# Pradeep Kumar @ Pradeep & Anr v. Smt. Meena Devi Sahu & Anr

- **Citation:** (2019) 2 ILRA 1296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-06
- **Case number:** Rent Control No. 12289 of 2019
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-pradeep-anr-v-smt-meena-devi-sahu-anr-44585
- **Pages:** 12

## Headnote

Letting, Rent and Eviction) Act, 1972 -
Section 21(1) A- Interpretation of word
"entertained"- the waiver of period of six
months'
notice
and
comparative
hardship - concurrent findings of fact -
No
perversity-no
interference
under
Article 226 of the Constitution of India

Held:-
The
word
"entertained"
would
necessarily mean entertain the grounds for
2 All. Pradeep Kumar @ Pradeep & Anr. Vs Smt. Meena Devi Sahu & Anr.
1297
consideration for the purpose of adjudication
of merits and not at any stage prior thereto
The phrase "entertained" used in the 1st
proviso to Section 21(1)A of U.P. Act No.13 of
1972 would mean that the period of three
years since the date of purchase by the
landlord
must
have
expired
when
the
Prescribed Authority is required to entertain
the release application on the grounds
mentioned in Clause A of Section 21(1) of U.P.
Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 -requirement of six
months' notice under the 1st proviso to
Section 21(1) of U.P. Act No.13 of 1972, is
mandatory but it can be waived by the tenantNo
perversity
could
be
pointed
out
-
concurrent findings of fact has been recorded
by the courts below with regard to the
bonafide need to be in favour of the plaintifflandlady - cannot be interfered with in writ
jurisdiction
under
Article
226
of
the
Constitution
of
India.
The
defendanttenant/petitioner neither raised any objection
nor filed an application under Order VII Rule
11(d) of the Civil Procedure Code for dismissal
of the release application on the ground that it
is premature or barred by the proviso to
Section 21A.of the Act which establishes that
the defendant-tenant/petitioner has waived
the protection of six months' notice as
provided in the proviso to Section 21(1) of the
Act. (Para 19 & 20)

Writ petition dismissed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,872 of 40,439. This is a partial read: ask again with offset=39872 for what follows._

1296 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in (2006) 1 SCC 283. This case
also related to the trial under Section
376/366 I.P.C. In the said case, according
to the prosecution the prosecutrix was
below 16 years of age at the time of
commission of offence on the basis of
certain documents, however, some doubt
arose in respect of date of birth of the
prosecutrix which according to one
document was 29.11.1964 and according
to other it was 29.06.1963. Thus, two
documents contradicting each other in
respect of date of birth of the prosecutrix
in the said case created a doubt and
circumstances of the said case became
capable of two opinions, one in favour of
accused and the other in favour of the
prosecution.

33. In the said case of Vishnu
(supra), the Hon'ble Supreme Court went
on to observe that it is a common
knowledge that very often parents furnish
incorrect date of birth to the School
authorities to make up the age in order to
secure admission of their children and
accordingly Hon'ble Supreme Court did
not find any infirmity in the statement of
the witness in the said case who stated
that prosecutrix was born on 29.11.1964.

34. In any case, even if another view
is possible, in absence of any compelling
and substantial reason, the appellate court
dealing with appeal against acquittal
would not interfere with the acquittal
unless the approach of the court below is
found to be manifestly vitiated while it
makes consideration of evidences.

35. In the light of the discussion
made above, what we find is that in the
instant case the view taken by the learned
trial court for acquitting the accused was a
possible and plausible view on the basis
of analysis of evidence available on
record and further, we do not find any
perversity in the finding recorded by the
learned trial court.

36. Accordingly, the application
seeking leave to appeal in this case is
hereby rejected.

37. The appeal is also, thus,
dismissed.
----------

(2019)10ILR A 1296

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALAHABAD 06.08.2019

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Rent Control No. 12289 of 2019

Pradeep Kumar @ Pradeep & Anr.
 ...Petitioners
Versus
Smt. Meena Devi Sahu & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Vijayendra Pratap Singh

Counsel for the Respondents:
Sri Pankaj Saksena

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 -
Section 21(1) A- Interpretation of word
"entertained"- the waiver of period of six
months'
notice
and
comparative
hardship - concurrent findings of fact -
No
perversity-no
interference
under
Article 226 of the Constitution of India

Held:-
The
word
"entertained"
would
necessarily mean entertain the grounds for
2 All. Pradeep Kumar @ Pradeep & Anr. Vs Smt. Meena Devi Sahu & Anr.
1297
consideration for the purpose of adjudication
of merits and not at any stage prior thereto
The phrase "entertained" used in the 1st
proviso to Section 21(1)A of U.P. Act No.13 of
1972 would mean that the period of three
years since the date of purchase by the
landlord
must
have
expired
when
the
Prescribed Authority is required to entertain
the release application on the grounds
mentioned in Clause A of Section 21(1) of U.P.
Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 -requirement of six
months' notice under the 1st proviso to
Section 21(1) of U.P. Act No.13 of 1972, is
mandatory but it can be waived by the tenantNo
perversity
could
be
pointed
out
-
concurrent findings of fact has been recorded
by the courts below with regard to the
bonafide need to be in favour of the plaintifflandlady - cannot be interfered with in writ
jurisdiction
under
Article
226
of
the
Constitution
of
India.
The
defendanttenant/petitioner neither raised any objection
nor filed an application under Order VII Rule
11(d) of the Civil Procedure Code for dismissal
of the release application on the ground that it
is premature or barred by the proviso to
Section 21A.of the Act which establishes that
the defendant-tenant/petitioner has waived
the protection of six months' notice as
provided in the proviso to Section 21(1) of the
Act. (Para 19 & 20)

Writ petition dismissed (E-7)

List of Cases Cited: -

1. Martin & Harris Ltd. Vs VIth Addl. Distt.
Judge & ors. (1998) 1 SCC 732

2. (All), Rajendra Kumar Agarwal Vs Krishna
Gopal (2013) 4 AWC 3584

3. Vithalbhai Pvt. Ltd. Vs Union Bank of India
AIR 2005 SC 1891

4. M/s Pushpa Sahakari Avas Samiti Ltd. Vs
M/s. Gmiti Ltd. Vs M/s. Gangotri Sahkari Avas
S. Ltd. & ors. 2012 JT (3) SC 563

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

Interpretation
of
word
"entertained" used in Section 21(1)(a) of
U.P. Act No.13 of 1972, and the waiver
of period of six months notice and
comparative hardship are the questions
involved in the present petition.

1. Heard Sri V.P. Singh, learned
counsel for the defendant-tenant/petitioners
and Sri Pankaj Saksena, learned counsel for
the plaintiff-landlady/respondent.

2. Briefly stated facts of the present
case are that one Umashanker Bohare was
original owner and landlord of House
No.291 (new No.628, current No.186),
Azadganj, Sipri Bazar, Jhansi. Ancestor
of the defendant-tenant/petitioners was
the tenant and the tenancy was succeeded
by
the
petitioners.
The
aforesaid
Umashanker Bohare sold the disputed
house to the plaintiff-landlady/respondent
no.1 by a registered sale deed dated
21.01.2010. According to the plaintifflandlady/respondent no.1, the intimation
of purchase of the aforesaid house was
given
by
her
to
the
defendanttenant/petitioners on 21.01.2010 itself.
However, rent was not paid by the
defendant-tenant/petitioners.
Therefore,
the plaintiff-landlady issued a notice
dated 03.08.2010 to the defendanttenant/petitioners terminating the tenancy
and demanded arrears of rent. Neither the
house was vacated nor the rent was paid
by
the
defendant-tenant/petitioners.
Therefore,
the
plaintifflandlady/respondent no.1 filed the release
application on 28.08.2010, under Section
21(1)(a) of U.P. Act No.13 of 1972, on
the ground of her bonafide need and
default in payment of rent.

3. The defendant-tenant/petitioners
filed a written statement on 29.11.2010 in
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
which
he
specifically
denied
the
ownership of plaintiff-landlady stating
that the house was owned by one Shanker
Lal and after his death it was inherited by
his son Hira Singh and thereafter it was
inherited by Tara Devi, wife of Hira
Singh.
The
plaintiff-landlady
has
specifically denied it and stated on the
basis of evidences on record that a Suit
No.31 of 1965 in respect of the disputed
house was filed and the aforesaid Hira
Singh lost it. Thereafter, he filed First
Appeal No.330 of 1977 which was
dismissed by the High Court by judgment
dated 16.10.1979. He filed the Second
Appeal No.670 of 1980 before the
Hon'ble Supreme Court which was
dismissed by Hon'ble Supreme Court by
judgment dated 27.04.1994. Thereafter,
his wife Tara Devi filed Suit Nos.386 of
1999 and 44 of 2000, in the Court of Civil
Judge (S.D.) which were jointly heard and
dismissed by judgment dated 30.04.2011.
Copies of all these judgments were filed
alongwith an affidavit. Thus, relevant
judgments were brought on record that
Umashanker Bohare was the owner and
landlord of the disputed house who sold it
to the plaintiff-landlady/respondent no.1.

4. In paragraph 21 of the written
statement the defendant-tenant/petitioners
have raised an objection that the release
application
has
been
filed
without
exhausting three years period from the
date of purchase of house and, therefore,
the release application is barred by the
proviso to Section 21(1) of U.P. Act
No.13 of 1972.

5. The release application being P.A.
Case No.121 of 2010 (Smt. Meena Devi
Sahu Vs. Pradeep Kumar and Another)
was
dismissed
by
judgment
dated
16.4.2016, passed by the Prescribed
Authority/Judge
Small
Cause
Court,
Jhansi, on the ground that the release
application was filed before expiry of
three years period from the date of
purchase of house, and therefore, it was
barred by the proviso to Section 21(1) of
U.P. Act No.13 of 1972. However, the
Prescribed Authority held that there is
landlord - tenant relationship between the
plaintiff-landlady/respondent No.1 and
the
defendant-tenant/petitioner.
Aggrieved
with
this
judgment,
the
plaintiff-landlady/respondent No.1 filed a
Rent Control Appeal No.7 of 2016 and
the defendant-tenant/petitioner filed a
Rent Control Appeal No.8 of 2016. By
the impugned judgment dated 15.03.2019
Rent Control Appeal No.7 of 2016, filed
by the plaintiff-landlady/respondent no.1
was allowed and the P.A. Case was
decreed. By judgment of even date i.e.
15.03.2019 the appellate court dismissed
the Rent Control Appeal No.8 of 2015,
filed by the defendant-tenant/petitioner.
Aggrieved with these judgments the
defendant-tenant/petitioner has filed the
present petition under Article 227 of the
Constitution of India.

Submissions:-

6. Learned counsel for the
defendant-tenant/petitioner
submits
that the release application was filed by
the
plaintiff-landlady/respondent
no.1
before expiry of three years period from
the date of purchase of the disputed
house. Therefore, the release application
was barred by the 1st proviso to Section
21(1) of U.P. Act No.13 of 1972. The
defendant-tenant/petitioner has no house
in the city of Jhansi, therefore, the
comparative hardship was in his favour.
He further submits that the plaintifflandlady/respondent no.1 has one house in
2 All. Pradeep Kumar @ Pradeep & Anr. Vs Smt. Meena Devi Sahu & Anr.
1299
the
city
of
Jhansi
and,
therefore,
comparative hardship can not be said to
be in her favour. The release application
was filed before expiry of six months
from the date of notice dated 03.08.2010,
therefore, it was not entertainable.

7. Sri Pankaj Saksena, learned
counsel
for
the
plaintifflandlady/respondent
supports
the
impugned
judgment
passed
by
the
appellate court.

Discussion & Findings:-

8. I have carefully considered the
submissions of learned counsels for the parties.

9. From the submissions made by
learned counsels for the parties, following
three questions arise for consideration in
the present petition:-

QUESTIONS

10. (a) Whether under the facts and
circumstances of the case the release
application
filed
by
the
plaintifflandlady/respondent no.1 before expiry of
three years from the date of purchase of
the house was barred by the 1st proviso to
Section 21(1) of U.P. Act No.13 of 1972?

(b) Whether under the facts and
circumstance of the case, the defendanttenant/petitioner has waived the condition
of six months notice required under the
1st proviso to Section 21(1) of U.P. Act
No.13 of 1972?

(c) Whether under the facts and
circumstance of the case the comparative
hardship of the disputed house has been
rightly held to be in favour of the
plaintiff-landlady/respondent no.1?

11. Question No. (a) Whether
under the facts and circumstances of
the case the release application filed by
the plaintiff-landlady/respondent no.1
before expiry of three years from the
date of purchase of the house was
barred by the 1st proviso to Section
21(1) of U.P. Act No.13 of 1972?

Admittedly the disputed house was
purchased
by
the
plaintifflandlady/respondent no.1 by a registered
sale deed dated 21.01.2010. According to
the plaintiff-landlady/respondent no.1, the
notice regarding purchase of house was
given to the defendant-tenant/petitioner
on 21.01.2010. A notice dated 03.08.2010
was
issued
by
the
plaintifflandlady/respondent no.1, terminating the
tenancy and demanding arrears of rent.
Despite purchase of the house by the
plaintiff-landlady/respondent
no.1,
the
rent was not paid by the defendanttenant/petitioner
to
the
plaintifflandlady/respondent no.1 although it was
demanded and the fact of purchase was
brought to his notice. The release
application under Section 21(1)(a) on the
ground of bonafide need and default in
payment of rent by the defendanttenant/petitioner,
was
filed
by
the
plaintiff-landlady/respondent
no.1
on
28.08.2010. It was registered as P.A. Case
No.121 of 2010 and was decided by the
Prescribed Authority/Judge Small Cause
Court,
Jhansi
by
judgmnt
dated
16.4.2016.

12. The phrase that "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" has been interpreted by
Hon'ble Supreme Court in the case of
Martin & Harris Ltd. Vs. VIth Additional
Distt. Judge & Ors. (1998 )1 SCC 732,
and it has been held as under:
1300 INDIAN LAW REPORTS ALLAHABAD SERIES

"7. In view of the aforesaid
rival contentions the following points
arise for our consideration;

1. Whether the respondentlandlord's application under Section
21(1)(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 purchase of the
suit premises by the respondent.

2. Whether the said application
was not maintainable on the additional
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 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 respondent-landlord was staying with
his wife.

8. .......................A mere look at
the aforesaid provision of the first proviso
to Section 21(1) 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
landlord 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 respondent Landlord on
30th June 1985, It is, of course, true that
respondent
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 the
date of such purchase. It 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 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 the 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
of
three
years.
......................................

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 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
mentioned in clause (a) of Section 21(1)
but even other grounds mentioned in that
2 All. Pradeep Kumar @ Pradeep & Anr. Vs Smt. Meena Devi Sahu & Anr.
1301
sub-section. Therefore, the stage at which
the court has to consider whether grounds
mentioned in clause (a) are made out be
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 day 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.

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 filling of such application is
concerned it is clearly indicated by the
Legislature that such application cannot
be filled before expiry of six months form
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 firs proviso to
Section 21(1) of the Act would mean
'Institution' of such proceedings before
the prescribed or would at least mean
taking cognizance of such an application
by the prescribed authority by issuing
summons for appearance to the tenantdefendant. It must be half that on the
contrary the term 'entertain' would only
show that by the time the application for
possession on the grounds mentioned in
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
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 the landlord.

10.
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 of 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
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. From the date on which the
respondent-landlord had purchased the
property.

13. Similar view has been taken by
this Court in Rajendra Kumar Agarwal
Vs. Krishna Gopal 2013(4) AWC 3584
(All) (Paras 2,3 & 4). In Vithalbhai Pvt.
Ltd. Vs. Union Bank of India, AIR 2005
SC 1891 Hon'ble Supreme Court laid
down the law that if a suit is filed
premature (in that case before the expiry
of period of notice suit had been filed),
however, it becomes mature during its
pendency then the same will have to be
decided on merit. The aforesaid judgment
has been followed in M/s Pushpa
Sahakari Avas Samiti Ltd. Vs. M/s.
Gangotri Sahkari Avas S. Ltd. and
others 2012 JT (3) SC 563 and in the
matter of execution case it was held that if
execution application had been filed
before time but during pendency the
execution application became mature then
it has to be decided on merit.

14. From the bare reading of 1st
proviso to Section 21(1) of U.P. Act
No.13 of 1972 and principles of law laid
down by Hon'ble Supreme Court in the
case of Martin & Harris Ltd.(supra)
and Vithalbhai Pvt. Ltd.(supra), it can
be safely concluded that the phrase
"entertain" used in the 1st proviso to
Section 21(1)(a) of U.P. Act No.13 of
1972 would mean that the period of three
years since the date of purchase by the
landlord must have expired when the
Prescribed Authority is required to
entertain the release application on the
grounds mentioned in Clause (a) of
Section 21(1) of U.P. Act 13 of 1972.
This would be a stage reached when the
Court applies its judicial mind and takes
up the case for decision on merits
concerning the grounds mentioned in
clause (a) of Section 21(1) of the Act. The
word "entertained" mentioned in the
first
proviso
to
Section
21(1)
in
connection with the grounds mentioned in
Clause (a) would necessarily mean
entertain the grounds for consideration
for the purpose of adjudication of
merits and not at any stage prior
thereto i.e. neither at the stage at which
the application is filed in the office of the
Prescribed Authority nor at the stage
when summons is issued to the tenant.
The crux of the conclusion is 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
2 All. Pradeep Kumar @ Pradeep & Anr. Vs Smt. Meena Devi Sahu & Anr.
1303
merits, at least minimum three years'
period should have elapsed since the date
of purchase of the premises by the
landlord/landlady. In the present set of
facts, the disputed house was purchased
by the plaintiff-landlady/respondent no.1
on 21.01.2010 and the case has been
taken up for consideration on merit and
was decided by the Prescribed Authority
on 16.04.2016. Therefore, the 1st proviso
to Section 21(1) of the Act stood
complied
with.
Question
No.(a)
is
answered accordingly.

15. Question No.(b) Whether
under the facts and circumstance of the
case
the
defendant-tenant/petitioner
has waived the condition of six months
notice required under the 1st proviso to
Section 21(1) of U.P. Act No.13 of 1972
?

Bare perusal of the written statement
filed by the defendant-tenant/petitioner
shows that the question of six months
notice was not raised. The objection as to
the filing of the release application before
expiry of six months period from the date
of notice, was not raised by the defendanttenant/petitioner before the Prescribed
Authority. He has also not filed any
application under Order VII Rule 11 (d)
of the Civil Procedure Code for rejection
of the application on the ground that it is
premature and barred by the 1st proviso to
Section 21(1) of U.P. Act No.13 of 1972,
on the ground that the application was
filed before expiry of six months period
of
notice.
Thus,
the
mandatory
requirement of six months notice was
waived by the defendant-tenant/petitioner.

16.

A
similar
question
was
considered by Hon'ble Supreme Court in
the case of Martin & Harris Ltd.(supra)
and it has been held as under:-

"11. 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
possession under Section 21(1) (a) had to
be filed by the landlord concerned not
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 leas till 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.

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 17th September 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
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
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
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
clause 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 the
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 shows to have
suffered from a formal defect and he
would have been entitled to claim liberty
to file a fresh suit on the same cause of
action after the expiry of six months'
period from the date of service of notice.
That opportunity
was
lost
to
the
respondent-landlord as the appellant did
not pursue this contention any further.
On the contrary appellant joined issues
on merits by seeking permission to crossexamine 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.

..............................................

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 a fording projection 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 set 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 tenants who are sitting tenants and
whose
premises
are
subsequently
2 All. Pradeep Kumar @ Pradeep & Anr. Vs Smt. Meena Devi Sahu & Anr.
1305
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 as found in
the proviso would give the tenants
concerned a locus penintentiae to avail of
it or not. It is easy to visualise that
proceedings under Section 21(1) (a) of
the Act would be between the landlord
on the one hand and the tenant on the
other. These proceedings are not of any
public nature. Nor any public interest is
involved therein. Only personal interest
of landlord on the one hand and the
tenant on the other hand get clashed an
called for adjudication by the prescribed
authority. The ground raised by the
Landlord under Section 21(1) (a) would
be personal to him and similarly the
defence taken by the tenant would also
be
personal
to
him. Six months'
breathing time is given to the tenant
after service of notice to enable him to
put his house in order and to get the
matter settled amicably or to get
alternative accommodation if the tenant
realises that the landlord has a good
case. This type of protection to the tenant
would naturally be personal to him and
could be waived.

..............................................

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.

14. Apart from waiver the
appellant was stopped 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."

17. From the discussion made above
and the law laid down by Hon'ble
Supreme Court as aforequoted, it can be
safely concluded that requirement of six
months notice under the 1st proviso to
Section 21(1) of U.P. Act No.13 of 1972,
is mandatory but it can be waived by the
tenant. These proceedings under Section
21(1)(a) of the Act are neither of public
nature nor it involves any public interest.
It would be between landlord and tenant.
Only personal interest of landlord on the
one hand and the tenant on the other hand
get clashed and called for adjudication by
the Prescribed Authority. Six months'
breathing time is given to the tenant after
service of notice to enable him to put his
house in order and to get the matter
settled amicably or to get alternative
accommodation if the tenant realises that
the landlord has a good case. This type of
protection to the tenant would naturally be
personal to him and could be waived. In
the present set of facts the defendanttenant/petitioner
neither
raised
any
objection nor filed an application under
Order VII Rule 11(d) of the Civil
Procedure Code for dismissal of the
release application on the ground that it is
premature or barred by the proviso to
Section 21(a) of the Act. This clearly
established
that
the
defendanttenant/petitioner
has
waived
the
protection of six months' notice as
provided in the proviso to Section 21(1)
of the Act. Therefore, the submission of
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
learned
counsel
for
the
defendanttenant/petitioner deserves rejection and is
hereby rejected. If an objection would
have been raised before the Prescribed
Authority in the very beginning then the
plaintiff-landlady/respondent would have
an opportunity to take leave of the Court
to withdraw the release application and to
file a fresh release application after expiry
of six months period.

18. Question No.(c) Whether
under the facts and circumstance of the
case the comparative hardship of the
disputed house has been rightly held to
be
in
favour
of
the
plaintifflandlady/respondent no.1?

The last submission of learned
counsel
for
the
defendanttenant/petitioner
also
deserves
rejection. Undisputedly, the defendanttenant/petitioner has acquired the house in
the city of Jhansi. Considering the facts
and circumstances of the case and
evidences on record, both the courts
below have recorded concurrent findings
of fact with regard to the bonafide need of
the
plaintiff-landlady/respondent
and
comparative hardship to be in her favour.
No perversity could be pointed out in
these findings of fact. Therefore, these
findings can not be interfered with in writ
jurisdiction under Article 226 of the
Constitution of India. That apart, it would
be relevant to mention that denial of title
of the landlord by the tenant is in itself a
valid ground of eviction of the tenant.

19. Considering the entire facts and
circumstance and the evidences on record,
concurrent findings of fact has been
recorded by the courts below with regard
to the bonafide need to be in favour of the
plaintiff-landlady. No perversity could be
pointed out in the aforesaid finding of
fact, therefore, these findings of fact can
not be interfered with in writ jurisdiction
under Article 226 of the Constitution of
India.

Conclusions

20.

The
legal
position
and
conclusions stated above are briefly
summarized as under:-

(i) The phrase "entertained"
used in the 1st proviso to Section 21(1)(a)
of U.P. Act No.13 of 1972 would mean
that the period of three years since the
date of purchase by the landlord must
have
expired
when
the
Prescribed
Authority is required to entertain the
release
application
on
the
grounds
mentioned in Clause (a) of Section 21(1)
of U.P. Act 13 of 1972. This would be a
stage reached when the Court applies its
judicial mind and takes up the case for
decision on merits concerning the grounds
mentioned in clause (a) of Section 21(1)
of the Act. The word "entertained"
would necessarily mean entertain the
grounds for consideration for the
purpose of adjudication of merits and
not at any stage prior thereto i.e. neither
at the stage at which the application is
filed in the office of the Prescribed
Authority nor at the stage when summons
is issued to the tenant. The crux of the
conclusion is 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 the landlord/landlady. In the
present set of facts, the disputed house
was
purchased
by
the
plaintifflandlady/respondent no.1 on 21.01.2010
2 All. The New India Assurance Co. Ltd. Vs Smt. Maya Devi & Ors.
1307
and the case has been taken up for
consideration on merit and was decided
by
the
Prescribed
Authority
on
16.04.2016. Therefore, the 1st proviso to
Section 21(1) of the Act stood complied
with.
Question
No.(a)
is
answered
accordingly.

(ii) requirement of six months
notice under the 1st proviso to Section 21(1)
of U.P. Act No.13 of 1972, is mandatory but it
can be waived by the tenant. These
proceedings under Section 21(1)(a) of the Act
are neither of public nature nor it involves any
public interest. It would be between landlord
and tenant. Only personal interest of landlord
on the one hand and the tenant on the other
hand get clashed and called for adjudication
by the Prescribed Authority. Six months'
breathing time is given to the tenant after
service of notice to enable him to put his
house in order and to get the matter settled
amicably or to get alternative accommodation
if the tenant realises that the landlord has a
good case. This type of protection to the
tenant would naturally be personal to him and
could be waived.

(iii) In the present set of facts the
defendant-tenant/petitioner neither raised any
objection nor filed an application under Order
VII Rule 11(d) of the Civil Procedure Code
for dismissal of the release application on the
ground that it is premature or barred by the
proviso to Section 21(a) of the Act. This
clearly established that the defendanttenant/petitioner has waived the protection of
six months' notice as provided in the proviso
to Section 21(1) of the Act.

21. For all the reasons aforestated,
the writ petition is dismissed.
----------

(2019)10ILR A 1307

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.10.2019

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

FAFO No. 298 of 2006

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Smt. Maya Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Jitendra Narain Mishra

Counsel for the Respondents:
Sri R.A. Kanojia, Sri Amit Kumar Singh Bhadoria,
Sri Anshuman Patnaik, Sri R.A. Kanaujia, Sri Raj
Kumar Verma, Sri Rajendra Jaiswal, Sri
Shivendra Pratap Singh, Sri Subodh Awasthi

Motor Vehicles Act 1988 - Section 15 (1)
- Driver not having valid licence on the
date of accident - Insurer cannot be
fastened with the liability of paying
compensation.

Tribunal held that since prior to accident and
after the accident the driver had valid and
effective driving licence therefore it would be
treated that he was having the valid and
effective driving licence on the date of
accident also