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Supreme Court of India
Mahesh Kumar Agarwal (Dead) By Lrs vs Naresh Chandra . on 8 December, 2021Author: K.M. Joseph
Bench: K.M. Joseph, Pamidighantam Sri Narasimha
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7554 OF 2021
(Arising out of SLP (C)No. 3432 of 2017)
MAHESH KUMAR AGARWAL (DEAD) BY LRS Appellant (s)
VERSUS
NARESH CHANDRA & ORS. Respondent(s)
J U D G M E N T
K. M. JOSEPH, J.
(1) Leave granted.
(2) This matter arises under U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972
(hereinafter referred to as ‘Act’ for brevity). A
proceeding was instituted for eviction of the respondents by
the appellant on the basis of a purchase made by him on
04.01.1977 from the previous landlord. The application was
filed under section 21 of the Act before the Rent
Controller. This was preceded by a legal notice which was
dated 22.12.2007 purporting to comply with the requirement
of the first proviso to Section 21(1)(a). The respondents
Signature Not Verified
Digitally signed by
Nidhi Ahuja sent a reply notice on 22.02.2008. In the said reply
Date: 2021.12.20
15:29:39 IST
Reason:
notice, the respondents did not raise any objection based on
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the requirements in the proviso to Section 21. The case
went to trial. By order dated 16.05.2013, the Rent
Controller ordered eviction of the respondents. The
respondents carried the matter in appeal. It was
unsuccessful as the appellate authority dismissed the appeal
on 21.07.2016. The respondent filed a writ petition before
the High Court. By the impugned order, the High Court has
allowed the writ petition. The sole ground on which the
High Court allowed the writ petition filed by the respondent
is that the appellant-landlord had not complied with the
requirement under the proviso under Section 21(1)(a) insofar
as no notice of six months was given prior to the filing of
the application.
(3) We have heard Mr. Joy Basu, learned senior counsel for
the appellants. Noticing that, though served, there is no
appearance for the respondents, we appointed Mr. Senthil
Jagadeesan, learned counsel to assist the Court as Amicus.
We have heard the learned Amicus as well.
(4) Mr. Joy Basu, learned senior counsel for the
appellants, would, firstly, draw our attention to the terms
of the notice by the appellant. He would point out that it
is pertinent to note that, though in notice, it is inter
alia stated that tenancy of the tenant was being terminated
within 30 days of the receiving of the notice and the tenant
was asked to hand over the possession, he would point out
that the application was filed after the expiry of six
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months. The application was filed, in fact, on 20.11.2008
whereas the notice is dated 22.12.2007. Secondly, he would
submit that, even for a moment, assuming that the notice
dated 22.12.2007 falls foul of the mandate of the proviso,
the conduct of the tenant is such that it must be held that
he has waived his right. In this regard, he drew support of
the judgment of this Court which is reported in Martin &
Harris Ltd. v. VIth Additional Distt. Judge (1998) 1 SCC
732. He would submit that this is a case where to begin
with, the tenant did not set up any objection in reply
notice. Still further, he did not take up any contention in
his written statement before the trial Court in regard to
the notice. The tenant did not even raise objection when he
filed the appeal before the appellate authority. It is for
the first time that in the writ petition that the tenant
raised this point and the High Court has allowed the
petition. On the basis of the judgment of this Court, he
would, therefore, submit for our acceptance, the principle
that even assuming that the notice sent by the appellant was
defective, it is capable of being waived and it was, in
fact, waived.
(5) Per contra, learned Amicus would draw our attention to
a unreported judgment of this Court in Gopal Krishan Verma
v. Tahir (Civil Appeal No. 7896-7897 of 2015). Therein, a
Bench of two learned Judges was dealing with the very same
provision with which we are concerned. We may refer to the
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discussion by this Court after noticing the fact that the
purchase of the property in the said case was made by the
landlord on 13.07.2009 and the ejectment petition was filed
after the expiry of three years on 21.12.2012. The Court
found that the first requirement under the proviso was
fulfilled. It is, thereafter, the Court proceeded to hold
as follows:
“The more relevant aspect of the matter is,
whether the appellant landlord had given a notice to
the tenant, for a period of not less than six
months, before such application for eviction was
filed by him. It is undoubtedly true, that the
appellant could have relied upon the legal notice
dated 20.11.2009 if there was no period depicted
therein (for seeking ejectment of the respondent
thereon). However, since the extract of the legal
notice dated 20.11.2009 reproduced above reveals,
that the legal notice was for a period of 30 days,
inasmuch as, the tenant had been required“…. to
quit, vacate and deliver vacant possession of the
said premises to my client immediately after the
expiry of 30 days of the service of the notice upon
you….”, we are satisfied with the second
requirement in the proviso under Section 21(1),
namely, that “the landlord has given a notice in
that behalf to the tenant not less than six
months….”,cannot be deemed to have been complied
with. Since the notice was limited to a period of
thirty days, its validity had expired on 19.12.2009.
The notice contemplated under the proviso to Section
21(1) extracted above, is a six months notice. In
the above view of the matter, we are satisfied that
the High Court committed no error in rejecting the
claim of the appellant.”
(6) The learned Amicus, in fact, submits that this Court
may have erred in the view it has taken, in that, it may be
misplaced to hold that even if the proceeding is instituted
for eviction after the expiry of the period of six months
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after the notice is given, the requirement of the proviso is
not fulfilled. However, he does point out that in the said
case, despite being alerted by the reply notice of the
notice of the landlord was defective, the landlord
persevered. He further submitted that there is a further
requirement in the statutory provision which consists of the
mandatory order of compensation. We may notice the relevant
provisions of Section 21:
“Section 21. Proceedings for release of building
under occupation of tenant
(1)- The prescribed authority may, on an application
of the landlord in that behalf, order the eviction
of a tenant from the building under tenancy or any
specified part thereof if it is satisfied that any
of the following grounds exists namely
(a) that the building is bona fide required either
in its existing form or after demolition and new
construction by the landlord for occupation by
himself or any member of his family, or any person
for whose benefit it is held by him, either for
residential purposes or for purposes of any
profession, trade or calling, or where the landlord
is the trustee of a public charitable trust, for the
objects of the trust;
(b) that the building is in a dilapidated condition
and is required for purposes of demolition and new
construction:
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:
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Provided further that if any application under
clause (a) is made in respect of any building let
out exclusively for non-residential purposes, the
prescribed authority while making the order of
eviction shall, after considering all relevant facts
of the case, award against the landlord to the
tenant an amount not exceeding two years’ rent as
compensation and may, subject to rules, impose such
other conditions as it thinks fit.”
(7) We have already noticed the facts. Indeed, it is much
after the period of six months of the notice given by the
appellant that the proceeding has been instituted. We are,
in fact, inclined to take the view that the notice which has
been served would be in conformity with the proviso.
However, we cannot proceed to decide the matter on the said
basis for the reason that such a premise is inconsistent
with the view taken by this Court in the unreported
judgment. However, we are of the view with due respect that
this Court may have erred in the said judgment. Judicial
discipline requires that we should not found our decision on
such a view for the reasons already set out. We defer from
doing that.
(8) We proceed to consider the argument of the appellants
based on the principle of waiver. In this regard, we notice
the judgment of this Court reported in Martin & Harris Ltd.
(supra). In the said case, there were two points which
arose. The first point revolved around the question as to
whether the application which was admittedly filed within
the period of three years mentioned in the first proviso
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could be considered. This Court took the view that the law
did not veto the institution of proceedings but instead
interdicted entertaining of the proceeding. Answering point
no. 2 which is more apposite in the context of the facts of
this case, the Court went on to hold, inter alia, as
follows:
“12. However the further question survives for
consideration, namely, whether the beneficial
provision enacted by the legislature in this
connection for the protection of the tenant could be
and in fact was waived by the tenant. So far as this
question is concerned on the facts of the present
case the answer must be in the affirmative. As we
have noted earlier after the suit was filed the
appellant filed its written statement on 17-9-1986.
In the said written statement the appellant, amongst
others, did take up the contention that the
application as filed by the respondent-landlord under
Section 21(1)(a) was not maintainable and was
premature as six months’ period had not expired since
the service of notice dated 20-9-1985 when the suit
was filed. But curiously enough thereafter the said
contention raised by the appellant in written
statement was given a go-by for reasons best known to
the appellant. It is easy to visualise that if at
that stage the appellant had pressed for rejection of
the application on the ground of Section 21(1)(a) as
not showing completed cause of action due to non-
expiry of six months from the date of service of
notice invoking Order VII Rule 11(a) and (d) CPC,
alleging that the plaint did not disclose a cause of
action or it appeared to be barred by law,
respondent-plaintiff could have withdrawn the suit on
that ground under Order XXIII Rule 1 sub-rule (3) CPC
as the suit based on grounds under Section 21(1)(a)
of the Act would have been shown to have suffered
from a formal defect and he would have been entitled
to claim liberty to file a fresh suit on the same
cause of action after the expiry of six months’
period from the date of service of notice. That
opportunity was lost to the respondent-landlord as
the appellant did not pursue this contention any
further. On the contrary the appellant joined issues
on merits by seeking permission to cross-examine the
plaintiff on merits of the case on grounds as pleaded
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under Section 21(1)(a) of the Act. When the decree
was passed against the appellant, even while
challenging the said decree in appeal no such ground
was taken in the memo of appeal, nor was it argued
before the first appellate court. Under these
circumstances, the High Court rightly held that the
contention, regarding the suit being premature as
filed before expiry of six months from the date of
the notice, must be treated to have been waived by
the appellant. Joining issue on this question learned
Senior Counsel, Shri Rao, for the appellant, invited
our attention to a decision of this Court in the case
of Badri Prasad v. Nagarmal [AIR 1959 SC 559 : 1959
Supp (1) SCR 769] . In that case a suit filed by an
unregistered company was found to be hit by the
provisions of Section 4 sub-section (2) of the Rewa
State Companies Act, 1935. The said contention was
permitted to be taken for the first time during
averments in appeal before this Court. It was held
that as this contention went to the root of the
maintainability of the suit it could be agitated as a
pure question of law. We fail to appreciate how that
decision can be of any avail to the appellant in the
present case. This Court, placing reliance on a
decision of the Privy Council in the case of
Surajmull Nargoremull v. Triton Insurance Co. Ltd.
[(1924) 52 IA 126 : AIR 1925 PC 83] extracted with
approval the observations of Lord Sumner at p. 128 of
the Report of the Privy Council judgment to the
following effect:
“The suggestion may be at once dismissed that it is
too late now to raise the section as an answer to
the claim. No court can enforce as valid that which
competent enactments have declared shall not be
valid, nor is obedience to such an enactment a thing
from which a court can be dispensed by the consent
of the parties, or by a failure to plead or to argue
the point at the outset: Nixon v. Albion Marine
Insurance Co. [(1867) LR 2 Exch 338] The enactment
is prohibitory. It is not confined to affording a
party a protection, of which he may avail himself or
not as he pleases.”
The decision of the Privy Council referred to with
approval by this Court in the aforesaid decision clearly
indicates that if a proceeding before a court is barred
by a law, a plea to that effect being a pure question of
law can be agitated any time. But if the prohibition
imposed by the statute is with a view to affording
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protection to a party, such protection can be waived by
the party. He may avail of it or he may not avail of it
as he may choose. It is not the case of the appellant
that the application for possession as filed by the
respondent-plaintiff was barred by any provision of law.
All that was contended was that it was prematurely filed
as six months’ period had not expired from the date of
issuance of the suit notice. That provision obviously
was enacted for the benefit and protection of the
tenant. It is for the tenant to insist on it or to waive
it. On the facts of the present case there is no escape
from the conclusion that the said benefit of protection,
for reasons best known to the appellant, was waived by
it though it was alive to the said contention as it was
mentioned at the outset in the written statement filed
before the prescribed authority. Thereafter it was not
pressed for consideration. The result was that the
respondent-landlord by the said conduct of the appellant
irretrievably changed his position and would get
prejudiced if such a contention is entertained at such a
late stage as was tried to be done before the High Court
after both the courts had concurrently held on facts
that the respondent-plaintiff had proved his case on
merits.”
No doubt, the Court also went on to tide over the
objection based on the proviso incorporating the provision
based on public policy. A Bench of three learned Judges has
affirmed the view taken in the aforesaid judgment but then,
we must note that the decision of the Bench of three learned
Judges in Nirbhai Kumar v. Maya Devi & Ors. (2009) 5 SCC 399
relates to the requirement under the first part of the first
proviso to section 21 of the Act, namely the embargo against
entertaining the application except after expiry of three
years of the transfer.
(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
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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.
(10) However, under Section 21 of the Act, as correctly
pointed out by the learned Amicus, under the second proviso,
in respect of a non-residential premises or a building let
out exclusively for non-residential purpose, an order for
payment of an amount not exceeding two months’ rent as
compensation is called for:
“Provided further that if any application
under clause (a) is made in respect of any building
let out exclusively for non-residential purposes,
the prescribed authority while making the order of
eviction shall, after considering all relevant facts
of the case, award against the landlord to the
tenant an amount not exceeding two years’ rent as
compensation and may, subject to rules, impose such
other conditions as it thinks fit.”
(11) In this case, admittedly, a building was let out
exclusively for non-residential purposes. In terms of the
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said proviso, having heard learned senior counsel, we are
inclined to order that the appellants shall pay a sum of
Rs.30,000/-to the respondents.
The appeal is allowed. The impugned order is set
aside. The order of the Rent Controller, as affirmed by the
appellate authority, will stand restored with the
modification that the appellants will pay a sum of
Rs.30,000/- to the respondents within a period of two months
which shall be paid by making deposit within a period of one
month before the appropriate Court concerned. Upon deposit,
it will be open to the respondents to withdraw the said
amount.
No orders as to costs.
(12) We place on record our appreciation for the efforts
put in by Mr. Senthil Jagadeesan, learned Amicus Curiae, who
has researched the matter and placed the correct legal
position in law before us, besides the facts.
(13) A copy of the order may be sent to the address of the
respondents.
…………………………………………………………….. J.
[ K.M. JOSEPH ]
…………………………………………………………….. J.
[ PAMIDIGHANTAM SRI NARASIMHA ]
New Delhi;
December 08, 2021.
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