- (1.) The tenant has filed this petition for quashing the order dated 6th September, 2010 passed by the Prescribed Authority by which the application filed by the landlord under section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') for release of the shop was allowed. The petitioner has also sought the quashing of the order dated 22nd October, 2011 passed by the District Judge, Bulandshahar by which the appeal filed by the petitioner for setting aside the order passed by the Prescribed Authority was dismissed. The landlord had filed the application under section 21(1)(a) of the Act for release of the shop for the need of his son Ankit Maheshwari who had passed the M. Com. Examination but was unemployed. The shop was, therefore, required to establish Ankit Maheshwari in cloth business since he had interest in it. It was stated that the tenant resides at Khurja but was doing a Cigarette Agency business in the shop in question. This application was allowed by the Prescribed Authority finding the need of Ankit Maheshwari to be genuine and bona fide. The tenant filed an appeal which has also been dismissed by the order dated 22nd October, 2011.
(2.) Learned Counsel for the petitioner submitted that it was necessary for the landlord to have served a notice on the tenant in terms of the first Proviso to section 21(1) of the Act for the reason that the landlord had purchased the property in 2002 from the earlier owner and since this notice was not served upon the tenant, the application could not have been filed and the orders passed on the application should, therefore, be set aside.
(3.) This contention of the learned Counsel for the petitioner has been dealt with and rejected by the Appellate Court with the following observation: Learned Counsel for the appellant has stated that the respondent purchased the house in question in March, 2002 and before filing the petition under section 21(1) of the Act it was necessary for the landlord to give a notice to the tenant and allowing the tenant a six month time and after the expiry of six months the petition should have been presented. Learned Counsel for the appellant has submitted that since the landlord has not followed the mandatory provision of the Act and therefore learned Lower Court should not have allowed the petition. It is to be noted that this plea has not been taken by the appellant in the written statement filed by him. Learned Counsel for the appellant has further submitted that he had moved an amendment application 27-B before the learned Lower Court through which he sought to amend the written statement by inserting the plea of six months' notice. Learned Lower Court did not allow the amendment application and against the order rejecting the amendment the appellant moved a writ petition before the Hon'ble High Court which was also rejected, though, for default of the respondent. It is true that the writ petition filed by the appellant has been dismissed not on merit but for default of the appellant but the facts remain established that the writ petition filed by the appellant against the order rejecting the amendment has been dismissed. Learned Counsel for the appellant has submitted that even if the amendment application was rejected by the Lower Court he has right to raise the issue before the Appellate Court......................... It is true that appellant has right to raise the question of amendment in the appeal but it does not mean that merely because he has right to reagitate the matter in appeal the amendment will be allowed. The grounds on which the learned Lower Court has rejected the amendment is perfectly within the four corners of law. It is admitted fact by the appellant that the respondent/petitioner is not original landlord of the shop and the respondent purchased the shop in March, 2002. After that the appellant started paying rent to the respondent. Thus it was well within the knowledge of the appellant that the ownership of the disputed shop has been changed. The respondent filed this petition under section 21(1) of the Act after 5 years he had purchased the building. This Act was very much within the knowledge of the appellant. The petition was filed on 4.3.2008 and the appellant has filed his written statement on 26.5.2008. Affidavit of witness Mr. Ratan Lal on behalf of appellant Jagannath was filed on 14.8.2008. The rejoinder-affidavit by petitioner Mukesh Kumar Maheshwari was filed on 8.9.2008. Thus the hearing concluded in the proceeding on 8.9.2008. The amendment application was moved by the appellant on 10.11.2008 on the day when the file was fixed for final argument. Proviso to Order VI, Rule 17, C.P.C. clearly provides that no application for amendment shall be allowed after the trial is commenced, unless the Court comes to the conclusion that inspection of due diligence, the party could not have raised the matter before the commencement of trial. By perusal of amendment application 27-B which the appellant moved before the learned Lower Court it is apparent that there is not even mention of reason that what prevented the appellant to move the amendment before the trial started. Simply saying that something has been left out from being mentioned in the written statement is not sufficient for allowing the application. Thus the learned Lower Court has rightly rejected the application. Nirbhay Kumar v. Maya Devi and others, 2009 75 AllLR 606 which was decided by three Hon'ble Judges of the Hon'ble Supreme Court has observed that view given in Martin and Harris Ltd. v. VIth Addl. District judge and others, 1998 32 AllLR 106 expressed the correct way. In Martin and Harris Ltd's case it was observed by the Hon'ble Supreme Court as follows: 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 realise that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived. Thus in the light of the afore-mentioned observation of the Hon'ble Supreme Court the giving of notice provides a protection which is personal to the tenant can be waived, therefore, it may be concluded that by not mentioning the plea of six months notice in the written statement the appellant waived his right in respect of six months' notice.;