1. Heard Sri Ravi Kiran Jain, learned Senior Advocate assisted by Sri A.R. Khan, learned counsel for the petitioner and perused the record.
2. Present petition has been filed challenging the impugned judgement dated 23.5.2018 passed by the Revisional Court/Additional District Judge, Court No. 10, Shahjahanpur in SCC Revision No. 2 of 2017 as well as the impugned judgement dated 7.2.2018 passed by the revisional Court/Additional District Judge, Court No. 10, Shahjahanpur allowing application under Order 41 Rule 27 CPC filed by the respondents in SCC Revision No. 2 of 2017.
3. SCC suit filed by the plaintiff-landlord (respondent herein) was dismissed by the trial Court and the revision filed against the same was allowed.
4. The trial court on issue no. 1 held that although the service of notice is accepted by the defendant, however, since notice is not on record, therefore, the issue regarding validity of service of notice is decided against the plaintiff.
5. On issue no. 2 it was found that the defendant has committed default in making payment of rent. Finding only on these two issues would be relevant as the trial court the decreed the suit partially only for the arrears of rent and for the relief of eviction, the suit was dismissed.
6. A revision was filed by the landlord wherein an application under Order 41 Rule 27 C.P.C. was filed for taking the photocopy of the notice on record. The photocopy of the notice and registry receipt were taken on record vide order dated 07.02.2018 with an observation that admissibility of this document shall be considered separately. This order is also under challenge in the present case.
7. Submission of learned counsel for the petitioners is confined to the validity of the notice and it was argued that since the admissibility of this document was never decided by the court below and that notice terminating the tenancy with immediate effect is not a valid notice therefore, the lower revisional court's order is vitiated in the eye of law and is liable to be set aside.
8. Elaborating the argument, learned Senior Advocate by placing reliance on the judgments of this Court in the case of Hakim Ziaul Islam Vs. Mohd. Rafi AIR 1971 All (302) and Abdul Jalil Vs. Hazi Abdul Jalil AIR 1974 All (402) submitted that since as per the notice the tenancy was "terminated immediately" as such, the said notice was not a valid notice.
9. However, learned Senior Counsel was confronted with the view of the judgment of 7 Judges Constitutional Bench of Hon'ble Apex Court in the case of V. Dhanpal Chettiar Vs. Yasodai Ammal, AIR 1979 SC 1745 and Shanti Devi Nigam Vs. Madan Lal Gupta 2004(13) SCC 372 that when the notice, as given in the present case, is in respect of the proceedings covered under Rent Control Act, in such proceedings notice under Section 106 of Transfer of Property Act is merely surplusage therefore, giving of such notice is not at all necessary and the language used therein has no relevance.
10. When confronted with the above noted law, learned Senior Counsel sought to argue that the aforesaid judgments are per incuriam, inasmuch as the provisions of the U.P. Act 13 of 1972 have not been considered in V. Dhanpal Chettiyar (Supra) and that in any case they are not applicable in the present case. In support of the argument, learned counsel for the petitioners has placed reliance on the judgment of Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs State of Maharastra and Others, (2011) 1 S.C.C. 694, which lays down the grounds on which a judgment can be said to be per incuriam. One of the grounds for holding a judgment per incuriam is that if the relevant provisions of the concerned Act have not been considered by the Court.
11. I have considered the submissions and have perused the record.
12. Before proceeding further, it may be noticed that in paragraph 7 of the written statement filed by the defendant-tenant (petitioner herein) it has been specifically admitted that the notice dated 18.09.2002 was given by the plaintiff to the defendant which was correctly replied by him. Thus, the service of notice was admitted. In view of this admission, the argument of learned Senior Counsel that the photocopy of the notice was wrongly accepted by the revisional Court on record and the revisional Court has also committed mistake in not giving any findings on the admissibility of the photocopy filed before the revisional court is not sustainable. Admission is the best piece of evidence and in view of such admission nothing further was required to be done at the instance of the plaintiff to prove service of the notice.
13. Insofar as the validity of the notice is concerned the Hon'ble Apex Court in the Constitutional Bench in the case of V. Dhanpal Chettiyar (supra) after discussing large number of Division Bench as well as Full Bench judgments given by various High Courts ultimately held that notice in a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to issue notice in accordance with Section 106 of Transfer of Property Act. Relevant extract of the observation made by the Hon'ble Apex Court is quoted as under:-
"If we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a proceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite correct because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with Transfer of Property Act is unnecessary an a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act." (Emphasis supplied)
14. In the case of Shanti Devi Nigam (supra) the specific issue regarding applicability of the aforesaid judgment in the cases covered under the U.P. Act 13 of 1972 was raised and it was observed that since the provisions of U.P. Act 13 of 1972 are Pari materia with the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the decision applies with full force. Relevant paragraph of Shanti Devi Nigam (Supra) is quoted as under:-
"The counsel for the appellant submits that under Uttar Pradesh Buildings (Regulation of Lettings, Rent and Eviction) Act, 1972, notice under Section 106 was not required for seeking eviction under Section 20 of the Act. It is also pointed out that under Section 20 (2) (a) specific notice is provided for seeking eviction on the ground of arrears of rent and the notice issued by the appellant-landlady seeking eviction under Section 20 (2) (a) of the Act fulfilled the conditions required under law. Our attention was also drawn to the decision of the Constitution Bench of this Court in V. Dhanpal Chettiar v. Yesodai Ammal (1979) 4 SCC 214 wherein the very same question was considered in detail and it was held that notice under Section 106 of the Transfer of Property Act was not required to be sent for seeking eviction under the provision of the Tamil Nadu building (Lease and Rent Control) Act, 1960. The provisions in the Uttar Pradesh Act are in pari materia with the Tamil Nadu Buildings (Lease and Rent and Control) Act, 1960 and the decision applies in all force. Therefore, the decision rendered by the High Court is not sustainable in law. We set aside the judgment of the High Court. The eviction order passed by the trial Court is affirmed and as the matter is now pending before the trial court, the trial court may pass appropriate orders in accordance with the observations made above. The appeal is disposed of." (Emphasis supplied)
15. In view of Shanti Devi Nigam (supra), this question as to whether the Constitutional Bench judgment is per incuriam and has no application in the present case is no longer open. In view of the above, I find no force in the argument of learned Senior Counsel that the judgment is per incuriam.
16. Now coming to notice, on perusal thereof it is very much clear that in paragraphs 2, 3 and 7 of the notice default in making payment of rent has been clearly mentioned and the notice is based on the same. Other issue regarding mere alteration has also been taken in the notice. This clearly indicates that this notice is given to the defendant under Section 20 of the UP No. 13 of 1972 i.e. in reference to the Rent Control Act and it is not under Section 106 of Transfer of Property Act. Relevant paragraphs 2, 3 and 7 of the notice are quoted as under:-
"2. That the said house was let out to you on rent @ Rs. 30 P.M. and your tenancy is respect of the said house was month to month starting from 1st day of English Calendar month and ending on the last day of that very month. Sri Mohd Ahmad Khan, the father of my said client, let out the house to you.
3. That the said Mohd. Ahmad Khan died on 23.08.1991 and since then you have not paid the rent of the said house. So the rent from 01.08.1991 to 31.08.2002 of 133 months, which amounts to Rs. 3990/- is due upon you and in spite of demands, you did not pay the due rent.
7. That under these circumstances my said client does not want to continue your tenancy in the said house and demanding the rent of 133 months, which amounts to Rs. 3990/-
So through this notice your tenancy from the house description of which is given in para no. 1 of this notice is terminated immediately and you are advised to vacate the same within 30 days from the date of receiving of this notice and to pay the due rent of 133 months which amounts to Rs. 3990/- failing which my said client will file a suit for recovery of arrears of due rent and ejectment from the house description of which is given in para no. 1 of this notice at your cost."
17. In paragraph 7 the word used 'terminated immediately', if seen in the light of the judgment in the case of Hakim Ziaual Islam (supra) and Abdul Jalil (supra), it may be argued (subject to scrutiny) that if it is treated to be under Section 106 of the Transfer of Property Act it may be an invalid notice, however, I am afraid of that this is not the position in the present case. The judgments referred to by learned Senior Advocate are the judgments confined to scrutiny of notice being under Section 106 of Transfer of Property Act and that too were rendered prior to the judgment of the Constitutional Bench of the Hon'ble Apex Court in the case of V. Dhanpal Chettiyar (supra). In such view of the matter, as per paragraph 7 of the notice, a notice of termination of tenancy was given however, since this notice is in reference to the provisions of the Rent Control Act therefore, in view of the V. Dhanpal Chettiyar (supra), therefore there is no defect in the notice.
18. Moreover, it is the settled law that any defect in the notice has to be raised at the first instance. In written statement no such ground was taken. A perusal of the memo of the revision also indicates that no such ground was taken even before the revisional Court and therefore, even on this ground the argument of learned Senior Counsel is not sustainable as ground of defect, if any, in notice stood waived and cannot be raised before this Court for the first time.
19. Further, even assuring for the sake of argument only that the notice was defective, it is the settled law that if the notice was defective in nature, since only personal interest of landlord and tenant is involved in these proceedings and no public interest is involved, the protection or defence could be waived by the tenant. A reference may be made to the judgment of Hon'ble Apex Court in the case of Martin & Harriass Ltd. Vs. VIth Additional Distt. Judge and others,(1998) 1 SCC 732.
20. Paragraphs14, 15 and 16 are quoted as under:-
"14. 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 17.09.1986. 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 20.09.1985 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 appellant joined issues on merits by seeking permission to cross-examine the plaintiff on merits of the case on grounds as pleaded 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 Seth Badri Prasad and Others v. Seth Nagarmal and Others: [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 arguments 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 Surajmal Nargoremuil v. Triton Insurance Company Ltd., extracted with approval the observations of Lord Sumner at page 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] L.R. 2 Ex. 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 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. 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.
15. 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 penitential 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,: (1995)IILLJ718SC 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 paragraph 16 and 17 of the Report as under :
"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. Government of the province of Madras AIR (1947) PC 197 in which while accepting that Section 80 of the CPC is mandatory, which was the view taken in Bhagchand Dagadusa v. Secretary of State for India in Council, 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 the 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 (see paragraph 14).
This point had come up for examination by this Court in Dhirendra Nath Gorai v. Shudhir Chandra Ghosh, : [1964]6SCR1001 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 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 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 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 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.
16. 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 as seen earlier. The second point for consideration is, therefore, answered in the negative, in favour of the respondent-landlord and against the appellant." (Emphasis supplied)
21. The view taken by Hon'ble Apex Court in the case of Martin and Harris (Supra) was affirmed in the case of Nirbhai Kumar Vs. Maya Devi and others, 2009 (1) ARC 767.
22. In the present case also, as already noticed earlier, no objection in regard to validity of notice was even raised before the Courts below. The SCC suit was filed in the year 2002, which was decided on 9.8.2016 and SCC revision was decided on 23.5.2018. Thus, the tenant, in view of Martin and Harris (supra) is now estopped from taking any such objection or plea before this Court particularly when the notice was given for the purpose of and invoking provisions of the Rent Control Act and thus is a valid notice.
23. In such view of the matter I do not find any legal infirmity or perversity in the impugned judgment.
24. In such view of the matter, I do not find any good ground to interfere in the judgment and order of the court below impugned herein and the present petition is accordingly dismissed.
25. At this stage, learned counsel for the petitioner prays that some time may be granted to vacate the premises.
26. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.3.2019.
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The tenant-petitioner shall pay damages @ Rs. 1,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.3.2019 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
27. There shall be no order as to costs.
Order Date :- 20.9.2018 SKG