Case: Martin &amp; Harris Ltd Vs. Vith Addl Distt Judge

3. 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 1996. Respondent No. 3 was serving in Indian Army as Major General. He retired from the said post on 1st 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 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 IIIrd Additional Civil Judge and Prescribed Authority, Lucknow. It was registered as P.A. Suit No. 1 of 1986. In the written statement filed by the appellant on 17th September, 1986 before the 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 before 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 months from the date of the suit notice dated 20th September, 1985 and 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 controverting the affidavit filed by the respondent-landlord in support of his case. 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 before the District Judge, Lucknow. The appeal was pressed on merits of the controversy between the parties whereby the appellant sought to challenge 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 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 appellants counsel mainly urged the question about the maintainability of the application for possession as moved by the 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 appellants learned counsel that question of maintainability 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 contention on behalf of the appellant-tenant that because of the subsequent event, namely, that respondent-landlords wife had got undivided interest in the adjoining part of the property in which the suit premises were situated, the respondents bona fide requirement did not survive. In the result the High Court confirmed the decree for possession as passed by the Trial Court and as confirmed by the First Appellate Court.

Court's reasoning:
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 mentioned in clause (a) of Section 21(1) but even other grounds mentioned in that sub-section. Therefore, the stage at which the Court has to consider whether grounds mentioned in clause (a) are made out by the 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 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 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 plaintiff-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 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 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 entertaining such application by the prescribed authority would arise for consideration. This conclusion also flows from the statutory scheme discernible 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 application under Section 21(1)(a) shall not be entertained under contingencies 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 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 questions of fact will have to be considered while entertaining the application under clause (a) of 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 in service by the landlord for getting possession.9. 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 `entertaining 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 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, would naturally mean that before filing of such application or 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. 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. Consequently on the very scheme of this Act it cannot be said that the word `entertain as employed by the Legislature in the first proviso to Section 21(1) of the Act would mean `institution of such proceedings before the prescribed authority or would at least mean taking cognisance of such an application by the prescribed authority by issuing summons for appearance to the tenant-defendant. It must be held that on the contrary the term `entertain would only show that by the time the application for possession on the grounds mentioned in clause (a) of Section 21(1) is taken up by the prescribed authority for consideration on merits, at least minimum three years period should have elapsed since the date of purchase of the premises by thecannot be any dispute on this legal proposition. However, the question is whether decree passed by the 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 dated 23rd May, 1990. In fact the Trial Court had taken up the application for consideration of the aforesaid grounds more than three years after 20th December, 1985 in 1988-89 onwards. Consequently it must be held that the application for possession on the grounds under Section 21(1)(a) was entertained by the Trial Court after the expiry of three years from the date of purchase of the suit property by the respondent plaintiff. Hence it cannot be said that the said decree was a nullity being without jurisdiction. On the same reasoning, therefore, reliance placed by learned senior counsel, Shri Rao, for the appellant on the decision of this Court in the case of Chiranjilal Shrilal Goenka (deceased) through LRs v. Jasjit Singh and 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 by a coram non 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 Charan Lal Sahu and another v. Shri K.R. Narayanan and 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 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. 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 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. Lakshmiratan Engineering Works Ltd. v. Asstt. Commissioner (Judicial) v. Sales Tax, Kanpur Range, Kanpur and another, AIR 1968 SC 488 : 1968(1) SCR 505 and Hindustan Commercial Bank Ltd. v. Punnu Sahu (Dead) through Legal Representatives, 1971(3) SCC 124. In Lakshmiratan Engineering (supra) this Court was concerned with the meaning of the word `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 satisfactory 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 the two learned Judges of this Court in this connection observed that the term `entertain in the said 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 is based on any grounds 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 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(1)(a) of the Act shall be entertained by the prescribed authority on grounds mentioned in clause (a) of Section 21(1) of the Act before expiry of three years from date of purchase of property by the landlord it must necessarily mean consideration by the prescribed authority of the grounds mentioned in clause (a) of Section 21(1) of the Act on merits. On the facts of the present case, as we have seen earlier, that stage was reached after 1988 when the prescribed authority on the basis of the affidavit evidence led before it took up the plaintiffs case for consideration on merits of the grounds under Section 21(1)(a) of the Act and at that stage more than three years had expired from the date on which the respondent-landlord had purchased the property. Consequently no fault can be found with the decision of the High Court to the effect that the prescribed authority was justified in entertaining the consideration of the grounds under Section 21(1)(a) of the Act at that stage and the decree passed on the said ground, therefore, cannot be said to be a nullity, nor can the entertaining of such application on the ground under Section 21(1)(a) of the Act be said to be illegal. The first point for consideration is, therefore answered in the negative, in favour of the respondent-landlord and against thefar 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 September, 1986. In the said written statement the appellant, amongst others, did take up the contention that the application was 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 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 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 presentdecision 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.13. 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 (sic) to avail of it or not. It is easy to visualise the 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.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 a favourable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High Court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit being premature having been filed before the expiry of six months from the date of the suit notice.15. 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.Point No. 3So far as this point is concerned it is true that as a last resort the appellants learned senior counsel invited attention of the High Court on the subsequent event, namely, that the respondents wife had got an undivided 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 respondents claim as the respondent was a retired army Major General who had no property of his own in Lucknow town and who could not be compelled to stay as a licensee of his wife in a property which did not even exclusively belong to her but was jointly owned by her brother. It is, of course, true that the further observation of the High Court that the respondents claim was covered by Explanation (iii) to Section 21(1) of the Act was not justified as respondent had not let out the building before his retirement from army service. He was not the owner of the building when he retired from army service. To that extent the reasoning of the High Court cannot be sustained 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 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 appellant.