Supreme Court of India
MARTIN AND HARRIS LTD.versusVLTH ADDITIONAL DISTT. JUDGE AND ORS.
- Citation
- 1997 INSC 808
- Decided
- 11 December 1997
- Disposal
- Dismissed
- Bench
- S B MAJMUDAR
Holding
The Court held that the landlord’s eviction application was maintainable as it was entertained after the three‑year period, the six‑month notice requirement was waived by the tenant’s conduct, and the subsequent acquisition of interest by the landlord’s wife did not invalidate the landlord’s bona‑fide requirement.
Summary
Martin and Harris Ltd., a long‑standing tenant, was served a notice by a retired Major General who purchased the premises and claimed a bona‑fide residential requirement. The landlord filed an eviction suit under Section 21(1)(a) of the U.P. Urban Buildings Act within six months of the notice and before three years had elapsed since purchase. The tenant argued the suit was premature and that a later acquisition of interest by the landlord’s wife defeated the landlord’s claim. The Supreme Court held that the application was properly entertained because the authority considered the grounds only after the three‑year period had passed; the six‑month notice requirement, though mandatory, could be waived by the tenant’s conduct, and the subsequent event did not affect the landlord’s bona‑fide requirement. The appeal was dismissed, with a limited order allowing the tenant time to vacate.
Issues considered
- Whether an eviction application under Section 21(1)(a) of the U.P. Urban Buildings Act is maintainable when filed before the expiry of the three‑year period prescribed in the proviso.
- Whether the application is maintainable when filed before the expiry of the six‑month notice period required by the same proviso.
- Whether a subsequent event – the landlord’s wife acquiring an undivided interest in the adjoining part of the building – defeats the landlord’s claim of bona‑fide requirement.
Legislation cited
- Code of Civil Procedure, 1908s. Order VII Rule 11(a), s. Order VII Rule 11(d), s. Order XXIII Rule 1(3)
Subjects
rent controlevictionbona fide requirementwaiver of statutory protectionstatutory interpretationU.P. Urban Buildings Actnotice periodsubsequent eventestoppel
Judgment
A MARTIN AND HARRIS LTD.
v.
Vlth ADDITIONAL DISTT. JUDGE AND ORS.
DECEMBER 11, 1997
B (S.B. MAJMUDAR AND M. JAGANNADHA RAO, J.1.J
Rent Control and Eviction :
c U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act,
1972: Section 2J(a) first proviscr-First proviso to S.2J(a) required that no
application for eviction by purchawc/andlord of the building Oil t/;e ground
of bona fide requirement shall be "ente1tained" unless a pe1iod of three years
had elapsed since the date of purchase when the building had a sitting tenant
D at the time of purchase-Application filed before expiiy of three years'
pe1iod-Maintai11ability of-Held : The word "Enteltainment" in the context
means consideration by the presc1ibed authmity of the melits of the ground
of eviction-Therefore, such application not barred by law and main-
tainable-But such application can only be ente1tained when by the time it is
taken up by the presuibed authmity for consideration on nwits, at least
E minimum three years' pe1iod has elapsed since the date of purchase of the
premises by the landlord.
First Proviso to S.2J(a)-Required landlord to give a notice to the
tenant not less than six months before filing his appli::ation for evic-
tion:-Landlord filed application for eviction before expi1y of six months'
F notice peliod--Tenant prefe1red not to pursue the contention that the eviction
application did not show completed cause of action due to non-expi1y of six
months' notice pe1iod--Bar unde1~Held: Provision mandator:r-It gives the
tenant concemed a protection by way of locus penintentiae which he may
avail or not-Such breathi11g time given to the tenant is personal in nature
G and no public i11teresris involved therein and such beneficial provision can
be waived by the tenant himself-Such waiver can be infe1red by the conduct
of the tenant-By not pursuing the contention that the eviction application
was premature the tenant had caused the landlord to ilret1ievably change his
position by not availing the oppolt1mity to withdraw the premature application
and to file a fresh application after expiiy of six months' pe1iod--Hence,
H tenant is estopped from subsequently taking up the contention of premature
380
MARTIN AND HARRIS LTD. v. VIth ADDL.DISTT. JUDGE 381
application for want of non-compliance with the mandat01y provision-Code A
of Civil Procedure, 1908, 0.7 R. ll(a) & (d) and 0.23 R.1(3) and S.115.
'.'
Bona fide requirement-Subsequent event-Effect of-Landlord filed
eviction application on ground of bona fide requirement-Subsequently,
landlord's wife got undivided interest along with her brother in the adjoining
pmt of the buildillg-lalldlord, a retired Anny Major General, had no other B
prope1ty in the city-Held: Such subsequent event can have no effect on the
nwits of the landlord's claim that he was a retired Anny Major General
having no other propoty i11 the city and who cannot be compelled to stay as
a licensee of his wife in a prope1ty which did not even exclusively belong to
her but was jointly owned by her and her brother. C
Words a11d Phrases:
"E11te1tain''-Meaning of-In the colltext of S.21( I) fiJ~·t proviso of the
U.P. Urban Buildi11gs (Regulation, Letting and Eviction) Act, 1972.
D·
Respondent No. 3 landlord, a retired Army Major General having
no other property in the city, gave a notice dated 20.9.1985 to the appel-
lant-tenant seeking possession on the ground that he had purchased the
property 01130.6.1985 for his residential purpose and he boll a fide required
the same for the said purpose. The appellant refuted the claim of the
respondent-landlord. Respondent-Landlord thereafter filed an application E
on 24.1.1986 under Section 21(1-A) of the U.P. Urban Buildings (Regula-
tion, Letting and Eviction) Act, 1972. In the written statement filed by the
appellant a contention was raised that the application was not main-
tainable under Section 21(1)(a) of the Act on twin grounds - (1) that it was
filed prematurely before expiry of three years from the date on which the F
premises was purchased by respondent No. 3 landlord and (2) respondent
No. 3 had not filed the suit after expiry of six months from the date of the
suit notice dated 20.9.1985 and consequently the application was not
maintainable as per the first proviso to Section 21(1) of the Act. However,
at subsequent stages of the trial the appellant did not press the aforesaid G
contentions into service and on the contrary the appellant joined issues on
merits by filing affidavit and seeking cross-examination of the respondent-
landlord on the question of his bona fide requirement of the suit premises.
On 23.5.1990 the prescribed authority decreed the suit. The appellant's
appeal was dismissed by the First Appellate Court. In the writ petition
filed before the High Court the appellant raised an ancillary contention H
382 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
i·
A based on subsequent event to the effect that the respondent was staying
with his wife in the adjoining part of the building where the suit premises
was situated and as the said property jointly belonged to the respondent's
wife and her brother, the respondent-landlord did not bona fide require
the suit premises. The High Court rejected the aforesaid contention and
dismissed the writ petition. Hence this appeal.
B
On behalf of the a11pellant-tenan·t it was contended that the term
'entertain' as employed by the first proviso to Section 21 (1) (a) of the Act
was synonymous with the word 'institute' and, therefore, entertaining of
the proceedings by the trial court before the expiry of three years from the
C date of purchase of the suit premises was clearly barred by the aforesaid
provision and hence the decree of eviction was a nullity; that the man-
datory period of six months prescribed in the first proviso to Section
21(1)(a) was in public interest and objection regarding the same could not
be waived by the appellant; and that in view of the subsequent event to the
effect that the respondent was staying with his wife his need for the suit
D premises had come to an end.
On behalf of the respondent-landlord it was contended that because .
the appellant did not pursue the objection regarding six months' man-
datory period of service of notice the respondent- landlord had irretrievab-
E ly changed his position and it would have resulted in grave prejudice to
the respondent if such a plea of six months' mandatory period was enter-
tained subsequently; and that the said six months' mandatory period was
for the protection and benefit of the tenant concerned, that such a protec-
tion was personal.to the tenant and hence could be given up and waived
by the tenant.
F
The following points arose before this Court for consideration :
1. Whether the respondent-landlord's application under Section
21(1)(a) of the Act was not maintainable in view of the proviso to the said
G Section as it was filed before the expiry of three years from the date of
purchase of the suit premises by the respondent.
2. Whether the said application was not maintainable on the addi-
tional ground that it was filed prior to the expiry of six months from the
date on which notice was given by the respondent to the appellant as
H · required by the very same proviso.
f
MARTIN AND HARRIS LTD. v. VIthADDL.DISTI.JUDGE 383
3. Whether the bona fide requirement of the respondent-landlord did A
not survive in view of the subsequent event, namely, that respondent's wife
had ac11uired an undivided interest in the adjoining part of the building
in which the suit premises were situated and wherein the r1tspondent-
landlord was staying with his wife.
Dismissing the appeal, the Court B
HELD : 1. When the <1uestion of entertaining an application for
giving relief to a party arises and when such application is based on any
grouµds on which such application has to be considered, the provision
regarding 'entertaining such application' on any of these grounds would
necessarily mean the consideration of the application on the merits of the
c
grounds on which it is based. (400-F-G]
Lakshmiratan Enginee1ing Works Ltd. v.Asst. Commissioner (Judicial)
I, Sales Tax, AIR (1968) SG 488 and Hindustan Commercial Bank Ltd. v.
Pw111u Salm, (1971] 3 SCC 124, relied on. D
2.1. The first proviso to Section 21 (l)(a) of the U.P. Urban Buildings
(Regulation, Letting and Eviction) Act, 1972 nowhere lays down that no
application on the grounds mentioned in Section 2l(l)(a) could be •
'inst!tuted' within a period of three years from the date of purchase. On
the contrary, the proviso lays down that such application on the said E
grounds cannot be 'entertained' by the authority before the expiry of that
period. Consequently it is not possible to agree with the extreme contention
of the appellant that such an application could not have been filed at all
within the said period of three years. The Legislature has made a clear
distinction between 'entertaining' of an application for possession under F
Section 2l(l)(a) of the Act and 'filing' of such application inasmuch as
while such application cannot be filed before expiry of six months from the
date on which notice is given by the landlord to the tenant seeking eviction
~
under Section 2l(l)(a) of the Act, similar terminology is not employed by
~ the Legislature in the very same proviso so far as three years period for
entertaining such application by the prescribed authority is concerned. G
The word 'entertain' in the first proviso cannot be construed as being
synonymous with the word 'institute' in view of the contra-indication
contained in the statutory scheme of Section 21 (l)(a). An application for
possession may be filed by the landlord not only invoking grounds men-
tioned in Section 21 (l)(a) but even other grounds mentioned in that H
384 SUPREME COURT REPORTS ~1997) SUPP. 6 S.C.R.
A sub-section. Applications for possession filed under Section 21(1) of the
Act are not placed for admission before the prescribed authority. Once
they are filed they are to be processed for being decided on merits after
issuing notices to the parties concerned. Therefore, when the application
reaches final hearing on merits the authority has to sift the grounds on
c~
which the application is based and if it finds that the application is based, '
B
amongst others, on the grounds mentioned in clause (a) it has to ascertain
wh~ther three years' period has expired since the date of purchase of the
said property by the plaintilT-landlord and if the period of three years is ;--
found to have expired then the grounds mentioned in clause (a) would
become alive for consideration of the authority; if not, said grounds would
c not be entertained for consideration. 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 ion-
sideration for the purpose of adjudication on merits and not at any stage
prior thereto. 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
D
tenant the question of entertaining such application by the prescribed
authority would arise for consideration. This conclusion also Hows from
the statutory scheme discernible from the third proviso to Section 21 (1)
of the Act. [395-G-H; 396-A; 397-A-E; 398-8-D]
E 2.2. Consequently on the very scheme of the 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. On the contrary the term 'entertain'
F
would only show that by the time the application for possession on the
grounds mentioned in Section 21 (l)(a) 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
.
4
the landlord.' [398-E-G] ...-
G
23. In the present case, that stage was reached 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
H from the date on which the respondent-landlord had purchased the
MARTIN AND HARRIS LTD. v. Vlth ADDL.DISTI. JUDGE 385
property. Therefore, the prescribed authority was justified in entertaining A
the consideration of the grounds under Section 21(l)(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 im the ground
under Section 2l(l)(a) of the Act be said to be illegal. [401-A-C]
Anandilal Bhanwarlal v. Smt. Kastun" Devi Ganen"wala, [1985) 1 SCC B
442; Kiran Singh v. Chaman Paswan, [1955) 1 SCR 117; Chiranjilal Sluilal
Goenka (Deceased) through LRs. v.Jasjit Singh, [1993) 2 SCC 507 and Shri
Charan Lal Sahu v. Shri KR. Narayanan, JT (1997) 9 SC 253, held inap-
plicable.
3.1. Application for possession under Section 21 (l)(a) had to be filed
c
by the landlord concerned not earlier than expiry of six months from the
date of issuance of the notice by the landlord. In the present case, when
the notice was issued on 20.9 .1985 the application for possession could not
have been filed by the respondent invoking the grounds mentioned in
Section 21(l)(a) of the Act, at least till 21.3.1986. To that extent it can be D
said tt.at the application was premature. The provision in this connection
has to be treated as mandatory. [401-E-F]
3.2. It is true that the proviso to Section 21(1) is enacted to cover a
class of tenants who are sitting tenants and whose premises are sub- E
sequently purchased by landlords who seek to evict the sitting tenants on
the ground of bona fide rec1uirement as envisaged by Section 21 (l)(a) of
the Act, still the protection available to such tenants as found in the
proviso would give the tenants concerned a locus penitentiae to avail of it
or not. 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 F
prohibition imposed by the Statute is with a view of 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 G
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. [403-D-E; 404-A-B]
Seth Bad1i Prasad v. Seth Nagannal, [1959] Suppl. 1 SCR 769, held
inapplicable. H
386 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A Surajmull Nargoremull v. Tritan Insurance Coy. Ltd., (1924) LR 52 IA
126 and Nixon v.Alibion Mwine Insurance Co., (1867) LR 2 Ex. 338, cited.·
. 4.1. The proceedings under Section 2l(l)(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
B involved therein. Only personal interest of landlord on the one hand get.
clashed and call for adjudication by the prescribed authority. The ground
raised by the landlord under Section 21 (l)(a) 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
C amicably or to get alternative accommodation if the tenant realises that
that the landlord has a good case. This type of protection to the tenant
would naturally be 11ersonal to him and could be waived. Consequently it
must be held that provision for six months' notice before initiation of
proceedings under Section 21(1) of the Act, though is mandatory and
D confers protection to the tenant concerned, it can be waived by him.
[404-B-D; 405-E·F]
Krishan Lal v. State of J & K, (1994) 4 SCC 422, relied on.
Vellayan Chettiar v. Govemment of the Province of Madras, AIR (1947)
E PC 197; Bhagcl1a11d Dagadusa v. Secreta1y of State for India in Council, 54
IA 338; Dhirendra Nath Gorai v. Shudhir Chandra Ghosh, AIR (1964) SC
1300 and Aslmtosh Sikdar v. Behmi Lal Kinania, ILR 35 Cal. 61, cited.
4.2. In the present case the appellant, for the reasons best known to
it, consciously and being alive to the clear factual situation that the suit
F was filed 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
G the appeal only on merits, and only as an afterthought at the stage of writ
petition in the High Com1 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 ap11ellant had waived the contention about the suit
being premature having been filed before the expiry of six months from the
H date of the suit notice. [405-E-H; 406-A]
MARTIN AND HARRIS LTD. v. Vlth ADDL.DISTI. JUDGE 387
4.3. Further, if the appellant had pressed for rejection of the applica- A
tion on the ground of Section 2l(l)(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 ll(a) and (d) of the Code of Civil Procedure,
1908, alleging that the plaint did not disclose a cause of action or it
appeared to be barred by law, respondent-plaintiff could have withdrawn B
the suit on that ground under Order XXIII Rule 1 Sub-rule (3), CPC as
the suit based on grounds under Section 21(l)(a) of the Act would have
been shown to have suffered ftom 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 C
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, D
nor was it argued before the First Appellate Court. Under these cir-
cumstances; apart from waiyer the appellant was estopped from taking up
such a contention as the respondent, on account of the aforesaid conten-
tion of the appellant, had irretrievably changed his position to his detri-
ment and lost an opportunity of seeking leave of the Court to withdraw the
suit with liberty to file a fresh suit. [402-B-E; 406-A-B] E
5. The subsequent event can have no effect on the merits of the
respondent's claim regarding his bona fide requirement as the respondent
was a retired Army Major General who had no property of his own in the
city and who could not be compelled to stay as a licensee of his wife in a F
property whh:h did not even exclusively belong to her but was jointly owned
by her brother. [406-D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8665 of
1997.
G
From the Judgment and Order dated 14.8.97 of the Allahabad High
court in W.P. No. 49 of 1994.
P.P. Rao, H.L. Tiku, Ms. Aparna Bhat and Ashok K. Mahajan for
the Appellant. H
388 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A Gopal Subramaniam, Arvind Verma and Prashant Kumar for the
Respondents.
The Judgment of the Court was delivered by
S.B. MAJMUDAR, J. Leave granted.
B
Respondent nos.1 and 2 are formal parties being authorities and
hence it was not necessary to hear them. By consent of learned counsel for
the contesting parties the appeal was taken up for final disposal and having
heard them it is being decided by this judgment.
c In this appeal question of maintainability of application for posses-
sion moved by respondent no. 3 landlord against the appellant-tenant
under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') mainly
falls for consideration. The appellant has also raised a subsidiary ground
D centering round a subsequent event to which we will make a reference at
an appropriate stage in this judgment. A few introductory facts leading to
this appeal are required to be noted at the outset to appreciate the
aforesaid controversy between the parties.
E Introductory Facts :
Respondent no. 3 purchased the suit property being Bungalow No.
21-C, Ashok Marg, Lucknow, wherein the appellant-company is occupying
an area of 9000 sq. ft. as a tenant since 28th December 1966. Respondent
no. 3 was serving in Indian Army as Major General. He retired from the
F said post on Olst April 1985. He purchased the aforesaid tenanted property
on 30th June 1985 from its erstwhile owner Dr. K.R. Chaudhary who
coincidentally was his father-in-law. Respondent no. 3-landlord gave a
notice dated 20th September 1985 to the appellant seeking possession on
the ground that he had purchased the property for his residential purpose
G and he bona fide required the same for the said purpose. The appellant
replied to the said notice on 20th October 1985 and refuted the claim of
the respondent-landlord. Respondent no. 3 thereafter filed an application
on 24th January 1986 under Section 21(1)(a) read with Section 21(1-A) of
the Act in the court of III rd Additional Civil Judge and Prescribed
H Authority, Lucknow. It was registered as P.A. Suit No.l of 1986. In the
MARTIN AND HARRIS LTD. v. VlthADDLDISTI. JUDGE[S.B. MAJMUDAR,J.] 389
written statement filed by the appellant on 17th September 1986 before the A
prescribed authority, amongst others, a contention was raised that the
application was not maintainable under Section 21(1)(a) of the Act on twin
grounds - ( 1) that it was filed prematurely he fore expiry of three years
from the date on which the premises was purchased by respondent no. 3
landlord; and (2) respondent no. 3 had not filed the suit after expiry of six B
months from the date of the suit notice dated 20th September 1985 ~.nd
consequently the application was not maintainable as per the first proviso
to Section 21( 1) of the Act. During the pendency of the proceedings,
however, the appellant joined issues on merits by filing affidavit controvert-
ing the affidavit filed by the respondent-landlord in support of his case. C
After hearing the parties on merits of the claim of respondent-landlord,
the prescribed authority by its judgment dated 23rd May 1990 decreed the
suit of the respondent-landlord holding that respondent-landlord had
- proved his case for bona fide requirement of the suit premises. The
appellant-tenant carried the matter in appeal under Section 22 of the Act D
before the district Judge, Lucknow. The appeal was pressed on merits of
the controversy between the parties whereby the appellant sought to chal-
lenge the decree of the Trial Court on the ground that the respondent -
landlord did not require the premises for his bona fide use. The said
contention of the appellant was rejected by the first Appellate Court and E
the appeal was dismissed on 21st March 1994. Thereafter the appellant
carried the matter in a Writ Petition before the Lucknow Bench of the
High Court of Allahabad under Article 226 of the Constitution of India.
In the said writ petition the appellant's counsel mainly urged the question
about the maintainability of the application for possession as moved by the F
respondent-landlord under Section 21(1)(a) of the Act. The finding of fact
of bona fide requirement of respondent-landlord as concurrently reached
by the courts below was not challenged before the High Court. One
ancillary point was urged based on subsequent event: The High Court
noted the contention of appellant's learned counsel that question of main- G
ta.inability of the proceedings was not urged by the appellant before the
courts below, but as the contention went to the root of the matter it was
considered by the High Court on merits. The High Court, however,
rejected the same and took the view that the application filed by
respondent-landlord was maintainable. It also rejected the ancillary H
390 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A contention on behalf of the appellant-tenant that because of the subsequent
event, namely, that respondent-landlord's wife had got undivided interest
in the adjoining part of the property in which the suit premises were
situated, the respondent's bona fide requirement did not survive. In the
result the High Court confirmed the decree for possession as passed by
B the Trial Court and as confirmed by th.e First Appellate Court.
Rival Contentions :
Learned senior counsel Shri P.P. Rao, appearing on behalf of the
C appellant submitted in support of the appeal that the High Court had
patently erred in law in taking the view that respondent-landlord's applica-
tion under Section 21(1)(a) was maintainable. He submitted, placing
reliance on various decisions of this Court to which we will make a
reference hereinafter, that the suit as filed before expiry of the period of
D six months from the date of the service of the suit notice was clearly not
maintainable and that as the said provision was for the benefit of the
·suppressed class of tenants it was in public interest and objection regarding
the same could not be waived by the appellant as wrongly held by the High
Court. It was also contended that the application for possession under
Section 21(1)(a) of the Act was not maintainable as it was filed within three
E years of the date of purchase of the property by the respondent-landlord
and consequently the prescribed authority had no jurisdiction to entertain
such an application from the very inception. It was submitted that the term
'ente1tain' as employed by the first proviso to Section 21(l)(a) of the Act
was synonymous with the word 'institute' and in any case at the time the
F court took cognisance of the suit for possession by issuing notice to the
appellant it could be said that the Court had entertained the said proceed-
ings and such entertaining of the proceedings was clearly barred by the
aforesaid provision of the Act and consequently the decree for possession
as passed by the Trial Court and confirmed by the First Appellate Court
and the High Court was a nullity. It was also contended that because of
G the subsequent event brought to the notice of the High Court to the effect
that the respondent was staying \vith his wife in the adjoining part of the
building where the suit premises was situated and as the said property
jointly belonged to respondent's wife and her brother it could not be said
that the respondent-landlord had any felt need for occupying the suit
H premises and his need for the suit premises, if any, had come to an end.
t
MARTIN AND HARRIS LTD. v. Vith ADDLDISTI. JUDGE (S.B. MAJMUDAR, J.) 391
On the other hand learned senior counsel for the respondent- A
landlord, Shri Gopal Subramaniam supported the decision rendered by the
High Court. It was submitted that the term 'e11te1tain' as employed by the
first proviso to Section 21(1) of the Act only meant that the Trial Court
could not decide the ground under Section 21(1)(a) on merits if three
years' period from th~ date of the purchase of the property by the respon- B
dent-landlord had not expired by then. That in the present case when the
prescribed authority took up the said ground for consideration on merits
after 1988 three years' period had already expired from the date of pur-
chase of the suit property by respondent-landlord and hence there was no
question of bar against such entertainment and consideration of the ground C
by the Trial Court. So far as the question of notice of six months was
concerned, it was submitted that though it was a mandatory requirement
of the provision and application could not be filed before expiry of six
months from the date of the service of the suit notice as enjoined by the
first proviso to Section 21(1) of the Act and as such a contention which D
was already raised by the appellant in its written statement was not pressed
into service at subsequent stages of the trial and on the contrary the
appellant joined issues on merits by filing affidavit and seeking cross-
examination of the plaintiff on the question of his bona fide requirement
of the suit premises, such a contention can be. said to have been consciously E
waived by the appellant. That if during the trial such a contention was
canvassed for consideration the respondent-landlord could have filed a
fresh suit on that ground by withdrawing the suit based thereon. Thus
because of the conduct of the appellant in not pursuing this point during
the trial the respondent-landlord had irretrievably changed his position and F
it would have resulted in grave prejudice to the respondent-landlord if such
a plea was entertained subsequently. It was also submitted in this connec-
tion that the proceedings were personal in nature between the landlord and
the tenant and the provision of service of six months' notice before filing
of the suit as found in the proviso to Section 21(1) of the Act was for the G
protection and benefit of the tenant concerned and such a protection could
be given up and waived by the tenant. It could not be said that such a
protection was not capable of being waived being in public interest. That
no such public interest was involved in the said provision. It was also
submitted that the respondent-landlord was rightly held not to be in any H
392 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A way adversely affected only because he was staying with his wife in the
adjoining part of the building where the suit premises was situated, and
wherein 4is wife had an undivided interest. That according to him the
respondent-landlord was forced to stay, in the absence of his own house,
in another premises belonging to his son-in-law and even assuming that he
B was staying also in the adjoining property partly belonging to his wife along
with her brother, he cannot be compelled to remain as a licensee of his
wife for the rest of his life. He, however, fairly conceded that the reasoning
of the learned Judge of the High Court, that because the respondent-
landlord was a retired army officer his case was covered by Explanation
C (iii) to Section 21(1) of the Act and, therefore, ipso facto his need of the -
building for residential purpose shall be deemed sufficient for proving his
case under clause (a) of sub-section (1) of Section 21 of the Act, could not
be sustained. However he submitted that even independently thereof, on
the basis of the evidence on record and the concurrent findings to which
D the Trial Court and the First Appellate Court reached, the High Court was
justified in confirming the decree for possession under Section 21(1)(a) of
the Act.
Points for consideration
E In view of the aforesaid rival contentions the following points arise
for our consideration :
1. Whether the respondent-landlord's application under Section
2l(l)(a) of the Act was not maintainable in view of the proviso to the said
Section as it was filed before the expiry of three years from the date of
F purchase of the suit premises by the respondent.
2. Whether the said application was not maintainable on the addi-
tional ground that it was filed prior to the expiry of six months from the
date on which notice was given by the respondent to the appellant as
G required by the very same proviso.
3. Whether the bona fide requirement of the respondent- landlord
did not survive in view of the subsequent event, namely, that respondent's
wife had acquired an undivided interest in the adjoining part of the
building in which the suit premises were situated and wherein the respon-
H dent-landlord was staying with his wife.
MARTIN AND HARRIS LID. v. VlthADDLDIS1T.JUDGE(S.B. MAJMUDAR,J.] 393
We shall deal with these points seriatim. A
Point No. 1
In order to appreciate the controversy centering round this conten-
tion it is necessary to have a look at the relevant statutory provisions.
Section 21(1) with its relevant clauses and the provisos reads as under : B
"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- C
(a) that the building is bona fide reguired 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 residen- D
tial 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 : E
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 F
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.
Provided further that if any application under clause (a) is G
made in respect of any building Jet out exclusively for non-residen-
tial 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 H
1.
394 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A other conditions as it thinks fit :
Provided also that no application under clause (a) shall be
entertained -
(i)
B
(ii)
(iii) in the case of any residential building, against any tenant who
is a member of the armed forces of the Union and in whose
favour the prescribed authority under the Indian Soldiers
c (Litigation) Act, 1925 (Act No. IV of 1925) has issued a
certificate that he is serving under special conditions within
the meaning of Section 3 of that Act, or where he has died
by enemy action while so serving then against his heirs :
Provided also that the prescribed authority shall, except in
D cases provided for in the Explanation, take into account the likely
hardship to the tenant from the grant of the application as against
the likely hardship to the landlord from the refusal of the applica-
tion and for that purpose shall have regard to such factors as may
be prescribed.
E
Explanation - In the case of a residential building :
(i)
(ii)
F (iii) where the landlord of any building is -
(1) a serving or retired Indian Soldier as defined in the Indian
Soldiers (Litigation) Act, 1925 (IV of 1925), and such building
was let out at any time before his retirement, or
G
(2) ...
and such landlord needs such building for occupation by himself
or the members of his family for residential purposes, then his
representation that he needs the building for residential purposes
H for himself or the members of his family shall be deemed sufficient
MARTIN AND HARRIS LIB. v. VlthADDL.DIS1T. JUDGE [S.B. MAJMUDAR,J.] 395
for the purposes of clause (a), and where such landlord owns more A
than one building this provision shall apply in respect of one
building only."
As the respondent's application was also based on another ground under
sub-section (1-A) of Section 21 of the Act it will be necessary to note the
said provision also at this stage. It reads as under : B
"21(1-A). Notwithstanding anything contained in Section 2, the
prescribed authority shall, on the application of a landlord in that
behalf, order the eviction of a tenant from any building under
tenancy, if it is satisfied that the landlord of such building was in C
occupation of a public building, for residential purposes which he
had to vacate on account of the cessation of his employment :
Provided that an application under this sub- section may also
be given by a landlord in occupation of such public building at any
time within a period of one year before the expected date of D
cessation of his employment, but the order of eviction on such
application shall take effect only on the .date of his actual
cessation."
A mere look at the aforesaid provision of the first proviso to Section 21(1) E
of the Act shows that no application filed by a landlord is to be entertained
by the prescribed authority on grounds mentioned in clause (a) unless a
period of three years has expired since the date of purchase of the property
by the land lord when the building which is purchased is having a sitting
tenant. ·It is not in dispute between the parties that the appellant was a
sitting tenant since 1966 in the said building when it was purchased by F
respondent-landlord on 30th June 1985. It is, of course, true that respon-
dent-landlord moved an application for possession, against the appellant
both under Section 21(1)(a) of the Act and also under Section 21(1-A) of
the Act. However, so far as the ground under Section 21(1)(a) of the Act
is concerned the application was filed before the expiry of three years from G
the date of such purchase. ft was in fact filed within seven months from
the date of purchase of the premises. The moot question is whether the
very filing of such application was barred by the provisions of the said
proviso. 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 H
396 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A 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
B of three years. Learned senior counsel for the appellant Shri Rao in this
connection invited our attention to a decision of this Court in the case of
Anandilal Bhanwarlal and Another v. Smt. Kastwi Devi Ganeriwala and
Another, [1985] 1 SCC 442. In the said decision this Court was concerned
with the interpretation of Section 13(3- A) of the West Bengal Premises
Tenancy Act, 1956. The said provision reads as under :
c
"Where a landlord has acquired his interest in the premises by
transfer, no suit for the recovery of possession of the premises on
any of the grounds mentioned in clause (f) or clause (ff) of
sub-section (1) shall be instituted by the landlord before the
C>.JJiration of a period of three years from the date of his acquisition
D of such interest.. ....... "
As in that case the very 'institution' of suit for recovery of possession
was barred for a period of three years from the date of acquisition of
interest of the landlord in such premises this Court took the view that the
E decree for possession passed in the face of such statutory prohibition was
illegal. As the proviso to Section 21(1) of the Act in the present case is not
so worded the said decision cannot be of any avail to learned senior counsel
for the appellant. However he submitted that the word 'e11te1tain' should
be construed as being synonymous with the word 'institute'. It is difficult to
F agree. The statutory scheme of Section 21(1) contra-indicates such a
contention. Sub-section (1) of Section 21 lays down that '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 ... .'. Section
G 21(1) deals with grounds mentioned not only in clause (a) but also in clause
(b). The proviso to Section 21(1) bars entertainment of the application only
on the grounds mentioned in clause (a) thereof. It is easy to visualise that
an application for possession may be filed by the landlord not only invoking
grounds mentionecl in clause (a) of Section 21(1) but even other grounds
H mentioned in that sub-section. Therefore, the stage at which the Court has
• MARTIN AND HARRIS LTD. v. VlthADDLDISIT. JUDGE(S.B. MAJMUDAR,J.] 397
to consider v.:hether grounds mentioned in clause (a) are made out by the A
plaintiff or not will be reached when the Court takes up the application for
consideration on merits. It has to be kept in view that applications tbr
possession filed under Section 21(1) of the Act are not placed for admis-
sion before the prescribed authority. Once they are filed they are to be
processed for being decided on merits after issuing notices to the parties B
concerned. Therefore, when the application reaches final hearing on merits
the authority has to sift the grounds on which the application is based and
if it finds that the application is based, amongst others, on the grounds
mentioned in clause (a) it has to ascertain whether three years' period has
expired since the date of the purchase of the said property by the plain- C
tiff-landlord and if the period of three years is found to have expired then
the grounds mentioned in clause (a) would become alive for consideration
of the authority. If not, said grounds would not be entertained for con-
sideration. Thus the word 'entenain' mentioned in the first proviso to
Section 21(1) in connection with grounds mentioned in clause (a) would D
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 E
entertaining such application by the prescribed authority would arise for
consideration. This conclusion also flows from the statutory scheme dis-
cernible from the third proviso to Section 21(1) of the Act. It is seen that
the said proviso uses the similar terminology to the effect that such applica-
tion under Section 21(1)(a) shall not be entertained under contingencies F
contemplated by various sub-clauses of the said proviso. These provisions
clearly show that while entertaining the application for possession under
clause (a) of sub-section (1) of Section 21 of the Act the Court has to find
out, on evidence led before it, as to what is the purpose of the charitable
trust and also whether the residential building is sought for occupation for G
business purposes or whether the tenant of residential premises, if he is a
member of armed forces has got a certificate to the effect that he is serving
under special conditions mentioned in Section 3 of the Indian Soldiers
(Litigation) Act, 1925 or whether he has died by enemy action while so
serving and the proceedings are being filed against his heirs. All these H
398 SUPREME COURT REPORTS (1997] SUf P. 6 S.C.R.
A questions of fact will have to be considered while entertaining the applica-
tion under clause (a) Section 21(1) of the Act as laid down by the third
proviso. It is obvious that said stage would be reached only when the
prescribed authority takes up the application for consideration on merits
of the grounds mentioned in clause (a) of Section 21(1) which are pressed
B in service by the landlord for getting possession.
Even that apart there is an internal indication in the first proviso to
Section 21(1) that the Legislature has made a clear distinction between
'entenaining' of an application for possession under Section 21(1)(a) of the
Act and 'filing' of such application. So far as the filing of such application
c is concerned it is clearly indicated by the Legislature that such application
cannot be filed before expiry of six months from the date on which notice
is given by the landlord to the tenant seeking eviction under Section
21(1)(a) of the Act. The words, 'the landlord has given a notice in that
behalf to the tenant not less than six months before such application',
D would naturally mean that before filing of such application for moving of
such application before the prescribed authority notice must have preceded
by at least six months. Similar terminology is not employed by the
Legislature in the very same proviso so far as three years' period for
entertaining such application by the prescribed authority is concerned.
E Therefore, it must necessarily mean 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.
F Consequently on the very scheme of this Act it cannot be said that the 'word
'enteltain' 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
G to the tenant-defendant. It must be held that on the contrary the term
'entenain' 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
H premises by the landlord.
MARTIN AND HARRIS LID. v. VIth ADDLDISTI. JUDGE (S.B. MAJMUDAR, J.) 399
Learned senior counsel, Shri Rao, for the appellant invited our A
attention to a decision of this Court in the case of Kiran Singh and Others
v. Chaman Paswan and Others, [1955] 1 SCR 117 for submitting that a
decree without jurisdiction in a nullity and such an objection to it can be
raised even in execution proceedings. There cannot be any dispute on this
legal proposition. However, the ques.tion is whether decree passed by the B
prescribed authority under Section 21(1)(a) of the Act can be said to be a
nullity at all. As we have seen above the decree of the Trial Court was
passed much after the expiry of the three years from the date on which the
respondent-landlord purchased the property. To recapitulate, the property
was purchased on 30th June 1985 while the decree of the Trial Court is C
dated 23rd May 1990. In fact the Trial Court had taken up the application
for considera.tion 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 D
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.
On the same reasoning, therefore, reliance placed by learned senior coun-
sel, Shri Rao, for the appellant on the decision of this Court in the case of
Chiranjila/ Shrila/ Goenka (Deceased) through LRs. v. lasjit Singh and E
Others, (1993] 2 SCC 507, cannot be of any avail to him as in,.the said case
this Court reiterated the very same principle that contention about a decree
passed by a court without jurisdiction on the subject-matter or on the
grounds on which the decree is made goes to the root of its jurisdiction or
by a court which lacks inherent jurisdiction is to be treated as one passed F
by a coram don judice. Learned senior counsel for the appellant also invited
our attention to a decision of a Constitution Bench of this Court in the case
of Shri Charan Lal Sahu & Another v. Shri KR. Narayan & Another, JT
(1997) 9 SC 253 wherein S.C. Agrawal, J., speaking for the Constitution
Bench held in para 31 of the Report that Rs. 10,000 are quantified as costs G
to be paid by the petitioners and it was directed that no petition filed by
either of the petitioners-in-person shall be entertained in this Court till the
amount of costs imposed is paid. Relying on these observations learned
senior counsel for the appellant submitted that in the aforesaid decision
the Constitution Bench employed the term 'entertain' as meaning 'institute'. H
400 SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.
A It is difficult to appreciate this contention. This Court in that case was not
concerned with the question as to when an application can be said to be
entertained. The statutory scheme with which we are concerned in the
present case was not on the anvil of consideration in the aforesaid case.
Therefore, even assuming that the direction in the aforesaid decision might
B contain instruction to the office of this Court not to permit filing of such
Election Petitions without payment of costs, the same cannot be considered
to be a decision on the question with which we are concerned on the
scheme of the Act, Learned senior counsel, Shri Rao, for the appellant
then invited our attention to two decisions of this Court in the case of M/s.
C Laksluniratan Enginee1ing Workf Ltd. v. Asst. Commissioner (Judicial) I.
Sales Tax, Kanpur Range, Kanpur and Another, AIR 1968 SC 488 - [1968]
1 SCR 505 and Hindustan Commercial Bank Ltd. v. Pumzu Sahu (Dead)
through Legal Representatives, [1971) 3 SCC 124. In Lakshmiratan Engineer-
ing (supra) this Court was concerned with the meaning of the word
D 'entertain' mentioned in the proviso to Section 9 of the U.P. Sales Tax Act,
1948. Hidayatullah, .J ., speaking for the Court observed in the light of the
statutory scheme of Section 9 of the said Act that the direction to the Court
in the proviso to Section 9 was to the effect that the Court shall not proceed
to admit to consideration an appeal which is not accompanied by satisfac-
E tory proof of the payment of the admitted tax. In the case of Hindustan
Commercial Bank (supra) the term 'entertain' as found in the proviso to
Order XXI Rule 90, Code of Civil Procedure ('CPC') fell for consideration
of the Court. Hedge, J ., speaking for a Bench of two learned Judges of this
Court in this connection observed that the term 'entenain' in the said
F provision means 'to adjudicate upon' or 'to proceed to consider on merits'
and did not mean 'initiation of proceeding'. The aforesaid decisions, in our
view, clearly show that when the question of entertaining an application for
giving relief to a party arises and when such application is based on any
grounds on which such application has to be considered, the provision
G regarding 'entertaining such application' ·on any of these grounds would
necessarily mean the consicicration of the application on the merits of the
grounds on which it is based. In the present case, therefore, it must be held
that when the Legislature has provided that no application under Section
21 (l)(a) of the Act shall be entertained by the prescribed authority on
H grounds mentioned in clause (a) of Section 21(1) of the Act before expiry
MARTIN AND HARRIS LTD. v. Vlth ADDL.Dl~TI. JUDGE (S.B. MAJMUDAR J.] 401
of three years from date of purchase of property by the landlord it must A
· · 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 plaintiffs case for consideration on merits of the B
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 C
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. The first point for consideration is, therefore, answered in the
negative, in favour of the respondent - landlord and against the appellant. D
Point No. 2
So far as this point is concerned it must be held on the clear language
of the first proviso to Section 21(1} of the Act that application for posses-
sion under Section 21(1)(a) had to be filed by the landlord concerned not E
earlier than expiry of six months from the date of issuance of the notice by
the landlord. On the facts of the present case it cannot be disputed that
when the notice was issued on 20th September 1985 the application for
possession could not have been filed by the respondent invoking the
grounds mentioned in clause (a) of Section 21(1) of the Act, at least till
F
20th March 1986, while the application was filed in January 1986. To that
extent it can be said that the application was premature. The provision in
this connection has to be treated to be mandatory.
However the further question survives for consideration, namely,
whether the beneficial provision enacted by the Legislature in this connec- G
· lion 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 17th Septem-
ber 1986. In the said written statement the appellant, amongst others, did H
402 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A 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 20th
september 1985 when the suit was filed. But curiously enough thereafter
the said contention raised by the appellant in written statement was given
B 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 2l(l)(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
C 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
D 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
E 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 conten-
tion, regarding the suit being premature as filed before expiry of six months
F 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
G 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
H decision can be of any avail to the appellant in the present case. This Court,
MAR11N AND HARRIS LTD. v. VI th ADDLDISIT. JUDGE [S.B. MAJMUDAR J.) 403
placing reliance on a decision of the Privy Council in the case of Surajmull A
Nargoremull v. Triton Insurance Company Ltd., (1924) L.R. 52 I.A. 126,
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 B
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.Alibio11
Marine Insurance Co., [1867] L.R. 2 Ex. 338. The enactment is C
prohibitory. It is not confined to affording a party a protection, of
which he may avail himself or n!Jt 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 D
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 E
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, F
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 G
get. prejudiced if such a contention is entertained at such a la!e 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.
It is not possible to agree with the contention of the learned senior H
404 SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.
A 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 bo11a fide
B 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 penillte11tiae to avail of it or not. It is easy to visualise
that proceedings under Section 21{l){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.
C 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
D 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 Krisha11 Lal v. State of J & K, (1994] 4 SCC 422 wherein Hansaria,
E 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 :
F
"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 cow:ts 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
G .came up for examination by that body in Vellayllll Chettiar v.
Govemment 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 Bhagcha11d Dagadusa v.
Secretary of State for India in Council, 54 IA 338 it was held that
H even if a notice under Section 80 be defective, the same would not
MARTIN AND HARRIS LTD. v. VI th ADDLDISIT. JUDGE (S.B. MAJMUDAR, J.] 405
per se render the suit requiring issuance of such a notice as a 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 B
distinction was made in this regard where the benefit conferred
:was to serve "an important purp9se", in Which case there would
not be waiver (see paragraph 14).
This point had come up ·for examination by this Court in
Dhirendra Nath Goral v. Slwdhir Chandra Ghosh, AIR (1964) SC C
1300 - [1964] 6 SCR 1001 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. Behali Lal Ki1tania, ILR
35 Cal. 61 at page 72 and some other decisions of the Calcutta D
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 E
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 F
mandatory and confers protection to the tena~t 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, con-
sciously 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 G
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 maintaii:iability of the suit while filing an appeal and argued
the appeal only on merits and only as an afterthrought at the stage of writ
petition in the High court such a contention was sought to be taken up for H
406 SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.
A 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.
Apart from waiver the appellant was estopped from taking up such
B 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
C and against the appellant.
Point No. 3
So far as this point is concerned it is true that as a last resort the
appellant's learned senior counsel invited attention of the High Court on
D the subsequent event, namely, that the respondent's wife had got an un-
divided interest in the adjoining part of the building where the suit
premises were also situated. But 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
E 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 obser-
vation 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
F 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 as rightly
and fairly conceded by learned senior counsel for the respondent-landlord.
Still, however, the subsequent event was rightly held by the High Court not
to have any effect on the bona fide requirement of the respondent-landlord
G as seen by us earlier. The third point for consideration is also answered in
the negative, in favour of the respondent-landlord and against the appel-
lant.
These were the only points raised in support of the appeal and as
they fail to assist the appellant the appeal fails and has to be dismissed.
H However it was contended by learned senior counsel for the appellant that
MARTIN AND HARRIS LTD. v. VI th ADDLDISTT. JUDGE [SB. MAJMUDAR, J.] 407
if this appeal is to be dismissed then the appellant-company, which is A
carrying on the business of manufacturing life saving drugs and which has
its office in the suit premises since 1966 and as there is an air-conditioned
godown in the said premises, may be given reasonable time to vacate the
premises so that it can .search out any alternative premises. Learned senior
counsel for the respondent has fairly left to us this question of giving time B
to the appellant. In the facts and circumstances of the case, therefore, while
dismissing this appeal we deem it fit to grant time to the appellant-corµpany
1
to vacate the suit premises till 31st December 1998 on the appellant filing
a usual undertaking within four weeks in this Court. If such an undertaking
is not filed or if any of the conditions of the undertaking is committed
breach of by the appellant, the grant of time to vacate the premises will C
stand recalled. Appeal is dismissed su~ject to the aforesaid grant of time
to vacate, with no order as to costs on the facts and circumstances of the
case. Ad interim relief granted earlier will stand vacated.
v.s.s. Appeal dismissed.
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