Suresh Chand vs Chaman Lal Jain And 3 Ors.
2023 Latest Caselaw 2734 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 16.1.2023
 
Delivered on 27.1.2023
 

 
Court No. - 38
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 7101 of 2016
 

 
Petitioner :- Suresh Chand
 
Respondent :- Chaman Lal Jain And 3 Ors.
 
Counsel for Petitioner :- Tarun Agrawal,Vinayak Mithal
 
Counsel for Respondent :- S.C.,Ashutosh Srivastava,Satyendra Nath Srivastava,Shreyas Srivastava
 

 
Hon'ble Salil Kumar Rai,J.

This is a tenant's petition under Article 227 of the Constitution of India challenging the order dated 9.9.2016 passed by the Small Causes Court, Meerut/Prescribed Authority, Meerut in Prescribed Authority Case No.28/2012 (Chaman Lal and others versus Suresh Chand) whereby the Prescribed Authority has dismissed the amendment application filed by the petitioner/tenant under Order 6 Rule 17 C.P.C filed for amendment in the written statement.

The facts of the case are that on 4.5.2012, the respondent/landlord instituted Prescribed Authority Case No.28 of 2012 under Section 21(1)(a) of Act No.13 of 1972 praying for release of the suit property in his favour by evicting the petitioner/tenant from the same on the ground that the demised premises was bonafide required by the respondent/landlord for business purposes. The demised premises is a part of Building No.77, Sarrafa Bazar, Meerut City.

The case was instituted by the respondent/landlord on the plea that the building was purchased by her by its erstwhile owner/landlord vide sale deed dated 7.12.1998. It was further stated that a notice dated 11.4.2012 was served on the petitioner/tenant. The petitioner/tenant filed his written statement denying the bonafide need of the respondent/landlord as pleaded in the application filed under Section 21(1)(a) of Act No.13 of 1972 and also stated that the respondent/landlord was not entitled to any relief against the petitioner/tenant. The petitioner/tenant also denied the averment relating to the notice dated 11.4.2012. It is to be noted that no specific plea was taken by the petitioner/tenant in his written statement regarding the first Proviso to Section 21(1)(a) of Act No.13 of 1972 i.e., no specific plea was taken by the petitioner/tenant that the application filed by the landlord was not maintainable because the application was filed before six months from the date of notice as stipulated in the Proviso. The written statement was filed on 23.11.2012. On 2.9.2016, the petitioner/tenant filed an application under Order 6 Rule 17 C.P.C praying for permission to amend the plaint incorporating the plea that in light of the first Proviso to Section 21(1)(a), the application of the landlord was not maintainable as it was filed before six months from the date of notice dated 11.4.2012. In his application under Order 6 Rule 17 C.P.C, the petitioner/tenant stated that the said plea could not be stated in the written statement due to oversight and the said omission came to the notice of the petitioner/tenant, for the first time, when the case was being argued before the Prescribed Authority. It was pleaded in the application that the omission was not deliberate and the plea was necessary for proper disposal of Prescribed Authority Case No.28 of 2012. It was stated in the application that the petitioner-tenant had not waived his right under the first Proviso to Section 21(1)(a) of Act No.13 of 1972.

The Prescribed Authority vide his order dated 9.9.2016 dismissed the application filed under Order 6 Rule 17 C.P.C on the ground that the said application was barred by the Proviso to Order 6 Rule 17 C.P.C in as much as the petitioner/tenant had not been able to show that despite due diligence, he could not have raised the matter before the commencement of trial. It is noted in the order dated 9.9.2016 that the amendment application was filed after the arguments in the case were over and the case was reserved for judgment. The Prescribed Authority held that the amendment application was highly belated and had been filed only to delay the disposal of the case. The order has been challenged in the present petition.

It was argued by the counsel for the petitioner/tenant that the first Proviso to Section 21(1) of Act No.13 of 1972 creates a mandatory bar that no application under Section 21(1) would be entertained unless the landlord had given a notice intimating the purchase and filing of the application to the tenant not less then six months before instituting the case under Section 21(1) and therefore, the issue raised through proposed amendments was a jurisdictional question and necessary for an efficacious decision of the case and therefore, the amendment was to be allowed and the court below has wrongly rejected the amendment application. It was argued that the Court below has taken a hyper technical approach while dismissing the amendment application and the amendment application does not introduce a new case as the petitioner had never waived his right under the first Proviso to Section 21(1) of Act No.13 of 1972. It was argued that in his written statement, the petitioner/tenant had challenged the legality of the proceedings under Section 21(1)(a) instituted by the respondent/landlord and therefore, the amendments prayed by the petitioner/tenant were only formal and legal in nature and the Prescribed Authority has erred in law by rejecting the amendment application filed by the petitioner/tenant. It was argued that for the aforesaid reasons, the order dated 9.9.2016 passed by the Prescribed Authority is liable to be set aside and the amendment application filed by the petitioner/tenant is to be allowed. In support of his contentions, the counsel for the petitioner/tenant has relied on the judgment of the Supreme Court reported in Vithalbhai Pvt.Ltd. versus Union Bank of India (2005) 4 SCC 315, B.K.Narayana Pillai versus Parameswaran Pillai and another (2000) 1 SCC 712 and the judgment and order dated 19.4.2019 passed by a Single Judge of this Court in Writ A No.72134 of 2010. (Anoop Kumar and others versus Doongermal Singodiya and another)

Rebutting the contentions of the counsel for the petitioner/tenant, the counsel for the respondent/landlord has argued that the petitioner had filed a detailed written statement on 23.11.2012 contesting the bonafide need as set-up by the landlord and had not raised any specific objections regarding the maintainability of the proceedings in light of the first Proviso to section 21(1) of Act No.13 of 1972. It was argued that the petitioner/tenant  had for the first time raised objections through the amendment application filed in 2016 after the arguments in the case were over and the judgment was reserved by the Prescribed Authority.  It was argued that in the aforesaid circumstances, the petitioner-tenant had waived his rights under the first Proviso to Section 21(1) of Act No.13 of 1972 and he cannot be permitted to raise the plea at this stage.  It was argued that the amendment was also barred by the proviso  to Order 6 Rule 17 C.P.C because the petitioner/tenant  had not been able to show that despite due diligence, he could not have raised the aforesaid plea before the commencement of trial.  It was argued that in case the amendment application is allowed, the respondent-landlord would be gravely prejudiced and the petitioner-tenant is estopped from raising the said plea at this stage.  It was argued that for the aforesaid reasons, the Prescribed Authority has rightly rejected the amendment application filed by the petitioner/tenant, the petition lacks merit and is to be dismissed. In support of his arguments, the counsel for the respondent-landlord has relied on the judgments of the Supreme Court in Martin & Harris Ltd. versus VIth Additional Distt.Judge and others (1998) 1 SCC 732, Nirbhai Kumar versus Maya Devi & others 2009 (5) SCC 399 and the judgment and order dated 2.4.2019 passed by the Single Judge of this Court in Mukhtar Begam versus Abdul Gaffar MANU/UP/1535/2019.

I have considered the rival submissions of the counsel for the parties.

It is true as argued by the counsel for the petitioner/tenant that the requirement of six months notice before filing any application under Section 21(1)(a) of Act No.13 of 1972 as stipulated in the first Proviso to Section 21(1) is a mandatory requirement. However, in Martin & Harris Ltd., (Supra), it was held that if a prohibition on institution of any proceedings is imposed by a statute with a view to affording protection to a party, such a protection can be waived by the party who may choose to not avail of it. It was held in the aforesaid case, that the first Proviso to Section 21(1) was enacted for the benefit of the tenant and it was for the tenant to either insist on it or to waive it. The Court held that the proceedings under Section 21(1)(a) are between the landlord and the tenant and are not of any public nature nor any public interest is involved in the said proceedings. It was observed by Supreme Court that 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. After making the aforesaid observations, the Court, considering the circumstance that the tenant had not pressed the plea regarding the bar imposed by the first Proviso to Section 21(1) held that the tenant was estopped from taking up such a contention as the respondent, on account of the aforesaid contention of the appellant, had irretrievably changed his position to his detriment and lost an opportunity of seeking leave of the Court to withdraw the suit with liberty to file a fresh suit.

The aforesaid propositions laid down by the Supreme Court in Martin & Harris Ltd., (Supra) were also reiterated in Nirbhai Kumar (Supra) and followed by this Court in Mukhtar Begum (Supra). The Single Judge of this Court in Mukhtar Begum (Supra) observed in Paragraph No. 20 as follows:

(a) ....

(b) ....

(c) ....

(d) .....

(e) ....

(f) The waiver could be inferred from want of objection in that regard in the written statement filed in reply to the release application or where plea is taken but subsequently, the tenant joins issues on merits and does not press for rejection of release application at the threshold.

(g) If the plea is not taken or even if taken but not pressed in the beginning, it would result in the landlord changing his position irretrievably to his detriment, attracting the doctrine of estoppel, disentitling the tenant to raise such plea at subsequent stages of the proceedings.

It is apparent from the facts of the case recorded earlier that the petitioner/tenant did not raise any specific plea of bar imposed by the first Proviso to Section 21(1) of Act No.13 of 1972 on the maintainability of the proceedings. It is also apparent from the order passed by the trial court that the application under Order 6 Rule 17 C.P.C was filed by the tenant after the arguments in the case were concluded and the case was fixed for judgment. The written statement was filed in November 2012 and the amendment application was filed in September 2016. The petitioner, evidently, did not press for rejection of the release application at the threshold and contested the case on merits. The respondent-landlord has irretrievably changed his position to his detriment and has lost the opportunity to withdraw the suit with the liberty to file a fresh suit.

The fact that the petitioner/tenant had not filed any objection at the threshold regarding the bar of the first Proviso indicates that the petitioner/tenant had waived his right under the aforesaid provisions and the delay in filing the amendment application acts as estoppel against the petitioner to raise the plea of the bar imposed by the first Proviso to Section 21(1) on the maintainability of the application under Section 21(1)(a) of Act No.13 of 1972.

In view of the aforesaid, there is no illegality in the order dated 9.9.2016 passed by the Small Causes Court, Meerut/Prescribed Authority, Meerut.

It is evident that in Prescribed Authority Case No.28 of 2012, evidence has already been led by the parties and the case was fixed for arguments. The case is pending since 2012. In light of the aforesaid, the Small Causes Court/Prescribed Authority, Meerut is directed to decide Prescribed Authority Case No.28 of 2012 within a period of three months from today.

The petition lacks merit and is dismissed.

The Registrar (Compliance) shall send a copy of this order to the Small Causes Court/Prescribed Authority, Meerut within 24 hours.

Order Date :- 27.1.2023

IB