regard to the alternative accommodations available to the landlord quantify bona fide need and there are averments to the effect that the application was filed only to pressurize the petitioner to raise amount of rent and noting more. 11. Testing the facts on legal principles and applying the law laid down in the case of Martis & Harris Ltd (supra) , I find it appropriate to refer to paragraph no.13 of the said judgment which places the ratio after meeting the arguments of learned counsel appearing for the appellant in the said case. Paragraph no.13 of the judgment runs as under: "…13. Paragraph no.13 of the judgment runs as under: "…13. It is not possible to agree with the contention of the learned Senior Counsel for the appellant that the provision containing the proviso to Section 21(1) of the Act was for public benefit and could not be waived. It is, of course, true that it is enacted to cover a class of tenants who are sitting tenants and whose premises are subsequently purchased by landlords who seek to evict the sitting tenants on the ground of bona fide requirement as envisaged by Section 21(1)(a) of the Act would be between the landlord on the one hand and the tenant on the other. These proceedings are not of any public nautre. Nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the prescribed authority. The ground raised by the landlord under Section 21(1)(a) would be personal to him. 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." 12. This judgment was referred to by a co-ordinate bench of this Court after dealing with the issue very exhaustively in the matter Zila Congress Committee and another (supra) and vide paragraph no.60, the Court summarized the points emerging out in the judgment in the case of Martin & Harris. Paragraph no.60 of the judgment in the case of Zila Congress Committee and another is reproduced hereinunder: "...60. From a careful reading of the law stated by the Apex court in a series of decision in Martin & Harris Ltd. 9, Anwar Hasan Khan 8, Nirbhai Kumar 6, legal position as emerges can be summarized as under:- (1) The law laid down in Martin & Harris Ltd.9 has been affirmed by the Apex Court in Nirbhai Kumar holding it a good law. Whereas the view taken by the Apex Court in Anwar Hasan Khan 8 that there was no requirement of six months notice after three years of purchase has been held to be a bad law. Whereas the view taken by the Apex Court in Anwar Hasan Khan 8 that there was no requirement of six months notice after three years of purchase has been held to be a bad law. (2) The first proviso of Section 21(1)(a) of the Act, 1972 is aimed to protect a sitting tenant from unscrupulous landlords who had sold the premises with the sole view to evict the tenant. (3) It is mandatory for a purchaser landlord to give six months notice to the tenant to clearly state his intention to file release application-in-future so as to give breathing time to tenant to get an alternative accommodation, if the tenant apprehends his eviction. (4) The release application by purchaser landlord though, can be filed or instituted even before expiry of three years from the date of purchase after expiry of period of six months from the date of notice of his intention to get the premises released in future on the grounds specified in Section 21(1)(a) of the Act, but the release application cannot be entertained or adjudicated prior to expiry of three years as the said period is the statutory protection given to the tenant from eviction. (5). The protection granted to the tenant under the First proviso being personal right of the tenant can be said to have been waived, if the tenant did not raise any objection as to the entertainability of the release application in absence of six months notice or having been filed prior to expiry of the period of six months, at the first opportunity. Thus, in case, the tenant did not raise any objection as to the maintainability of the release application in the written statement, the Prescribed Authority which is the Court of first instance would not entertain objection as to the maintainability of the release application on the said ground. The reason being that in case, the tenant would have raised such an objection at the first opportunity, the landlord would be at liberty to withdraw the release application and file a fresh by giving six months notice or presenting the same application after expiry of period of six months from the date of a valid notice. The reason being that in case, the tenant would have raised such an objection at the first opportunity, the landlord would be at liberty to withdraw the release application and file a fresh by giving six months notice or presenting the same application after expiry of period of six months from the date of a valid notice. (6) Thus, both the requirements in the first proviso of protection period of three years and of six months notice, in the matter of a release application being filed by the purchaser landlord are mandatory requirements of law and have to be insisted by the Court when a release application is filed by the purchaser landlord against the sitting tenant i.e. who occupies a building prior to the said purchase. (emphasis added) 13. From the reading aforesaid judgments it clearly transpires that 6 months' notice though has been held to be mandatory to maintain an application for release but it is also left for the discretion of the tenant to either press it to question release application or to waive it, it being a personal right. The court has held that in the event plea as to notice is not taken in the written objection, then it would be taken that the tenant waived his right to question the maintainability of the release application and, therefore, this would not be available to him subsequently. Even though learned counsel for the petitioner has placed reliance upon certain observations in paragraph no.13 as in that case no such plea was taken in appeal so as to non-suit the plaintiff in a writ petition but here is a case otherwise. 14. In my considered view, a mere ground taken in appeal would not be entertainable unless sufficient plea is taken before the court of first instance itself. It is not the case where the petitioner tried to amend his objections and a bare plea taken after contesting the suit when the points were framed and the case was discussed threadbare and, on point of bona fide need, such a ground was not available to the petitioner to be raised at a later stage in view of the law discussed in the case of Martin & Harris. 15. 15. Thus, on this above score the judgments in question cannot be held to be bad so as to warrant interference in my supervisory/superintending jurisdiction under Article 227 of the Constitution of India. 16. Insofar as the other point regarding bona fide need is concerned, if the entire plaint is taken in its entirety then except for one paragraph where the issue of the building in a dilapidated stage has been discussed, there is a consistent stand/plea taken by the plaintiff that accommodation was required for personal need of his son whom she wanted to establish his own business as he was having his own family and he is not having any job. 17. So far as the cross-examination is concerned, of course, that was an issue taken in another suit instituted by the petitioner where he wanted that he should not be dispossessed except in accordance with law. The very plea raised in the suit which is instituted for the purposes of injunction by the lawful owner of the property from dispossessing a lawful tenant from the premises, is always confined to the relief specific and pleadings raised to the effect and any statement made in that behalf will not be having any binding effect upon a subsequent suit which has been lawfully instituted for evicting the tenant from the premises in question or any proceeding instituted for getting the tenanted accommodation released in favour of the landlord for his/her personal need. 18. No other point has been argued before the Court so as to question the impugned judgments, nor any evidence placed so as to hold that the findings returned by the Prescribed Authority on the point of bona fide need is perverse. 19. Thus, I do not find any manifest error on the question bona fide need and comparative hardships as findings have come to be returned by Prescribed Authority and affirmed in appeal so as to warrant interference in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. 20. No other point has been discussed. 21. The petition lacks merits and is, accordingly, dismissed.