MAHESH KUMAR AGARWAL (DEAD) BY LRSversusNARESH CHANDRA & ORS.

668                       [2021]
               SUPREME COURT     9 S.C.R. 668
                              REPORTS                         [2021] 9 S.C.R.


A              MAHESH KUMAR AGARWAL (DEAD) BY LRS
                                          v.
                         NARESH CHANDRA & ORS.
                          (Civil Appeal No. 7554 of 2021)
B
                               DECEMBER 08, 2021
                        [K.M. JOSEPH AND
                PAMIDIGHANTAM SRI NARASIMHA, JJ.]
             U.P. Urban Buildings (Regulation of Letting, Rent and
C     Eviction) Act, 1972 – Proviso to s.21 – Proceedings for release of
      building under occupation of tenant – On 22.12.2007, the appellant-
      landlord gave respondents-tenants notice u/s.21(1)(a) of the Act –
      In the said notice, it is inter alia stated that tenancy of the tenant was
      being terminated within 30 days of the receiving of the notice and
D     the tenant was asked to hand over the possession – In reply to the
      notice, the respondents did not raise any objection based on the
      requirements in the proviso to s.21 – On 20.11.2008, an application
      was filed u/s.21 of the Act before the Rent Controller – The Rent
      Controller ordered eviction of the respondents – The respondents
      appealed before the Appellate Authority, which was dismissed –
E     The respondent filed writ petition before the High Court on the sole
      ground that the appellant-landlord had not complied with the
      requirement under the proviso u/s.21(1)(a) insofar as no notice of
      six months was given prior to the filing of the application – On
      appeal, held: On facts, it is much after the period of six months of
F     the notice given by the appellant that the proceeding was instituted
      – The notice served was in conformity with the proviso to s.21 –
      Further, the respondent has not raised objection relating to defective
      notice in reply to legal notice, in the written statement before the
      Rent Controller or before the Appellate Court – Therefore, the
      objection relating to defecting notice is now capable of being waived
G     – Thus, the impugned order of the High Court is set aside – The
      order of the Rent Controller, as affirmed by the Appellate Authority
      is restored with the modification that the appellants will pay a sum
      of Rs.30,000/- to the respondents in terms of the second proviso to
      s.21 of the Act.
H
                                         668
       MAHESH KUMAR AGARWAL (DEAD) BY LRS v.                              669
              NARESH CHANDRA & ORS.

      Allowing the appeal, the Court                                      A
      HELD: 1. This Court has noticed the facts. Indeed, it is
much after the period of six months of the notice given by the
appellant that the proceeding has been instituted. This Court, in
fact, inclined to take the view that the notice which has
been served would be in conformity with the proviso. [Para 7]             B
[673-E-F]
       2. In view of the judgment of this Court in Martin & Harris
Ltd., where this Court has taken the view interpreting the very
same provision with which instant case is concerned, that the
objection relating to defective notice is capable of being waived,        C
this Court is of the view that the appellant should not be denied
the benefit of the said view. It is further noticed that, on facts, the
present case stands on a more sturdier footing. In Martin & Harris
Ltd., the tenant had, in fact, raised objection, which he did not
press, whereas, in the facts of this case, the tenant has not raised      D
any objection in not only the reply notice, but even in the written
statement before the Rent Controller. What fortifies this Court
further is that even in the appeal before the appellate Court, the
tenant did not urge the ground. If at all there is a case for waiver,
this would be one. [Para 9][676-E-G]
                                                                          E
      3. However, under Section 21 of the Act, in respect of a
non-residential premises or a building let out exclusively for non-
residential purpose, an order for payment of an amount not
exceeding two months’ rent as compensation is called for. In this
case, admittedly, a building was let out exclusively for non-
residential purposes. In terms of the said proviso, having heard          F
learned senior counsel, this Court is inclined to order that the
appellants shall pay a sum of Rs.30,000/- to the respondents.
[Paras 10 and 11][676-G-H; 677-C]
      Martin & Harris Ltd. v. Vith Additional Distt. Judge
                                                                          G
      (1998) 1 SCC 732 : [1997] 6 SCR 380 – relied on.
      Nirbhai Kumar vs. Maya devi & Ors. (2009) 5 SCC
      399 : [2009] 4 SCR 1052 – referred to.

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670             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A                              Case Law Reference
      [1997] 6 SCR 380                   relied on                 Para 4
      [2009] 4 SCR 1052                  referred to               Para 8
            CIVIL APPELLATE JURISDICTION : Civil Appeal No.7554
B     of 2021.
            From the Judgment and Order dated 03.10.2016 of the High Court
      of Uttarakhand at Nainital in Writ Petition (M/S) No.2315 of 2016.
            Senthil Jagadeesan, Sajal Jain, (Amicus Curiae).
            Joy Basu, Sr. Adv., Varun Sarin, Ms. Kanak Bose, Ashok Mathur,
C
      Advs. for the Appellants.
            The Judgment of the Court was delivered by
            K. M. JOSEPH, J.
            1. Leave granted.
D
             2. This matter arises under U.P. Urban Buildings (Regulation of
      Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘Act’
      for brevity). A proceeding was instituted for eviction of the respondents
      by the appellant on the basis of a purchase made by him on 04.01.1977
      from the previous landlord. The application was filed under section 21 of
E     the Act before the Rent Controller. This was preceded by a legal notice
      which was dated 22.12.2007 purporting to comply with the requirement
      of the first proviso to Section 21(1)(a). The respondents sent a reply
      notice on 22.02.2008. In the said reply notice, the respondents did not
      raise any objection based on the requirements in the proviso to Section
F     21. The case went to trial. By order dated 16.05.2013, the Rent Controller
      ordered eviction of the respondents. The respondents carried the matter
      in appeal. It was unsuccessful as the appellate authority dismissed the
      appeal on 21.07.2016. The respondent filed a writ petition before the
      High Court. By the impugned order, the High Court has allowed the writ
      petition. The sole ground on which the High Court allowed the writ petition
G     filed by the respondent is that the appellant-landlord had not complied
      with the requirement under the proviso under Section 21(1)(a) insofar
      as no notice of six months was given prior to the filing of the application.
            3. We have heard Mr. Joy Basu, learned senior counsel for the
      appellants. Noticing that, though served, there is no appearance for the
H
        MAHESH KUMAR AGARWAL (DEAD) BY LRS v.                                      671
        NARESH CHANDRA & ORS. [K. M. JOSEPH, J.]

respondents, we appointed Mr. Senthil Jagadeesan, learned counsel to               A
assist the Court as Amicus. We have heard the learned Amicus as well.
        4. Mr. Joy Basu, learned senior counsel for the appellants, would,
firstly, draw our attention to the terms of the notice by the appellant. He
would point out that it is pertinent to note that, though in notice, it is inter
alia stated that tenancy of the tenant was being terminated within 30              B
days of the receiving of the notice and the tenant was asked to hand
over the possession, he would point out that the application was filed
after the expiry of six months. The application was filed, in fact, on
20.11.2008 whereas the notice is dated 22.12.2007. Secondly, he would
submit that, even for a moment, assuming that the notice dated 22.12.2007
falls foul of the mandate of the proviso, the conduct of the tenant is such        C
that it must be held that he has waived his right. In this regard, he drew
support of the judgment of this Court which is reported in Martin &
Harris Ltd. v. VIth Additional Distt. Judge (1998) 1 SCC 732. He
would submit that this is a case where to begin with, the tenant did not
set up any objection in reply notice. Still further, he did not take up any        D
contention in his written statement before the trial Court in regard to the
notice. The tenant did not even raise objection when he filed the appeal
before the appellate authority. It is for the first time that in the writ
petition that the tenant raised this point and the High Court has allowed
the petition. On the basis of the judgment of this Court, he would, therefore,
submit for our acceptance, the principle that even assuming that the               E
notice sent by the appellant was defective, it is capable of being waived
and it was, in fact, waived.
       5. Per contra, learned Amicus would draw our attention to a
unreported judgment of this Court in Gopal Krishan Verma v. Tahir
(Civil Appeal No. 7896-7897 of 2015). Therein, a Bench of two learned              F
Judges was dealing with the very same provision with which we are
concerned. We may refer to the discussion by this Court after noticing
the fact that the purchase of the property in the said case was made by
the landlord on 13.07.2009 and the ejectment petition was filed after the
expiry of three years on 21.12.2012. The Court found that the first                G
requirement under the proviso was fulfilled. It is, thereafter, the Court
proceeded to hold as follows:
       “The more relevant aspect of the matter is, whether the appellant
       landlord had given a notice to the tenant, for a period of not less
       than six months, before such application for eviction was filed by          H
672            SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A           him. It is undoubtedly true, that the appellant could have relied
            upon the legal notice dated 20.11.2009 if there was no period
            depicted therein (for seeking ejectment of the respondent thereon).
            However, since the extract of the legal notice dated 20.11.2009
            reproduced above reveals, that the legal notice was for a period
            of 30 days, inasmuch as, the tenant had been required”.... to quit,
B
            vacate and deliver vacant possession of the said premises to my
            client immediately after the expiry of 30 days of the service of the
            notice upon you....”, we are satisfied with the second requirement
            in the proviso under Section 21(1), namely, that “the landlord has
            given a notice in that behalf to the tenant not less than six
C           months....”,cannot be deemed to have been complied with. Since
            the notice was limited to a period of thirty days, its validity had
            expired on 19.12.2009. The notice contemplated under the proviso
            to Section 21(1) extracted above, is a six months notice. In the
            above view of the matter, we are satisfied that the High Court
            committed no error in rejecting the claim of the appellant.”
D
             6. The learned Amicus, in fact, submits that this Court may have
      erred in the view it has taken, in that, it may be misplaced to hold that
      even if the proceeding is instituted for eviction after the expiry of the
      period of six months after the notice is given, the requirement of the
      proviso is not fulfilled. However, he does point out that in the said case,
E     despite being alerted by the reply notice of the notice of the landlord was
      defective, the landlord persevered. He further submitted that there is a
      further requirement in the statutory provision which consists of the
      mandatory order of compensation. We may notice the relevant provisions
      of Section 21:
F           “Section 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 if it is satisfied that
G           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
H
        MAHESH KUMAR AGARWAL (DEAD) BY LRS v.                                   673
        NARESH CHANDRA & ORS. [K. M. JOSEPH, J.]

      or for purposes of any profession, trade or calling, or where the         A
      landlord is the trustee of a public charitable trust, for the objects
      of the trust;
      (b) that the building is in a dilapidated condition and is required for
      purposes of demolition and new construction:
      Provided that where the building was in the occupation of a tenant        B
      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     C
      than six months before such application, and such notice may be
      given even before the expiration of the aforesaid period of three
      years:
      Provided further that if any application under clause (a) is made
      in respect of any building let out exclusively for non-residential        D
      purposes, the prescribed authority while making the order of
      eviction shall, after considering all relevant facts of the case, award
      against the landlord to the tenant an amount not exceeding two
      years’ rent as compensation and may, subject to rules, impose
      such other conditions as it thinks fit.”
                                                                                E
       7. We have already noticed the facts. Indeed, it is much after the
period of six months of the notice given by the appellant that the
proceeding has been instituted. We are, in fact, inclined to take the view
that the notice which has been served would be in conformity with the
proviso. However, we cannot proceed to decide the matter on the said
basis for the reason that such a premise is inconsistent with the view          F
taken by this Court in the unreported judgment. However, we are of the
view with due respect that this Court may have erred in the said judgment.
Judicial discipline requires that we should not found our decision on such
a view for the reasons already set out. We defer from doing that.
       8. We proceed to consider the argument of the appellants based           G
on the principle of waiver. In this regard, we notice the judgment of this
Court reported in Martin & Harris Ltd.(supra). In the said case, there
were two points which arose. The first point revolved around the question
as to whether the application which was admittedly filed within the period
of three years mentioned in the first proviso could be considered. This
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674             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     Court took the view that the law did not veto the institution of proceedings
      but instead interdicted entertaining of the proceeding. Answering point
      no. 2 which is more apposite in the context of the facts of this case, the
      Court went on to hold, inter alia, as follows:
            “12. However the further question survives for consideration,
B           namely, whether the beneficial provision enacted by the legislature
            in this connection for the protection of the tenant could be and in
            fact was waived by the tenant. So far as this question is concerned
            on the facts of the present case the answer must be in the
            affirmative. As we have noted earlier after the suit was filed the
            appellant filed its written statement on 17-9-1986. In the said
C           written statement the appellant, amongst others, did take up the
            contention that the application as filed by the respondent-landlord
            under Section 21(1)(a) was not maintainable and was premature
            as six months’ period had not expired since the service of notice
            dated 20-9-1985 when the suit was filed. But curiously enough
D           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
E           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
F           to have suffered from a formal defect and he would have been
            entitled to claim liberty to file a fresh suit on the same cause of
            action after the expiry of six months’ period from the date of
            service of notice. That opportunity was lost to the respondent-
            landlord as the appellant did not pursue this contention any further.
            On the contrary the appellant joined issues on merits by seeking
G           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
H           these circumstances, the High Court rightly held that the contention,
 MAHESH KUMAR AGARWAL (DEAD) BY LRS v.                                   675
 NARESH CHANDRA & ORS. [K. M. JOSEPH, J.]

regarding the suit being premature as filed before expiry of six         A
months from the date of the notice, must be treated to have been
waived by the appellant. Joining issue on this question learned
Senior Counsel, Shri Rao, for the appellant, invited our attention
to a decision of this Court in the case of Badri Prasad v.
Nagarmal [AIR 1959 SC 559 : 1959 Supp (1) SCR 769] . In that
                                                                         B
case a suit filed by an unregistered company was found to be hit
by the provisions of Section 4 sub-section (2) of the Rewa State
Companies Act, 1935. The said contention was permitted to be
taken for the first time during averments in appeal before this
Court. It was held that as this contention went to the root of the
maintainability of the suit it could be agitated as a pure question of   C
law. We fail to appreciate how that decision can be of any avail to
the appellant in the present case. This Court, placing reliance on a
decision of the Privy Council in the case of Surajmull Nargoremull
v. Triton Insurance Co. Ltd. [(1924) 52 IA 126 : AIR 1925 PC
83] extracted with approval the observations of Lord Sumner at
                                                                         D
p. 128 of the Report of the Privy Council judgment to the following
effect:
   “The suggestion may be at once dismissed that it is too late
   now to raise the section as an answer to the claim. No court
   can enforce as valid that which competent enactments have
   declared shall not be valid, nor is obedience to such an enactment    E
   a thing from which a court can be dispensed by the consent of
   the parties, or by a failure to plead or to argue the point at the
   outset: Nixon v. Albion Marine Insurance Co. [(1867) LR 2
   Exch 338] The enactment is prohibitory. It is not confined to
   affording a party a protection, of which he may avail himself         F
   or not as he pleases.”
The decision of the Privy Council referred to with approval by
this Court in the aforesaid decision clearly indicates that if a
proceeding before a court is barred by a law, a plea to that effect
being a pure question of law can be agitated any time. But if the        G
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
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676             SUPREME COURT REPORTS                             [2021] 9 S.C.R.


A            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
B
             known to the appellant, was waived by it though it was alive to
             the said contention as it was mentioned at the outset in the written
             statement filed before the prescribed authority. Thereafter it was
             not pressed for consideration. The result was that the respondent-
             landlord by the said conduct of the appellant irretrievably changed
C            his position and would get prejudiced if such a contention is
             entertained at such a late stage as was tried to be done before the
             High Court after both the courts had concurrently held on facts
             that the respondent-plaintiff had proved his case on merits.”
             No doubt, the Court also went on to tide over the objection based
D     on the proviso incorporating the provision based on public policy. A Bench
      of three learned Judges has affirmed the view taken in the aforesaid
      judgment but then, we must note that the decision of the Bench of three
      learned Judges in Nirbhai Kumar v. Maya Devi & Ors. (2009) 5 SCC
      399 relates to the requirement under the first part of the first proviso to
      section 21 of the Act, namely the embargo against entertaining the
E     application except after expiry of three years of the transfer.
             9. In view of the judgment of this Court in Martin & Harris
      Ltd.(supra), where this Court has taken the view interpreting the very
      same provision with which we are concerned, that the objection relating
      to defective notice is capable of being waived, we are of the view that
F     the appellant should not be denied the benefit of the said view. We further
      notice that, on facts, the present case stands on a more sturdier footing.
      In Martin & Harris Ltd. (supra), the tenant had, in fact, raised objection,
      which he did not press, whereas, in the facts of this case, the tenant has
      not raised any objection in not only the reply notice, but even in the
G     written statement before the Rent Controller. What fortifies us further is
      that even in the appeal before the appellate Court, the tenant did not
      urge the ground. If at all there is a case for waiver, this would be one.
            10. However, under Section 21 of the Act, as correctly pointed
      out by the learned Amicus, under the second proviso, in respect of a
H     non-residential premises or a building let out exclusively for non-residential
        MAHESH KUMAR AGARWAL (DEAD) BY LRS v.                                     677
        NARESH CHANDRA & ORS. [K. M. JOSEPH, J.]

purpose, an order for payment of an amount not exceeding two months’              A
rent as compensation is called for:
       “Provided further that if any application under clause (a) is made
       in respect of any building let out exclusively for non-residential
       purposes, the prescribed authority while making the order of
       eviction shall, after considering all relevant facts of the case, award    B
       against the landlord to the tenant an amount not exceeding two
       years’ rent as compensation and may, subject to rules, impose
       such other conditions as it thinks fit.”
      11. In this case, admittedly, a building was let out exclusively for
non-residential purposes. In terms of the said proviso, having heard              C
learned senior counsel, we are inclined to order that the appellants shall
pay a sum of Rs.30,000/-to the respondents.
       The appeal is allowed. The impugned order is set aside. The order
of the Rent Controller, as affirmed by the appellate authority, will stand
restored with the modification that the appellants will pay a sum of              D
Rs.30,000/- to the respondents within a period of two months which
shall be paid by making deposit within a period of one month before the
appropriate Court concerned. Upon deposit, it will be open to the
respondents to withdraw the said amount.
       No orders as to costs.                                                     E
      12. We place on record our appreciation for the efforts put in by
Mr. Senthil Jagadeesan, learned Amicus Curiae, who has researched
the matter and placed the correct legal position in law before us, besides
the facts.
      13. A copy of the order may be sent to the address of the                   F
respondents.


Ankit Gyan                                                      Appeal allowed.

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