# Mahesh Kumar v. Pradeep Kumar Jaiswal & Anr

- **Citation:** (2013) 3 ILRA 1378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-23
- **Case number:** Civil Misc. Writ Petition No.51506 of 2013
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-kumar-v-pradeep-kumar-jaiswal-anr-42708
- **Pages:** 3

## Headnote

Letting) Act, 1972-Act No. 13 of 1972Section
34(1)-
Amendment
in
written
statement-after
evidence
clouser
of-by
amendment plea of six month prior notice
sought-held-if plea not taken at initial stageshall be deemed waived-this ground-even
then in absence of plea of land lord-no other
person allowed to raise such plea-trail court
rightly rejected amendment application.
3 All] Mahesh Kumar Vs. Pradeep Kumar Jaiswal & Anr.
1379
Held: Para-10
There may be substance in the submissions
of Sri Nigam, but here the first condition,
i.e., release application has to be filed by a
landlord who has purchased the building
wherein the tenant is residing since prior to
its purchase by the present landlord, is
missing. The six months' prior notice is
required in a case where the landlord has
purchased
the
building
and
filed
an
application
seeking
release
of
the
accommodation.

Case Law discussed:
2000(1) SCC 712.

## Text

1378 INDIAN LAW REPORTS ALLAHABAD SERIES

4. In the writ petition there are no
pleadings to show the manner in which the
marriage of the petitioners was performed
except that they have entered into a contract of
marriage before the Notary Commissioner.

5. The petitioners are both Hindu by
religion. The marriage between two Hindus
is governed by the provisions of Hindu
Marriage Act, 1955.

6. Section 7 of the Act provides that
Hindu marriage may be solemnized in
accordance with the customary rights and
ceremonies and where such rights and
ceremonies include Satpadi the marriage
becomes complete and binding when the
seven steps have been taken.

7. In view of the above, a marriage
between two Hindus is to be solemnized
according to customary rights and ceremonies
which ordinarily in Northern India especially
includes invocation of sacred fire, satpadi
before it coupled with Kanyadan.

8. Petitioners have not pleaded any
different customary rights and ceremonies
and have also no where stated that they have
performed the marriage according to any
customary rights and ceremonies which are
prevalent amongst the Hindus.

9. In the absence of such pleadings
the marriage of the petitioners can not be
recognized under the aforesaid Act.

10. It is not the case of the petitioners
that they have entered into civil marriage and
have got it registered under the U.P.
Registration of Marriage Act, 1973.

11. The marriage of the petitioners is
also not registered under the Special
Marriage Act.

12. It has not been pleaded to have
been performed according to any other law
in force governing the marriages between the
Hindus namely Arya Samaj Marriage
Validation Act etc. No law recognizes
marriage of Hindus through any agreement
or a contract, as marriage amongst the
Hindus is not a contract but a sacrament.

13. In view of the above, the Court
refuses to recognize the marriage of the
petitioners, if any. The petitioners are
therefore not entitle to any relief from this
Court in exercise of discretionary jurisdiction
on the basis of the marriage pleaded by them.

14.

Accordingly,
petition
is
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No.51506 of 2013

Mahesh Kumar

 ...Petitioner
Versus
Pradeep Kumar Jaiswal & Anr. Respondents

Counsel for the Petitioner:
Sri A.C. Nigam

Counsel for the Respondents:
--

U.P. Urban Buildings(Regulation of Rent and
Letting) Act, 1972-Act No. 13 of 1972Section
34(1)-
Amendment
in
written
statement-after
evidence
clouser
of-by
amendment plea of six month prior notice
sought-held-if plea not taken at initial stageshall be deemed waived-this ground-even
then in absence of plea of land lord-no other
person allowed to raise such plea-trail court
rightly rejected amendment application.
3 All] Mahesh Kumar Vs. Pradeep Kumar Jaiswal & Anr.
1379
Held: Para-10
There may be substance in the submissions
of Sri Nigam, but here the first condition,
i.e., release application has to be filed by a
landlord who has purchased the building
wherein the tenant is residing since prior to
its purchase by the present landlord, is
missing. The six months' prior notice is
required in a case where the landlord has
purchased
the
building
and
filed
an
application
seeking
release
of
the
accommodation.

Case Law discussed:
2000(1) SCC 712.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri A.C. Nigam, learned
counsel for the petitioner.

2. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari
quashing
the
order
dated
3.9.2013 passed by the learned Prescribed
Authority / ACMM IX, Kanpur Nagar in
Rent Case No. 12 of 2010 (Pradeep
Kumar and Another Vs. Mahesh Kumar)
by
which
petitioner's
amendment
application seeking amendment in the
written statement has been rejected.

3. The facts giving rise to this case are
that it appears, the respondents-landlords
have filed release application no. 12 of 2010
under section 21 (1) (a) of the U.P. Act No.
13 of 1972 (in short, 'the Act') for release of
the accommodation in dispute. To the
aforesaid application, a written statement was
filed. After closing of the evidence of the
parties, on 13.8.2013 an application seeking
amendment in the written statement was filed
under section 34(1)(g) of the Act praying the
court to permit the petitioner to amend the
written statement by adding ground no. 14A. To this application, an objection was filed
by the respondents-landlords stating that the
respondents could have raised the plea of 6
month's notice while filing the written
statement and now, at this stage, it cannot be
permitted to raise because he has waived his
right to raise the plea of notice.

4. Learned Prescribed Authority,
taking note of the judgment of the Apex
Court in B.K. Narayana Pillai Vs.
Parameswaran Pillai and Others 2000
(1) SCC 712, has rejected the petitioner's
amendment application holding that by
not taking this objection at the initial
stage, the petitioner has waived his right
to raise the plea of six months notice and
at the final hearing stage, he cannot be
permitted to amend the written statement.

5. Sri Nigam submits that the
requirement of six months' notice is
mandatory in view of the first Proviso to
sub-section (1) (a) of section 21 of the
Act. For appreciating the controversy, it
would be appropriate to go through the
language used in the aforesaid proviso,
which is reproduced hereunder:

"21. (1) 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 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."

6. From the bare reading of the
aforesaid Proviso, it would transpire that
in case landlord has purchased the
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
accommodation in dispute in which the
tenant is residing since prior to its purchase,
while seeking release of the accommodation
under section 21(1)(a) of the Act, he must
give six months' notice to the tenant to vacate
the premises with the stipulation that the
release application cannot be filed before
expiry of three years from the date of
purchase. It would also transpire that six
month's notice can be given even before the
expiry of three years.

7. Sri Nigam submits that six months'
notice is necessary for filing a release
application in each circumstance either the
release application has been filed by a
landlord who has purchased the building or
other than this. From the bare reading of the
Proviso, I find that learned counsel for the
petitioner is misconstruing and misinterpreting
the 1st Proviso to sub-section (1) (a) of section
21 of the Act as the language used therein is
unambiguous and clear and from its literal
reading, it is clear that where the release
application is filed by a landlord who has
purchased the building, seeking release of
accommodation in which tenant is residing,
since prior to its purchase, the condition of six
months' prior notice is necessary and that will
not be available to a landlord other than the
landlord who has purchased the building.

8. On being confronted as to
whether the landlord, who has filed the
release application, has purchased the
building in question or he falls in the
category of other landlord, Sri Nigam,
from the perusal of the records, i.e.,
release application, written statement or
even the amendment application, could
not show that the release application has
been filed by a landlord who has
purchased the accommodation in dispute.
Therefore, in my considered opinion, this
proviso would not be attracted.

9. Sri Nigam further contended that the
court below has erred in rejecting the
application by observing that the tenant has
waived his right to raise the plea of six months
prior notice. In his submissions, the plea can be
taken before the final decision of the release
application and the principle of waiver may
come into play only after decision of the release
application in case it is taken in the appeal.

10. There may be substance in the
submissions of Sri Nigam, but here the first
condition, i.e., release application has to be filed
by a landlord who has purchased the building
wherein the tenant is residing since prior to its
purchase by the present landlord, is missing.
The six months' prior notice is required in a
case where the landlord has purchased the
building and filed an application seeking
release of the accommodation.

11. In view of the foregoing
discussions, I do not find any merit in the
present writ petition and the same is
hereby dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.52372 of 2013

Smt. Rajni Singh

 ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Suresh Chandra Dwivedi

Counsel for the Respondents:
C.S.C.

Constutution of India, Art.-226- Service Lawtransfer order challenged on breach of govt.