Allahabad High Court
Sushil Kumar Tadaiya vs Siddh Gopal Kudaraya on 14 November, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 05 Case :- MATTERS UNDER ARTICLE 227 No. - 8309 of 2019 Petitioner :- Sushil Kumar Tadaiya Respondent :- Siddh Gopal Kudaraya Counsel for Petitioner :- Kamlesh Kumar Tiwari,Abu Bakht,Pramod Kumar Jain (Senior Adv.) Counsel for Respondent :- Rama Goel Bansal Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri P.K. Jain, learned senior advocate assisted by Sri K.K. Tiwari, learned counsel for the tenant-petitioner and Rama Goel Bansal, learned counsel for the plaintiff-landlord/ respondent.
FACTS:-
2. Briefly stated facts of the present case are that undisputedly the plaintiff-respondent is the owner and landlord of the first floor of house No.196, Jawahar Chowk, City Jhansi of which the defendant-petitioner is the tenant at a monthly rent of Rs.100/- since the year 1986. According to the plaintiff-respondent, the defendant-petitioner defaulted in payment of rent since 01.06.2005 and did not pay the rent despite demand. Therefore, the plaintiff-landlord issued a notice dated 12.07.2013, which was served upon the defendant-petitioner on 19.07.2013 whereby he determined the tenancy and demanded arrears of rent. Since notice was not complied with, therefore, the plaintiff-respondent filed on 13.08.2013 the S.C.C. Suit No.53 of 2013 (Siddh Gopal Kudaraya vs. Sushil Kumar Tadaiya), which was decreed by the impugned judgment and decree dated 28.03.2017 passed by the Judge Small Cause Court, Jhansi. It was held that the disputed building was constructed in the year 1986 and as such, the provisions of U.P. Act XIII of 1972 are not applicable, the notice was validly served and the defendant-petitioner defaulted in payment of rent. Aggrieved with this judgment, the defendant-tenant/ petitioner filed S.C.C. Revision No.24 of 2017 (Sushil Kumar Tadaiya vs. Siddh Gopal Kudaraya), which has been dismissed by the impugned judgment dated 25.09.2019 passed by the Additional District Judge/ Special Judge SC/ST Act, Jhansi. Aggrieved with these two judgments, the defendant-tenant/ petitioner has filed the present petition under Article 227 of Constitution of India.
SUBMISSIONS:-
3. Sri P.K. Jain, learned senior advocate appearing for the defendant-tenant/ petitioner submits as under:
(i) The notice dated 12.07.2013 was served upon the defendant on 19.07.2013 and the suit was filed on 13.08.2013 without exhausting 30 days' period. Therefore, the suit itself was not maintainable being premature as the suit was filed before expiry of mandatory period of notice of 30 days under Section 15 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as 'the Act 1887').
(ii) No evidence was led by the plaintiff-respondent to prove that the disputed building was constructed in the year 1986. It is a very old building and, therefore, the provisions of U.P. Act XIII of 1972, are applicable but the courts below have committed manifest error of law to hold that the provisions of U.P. Act XIII of 1972 are not applicable.
(iii) There was no default in payment of rent as on the date of filing of the suit inasmuch as the rent was paid by the defendant-tenant to the plaintiff-respondent.
4. Rama Goel Bansal, learned counsel for the plaintiff-respondent supports the impugned judgment.
DISCUSSION AND FINDINGS:-
5. I have carefully considered the submissions of learned counsels for the parties.
6. Undisputedly, the notice (9C) was issued by the plaintiff-respondent on 12.07.2013 determining the tenancy and demanding arrears of rent. This notice was well served upon the defendant-petitioner on 19.07.2013 and S.C.C. Suit was filed on 13.08.2013. The plaintiff-respondent has clearly mentioned in paragraph-2 of the plaint that the provisions of U.P. Act No.XIII of 1972, are not applicable. This paragraph was replied by the defendant-tenant/ petitioner in paragraph-2 of his written statement in which he made vague denial. He merely stated that contents of paragraph-2 of the plaint, are not admitted. In the whole written statement, he has not said even a word that the provisions of U.P. Act XIII of 1972, are applicable. In his examination as D.W.-1 on 23.12.2014, the defendant-tenant/ petitioner clearly stated that the disputed accommodation was constructed in the year 1986 and since then he is the tenant. Thus, the fact that the disputed building was constructed in the year 1986 was admitted by the defendant-tenant/ petitioner. Therefore, both the courts below have not committed any manifest error of law to hold that the provisions of U.P. Act XIII of 1972, are not applicable.
7. So far as the submission of the learned counsel for the defendant-tenant/ petitioner that the suit was not maintainable as it was filed before expiry of 30 days of the notice is concerned, I find no substance in it. The notice was issued on 12.07.2013 and the suit was filed on 13.08.2013. That apart in the written statement, the defendant-tenant/ petitioner has not raised any objection as to the maintainability of the SCC suit on the aforesaid ground or that the suit is premature. On being asked, learned counsel for the defendant-tenant/ petitioner refers to ground 2A of the SCC Revision No.24 of 2017, but this ground was added at the revision stage pursuant to the order dated 09.07.2018 passed on his amendment application. Now, learned for the defendant-petitioner has also referred to paragraph-14 of the written statement to contend that an objection in this regard was raised. I have perused the paragraph-14 of the written statement of the defendant-tenant/ petitioner dated 22.11.2013 and I find that there is no such averment in this paragraph and instead it has been merely stated that the notice was issued by the plaintiff on wrong facts and the SCC suit has also been filed on wrong facts, therefore, it is not maintainable. Thus, the defendant-tenant/ petitioner has never taken any ground to the effect that the suit has been filed without exhausting 30 days period of notice. Under the circumstances, this objection cannot be allowed to be raised as it stood waived by the defendant-tenant/ petitioner. This conclusion is also supported by the law laid down by Hon'ble Supreme Court in Martin and Harris Ltd. vs. VIth Additional District Judge and others, (1998) 1 SCC 632 (Paras-10, 11, 13 and 14) and several other judgments of Hon'ble Supreme Court, and a judgment of this Court in Roop Ram vs. Smt. Geeta Rani, 2018 (1) ARC 541. Paras-11 to 16 of the judgment in Roop Ram case (supra), are reproduced below:-
"11. In the case of Smt. Mehar Jahan and 4 others Vs. Mohd. Matlub (Matters under Article 227 No.5334 of 2017) decided on 29.8.2017, this Court held that once the petitioners/tenants have waived the protection of six months notice, they can not withdraw the waiver and raise objections by oral submission during the course of final argument in the P.A. Case. The question of waiver of notice under the proviso to Section 21(1)(a) of the Act was also considered by Hon'ble Supreme Court in the case of Martin and Haris Ltd.(supra) (para 12 and 13) and it was held that the provision for six months notice before the initiation of proceedings under Section 21(1)(a) of the Act, though it is mandatory and confers protection on the tenant concerned; it can be waived by him. In the said case Hon'ble Supreme Court found that requirement of notice was waived by the tenant inasmuch as even though he took objection in his written statement but has not raised it at the time of argument. I find that the case of the plaintiff-respondent no.1 stands on a better footing inasmuch as the defendant-petitioner had not taken any objection in the written statement before the Prescribed Authority. During the course of argument he raised oral objection before the Prescribed Authority without there being any pleading or foundation of facts in the pleadings. Thus, he tried to raise legal arguments bereft of pleadings and also tried to withdraw the waiver which was not permissible.
12. In view of facts and legal position as aforenoted, I do not find any illegality in the findings of fact recorded by courts below that the defendant-petitioner has waived the requirement of six months notice/question of premature filing of the P.A. Case.
13. The view taken by Hon'ble Supreme Court in the case of Martin & Harris Ltd. (supra) was affirmed by larger bench of Hon'ble Supreme Court in the case of Nirbhai Kumar Vs. Maya Devi 2009 (5) SCC 399 observing as under:
"3. In Martin and Harris Limited's case (supra) it was held in para 13 as follows:
"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, still the protection available to such tenants as found in the proviso would give the tenants concerned a locus poenitentiae to avail of it or not. It is easy to visualise that proceedings under 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 nature. 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 and similarly the defence taken by the tenant would also 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. In this connection we may profitably refer to a decision of this Court in the case of Krishan Lal v. State of J & K [1994 (4)SCC 422] wherein Hansaria, J., speaking for a Bench of two learned Judges has made the pertinent observations concerning the question of waiver of a mandatory provision providing for issuance of notice to the parties sought to be proceeded against by the person giving the notice, in paragraphs 16 and 17 of the Report as under: "16. ... As to when violation of a mandatory provision makes an order a nullity has been the subject-matter of various decisions of this Court as well as of courts beyond the seven seas. This apart, there are views of reputed text writers. Let us start from our own one-time Highest Court, which used to be Privy Council. This question came up for examination by that body in Vellayan Chettiar v. Govt. of the Province of Madras [AIR 1947 pc 197] in which while accepting that Section 80 of the Code of Civil Procedure is mandatory, which was the view taken in Bhagchand Dagadusa v. Secy. of State for India- in-Council [(1927) 54 IA 338] it was held that even if a notice under Section 80 be defective, the same would not per se render the suit requiring issuance of such a notice as a precondition for instituting the same as bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by Section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit conferred was to serve `an important purpose', in which case there would not be waiver. "17. This point had come up for examination by this Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh (AIR 1964 SC 1300) and a question was posed in paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity. This Court referred to what was stated in this regard by Mookherjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania (ILR 35 Cal 61) and some other decisions of the Calcutta High Court along with one of the Patna High Court and it was held that if a judgment-debtor, despite having received notice of proclamation of sale, did not object to the non-compliance of the required provision, he must be deemed to have waived his right conferred by that provision. It was observed that a mandatory provision can be waived if the same be aimed to safeguard the interest of an individual and has not been conceived in the public interest." Consequently it must be 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 on 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 reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on that 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 favourable 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. Above being the position the decision in Martin & Harris Ltd.'s case (supra) expressed the correct view. Unfortunately, the said decision not appear to have been placed before the Bench which heard Anwar Hasan Khan's case (supra)."
(emphasis supplied by me)
14. In the case of Vithalbhai Pvt. Ltd. Vs. Union Bank of India, AIR 2005 SC 1891, Hon'ble Supreme Court held that if a suit is filed premature, however, it becomes mature during its pendency then the same will have to be decided on merit similar view has been expressed by Hon'ble Supreme Court in the case of M/s Pushpa Sahakari Avas Samiti Ltd. v. M/s. Gangotri Sahkari Avas S. Ltd. and others, 2012 JT(3) SC 563.
15. In the case of Rajendra Kumar Agarwal Vs. Krishna Gopal, 2012 (11) ADJ 112 (para 4) this Court considered similar controversy and followed the law laid down by Hon'ble Supreme Court in the case of Vithalbhai Pvt. Ltd. (supra) and M/s.Pushpa Sahakari Avas Samiti Ltd. (supra) wherein Hon'ble Supreme Court, while considering provisions of Section 47 read with Order XXI Rule 97 C.P.C.; held that premature filing of execution could not entail its rejection. To arrive at the aforesaid conclusion in the case of M/s.Pushpa Sahakari Avas Samiti Ltd. (supra) Hon'ble Supreme Court followed its earlier decision in the case of Vithalbhai Pvt. Ltd. (supra) and held as under:
"9. At the very outset, it may be stated that it is an admitted position that the execution was levied prior to the expiration of the period stipulated in the decree. The executing court, as is evident, has addressed itself to all the objections that were raised in the application and rejected the same. The principal objection relating to the maintainability of the proceeding on the foundation that it was instituted prematurely did not find favour with it. The learned Single Judge has observed that if an execution is premature when it is filed, it is liable to be rejected. Mr. Dwivedi has drawn an analogy between a premature suit and premature execution by placing heavy reliance on the authority in Vithalbhai (P) Ltd. (supra). In Vithalbhai (supra), while dealing with the premature filing of a suit, a two-Judge Bench of this Court, after referring to a number of decisions of various High Courts and this Court, came to hold as follows:-
"The question of suit being premature does not go to the root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors."
After so stating, the Bench ruled that the plea as regards the maintainability of the suit on the ground of its being premature should be promptly raised and it will be equally the responsibility of the Court to dispose of such a plea. Thereafter, it was observed as follows:-
"However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases:
(i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event;
(ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose;
(iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and
(iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v. Kedar Nath 13.) One more category of suits which may be added to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained."
[Emphasis Supplied]
12. In this context, we may refer with profit to the two-Judge Bench decision in Martin & Harris Ltd. v. VIth Additional Distt. Judge and others [(1998) 1 SCC 732]. In the said Case, the Court was interpreting the language employed in the proviso to Section 21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The proviso stipulated that where the building was in occupation of a tenant before its purchase by the landlord, such purchase being made after the commencement of the Act, no application shall be entertained on the grounds mentioned in Clause (a) of the said Section unless three years' period had lapsed since the date of purchase. A contention was canvassed that filing of an application before the expiry of the three years' period was barred by the provision contained in the said proviso. Repelling the said submission, the Bench opined thus: -
"It must be kept in view that the proviso nowhere lays down that no application on the grounds mentioned in clause (a) of Section 21(1) could be "instituted" within a period of three years from the date of purchase. On the contrary, the proviso lays down that such application on the said grounds cannot be "entertained" by the authority before the expiry of that period. Consequently it is not possible to agree with the extreme contention canvassed by the learned Senior Counsel for the appellant that such an application could not have been filed at all within the said period of three years." After so stating, the Bench distinguished the decision rendered in Anandilal Bhanwarlal v. Kasturi Devi Ganeriwala[(1985)1SCC 442] which dealt with "institution" and eventually came to hold as follows: -
"Thus the word "entertain" mentioned in the first proviso to Section 21(1) in connection with grounds mentioned in clause (a) would necessarily mean entertaining the ground for consideration for the purpose of adjudication on merits and not at any stage prior thereto as tried to be submitted by learned Senior Counsel, Shri Rao, for the appellant. Neither at the stage at which the application is filed in the office of the authority nor at the stage when summons is issued to the tenant the question of entertaining such application by the prescribed authority would arise for consideration."
(emphasis supplied by me) Conclusion
16. (i) Thus, the proceedings under Section 21(1)(a) of the Act was between the plaintiff-landlord and the defendant-tenant which was neither of public nature nor any public interest was involved. Only private interest of the landlord and tenant was involved which came for adjudication before the Prescribed Authority. Six months time by notice is given to the tenant after service of notice to enable him to get the matter settled amicably or to get an alternative accommodation if he realises that the landlord has made out a case for release of the accommodation. Such a protection is personal to him which he can waive lawfully. Therefore, the requirement of six months notice under Section 21(1)(a) of the Act, though it is mandatory and confers protection to the tenant concerned; it can be waived by him which was waived by the defendant-petitioner in the P.A. Case No.04 of 2009 (Smt. Geeta Rani Vs. Roop Ram).
(ii) Entertaining the P.A. Case by the Prescribed Authority was not without jurisdiction. The conduct of the defendant-petitioner shows that he had not promptly raised or pleaded the requirement of six months notice or filing of the premature P.A. Case otherwise the plaintiff-respondent would have got returned the Release Application and would have presented it after about one month so as to exhaust the requirement of six months notice. The defendant-petitioner contested the P.A. Case and appeal on merit in which the fact finding Authorities have found the bonafide need of the plaintiff-respondent to be true and the comparative hardship to be in his favour. Thus, no unmerited advantage to the plaintiff-respondent or disadvantage amounting to prejudice to the defendant-petitioner, has been caused by institution of the P.A. Case No.04 of 2009 before few days of the period of six months from the date of notice.
(iii). Both the courts below have recorded concurrent findings of fact based on consideration of relevant evidences on record that the plaintiff-respondent no.1 is in bonafide need of the disputed shop and the comparative hardship is in his favour. The Prescribed Authority has considered in detail the question of bonafide need and comparative hardship and based on relevant evidences on record, it recorded the findings of fact that the plaintiff-respondent no.1 is in bonafide need of the disputed shop and the comparative hardship is in his favour. I have also perused the findings so recorded by the Prescribed Authority in the impugned judgment dated 20.11.2014 and I do not find any error of law in the said finding."
8. In view of law laid down by Hon'ble Supreme Court as well as the law laid down by this court as afore-noted, I hold that since the tenant-petitioner has not taken objection in the written statement that the suit is not maintainable or it is premature, therefore, this objection cannot be allowed to be taken at the revisional stage or before this court in petition under Article 227 of the Constitution of India. The protection of 30 days period of notice for filing suit was waived by the defendant-tenant/ petitioner and, he contested the SCC suit for about four years which was ultimately decided on 28.03.2017.
9. Now learned counsel for the defendant-tenant/ petitioner has referred to an order of this court in Rajesh Kumar and another vs. Additional District Judge and 2 others, 2019 (3) ARC 491 wherein the question of period of notice under Section 15 of the Act 1887 has been referred to a larger bench in view of two conflicting decisions. This order relied by the learned counsel for the defendant-tenant/ petitioner, has no application on the facts of the present case inasmuch as in the present case, the question of waiver is involved and Hon'ble Supreme Court has held in Martin and Harris (supra) that it can be waived. On facts of the present case, I find that it was a case of waiver and it is squarely covered by the afore-quoted judgment of this court and the judgments of Supreme Court referred therein.
10. The last submission of learned counsel for the defendant-tenant/ petitioner with regard to no default in payment of rent as on the date of filing suit, is also without substance. Both the courts below have recorded concurrent findings of fact based on consideration of relevant evidences on record and admission of the defendant-tenant/ petitioner that he has not paid any rent to the plaintiff-respondent since 01.06.2005. That apart, the tenancy was determined by the plaintiff-respondent. Under the circumstances, I do not find any good reason to interfere with the detailed concurrent findings of fact recorded by the courts below.
11. For all the reasons afore-stated, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed.
Order Date :- 14.11.2019 NLY