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TMI Blog1997 (12) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroversy between the parties. 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 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 1 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 landlord's wife had got undivided interest in the adjoining 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 the Trial Court and as confirmed by the First Appellate Court. Rival Contentions Learned senior counsel Shri P.P. Rao, appearing on behalf of the appellant submitted in support of the appeal that the High Court has patently erred in law in taking the view that respondent landlord's application 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 expire of the period of six months from the date of the service of the suit notice was clearly not maintainable and that as the said provisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision and application could not be filed before expire of six months from the date of the service of the suit notice as joined by the first proviso to Section 21(1) of the Act and as such a contention which 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 jointed 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 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 has irretrievably changed his position and it would have resulted in grave prejudice to the respondent landlord if such a plea was entertained subsequently. It was also submitted in this connection that the proceedings were personal in nature between the landlord and the tenant and the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 where in the respondent landlord was staying with his wife. We shall deal with these points seriatim. Point No.1 In order to appreciate the controversy centering round this contention 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: 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 it is satisfied that any of the following grounds exists namely (a) that the building is bona fide required 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 residential purposes or for purposes of any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian 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 (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 for himself or the members of his family shall be deemed sufficient for the purposes of clause (a), and where such landlord owns more than one building this provision shall apply in respect of one building only. As the respondents 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 his stage. It reads as under: 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 landlord in that behalf, order the eviction of a tenant from any building under tenancy, if it is satisfied that the landlord so such building was in occupation of a public building for residential purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as concerned with the interpretation of Section 13(3 A) of the West Bengal premises Tenancy Act. 1956. The said provision reads as under: 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 t he grounds mentioned in clause (f) or clause (ff) of sub section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest.... As in that case the very 'institution' of suit for recovery of possession was barred for a period of three years form the date of acquisition of interest of the landlord in such premises this Court took the view that the 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 'entertain' should be construed as being synonymous with the word 'institute'. It is difficult to agree. The statutory scheme of Section 21(1) contra indicates such a contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 an the proceedings are being filed against his heirs. All these questions of fact will have to be considered whole entertaining the application under clause (a) of Section 21 (1) of the Act as laid down by the third pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve elapsed since the date of purchase of the premises by the landlord. Learned senior counsel, Shri Rao, for the appellant invited our 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 is 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 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 afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 no accompanied by satisfactory proof 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 '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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) L.R. 52 I.A. 126, extracted with approval the observations of Lord Summer 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 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 vailed, nor is obedience o such an enactment a thing from which court cab be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset; Nixon v. Alibion Marine Insurance Co., (1867) L.R. 2 Ex. 338. The enactment is prohibitory. It is not confined to affording a party a protection, of which he may avail himself or not she 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 this connection we may profitably refer to a decision of this Court in the case of Krishan Lal v. State of J K [(1994) 4 SCC 422] where in Hansaria, 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 paragraphs 16 and 17 of the Report as under: 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 Courts beyond the seven seas. This apart, there are views of reputed text writers. let us start from our on one time Highest Court, which used to be privy Council. This question came up for examination by that body in Vellayan Chettiar v. 'Government of the province of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. 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. 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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