1997 Supreme(SC) 1643

1997(10) Supreme 596
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
Martin & Harris Ltd. -Appellant
versus
VIth Additional Distt. Judge & Ors. -Respondents
Civil Appeal No. 8665 of 1997
(Arising out of SLP (C) No. 15194 of 1997)
Decided on 11-12-1997
Counsel for the Parties :
For the Appellant, P.P. Rao, Sr. Advocate, H.L. Tiku, Ms. Aparna Bhat, Ashok K. Mahajan, Advocates.
For the Respondents, Gopal Subramaniam, Sr. Advocate, Arvind Verma, Prashant Kumar, Advocates.

Headnote:(i) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Section 21(1)(a), proviso -Landlord s eviction petition u/s 21(1)(a)-Not to be entertained by prescribed authority unless a period of three years expired since purchase of property by landlord-Application filed within seven months from date of purchase of premises-Whether very filing of such application was barred by provisions of proviso to Section 21(1)(a) of the Act?-(No)-Word entertain in first proviso to Section 21(1)(a) would mean entertaining ground for consideration for purpose of adjudication on merits and not at any stage prior thereto-Distinction between entertaining of application for possession u/s 21(1)(a) and filing of such application-In this case, trial Court had taken up the application more than three years from date of purchase of suit property by the landlord-Prescribed Authority was justified in entertaining the consideration of the grounds u/s 21(1)(a) at that stage-Decree passed cannot be said to be a nullity.

       Held 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 first proviso to Section 21(1) of the Act would mean institution of such proceedings before the prescribed authority or would at least mean taking cognisance of such an application by the prescribed authority by issuing summons for appearance to the tenant-defendant. It must be held 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. (Para 9)

       The property was purchased on 30th June 1985 while the decree of the trial Court is dated 23rd May 1990. In fact the trial Court had taken up the application for consideration of the aforesaid grounds more than three years after 20th December 1985 in 1988-89 onwards. Consequently it must be held that the application for possession on the grounds under Section 21(1)(a) was entertained by the trial Court after the expiry of three years from the date of purchase of the suit property by the respondent plaintiff. Hence, it cannot be said that the said decree was a nullity being without jurisdiction. (Para 10)

       In the present case, therefore, it must be held that when the Legislature has provided that no application under Section 29(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 on 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. (Para 10)

       (ii) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Section 21(1)(a)-Application for possession under-To be filed by landlord not earlier than six months from date of issuance of notice by landlord-Provision in this connection has to be treated to be mandatory-Whether beneficial provision in this connection for protection of the tenant could be and in fact was waived by the tenant?-(Yes)-Notice issued on 20.9.1985-Application u/s 21(1)(a) filed in January 1986-Premature-Application could not have been filed till 20.3.1986-Appellant tenant was estopped from taking up such a contention as landlord on account of contention of appellant had irretrievably changed his position to his detriment.

       Held : 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 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. (Para 12)

       That the provision for six months notice before initiation of proceeding 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 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. (Para 12A)

       Apart from waiver the appellant 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. (Para 13)

       (iii) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Section 21(1)(a)-Application for possession under-Respondent landlord was a retired army Major General-He had no property of his own in Lucknow town-Subsequent event that respondent s wife had got an undivided interest in adjoining part of building where suit premises were also situated-This was rightly held to have no effect on merits of respondent s claim.

       Held : The said subsequent event was rightly held to have no effect on the merits of the respondent s claim as the respondent was a retired army Major General who had no property of his own in Lucknow town and who could not be compelled to stay as a licensee of his wife in a property which did not even exclusively belong to her but was jointly owned by her brother. It is, of course, true that the further observation of the High Court that the respondent s claim was covered by Explanation (iii) to Section 21(1) of the Act was not justified as respondent had not let out the building before his retirement from army service. He was not the owner of the building when he retired from army service. To that extent the reasoning of the High Court cannot be sustained. (Para 14)