Case: MAHESH KUMAR AGARWAL (DEAD) BY LRS Vs. NARESH CHANDRA &amp; ORS

held that the contention, regarding the suit being premature as filed before expiry of six months from the date of the notice, must be treated to have been waived by the appellant. Joining issue on this question learned Senior Counsel, Shri Rao, for the appellant, invited our attention to a decision of this Court in the case of Badri Prasad v. Nagarmal [AIR 1959 SC 559 : 1959 Supp (1) SCR 769] . In that case a suit filed by an unregistered company was found to be hit by the provisions of Section 4 sub-section (2) of the Rewa State Companies Act, 1935. The said contention was permitted to be taken for the first time during averments in appeal before this Court. It was held that as this contention went to the root of the maintainability of the suit it could be agitated as a pure question of law. We fail to appreciate how that decision can be of any avail to the appellant in the present case. This Court, placing reliance on a decision of the Privy Council in the case of Surajmull Nargoremull v. Triton Insurance Co. Ltd. [(1924) 52 IA 126 : AIR 1925 PC 83 ] extracted with approval the observations of Lord Sumner at p. 128 of the Report of the Privy Council judgment to the following effect: The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim. No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset: Nixon v. Albion Marine Insurance Co. [(1867) LR 2 Exch 338] The enactment is prohibitory. It is not confined to affording a party a protection, of which he may avail himself or not as he pleases. The decision of the Privy Council referred to with approval by this Court in the aforesaid decision clearly indicates that if a proceeding before a court is barred by a law, a plea to that effect being a pure question of law can be agitated any time. But if the prohibition imposed by the statute is with a view to affording protection to a party, such protection can be waived by the party. He may avail of it or he may not avail of it as he may choose. It is not the case of the appellant that the application for possession as filed by the respondent-plaintiff was barred by any provision of law. All that was contended was that it was prematurely filed as six months period had not expired from the date of issuance of the suit notice. That provision obviously was enacted for the benefit and protection of the tenant. It is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant, was waived by it though it was alive to the said contention as it was mentioned at the outset in the written statement filed before the prescribed authority. Thereafter it was not pressed for consideration. The result was that the respondent-landlord by the said conduct of the appellant irretrievably changed his position and would get prejudiced if such a contention is entertained at such a late stage as was tried to be done before the High Court after both the courts had concurrently held on facts that the respondent-plaintiff had proved his case on merits. No doubt, the Court also went on to tide over the objection based on the proviso incorporating the provision based on public policy. A Bench of three learned Judges has affirmed the view taken in the aforesaid judgment but then, we must note that the decision of the Bench of three learned Judges in Nirbhai Kumar v. Maya Devi & Ors. (2009) 5 SCC 399 relates to the requirement under the first part of the first proviso to section 21 of the Act, namely the embargo against entertaining the application except after expiry of three years of the transfer. 9. In view of the judgment of this Court in Martin & Harris Ltd.(supra), where this Court has taken the view interpreting the very same provision with which we are concerned, that the objection relating to defective notice is capable of being waived, we are of the view that the appellant should not be denied the benefit of the said view. We further notice that, on facts, the present case stands on a more sturdier footing. In Martin & Harris Ltd. (supra), the tenant had, in fact, raised objection, which he did not press, whereas, in the facts of this case, the tenant has not raised any objection in not only the reply notice, but even in the written statement before the Rent Controller. What fortifies us further is that even in the appeal before the appellate Court, the tenant did not urge the ground. If at all there is a case for waiver, this would be one. 10. However, under Section 21 of the Act, as correctly pointed out by the learned Amicus, under the second proviso, in respect of a non-residential premises or a building let out exclusively for non-residential purpose, an order for payment of an amount not exceeding two months rent as compensation is called for: Provided further that if any application under clause (a) is made in respect of any building let out exclusively for non-residential purposes, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years rent as compensation and may, subject to rules, impose such other conditions as it thinks fit.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. We have already noticed the facts. Indeed, it is much after the period of six months of the notice given by the appellant that the proceeding has been instituted. We are, in fact, inclined to take the view that the notice which has been served would be in conformity with the proviso. However, we cannot proceed to decide the matter on the said basis for the reason that such a premise is inconsistent with the view taken by this Court in the unreported judgment. However, we are of the view with due respect that this Court may have erred in the said judgment. Judicial discipline requires that we should not found our decision on such a view for the reasons already set out. We defer from doing that.In this regard, we notice the judgment of this Court reported in Martin & Harris Ltd. (supra). In the said case, there were two points which arose. The first point revolved around the question as to whether the application which was admittedly filed within the period of three years mentioned in the first proviso could be considered. This Court took the view that the law did not veto the institution of proceedings but instead interdicted entertaining of the proceeding. Answering point no. 2 which is more apposite in the context of the facts of this case, the Court went on to hold, inter alia, as follows:12. However the further question survives for consideration, namely, whether the beneficial provision enacted by the legislature in this connection for the protection of the tenant could be and in fact was waived by the tenant. So far as this question is concerned on the facts of the present case the answer must be in the affirmative. As we have noted earlier after the suit was filed the appellant filed its written statement on 17-9-1986. In the said written statement the appellant, amongst others, did take up the contention that the application as filed by the respondent-landlord under Section 21(1)(a) was not maintainable and was premature as six months period had not expired since the service of notice dated 20-9-1985 when the suit was filed. But curiously enough thereafter the said contention raised by the appellant in written statement was given a go-by for reasons best known to the appellant. It is easy to visualise that if at that stage the appellant had pressed for rejection of the application on the ground of Section 21(1)(a) as not showing completed cause of action due to nonexpiry of six months from the date of service of notice invoking Order VII Rule 11(a) and (d) CPC, alleging that the plaint did not disclose a cause of action or it appeared to be barred by law, respondent-plaintiff could have withdrawn the suit on that ground under Order XXIII Rule 1 sub-rule (3) CPC as the suit based on grounds under Section 21(1)(a) of the Act would have been shown to have suffered from a formal defect and he would have been entitled to claim liberty to file a fresh suit on the same cause of action after the expiry of six months period from the date of service of notice. That opportunity was lost to the respondent-landlord as the appellant did not pursue this contention any further. On the contrary the appellant joined issues on merits by seeking permission to cross-examine the plaintiff on merits of the case on grounds as pleaded under Section 21(1)(a) of the Act. When the decree was passed against the appellant, even while challenging the said decree in appeal no such ground was taken in the memo of appeal, nor was it argued before the first appellate court. Under these circumstances, the High Court rightly held that the contention, regarding the suit being premature as filed before expiry of six months from the date of the notice, must be treated to have been waived by the appellant. Joining issue on this question learned Senior Counsel, Shri Rao, for the appellant, invited our attention to a decision of this Court in the case of Badri Prasad v. Nagarmal [AIR 1959 SC 559   : 1959 Supp (1) SCR 769] . In that case a suit filed by an unregistered company was found to be hit by the provisions of Section 4 sub-section (2) of the Rewa State Companies Act, 1935. The said contention was permitted to be taken for the first time during averments in appeal before this Court. It was held that as this contention went to the root of the maintainability of the suit it could be agitated as a pure question of law. We fail to appreciate how that decision can be of any avail to the appellant in the present case. This Court, placing reliance on a decision of the Privy Council in the case of Surajmull Nargoremull v. Triton Insurance Co. Ltd. [(1924) 52 IA 126 : AIR 1925 PC 83  ] extracted with approval the observations of Lord Sumner at p. 128 of the Report of the Privy Council judgment to the following effect:The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim. No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset: Nixon v. Albion Marine Insurance Co. [(1867) LR 2 Exch 338] The enactment is prohibitory. It is not confined to affording a party a protection, of which he may avail himself or not as he pleases.The decision of the Privy Council referred to with approval by this Court in the aforesaid decision clearly indicates that if a proceeding before a court is barred by a law, a plea to that effect being a pure question of law can be agitated any time. But if the prohibition imposed by the statute is with a view to affording protection to a party, such protection can be waived by the party. He may avail of it or he may not avail of it as he may choose. It is not the case of the appellant that the application for possession as filed by the respondent-plaintiff was barred by any provision of law. All that was contended was that it was prematurely filed as six months period had not expired from the date of issuance of the suit notice. That provision obviously was enacted for the benefit and protection of the tenant. It is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant, was waived by it though it was alive to the said contention as it was mentioned at the outset in the written statement filed before the prescribed authority. Thereafter it was not pressed for consideration. The result was that the respondent-landlord by the said conduct of the appellant irretrievably changed his position and would get prejudiced if such a contention is entertained at such a late stage as was tried to be done before the High Court after both the courts had concurrently held on facts that the respondent-plaintiff had proved his case on merits.No doubt, the Court also went on to tide over the objection based on the proviso incorporating the provision based on public policy. A Bench of three learned Judges has affirmed the view taken in the aforesaid judgment but then, we must note that the decision of the Bench of three learned Judges in Nirbhai Kumar v. Maya Devi & Ors. (2009) 5 SCC 399  relates to the requirement under the first part of the first proviso to section 21 of the Act, namely the embargo against entertaining the application except after expiry of three years of the transfer.9. In view of the judgment of this Court in Martin & Harris Ltd.(supra), where this Court has taken the view interpreting the very same provision with which we are concerned, that the objection relating to defective notice is capable of being waived, we are of the view that the appellant should not be denied the benefit of the said view. We further notice that, on facts, the present case stands on a more sturdier footing. In Martin & Harris Ltd. (supra), the tenant had, in fact, raised objection, which he did not press, whereas, in the facts of this case, the tenant has not raised any objection in not only the reply notice, but even in the written statement before the Rent Controller. What fortifies us further is that even in the appeal before the appellate Court, the tenant did not urge the ground. If at all there is a case for waiver, this would be one.10. However, under Section 21 of the Act, as correctly pointed out by the learned Amicus, under the second proviso, in respect of a non-residential premises or a building let out exclusively for non-residential purpose, an order for payment of an amount not exceeding two months rent as compensation is called for: