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PETITIONER: MARTIN & HARRIS LIMITED

       Vs.

RESPONDENT: WITH ADDITIONAL DISTT. JUDGE & ORS.

DATE OF JUDGMENT:       11/12/1997

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J,      Leave Granted      Respondent nos.  1  and  2  are  formal  parties  being authorities and  hence it was not necessary to hear them. By consent of  learned counsel  for the  contesting parties the appeal was taken up for final disposal and having heard them it is being decided by this judgment.      In  this   appeal  question   of   maintainability   of application  for   possession  moved   by  respondent  no.3- landlord against the appellant-tenant under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,  1972 (hereinafter  referred to as ‘the Act’] mainly falls  for consideration.   The  appellant  has  also raised a  subsidiary ground  centering  round  a  subsequent event to  which we  will make  a reference at an appropriate stage in this judgment.  A few introductory facts leading to this appeal  are required  to be  noted  at  the  outset  to appreciate the aforesaid controversy 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

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before  the   prescribed  authority,   amongst   others,   a contention  was   raised  that   the  application   was  not maintainable under  Section 21(1)(a)  of  the  Act  on  twin grounds - (1) that it was filed prematurely before expire of three  years  from  the  date  on  which  the  premises  was purchased by  respondent no.3-landlord:  and (2)  respondent no.3 has  not filed the suit after expire of six months from the date  of the  suit notice  dated 20th September 1985 and consequently the application was not maintainable as per the first proviso  to Section  21(1) of  the Act.    During  the pendency of  the proceedings,  however, the appellant joined issues on  merits  by  filing  affidavit  controverting  the affidavit filed by the respondent-landlord in support of his case.   After hearing  the parties on merits of the claim of respondent-landlord,  the   prescribed  authority   by   its judgment dated  23rd  May  1990  decreed  the  suit  of  the respondent - landlord holding that respondent - landlord has proved his  case for  bona  fide  requirement  of  the  suit premises.   The appellant  - tenant  carried the  matter  in appeal under  Section 22  of the  Act  before  the  District Judge, Lucknow.   The  appeal was  pressed on  merits of the controversy between the parties whereby the appellant sought to challenge  the decree  of the  trial Court  on the ground that the  respondent - landlord did not require the premises for his bona fide use.  The said contention of the appellant was rejected by the first Appellate Court and the appeal was dismissed on  21st March  1994.   Thereafter  the  appellant carried the  matter in  a Writ  Petition before  the Lucknow Bench of  the High  Court of  Allahabad under Article 226 of the Constitution  of India.   In  the said writ petition the appellant’s counsel  mainly urged  the  question  about  the maintainability of  the application  for possession as moved by the  respondent-landlord under  Section 21(1)(a)  of  the Act.   The finding  of fact  of  bona  fide  requirement  of respondent-landlord as  concurrently reached  by the  courts below was  not  challenged  before  the  High  Court.    One ancillary point  was urged  based on  subsequent event.  The High Court  noted  the  contention  of  appellant’s  learned counsel that  question of maintainability of the proceedings was not  urged by the appellant before the courts below, but as the  contention went  to the  root of  the matter  it was considered by  the High  Court on  merits.   The High Court, however, rejected  the same  and  took  the  view  that  the application filed  by respondent-landlord  was maintainable. It also  rejected the  ancillary contention on behalf of the appellant-tenant  that  because  of  the  subsequent  event, namely, that  respondent-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  appellant as wrongly

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held by  the High  Court.   It was  also contended  that the application for possession under Section 21(1)(a) of the Act was not  maintainable as  it was filed within three years of the date  of purchase  of the  property by  the  respondent- landlord and  consequently the  prescribed authority  had no jurisdiction to  entertain such an application from the very inception.   It was  submitted that  the term ‘entertain’ as employed by the first proviso to Section 21(1)(a) of the Act was synonymous  with the word ‘institute’ and in any case at the  time   the  court  took  cognisance  of  the  suit  for possession by  issuing notice  to the  appellant it could be said that the Court has entertained the said proceedings and such entertaining  of the  proceedings was clearly barred by the aforesaid  provision of  the Act  and  consequently  the decree for  possession as  passed by  the  Trial  Court  and confirmed by  the First  Appellate Court  and the High Court was a  nullity.   It was  also contended that because of the subsequent event  brought to the notice of the High Court to the effect  that respondent was staying with his wife in the adjoining part  of the  building where the suit premises was situated and  as  the  said  property  jointly  belonged  to respondent’s wife  and her brother it could not be said that the respondent-landlord  had any felt need for occupying the suit premises  and his  need for  the suit premises, if any, had come to an end.      On the  other  hand  learned  senior  counsel  for  the respondent-landlord, Shri  Gopal Subramaniam  supported  the decision rendered  by the High Court.  It was submitted that the term  ‘entertain’ as  employed by  the first  proviso to Section 21(1)  of the  Act only  meant that  the Trial Court could not decide the ground under Section 21(1)(a) on merits if three  years’ period from the date of the purchase of the property by the respondent-landlord has not expired by then. That in  the present case when the prescribed authority took up the  said ground  for consideration  on merits after 1986 three years’  period had  a already expired from the date of purchase of  the suit  property by  respondent-landlord  and hence  there   was  no   question  of   bar   against   such entertainment and  consideration of  the ground by the Trial Court.   So far  as the question of notice of six months was concerned, it  was submitted  that though it was a mandatory requirement of  the provision  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 of service of six months’ notice before filing of the  suit as found in the proviso to Section 21(1) of the Act was  for  the  protection  and  benefit  of  the  tenant

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concerned and such a protection could be given up and waived by the  tenant.  It would not be said that such a protection was not  capable of  being waived  being in public interest. That no  such public  interest  was  involved  in  the  said provision.  It  was  also  submitted  that  the  respondent- landlord was  rightly held  not to  be in  any way adversely affected only  because he  was staying  with his wife in the adjoining part  of the  building where the suit premises was situated, and  where in  his wife has an undivided interest. That according  to him the respondent-landlord was forced to stay, in  the absence  of his own house, in another premises belonging to  his son-in-law  and even  assuming that he was staying also  in the  adjoining property partly belonging to his wife  along with  her brother, her cannot be complied to remain as  a licensee  of his wife for the rest of his life. he, however,  fairly conceded  that  the  reasoning  of  the learned  Judge   of  the   High  Court,   that  because  the respondent-landlord was  a retired army officer his case was covered by  Explanation (iii)  to Section  21(1) of  the Act and, therefore,  ipso facto  his need  of the  building  for residential purpose  shall be  deemed sufficient for proving his case  under clause (a) of sub-section (1) of Section  21 of the  Act, could  not be  sustained.  However he submitted that  even  independently  thereof,  on  the  basis  of  the evidence on  record and  the current  findings to  which the Trial Court  and the First Appellate Court reached, the High Court was  justified in confirming the decree for possession under Section 21(1) (a) of the Act. Points for Consideration      In  view   of  the   aforesaid  rival  contentions  the following points arise for our consideration; 1.   Whether  the  respondent-landlord’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      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

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    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  profession,      trade  or  calling,  or  where  the      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      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:      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   against   the      landlord to  the lenient  an amount      not exceeding  two years’  rent  as      compensation and  may,  subject  to      rules, impose such other conditions      as it thinks fit:      Provided also  that no  application      under   clause    (a)   shall    be      entertained-      (i)            ...             ....      ...............................      (ii) ..............................      ........      (iii)   in    the   case   of   any      residential building,  against  any      tenant who is a member of the armed      forces of  the Union  and in  whose      favour  the   prescribed  authority      under    the     Indian    Soldiers      (Litigation) Act,  1925 (Act No. IV      of 1925)  has issued  a certificate      that he  is serving  under  special      conditions within  the  meaning  of      Section 3  of that Act, or where he      has died  by enemy  action while so

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    serving then against his heirs:      Provided also  that  the  prescribed  authority  shall, except in  cases provided  for in the Explanation, take into account the  likely hardship to the tenant from the grant of the application  as  against  the  likely  hardship  to  the landlord from  the refusal  of the  application and for that purpose  shall  have  regard  to  such  factors  as  may  be prescribed.      Explanation - In the case of a residential building:-      (i) ................    ...........      ...........      (ii)........       ................      .......................      (iii) Where  the  landlord  of  any      building is-      (1) a  serving  or  retired  Indian      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   any      thing 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      purposes which  he had to vacate on      account of  the  cessation  of  his      employment:      Provided that  an application under      this sub-section  may also be given      by a landlord in occupation of such      public building  at any time within      a period  of one  year  before  the      expected date  of cessation  of his      employment.  But   the   order   of      eviction on  such application shall      take effect only on the date of his      actual cessation."

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    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.  Learned senior  counsel for the appellant Shri Rao in  this connection  invited out attention to a decision of this  Court in  the  case  of  Anandilal  Bhanwarlal  and another v.  Smt. Kasturi Devi Ganeriwala and another [(1985) 1 SCC  442]. In  the said  decision this Court was 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, 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.....’

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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 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. 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  proviso. It is obvious that  said stage  would be  reached  only  when  the prescribed  authority   takes   up   the   application   for consideration on  merits of  the grounds mentioned in clause (a)) of  Section 21(1)  which are  pressed in service by the landlord for getting possession.      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

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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  authority   or  would   at  least   mean  taking cognisance  of   such  an   application  by  the  prescribed authority by  issuing summons  for appearance to the tenant- defendant. It  must be  half that  on the  contrary the term ’entertain’ would only show that by the time the application for possession  on the  grounds mentioned  in clause (a)) of Section 21(1)  is taken  up by  the prescribed authority for consideration on  merits,  at  least  minimum  three  years’ period should have elapsed since the date of purchase of the premises by 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 after  the expiry  of three years from  the date of purchase of the suit property by the respondent, plaintiff. Hence it cannot be said that the said decree was a nullity being without jurisdiction. On the same reasoning, therefore,  reliance  placed  by  learned  senior counsel, Shri Rao, for the appellant on the decision of this Court in  the case  of Chiranjilal  Shrilal Goenka (Decease) through LRs.  V. Jasjit Singh and others [(1993) 2 SCC 507], cannot be of any avail to him as in the said case this Court reiterated the  very same  principle that contention about a decree  passed  by  a  court  without  jurisdiction  on  the

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subject-matter or on the grounds on which the decree is made goes to  the root  of its  jurisdiction or  by a court which lacks inherent  jurisdiction is  to be treated as one passed by a  coram non  justices. Learned  senior counsel  for  the appellant also  invited our  attention to  a decision  of  a Constitution Bench  of this Court in the case of Shri Charan Lal Sahu & Another v. Shri K.R. Narayanan & Another [JT 1997 (9) SC  253] where  in S.C.  Agrawal, J.,  speaking for  the Constitution bench  held in  para 31  of the Report that Rs. 10,000/-  are   quantified  as  costs  to  be  paid  by  the petitioners and  it was  directed that  no petition filed by either of  the petitioners-in-person shall be entertained in this Court till the amount of costs imposed is paid. Relying on  these   observations  learned  senior  counsel  for  the appellant submitted  that  in  the  aforesaid  decision  the Constitution Bench, employed the term ‘entertain’ as meaning ‘institute’. It  is difficult to appreciate this contention. This Court  in that case was not concerned with the question as to when an application can be said to be entertained. The statutory scheme  with which we are concerned in the present case was  not on the anvil of consideration in the aforesaid case. Therefore,  even assuming  that the  direction in  the aforesaid decision  might contain  instruction to the office of this Court not to permit filing of such Election Petition without payment  of costs,  the same cannot be considered to be a decision on the question with which we are concerned on the scheme of the Act. Learned senior counsel, Shri Rao, for the appellant then invited our attention to two decisions of this Court  in the  case of  M/s.  Lakshmiratan  Engineering Works Ltd,  V. Asst.  Commissioner (Judicial)  I, Sales Tax, Kanpur Range,  Kanpur and another [AIR 1968 SC 488, (1968) 1 SCR 505]  and Hindustan  Commercial Bank Ltd., V. Punnu Sahu (Dead) through  Legal Representatives [(1971) 3 SCC 124]. In Lakshmiratan Engineering  (supra) this  Court was  concerned with the  meaning of  the word  ‘entertain’ mentioned in the proviso to  Section 9  of the  U.P.  Sales  Tax  Act,  1948. Hidayatullah, J.,  speaking   for the  Court observed in the light of  the statutory  scheme of Section 9 of the said Act that the  direction to the Court in the proviso to Section 9 was to  the effect that the Court shall not proceed to admit to consideration  an  appeal  which  is  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, clearly show that when the question of entertaining an application for  giving relief  to a  party arises  and when such application  is based  on any  grounds  on  which  such application has  to be  considered, the provisions regarding ’entertaining such  application’ on  any  of  these  grounds would necessarily  mean the consideration of the application on the  merits of  the grounds  on which it is based. In the present case,  therefore, it  must be  held  that  when  the Legislature has  provided that  no application under Section 21 (1) (a) of the Act shall be entertained by the prescribed authority on  grounds mentioned  in clause  (a)  of  Section 21(1) of  the Act  before expiry of three years from date of purchase of  property by  the landlord  it must  necessarily mean  consideration  by  the  prescribed  authority  of  the grounds mentioned  in clause (a) of Section 21(1) of the Act

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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. Consequently  no  fault  can  be  found  with  the decision of the High Court to the effect that the prescribed authority was justified in entertaining the consideration of the grounds under section 21(1) (a) of the Act at that stage and the  decree passed on the said ground, therefore, cannot be said  to be  a nullity,  nor can the entertaining of such application on the ground under Section 21(1) (a) of the Act be said to be illegal. The first point for consideration is, therefore, answered  in  the  negative,  in  favour  of  the respondent landlord and against the appellant. Point No. 2      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.      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 easy to visualise that  if  at  that  stage  the  appellant  had  pressed  for rejection of  the application on the ground of Section 21(1) (a) as  not showing  completed cause  of action  due to non- expiry of  six months  from the  date of  Service of  notice invoking Order  VII Rule  11(a) and  (d), CPC, alleging that the plaint did not disclose a cause of action or it appeared to  be   barred  by  law,  respondent-plaintiff  could  have withdrawn the  suit on  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.

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    On the  contrary appellant  joined issues  on merits by seeking permission  to cross-examine the plaintiff on merits of the case on grounds as pleaded under Section 21(1) (a) of the Act.  When the  decree was passed against the appellant, even while  challenging the  said decree  in appeal  no such ground was  taken in  the Memo  of Appeal, nor was it argued before the First Appellate Court. Under these circumstances, the High  Court rightly  held that the contention, regarding the suit  being premature  as filed  before  expiry  of  six months from  the date of the notice, must be treated to have been waived  by the appellant. Joining issue on his question learned senior  counsel, Shri Rao, for the appellant invited our attention  to a  decision of  this Court  in the case of Seth Badri  Prasad and  others v.  Seth Nagarmal  and  other [(1959) Supp.  1 SCR  769]. In  that case a suit filed by an unregistered company  was found  to be hit by the provisions of section  4 sub-section  (2) of  the Rewa  State Companies Act, 1935. The said contention was permitted to be taken for the first time during arguments in appeal before this Court. It was  held that as this contention went to the root of the maintainability of  the suit  it could be agitated as a pure question of law. We fail to appreciate how that decision can be of  any avail to the appellant in the present  case. This Court, placing  reliance on  a decision of the privy council in the  Case of  Surajmull Nargoremuil  v. Triton  Insurance Company Ltd.  (1924) 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 s 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 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

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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.      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 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. 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 Madras AIR 1947 PC      197 in  which while  accepting that      Section 80  of the  Code  of  Civil      Procedure is  mandatory, which  was      the   view   taken   in   Bhagchand      Dagadusa v.  Secretary of State for      India in  Council 54  IA 336 it was      held that  even if  a notice  under      Section 80  be defective,  the same

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    would next  per se  render the suit      requiring issuance of such a notice      as a  precondition for  instituting      the same  as bad in the eye of law,      as such  a defect  can  be  waived.      This view was taken by pointing out      that the protection provided by the      Section 80 is a protection given to      the person  concerned and  if in  a      particular case  that  person  does      not require  the protection  he can      lawfully   waive   his   right.   A      distinction was made in this regard      where the  benefit conferred was to      serve "an  important purpose"  , in      which  case   there  would  not  be      waiver (see paragraph 14).      This  point   had   come   up   for      examination  by   this   Court   in      Dhirendra  Nath  Goral  v.  Shudhir      Chandra Ghosh  AIR  1964  SC  1300:      (1964) 6  SCR 1001  and a  question      was posed in paragraph 7 whether an      act done  in breach  of a mandatory      provision is  per force  a nullity.      This Court  referred  to  what  was      stated   in    this    regard    by      Mookherjee, J.  In Ashutosh  Sikdar      v. Behari  Lal Kirtania ILR 35 Cal.      61  at   page  72  and  some  other      decisions  of   the  Calcutta  High      Court along  with one of Patna High      Court and  it was  held that  if  a      judgment-debtor,   despite   having      received notice  of proclamation of      sale, did  not object  to the  non-      compliance    of    the    required      provision, he  must  be  deemed  to      have waived  his right conferred by      that  provision.  It  was  observed      that a  mandatory provision  can be      waived if  the  same  be  aimed  to      safeguard  the   interest   of   an      individual   and   has   not   been      conceived in the public interest."      Consequently it must be held that the provision for six months’  notice   before  initiation  of  proceedings  under Section 21(1)  of the  Act, though  is mandatory and confers protection to the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for the reasons best known to it,  consciously  and  being  alive  to  the  clear  factual situation that the suit was filed on the ground prior to the expiry of six months’ notice, did not think it fit to pursue that point  any further and on the contrary joined issues on merits expecting a favorable decision in the suit and having lost therein  and got  an adverse  decision did not think it fit  even  to  challenge  the  decision  on  the  ground  of maintainability of  the suit  while  filing  an  appeal  and argued the appeal only on merits and only as an afterthought at the  stage of  writ petition  in the  High Court  such  a contention was  sought to be taken up for the first time for consideration. On  the facts of the present case, therefore, it  must   be  held  that  the  appellant  had  waived  that contention about  the suit being premature having been filed

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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. Point No. 3      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 High Court on the subsequent event, namely, that the  respondent’s wife had got an undivided interest in the adjoining  part of  the building where the suit premises were also  situated.  But  the  said  subsequent  event  was rightly held  to  have  no  effect  on  the  merits  of  the respondent’s claim  as the  respondent was  a  retired  army major General who had no property of his own in Lucknow town and who  could not be compelled to stay as a licensee of his wife in  a property which did not even exclusively belong to her but  was jointly owned by her brother. It is, of course, true that the further observation of the High Court that the respondent’s claim  was  covered  by  Explanation  (iii)  to Section 21(1) of the Act was not justified as respondent had not let  out the  building before  his  retirement from army service. He  was not  the owner  of  the  building  when  he retired from  army service.  To that extent the reasoning of the High  Court cannot  be sustained  as rightly  and fairly conceded by  learned  senior  counsel  for  the  respondent- landlord. Still  however, the  subsequent event  was rightly held by  the High  Court not  to have any effect on the bona fide requirement  of the  respondent-landlord as  seen by us earlier. The  third point for consideration is also answered in the  negative, in  favour of  the respondent-landlord and against the appellant.      These were  the only  points raised  in support  of the appeal and  as they  fail to assist the appellant the appeal fails and  has to  be dismissed. However it was contended by learned senior counsel for the appellant that if this appeal is to  be dismissed  then the  appellant-company,  which  is carrying on  the business of manufacturing life saving drugs and which has its office in the suit premises since 1966 and as there  is an air-conditioned godown in the said premises, may be  given reasonable time to vacate the premises so that it can  search out  any alternative premises. Learned senior counsel for  the respondent  has  fairly  left  to  us  this question of  giving time  to the appellant. In the facts and circumstances of  the case, therefore, while dismissing this appeal we deem it fit to grant time to the appellant-company to vacate  the suit  premises till 31st December 1998 on the appellant filing  a usual  undertaking within  four weeks in this Country.  If such an undertaking is not filed or if any of the  conditions of the undertaking is committed breach of by the  appellant , the grant of time to vacate the premises will stand  recalled. Appeal  is dismissed  subject  to  the aforesaid grant of time to vacate, with no order as to costs n the facts and circumstances of the case. Ad interim relief granted earlier will stand vacated.