Anjani Kumar Mishra, J. - Heard Shri Sumit Daga, learned counsel for the petitioner.
2. The instant writ petition seeks a writ of certiorari for quashing the order dated 14.10.2016 passed by the Prescribed Authority in PA Case No. 49 of 2014, under Section 21 (1) (a) of U.P. Act No. 13 of 1972.
3. The accommodation in dispute is a non-residential accommodation, namely a shop. After the evidence of the parties had been adduced, it appears that the tenant-opposite party filed an application for amendment of its written statement to incorporate a plea that the mandatory six months notice provided by the second proviso to Section 21 (1) had not been given to him.
4. This amendment was being sought by way of abundant caution, the landlord had neither pleaded any such notice in the release application nor had led any evidence in this regard. However, this legal defence had not been mentioned in the written statement, due to oversight.
5. The Prescribed Authority finding that the plea sought to be incorporated, was a legal plea, allowed the amendment application on payment of Rs. 250/- as costs to compensate the petitioner-landlord. It is this order, which is impugned in this writ petition.
6. The contention of learned counsel for the petitioner is that this amendment could not have been incorporated at this belated stage. Since this plea was not raised in the written statement itself as initially filed, the same stood waived.
7. The second contention raised is that since the trial had commenced, and evidence of the parties had already been adduced, the amendment could not have been permitted in view of the proviso to Order 6, Rule 17 CPC.
8. In support of his contentions, reliance has been placed upon the following judgments:-
1. Moin Uddin And Anr. v. Sayed Afaq Hussain Abdi And Ors., ARC 2016 (1) 483 especially paragraph 21 thereof.
2. Martin & Harris Ltd. v. VIth Additional District Judge & others, ARC 1998 (1) 109 especially paragraph 11 to 13.
3. Anwar Hasan Khan v. District Judge, ARC 2000 (1) 43.
4. Anwar Hasan Khan v. Mohammad Shafi and others, ARC 2001 (2) 554.
5. Nirbhai Kumar v. Maya Devi and others, ARC 2001 (1) 767.
6. L.C. Hanumanthappa v. H.B. Shivakumar (2016) 1 SCC 332.
9. I have considered the submissions made by learned counsel for the petitioner and have perused the record as also the case law cited.
10. On the question of waiver pleaded by the petitioner reliance has been placed upon the judgment in the case of Martin and Haris Limited. This Court is of the considered opinion that the said case is distinguishable on facts. Although, it has been held therein that the question of mandatory six months notice prior to filing of a release application for release of a non-residential accommodation by a purchaser is mandatory, and that this mandatory requirement can be waived, the fact remains that in the judgment cited, this plea had been raised for the first time before the writ court. The situation in the case at hand is different. This plea has been raised before the Prescribed Authority and, therefore, in my considered opinion, the case law cited does not help the petitioner.
11. None of the authorities cited have held that an amendment seeking incorporation of the plea that the landlord had not served upon him the mandatory six months notice, cannot be permitted at the trial stage. As regards the plea that the amendment application having been filed after the trial had commenced and, therefore, could not have been allowed in view of the proviso to Order 6, Rule 17 CPC, it would be relevant to note that the provisions of the CPC are not strictly applicable to the proceedings under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. In fact, Section 38 of the Act, provides that the provisions of this Act shall have effect, notwithstanding anything consistent therewith, contained in the Code of Civil Procedure. Therefore, even the second submission of learned counsel for the petitioner cannot be accepted.
12. Besides, in my considered opinion, the plea which has been incorporated by way of amendment is a purely legal plea, which could have been raised even during arguments.
13. The two judgments one by the High Court and the other by the Apex Court in the case of Anwar Hasan Khan are in my considered opinion not relevant as they have been considered by the Apex Court in the case of Nirbhai Kumar and have been over ruled.
14. The judgment in the case of L.C. Hanumanthappa holds that a relief which is barred by limitation cannot be permitted to be incorporated by way of an amendment in the plaint. In the instant case, a legal plea has been incorporated in the written statement and no relief which is barred by time, had been incorporated. The judgment therefore has no application in the instant case.
15. Even in the case of Moin Uddin, the Court has merely held that a release application by a purchaser regarding non residential property can only be maintained when it is preceded by a six months notice and that this notice is mandatory, even after expiry of a period of three years from the date of purchase. It has also observed that an objection regarding maintainability is to be taken at the first instance and would not be allowed at a later stage.
16. The words "at a later stage" in my considered opinion, necessarily mean that the objection regarding maintainability must be raised before the trial Court itself. Besides this aspect was not an issue in the judgment cited. In fact in this case, the landlord had pleaded the factum of a notice having been issued to the landlord at the appellate stage. Under the circumstances, therefore, even this judgment does not help the petitioner.
17. In any case, the petitioner has not suffered any injury by the order impugned, which would necessitate interference.
18. In view of the above discussion, the writ petition fails and is dismissed.
