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Ram Pratap v. The Birla Cotton Spinning & Weaving Mills Ltd., Delhi .
Structured Summary of the Opinion (Prithvi Raj, J.)
Factual and Procedural Background
The appeal arises from an order dated 7 June 1968 of the Rent Control Tribunal which set aside the Rent Controller's order dated 10 November 1967 and remanded the matter to the Rent Controller for decision on merits. The respondents (landlords) had filed an application under section 22 of the Delhi Rent Control Act, 1958 seeking eviction of the appellant (tenant) of a kothi in Khilonewala Bagh on multiple grounds (unauthorised commercial use, unauthorised constructions, use of front portion for keeping buffaloes and sale of milk, occupation of two outhouses, etc.).
In the petition the landlords stated (in para 13-B) that no notice was required. The tenant's written statement (filed 16 January 1964) responded to that paragraph with: "no notice is given. But notice of such grounds is essential." The parties then led evidence: landlords closed their case on 3 June 1966 after examining seven witnesses; the appellant closed his case on 2 September 1967 after examining seven witnesses and giving his own statement. Thus, the evidentiary proceedings spanned almost four years from the filing of the petition (12 December 1963) to the close of the appellant's case (2 September 1967).
After evidence closed, on 18 September 1967 the appellant applied under Order 6 Rule 17 read with Section 151 CPC to amend his reply to para 18-B (seeking to plead that a notice required under section 106 of the Transfer of Property Act had not been given). The Rent Controller rejected that application on 21 September 1957 (sic — as recorded in the opinion) on the ground that the plea had already been taken in para 18-B and could be argued in submissions. The respondents then sought to amend their petition; that application was refused by the Rent Controller on 9 November 1967. The Rent Controller on 10 November 1967 rejected the petition under Order 7 Rule 11 CPC for failure to aver service of notice under section 106 of the Transfer of Property Act. The Rent Control Tribunal allowed the landlords' appeal, set aside the Rent Controller's order and remanded the case for adjudication on merits, holding that the tenant had waived the objection to lack of notice by not raising it at an appropriate stage. The present appeal concerns whether the tenant could raise lack of notice under section 106 after proceeding to trial and leading evidence for nearly four years.
Legal Issues Presented
- Whether it was open to the appellant (tenant) to raise, after nearly four years of litigation and after the parties had proceeded to trial and led evidence, the objection that no notice was given as required by section 106 of the Transfer of Property Act.
- Whether the appellant had waived or was estopped from raising the plea of want of notice by his conduct (failure to raise the point at an earlier stage, allowing the matter to proceed to trial, and failing to plead that the tenancy was contractual).
Arguments of the Parties
Appellant's Arguments
- The appellant contended that he had, in fact, taken up the plea of want of notice under section 106 of the Transfer of Property Act in his written statement in para 18-B.
- He relied on his application under Order 6 Rule 17 CPC seeking permission to amend the written statement to make the plea explicit; the Rent Controller refused that application on the ground that the plea had already been taken and could be argued.
- The appellant relied on authorities (Rajendranath Mookhopadhya v. Bassider Ruhman Khondkhar; Batto Mal v. Rameshwar Nath; Boota Ram v. Balmukand) to support the contention that notice requirements or the absence of notice could be material and that seeking amendment indicates the plea was not waived.
Respondents' Arguments
- The respondents submitted that they had stated in their petition that no notice was necessary and that the appellant had not raised the objection during the course of the four-year proceedings; accordingly the appellant was deemed to have waived the objection.
- They argued that, assuming notice under the Transfer of Property Act was required, the tenant's silence for four years amounted to waiver and prevented the tenant from taking that point at the late stage.
- The respondents sought permission to amend their petition to plead waiver, stating they could not have pleaded waiver earlier as the appellant raised the objection only at the time of arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rajendranath Mookhopadhya v. Bassider Ruhman Khondkhar, ILR 2 Cal. 146 F B | Principle that a landlord cannot recover possession of a tenancy from year to year without properly terminating the tenancy by notice; institution of suit is not a substitute for proper notice. | The court noted this authority but held it was of no help to the appellant because the central point in the appeal was whether the appellant had waived the plea of want of notice. |
| Batto Mal v. Rameshwar Nath, 1970 RCR 632 | Observed that contractual tenancy must be terminated before eviction and discussed that section 106 may not be mandatory; failure to raise objection early may amount to waiver. | The court relied on the observations to support the proposition that a tenant's failure to raise non-compliance with section 106 at an early stage ordinarily results in waiver of that objection. |
| Boota Ram v. Balmukand, 1971 73 P.L.R. 241 | Held that waiver is a deliberate and conscious act distinguishable from estoppel; whether a plea is waived depends on direct and circumstantial evidence; seeking amendment can indicate non-waiver. | The appellant invoked this authority to argue that his attempt to amend the written statement showed the plea was not waived. The Court reviewed this line and considered the conduct of the appellant in context. |
| Bhaiya Ram v. Muhavir Parshad, 1968 70 P.L.R. 1011 | Shows that notice under section 106 of the Transfer of Property Act is required in contractual tenancy but not in statutory tenancy. | The court cited this authority to explain that if the tenancy were statutory, no notice would be required; but the appellant never pleaded the tenancy was contractual, which was relevant to the waiver analysis. |
Court's Reasoning and Analysis
The Court proceeded by carefully tracing the procedural history and the content of pleadings and evidence. Key steps in the Court's analysis (as recorded in the opinion) are:
- The Court emphasized the timeline: petition filed 12 December 1963; written statement filed 16 January 1964; parties closed evidence only by 2 September 1967 — a near four-year period during which the matter proceeded to full trial and both sides led evidence.
- The landlords had stated in their petition (para 13-B / para 18-B as variously referenced) that no notice was required. The appellant did not plead anywhere that the tenancy was a contractual tenancy necessitating a notice under section 106 of the Transfer of Property Act.
- Although the appellant did file an application under Order 6 Rule 17 CPC on 18 September 1967 to amend his written statement to raise explicitly the want of notice under section 106, that application was refused by the Rent Controller (who said the plea had already been taken and could be argued), and in any event the application came only after evidence had been closed and long after the filing of pleadings.
- The Court considered the respondents' contention (and the view of the Rent Control Tribunal) that the appellant's prolonged silence and conduct during the four years induced the landlords to act on the assumption that no notice objection would be pressed; the landlords altered their position by relying on that conduct, and it would be inequitable to allow the appellant to raise the objection belatedly.
- The Court reviewed authorities cited by both sides. It noted that some precedents establish that notice under section 106 is required for contractual tenancies and that failure to plead termination may not always be fatal to a landlord, but also that earlier decisions recognize that failure by a tenant to raise non-compliance with section 106 at an early stage may amount to waiver. The Court accepted that waiver and estoppel principles are fact-sensitive and depend on conduct and timing.
- Crucially, the Court observed that the appellant never pleaded that the tenancy was contractual (which would make section 106 applicable) and did not assert lack of notice in his viva voce evidence when he gave his statement in August 1967. This continued silence, the Court found, supported the conclusion that the appellant had deliberately and consciously waived the objection.
- The Court also applied equitable considerations: if the tenant had raised the objection at the outset, the landlords might have withdrawn the petition and served a proper notice; by allowing the matter to proceed, the appellant led the landlords to believe the point was waived.
- On these factual and legal grounds the Court concluded that the Rent Control Tribunal was justified in holding that the plea of want of notice had been waived by the appellant and in remanding the case to the Rent Controller for decision on the merits (rather than upholding a late-stage challenge to maintainability for want of notice).
Holding and Implications
Holding: The appeal was dismissed. The Court concluded that the appellant had waived the objection of want of notice under section 106 of the Transfer of Property Act by his conduct — in particular by failing to plead that the tenancy was contractual and by failing to press the objection at an early stage despite almost four years of litigation and taking his turn to give evidence.
DISPOSITION: Appeal dismissed; in the circumstances, no order as to costs.
Implications: The direct effect is that the appellant is precluded from raising the objection of want of notice at a late stage after lengthy litigation and is estopped/held to have waived that plea. The opinion does not purport to lay down a new, general legal precedent beyond applying well-established principles of waiver and estoppel to the particular facts; the Court relied on earlier authorities and equitable considerations to reach its decision.
Note: This summary is confined strictly to the material and reasoning contained in the provided opinion and does not attempt to add or infer facts or legal principles beyond what is explicitly stated in the text.
Prithvi Raj, J.:— This second appeal from order is directed against the order dated 7th Jure, 1968, passed by the Rent Control Tribunal whereby the Tribunal set aside the order of the Rent Controller, Delhi, dated the 10th November, 1967 and remaded the case to the Rent Controller for decision on merits. The only question for determination in this appeals as to whether it is open to the appellant to raise the question of lack of notice under section 106 of Transfer of Property Act after a long lapse of 4 years after the parties had proceeded to trial and led evidence on merits of the case.
2. With a view to appreciate the contentions raised by the learned counsel for the parties it would be expedient to record a few facts of the case. The respondents who are the owners of the kothi in dispute situated in Khilonewala Bagh near Rana Partap Bagh, filed an application under section 22 of the Delhi Rent Control Act, 1958, (hereinafter referred to as ‘the Act’) for eviction of the appellant who is a tenant under the respondents in respect of the said premises on various grounds such as, that the appellant was given the premises for use as residence alone but he is also using it for commercial purposes; that he is running business in the said premises in the name and style of “Bishnoi Finance Private Ltd,”, that he is using the front portion of the premises for keeping buffaloes and for sale of milk etc. and that the said uses are in contravention of the terms under which he was authorised to occupy the premises; that he has made unauthorised constructions and has put up a fence and also has constructed a buffaloe shed on the adjoining land not rented out to him and that he has occupied two out houses in an unauthorised manner.
3. In para 13-B of the petition the landlord is required to state whether notice required has been given and, if so, particulars thereof and copies of such notice along with tenant's reply, if any, is also to be furnished. In the said para the respondents stated that no notice was required.
4. The appellant resisted the petition controverting the allegations of the respondents and in particular in reply to para 13-B of the petition stated “no notice is given. But notice of such grounds is essential.”
5. Here it may be stated that the petition for ejectment was filed on the 12th December 1963, and reply to the petition was filed on 16th January, 1964. Replication to the reply filed by the appellant was filed by the respondents-landlords on the 3rd February, 1964 and the parties thereafter led evidence. The respondents-landlords examined seven witnesses and there learned counsel closed the case on their behalf on the 3rd June, 1966. The appellant examined sevan witnesses in addition to getting his own statement recorded and closed his case on the 2nd September, 1967.
6. As already stated above, petition for ejectment was filed on the 12th December, 1963 and the appellant-defendant closed his case on the 2nd September, 1967. In other words, it took nearly about four years for the parties to complete the evidence.
7. The appellant on the 18th September, 1967, moved an application under order 6 Rule 17 read with section 151, C. P. C, seeking permission for altering and/or amending reply given by him to para 18-B of the petition and wanted to substitute the same by the following reply:—
“It is wrong and denied that no notice is necessary. The tenancy has not been terminated according to law and no notice of such termination has been given by the petitioner and not even alleged. The provisions of the Transfer of Property Act have been extended to the Union territory of Delhi w. e. f. 26th December, 1962, and therefore the present petition is not competent and the petition merits dismissal and the respondent is not liable to eviction inter alia for this reason.”
8. The appellant's request for proposed amendment was rejected by the Rent Controller vide his orders dated the 21st September, 1957, on the ground that the plea sought to be raised in regard to notice had already been taken by him in para 18-B of the written statement and that it would be open to the appellant to address arguments on the point during the course of arguments in the case.
9. Subsequently the respondents filed an application under order 6 Rule 17 read with section 151, C. P C. seeking permission to amend para 18-B of the petition stating tha at the time of arguments the applleant had taken up the plea that the application was not maintainable for want of notice for terminating the tenancy. It was further stated that assuming, though not conceding, that such a notice was required, no such plea was raised by the appellant during the entire course of proceedings and that a notice required under section 111(h) read with section 105 of the Transfer of Property Act can be waive I and since the appellant had kept quite about the service of the said notice for about four years, the appellant will be deemed to have waived the said plea and that the said objection was not open to him. It was further contended that since the appellant raised the objection relating to non-service of notice only at the time of arguments the respondents were not able to take up the plea of waiver specifically in its pleadings and the respoi dents sought permission to raise the said plea by amending para 18-B of the petition accordingly.
10. The above application of the respondent was rejected by the Rent Controller vide his order dated 9th November, 1967, on the ground that the appellants request for amendment of the written statement had already been rejected and secondly, for the reason that the amendment sought by the respondents, even if allowed, would not help the respondents as it was a part of the cause of action to be stated by the landlords-respondents in its petition that a notice under section 106 of the Transfer of Property Act was given to the tenant before instituting the ejectment proceedings and that if the landlords failed to make the aforesaid averment in the ejectment petition, it was liable to be rejected under Order 7 Rule 11, C. P. C, and the question of waiver, therefore, would not arise in such a case.
11. The Rent Controller vide his order dated the 10th November, 1967, rejected the petitioner under Order 7 Rule 11, C. P. C. on the ground that no notice under section 106 of the Transfer of Property Act was given by the respondents.
12. Feeling aggrieved, the respondents filed appeal before the Rent Control Tribunal who set aside the order of the Rent Controller on the ground that the plea of want of notice as required under section 106 of the Transfer of Property Act had not been taken up by the appellant at the appropriate stage and the same could not be urged in arguments after four years of institution of the case. The Rent Control Tribunal further held that the respondents in its application had stated that no notice was necessary to be given to the appellant and the appellant did not set up a plea of non-mainlainability of the petition for his eviction on the ground of want of notice terminating the tenancy under section 106 of the Transfer of Property Act and the appellant having not taken up the plea of requirement of service of reasonable notice terminating the tenancy in the written statement, was deemed to have waived it. In the result, the Rent Control Tribunal remanded the case to the Rent Controller under Order 41 Rule 23, C. P. C. for decision on merits.
13. Mr. Ralbir Singh, the learned counsel appearing for the appellant, vehemently contended that the appellant had taken up the plea of want of notice under section 106 of the Transfer of Property Act in the written statement in para 18-B. Not only this, the learned counsel submitted, the appellant even moved an application under Order 6 Rule 17, C. P. C. seeking permission to amend the written statement which application was not allowed by the Rent Controller on the ground that the plea having already been taken, it was open to the appellant to argue the same during the course of arguments. The learned counsel, therefore, submitted that taking into consideration the record of the case, it was wrong on the part of the Rent Control Tribunal to hold that the plea was waived by the appellant.
14. The learned counsel for the appellant in support of his above contention that notice under section 10 of the Transfer of Property Act was required to be given before the petition could be filed relied upon Rajendranath Mookhopadhya v. Bassider Ruhman Khondkhar . ILR 2 Cal. 146 F B.. In that case the plaintiff-respondent was the tenant under the appellant landlord who without giving any notice to the respondent put in a fresh tenant on the land. The respondent brought the suit to recover possession. The suit was resisted on the ground that the respondent had relinquished his tenure. On the facts of the case, it was observed that the tenant was a tenant from year to year and the appellant-landlord could not recover possession without determining the tenancy by proper notice, and the contention that the institution of the suit itself was a sufficient demand of possession, was repelled. This authority is of no help to the appellant as the point for consideration is whether the appellant had waived the plea of want of notice or not.
15. The learned counsel for the appellant next relied upon the decision of a Division Bench of this Court in Batto Mal v. Rameshwar Nath . 1970 RCR 632, in which it was observed that it was necessary to terminate a contractual tenancy before the landlord could proceed to evict the tenant under the Rent Control Legislation. But the point in the instant appeal is whether the plea of want of notice had been waived by the appellant or not. It may be stated here that in Batto Mal's case (supra) the Bench also observed that the requirement of section 106 of the Transfer of Property Act was not mandatory and that if the conduct of the tenant in not insisting upon the notice had been acted upon by the landlord, then the landlord would be altering his position by relying upon the conduct of the tenant and the tenant would be estopped at a later stage from resiling from his conduct and raising the objection of want of notice to the suit of the landlord. It was further observed in the said case that ordinarily a landlord suing or applying for the eviction of a tenant must plead that the contractual tenancy had been terminated, but the failure to make such a pleading would not ordinarily amount to non-disclosure of the cause of action itself and that the failure of the tenant to raise the objection regarding non-compliance with section 106 of the Transfer of Property Act at an early stage of the litigation would amount to a waiver of, the plea by him. I would advert to this aspect of the matter at a subsequent stage of this judgment.
16. The learned counsel for the appellant next cited Boota Ram v. Balmukand . 1971 73P.L.R 241 in which S.N Shankar, J. observed at page 109, waivar is a deliberate and conscious act as distinguished from estoppel which may be created by law. Whether the objection has been waived or not in a given case is a question which has to be decided on the direct as well as circumstantial evidence on the record. The fact that Boota Ram sought to get his written statement amended to incorporate this plea specifically is an indication to the contrary and shows that he did not waive this plea at the stage of trial. It is, therefore, not possible to sustain the submission of Shri Gupta that Boota Ram had waived the plea of notice”. The learned counsel, therefore, contended that since the appellant had specifically sought permission to amend the written statement, it indicated that he had not waived the plea of want of notice; on the contrary the appellant had raised this plea in para 18-B of the written statement.
17. It may be stated here that the notice under section 106 of the Transfer of Property Act is only required to be given in case of a contractual tenancy while no such notice has to be given in case of a statutory tenancy. The appellant in his written statement has no where taken the plea that the tenancy was a contractual tenancy. If it is so no notice was required to be given under section 106 of the Transfer of Property Act terminating the tenancy. See Bhaiya Ram v. Muhavir Parshad . 1968 70 P.L.R 1011..
18. As already rioted in an earliar part of this judgment the petition was filed on the 12th December, 1963 and the written statement was filed on the 16th January, 1964. The landlords resdoudents had clearly mentioned in para 18-B of the petition that no notice was required to be given. The appellant did not take up the plea that the tenancy was a contractual tenancy and that the same was not terminated by the respondents by a proper notice. Not only this, the parties proceeded to trial and produced evidence in support of their respective contetions. It was only after the evidene had been closed by the parties that the appelant filed application under Order 6 Rule 17, C.P.C seeking permission to amend para 18-B of the written statement to raise the plea of want of notice under section 106 of the Transfer of Property Act. That being so it has to be held that the conduct of the appellant in not insisting upon notice under section 106 of the Transfer of Property Act was acted upon by the landlords who altered their position by relying upon the conduct of the appellant in not seeking permission of the Court at an early stage to amend the petition by pin-pointedly asserting that although no notice was required to be given under section 106 of the Transfer of Property Act yet such a plea, if it was at all open to the appellant, had been waived by him. The appellant having allowed the time to pass and contested the petition for four years is estopped at a late stage from resiling from his conduct by raising the objection that notice under section 106 of the Transfer of Property Act had not been served. Since the appellant had failed to raise this objection at an early stage of the litigation, the Rent Control Tribunal was justified in concluding that the plea of want of notice had been waived by the appellant. It is permanent here to note that the appellant while appearing as his own witness did not take up the plea that his tenancy was a contractual one and the same had not been terminated by a notice under section 106 of the Transfer of Property Act. It is, therefore, evident that the appellant had waived the plea of want of notice deliberately and consciously not only at an early stage of the case but even at the time when he appeared as his own witness in August, 1967, i.e, after about 3½ years of the filing of the petition. This silence on the part of the appellant not to take up the plea of want of notice even in his statement is by itself sufficient to bold that in a way he held out to the respondents that the appellant had waived the plea of want of notice as was observed by a Bench of this Court in Batto Mal's case (supra) that the failure of the tenant to raise the objection regarding non-compliance with section 106 of the Transfer of Property Act at an early stage of the litigation would amount to a waiver of the plea by him. Besides, it would be inequitable to allow the appellant to raise the plea, which he had already waived, at a late stage of the case after four years as in case if the appellant had raised this plea at an early stage of the case in 1963 when the petition was filed, the respondents might have chosen to withdraw the petition and serve a proper notice on the appellant but the appellant having persuaded the landlord to believe that the plea of lack of notice had been waived by him, cannot suddenly turn round and raise this plea at a late stage of the case.
19. For the reasons stated above there is no force in this appeal and the same is dismissed but in the circumstances of the case, with no order as to costs.
20. Appeal dismissed.
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