Dismissed

Shabnam Karim v. Ramkumar Alias Mahendra Kumar Mishra

Chhattisgarh HC24 Jun 2024WPC/2402/2024

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed a writ petition challenging an eviction order despite the landlord serving only a two-month notice instead of the required three months. The bench held that the tenant waived this objection by failing to raise it at any judicial stage, ordering the tenant to vacate possession effectively by late October 2024.

What did the court decide?

The Writ Petition was dismissed; the tenant was directed to vacate the premises by 20th October 2024 up to which date an undertaking to pay rent was required.

Shabnam Karim Vs Ramkumar Alias Mahendra Kumar Mishra — Landlord and Tenant | Chhattisgarh HC (2024)

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(W.P.C. No. 2402 of 2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WRIT PETITION (C) NO.2402 OF 2024

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Shabnam Karim, W/o Late Mohammed Ataa Karim, aged about 59 years, R/o Tiwari Chawl, House No.6, Jarhabhata, Tahsil & District Bilaspur (C.G.)

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...Petitioner(s)

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Versus

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Ramkumar alias Mahendra Kumar Mishra, aged about 59 years, R/o Vishnu Nagar, Mungeli Road, Tahsil & District Bilaspur (C.G.)

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...Respondent(s)

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For Petitioner :- Mr. Ali Asgar, Advocate. :- For Respondent Mr. Praveen K. Tulsyan, Advocate. with Mr. Aishwarya Pandey, Advocate.

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[Division Bench]

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Agrawal

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Order on Board

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(25.06.2024)

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Sanjay K. Agrawal, J.

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1. The present Writ Petition has been preferred by the

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Petitioner herein, being a tenant, calling in question the legality, validity and correctness of the Order dated 18.4.2024 passed by Chhattisgarh Rent Control Tribunal, Raipur whereby the appeal preferred by the Petitioner tenant has been dismissed by the Tribunal

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(W.P.C. No. 2402 of 2024)

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affirming the Order dated 11.10.2023 passed by the Rent Controlling Authority, Bilaspur.

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2. The present Writ Petition has been filed seeking quashment of the impugned orders on the following factual backdrop:-

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2.1. The Petitioner’s husband along with his family, way back from the year 1991, was living on rent in the suit accommodation owned by Respondent herein. During the period of tenancy, her husband expired in the year 1998 and then the Petitioner came in tenancy of the said rented property. Thereafter, the Respondent landlord initiated eviction proceeding filing a civil suit under the provisions of the Madhya Pradesh Accommodation Control Act, which was decreed in favour of the Respondent landlord and subsequently the same was also affirmed by the first Appellate Court in an appeal, but the High Court allowed the second appeal filed by the Petitioner tenant. Meanwhile, Chhattisgarh Rent Control Act, 2011 (in short, Act of 2011) came into force. Thereafter, on 2.9.2019, the Respondent landlord issued notice to the Petitioner tenant under the provisions of the Act of 2011 for eviction on the

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(W.P.C. No. 2402 of 2024)

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ground of bona fide need and grant of arrears of rent, to which the Petitioner tenant replied on 14.10.2019. Ultimately, the Respondent landlord filed an application for eviction before the Rent Controlling Authority, which was allowed by the said Authority by its Order dated 11.10.2023 assailing which, the appeal filed by the Petitioner tenant was dismissed by the Rent Control Tribunal by Order 18.4.2024 against which, the present Writ Petition has been filed by the Petitioner tenant.

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3. Mr. Ali Asgar, learned Counsel appearing for the Petitioner tenant, would submit that though the Respondent landlord had instituted the suit for eviction on the ground of bona fide need, but for which three months notice was required to be given and the Respondent landlord had only given two months notice vide notice dated 2.9.2019 and therefore for want of a statutory notice as per the requirement of Clause 11(g) of Schedule-2 enacted under Section 12(2) of the Act of 2011, the concerned Authority could not have granted decree in favour of the Respondent landlord. Hence, the Writ Petition is liable to be set-aside on that ground alone.

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(W.P.C. No. 2402 of 2024)

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4. Mr. Praveen K. Tulsyan, learned Counsel appearing for

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the Respondent/tenant, would however submit that though notice dated 2.9.2019 was issued giving two months notice but ultimately the suit was filed on 6.3.2021 that is much after the period of three months notice and therefore the said ground is not available to the Petitioner tenant, more particularly when it was not raised either before the Rent Controlling Authority or the Rent Control Tribunal. The Writ Petition therefore is liable to dismissed.

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5. We have heard learned Counsel for parties, considered their rival submissions made herein-above and also perused the record carefully and thoroughly.

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6. In order to consider the dispute, it would be appropriate to notice the provisions contained in Clause 11(g) of Schedule-2 enacted under Section 12(2) of the Act of 2011, which is being reproduced herein as under:-

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“11. Right to seek from Rent Controller eviction of the tenant on the following grounds:

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(a) to (f) xxx xxx xxx xxx

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(g) On 3 months notice to the tenant in writing, if the accommodation is required for own occupation and/or

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(W.P.C. No. 2402 of 2024)

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occupation by any member of the family including spouse, parent(s), son(s), daughter, daughter(s)-in-law, son(s)-in-law ”

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7. A careful perusal of aforesaid sub-clause (g) of clause 11 would show that 3 months notice is required to be served by the landlord to the tenant in writing, if the accommodation is required for own occupation and/or occupation by any member of the family including spouse, parent(s), son(s), daughter, daughter(s)-inlaw, son(s)-in-law. However, In the instant case, the notice dated 2.9.2019 which was issued by the Respondent landlord clearly reflect that two months notice was given and the three months was not given to tenant herein. However, the fact remains that the application for eviction was filed by the Respondent landlord on 6.3.2021 that is much after the expiry of 3 (three) months period as envisaged under the aforementioned Clause 11(g) of Schedule-2 enacted under Section 12(2) of the Act of 2011.

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8. The question involved is, if statutory notice falls short of the period mentioned specified in Clause 11(g) of Schedule-2, can it be held invalid even if the

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(W.P.C. No. 2402 of 2024)

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proceeding is filed after expiry of the period mentioned therein.

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9. This issue is no longer res integra and stands authoritatively adjudicated upon by their Lordships of the Supreme Court in the matter of Martin and

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Harris Ltd. v. VIth Additional District Judge and Others 1 wherein it has been held pertinently that the provision for six months' notice before initiation of proceedings though is mandatory and confers protection to the tenant concerned, but it can be waived, and their Lordships held in paragraph-13 herein under:-

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“13. It is not possible to agree with the contention of the learned senior counsel for the appellant that the provision containing the proviso to Section 21(1) of the Act was for public benefit and could not be waived. It is, of course, true that it is enacted to cover a class tenants who are sitting tenants and whose premises are subsequently 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

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1 AIR 1998 SC 492

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(W.P.C. No. 2402 of 2024)

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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:

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" 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

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(W.P.C. No. 2402 of 2024)

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in Council 54 IA 336 it was held that even if a notice under Section 80 be defective, the same 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.

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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 judgmentdebtor, 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. "

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Consequently it must be held that the provision for six months' notice before

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(W.P.C. No. 2402 of 2024)

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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 before the expiry of six months from the date of the suit notice. ”

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10. The aforesaid principles of law laid down in Martin

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and Hariss Ltd. (supra) have been further followed by their Lordships of the Supreme Court in the matter of Mahesh Kumar Agarwal (Dead) By LRs. v. Naresh

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Chandra 2 wherein it has been held that the objection relating to defective notice is capable of being waived and their Lordships observed in paragraph-9 as under:-

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2 AIR Online 2021 SC 1328

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(W.P.C. No. 2402 of 2024)

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“ 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 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 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. ”

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11. Reverting to the facts of the present case, it is quite

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vivid that the Petitioner tenant did not make any ground while replying to notice that regard as well as she did not raise any such contention/objection either before the Rent Controller or such point before the Rent Control Tribunal. Therefore, in light of the principles of law laid down in Martin and Hariss Ltd. (supra) followed in Mahesh Kumar Agarwal (supra), since the application for eviction was filed by the Respondent tenant much after the period of expiry of the period of three months notice, it deemed to have been waived and the Petitioner tenant is estopped

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(W.P.C. No. 2402 of 2024)

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from taking such plea that legal notice falls short of 3 months period as is required under Clause 11(g) of Schedule-2 enacted under Section 12(2) of the Act of 2011. No other point was also raised by the Petitioner tenant either before the Rent Controller or the Appellate Tribunal. Accordingly, the Order dated 18.4.2024 passed by Rent Control Tribunal as well as the Order dated 11.10.2023 passed by the Rent Controlling Authority both deserve to be and are hereby affirmed.

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12. At this juncture, learned Counsel for the Petitioner tenant submits that the Petitioner is residing at the suit accommodation from 1991 and therefore some breathing time of at least 6 months ’ time may be granted to hand over the possession of the suit accommodation, to which learned Counsel for the Respondent landlord opposes and submits that some shorter time should be granted to the Petitioner tenant for the said purpose.

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13. Considering the overall facts and circumstances of the case, the Petitioner tenant is directed to vacate the suit premises up till 20^th October, 2024 subject to submitting an undertaking before the Rent Controller

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(W.P.C. No. 2402 of 2024)

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that she will pay the entire arrears of rent, if any, and regular pay of rent in shape of damages and she will not part with the possession of the suit accommodation and hand over the vacant possession of the suit accommodation to the Respondent landlord or on before the aforesaid date. In case the said usual undertaking with affidavit is not filed by the Petitioner tenant on or before 19^th July, 2024 before the concerned Rent Controller, the part of this Order granting time to the Petitioner tenant to vacate the suit accommodation would automatically stand dissolved without reference the Court.

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14. With aforesaid observations, the Writ Petition stands dismissed.

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15. There shall be no order as to cost(s).

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Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Agrawal) sharad Judge Judge

Shabnam Karim v. Ramkumar Alias Mahendra Kumar Mishra

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Shabnam Karim v. Ramkumar Alias Mahendra Kumar Mishra

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