Sirajuddin Khan vs Laxmichand

HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 2298 of 2026
Sirajuddin Khan
…..Petitioner(s)
Versus
Laxmichand
…..Respondent(s)
Counsel for Petitioner(s) : Arvind Srivastava, Yawar Mukhtar
Counsel for Respondent(s) : Jitendra Pal Singh Chauhan
Court No. - 35
AFR
HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J.
Heard Sri Bhavesh Singh, holding brief of Sri Arvind Srivastava,
learned counsel for the petitioner and Sri Jitendra Pal Singh, learned
counsel appearing for the respondent.
2. This petition under Article 227 of the Constitution of India has
been filed challenging the judgment and order dated 21.12.2022 passed
by the Prescribed Authority/Civil Judge (Junior Division), Najibabad,
District Bijnor in P.A. Case No. 1 of 2014, instituted under Section 21(1)
(a) of U.P. Act No. 13 of 1972, whereby the release application filed by
the respondent-landlord in respect of a shop situated at Bazar Kalluganj,
Kasba and Tehsil Najibabad, District Bijnor, was allowed and the
requirement of the landlord was held to be bona fide . Challenge has also
been made to the appellate judgment and order dated 16.01.2026 passed
by the Additional District Judge/F.T.C.-II, Bijnor in Rent Control Appeal
No. 02 of 2023, whereby the appeal preferred by the petitioner-tenant

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was dismissed and the findings recorded by the Prescribed Authority on
the questions of waiver of the requirement of notice under the proviso to
Section 21(1)(a), bona fide requirement and comparative hardship were
affirmed.
3. The case of the petitioner is that he is a tenant of the shop in
dispute at a monthly rent, allegedly inclusive of taxes, and that the
tenancy commenced under the erstwhile owner of the premises, from
whom the respondent-landlord subsequently purchased the property.
4. After purchase of the property, the respondent-landlord instituted
release proceedings, registered as P.A. Case No. 1 of 2014, before the
Prescribed Authority, Najibabad, seeking release of the shop in dispute
on the ground of bona fide requirement for establishment of his son in
business. The petitioner entered appearance and filed written statement
denying the allegations made in the release application. The petitioner
disputed the rate of rent, questioned the genuineness of the need set up
by the respondent-landlord and further contended that the respondent
possessed alternative accommodation. It was also pleaded that the shop
in dispute was of small dimensions and was not suitable for the purpose
for which release was sought.
5. An objection regarding maintainability of the release application
was also raised by the petitioner on the ground that the requirement of
six months’ prior notice, as contemplated under the first proviso to
Section 21(1)(a) of the Act, had not been complied with before
institution of the proceedings on 15.01.2014.
6. The parties led oral as well as documentary evidence in support of
their respective cases. Upon consideration of the material brought on
record, the Prescribed Authority, by judgment and order dated
21.12.2022, allowed the release application holding the requirement of
the respondent-landlord to be bona fide and further deciding the question
of comparative hardship in favour of the landlord. The objection relating
to non-compliance of six months’ notice was rejected.
7. Aggrieved by the aforesaid judgment, the petitioner preferred Rent
Control Appeal No. 02 of 2023. During pendency of the appeal, an

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application for inspection was moved by the petitioner, which came to be
rejected. Thereafter, the appellate court, by judgment and order dated
16.01.2026, dismissed the appeal and affirmed the findings recorded by
the Prescribed Authority on the questions of waiver of the requirement of
notice under the proviso to Section 21(1)(a) , bona fide requirement and
comparative hardship.
8. Challenging the aforesaid judgments and orders passed by the
courts below, the present petition has been filed, inter alia , contending
that the release proceedings were vitiated on account of non-compliance
of the mandatory requirement of six months’ notice under the proviso to
Section 21(1)(a) of the Act and that the findings returned by the courts
below on bona fide requirement and comparative hardship are contrary
to the material available on record. It was submitted that the notice
having been issued on 02.12.2013 and the release application having
been instituted on 15.01.2014, the proceedings were clearly premature
and, therefore, without jurisdiction.
9. Learned counsel for the petitioner submits that the mandatory
requirement of six months’ prior notice contemplated under the proviso
to Section 21(1)(a) of the Act goes to the very root of maintainability of
the proceedings and non-compliance thereof renders the release
application liable to be rejected as premature.
10. Placing reliance upon the judgment of the Supreme Court in
1
Martin & Harris Ltd. v. Additional District Judge , it is contended
that the requirement of six months’ notice is mandatory in nature and
non-compliance thereof vitiates the entire proceedings. It is further
submitted that the courts below erred in holding that the objection stood
waived merely on account of participation of the petitioner in the
proceedings.
11. Learned counsel for the petitioner has further submitted that the
findings recorded on bona fide requirement and comparative hardship
are contrary to the material available on record. It is argued that the
respondent-landlord possessed alternative accommodation and that the
shop in dispute, considering its size and location, was not suitable for the
1 (1998) 1 SCC 732

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purpose for which release was sought. It is also contended that the courts
below failed to properly appreciate the evidence led by the petitioner and
have returned findings which are perverse and legally unsustainable.
12. Per contra, learned counsel appearing for the respondent-landlord
has supported the impugned judgments and has submitted that although
the requirement of six months’ notice under the proviso to Section 21(1)
(a) is mandatory, the same is enacted for the benefit of the tenant and is
capable of waiver. Relying upon the very same judgment in Martin &
Harris Ltd. v. Additional District Judge , it is contended that the
petitioner, despite having knowledge of the alleged defect, participated
in the proceedings for several years, contested the matter on merits and
failed to press the objection at the appropriate stage, and therefore the
objection stood waived by conduct and acquiescence.
13. It is further submitted that both the courts below have concurrently
recorded findings of fact regarding bona fide requirement and
comparative hardship after due appreciation of oral and documentary
evidence on record, and such concurrent findings do not warrant
interference in exercise of writ jurisdiction.
14. Having heard learned counsel for the parties and upon perusal of
the material brought on record, the following issues arise for
consideration in the present petition:-
14.1 Whether the release application instituted by the respondent-
landlord under Section 21(1)(a) of U.P. Act No. 13 of 1972 was liable to
be held premature on account of alleged non-compliance with the
requirement of six months’ prior notice contemplated under the first
proviso to Section 21(1)(a) of the Act.
14.2 Whether, in the facts and circumstances of the present case, the
petitioner-tenant, by prolonged participation in the proceedings and by
contesting the matter on merits for several years, can be held to have
waived the objection relating to non-compliance with the requirement of
six months’ notice by raising such objection only at a highly belated
stage.

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15. Since the principal controversy raised in the present petition
pertains to the effect of non-compliance of the requirement of six
months’ prior notice contemplated under the first proviso to Section
21(1)(a) of U.P. Act No. 13 of 1972 and the question as to whether such
objection stood waived on account of the conduct of the petitioner-
tenant, it would be apposite to notice the relevant statutory provisions
governing the field. Section 21(1)(a) of U.P. Act No. 13 of 1972 along
with the first proviso, to the extent relevant for the present controversy,
reads as under:-
“21- (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 if it is satisfied that any of the following grounds
exists; namely: –
(a) that the building is bona fide 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 :”
16. A careful reading of the aforesaid provision indicates that while
the substantive part of Section 21(1)(a) confers a right upon the landlord
to seek release of the tenanted premises on the ground of bona fide
requirement, the proviso engrafts certain restrictions in cases where the
premises was already under tenancy prior to its purchase by the landlord.
17. The proviso contemplates two distinct conditions. Firstly, a period
of three years must elapse from the date of purchase of the premises by

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the landlord. Secondly, the tenant must be given a notice of not less than
six months before institution of the application.
18. The legislative intent behind incorporation of the proviso appears
to be to afford protection to an existing tenant against immediate
proceedings for eviction at the instance of a subsequent purchaser and to
provide reasonable time to the tenant before such proceedings are
initiated.
19. At the same time, the language employed in the proviso assumes
significance. The legislature has consciously used the expression “no
application shall be entertained” while prescribing the period of three
years, whereas in relation to notice it has provided that the landlord “has
given a notice … not less than six months before such application”. The
use of different phraseology in the same proviso cannot be regarded as
accidental and must be assigned its due meaning.
20. The expression “entertained” ordinarily refers to consideration or
adjudication of a matter by the authority, whereas the latter part of the
proviso specifically regulates the stage prior to institution of proceedings
by requiring service of notice before filing of the application. The
statutory scheme, therefore, distinguishes between the stage of
institution of proceedings and the stage of consideration of the
application on merits.
21. The requirement of six months’ notice, though couched in
mandatory language and linked with institution of proceedings, is
intended to secure a protective opportunity to the tenant before initiation
of release proceedings. The protection contemplated by the proviso is
essentially personal to the tenant and procedural in character. The
provision does not affect the inherent competence or jurisdiction of the
authority to adjudicate the matter, nor does it involve any element of
public duty or public interest. Rather, it confers a statutory procedural
safeguard capable of being availed of or waived by the tenant for whose
benefit it has been enacted.
22. The scheme of the provision thus indicates that while non-
compliance of the notice requirement may render the institution of the

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proceedings premature, the protection nevertheless remains one enacted
for the benefit of the tenant and not a condition affecting the inherent
competence or jurisdiction of the authority to adjudicate the matter. The
proviso does not involve any element of public duty or public interest;
rather, it confers a statutory procedural safeguard capable of being
availed of, waived or relinquished by the tenant for whose benefit it has
been enacted.
23. Since the protection contemplated under the proviso is enacted for
the benefit of the sitting tenant, the same is capable of waiver.
Consequently, where the tenant, despite knowledge of the alleged defect,
does not raise timely objection regarding notice and instead contests the
matter on merits, such conduct may amount to acquiescence and
relinquishment of the procedural protection available under the proviso.
24. A statutory requirement, even if mandatory in form, does not
invariably become incapable of waiver. The determinative test is whether
the provision has been enacted in public interest or merely for the benefit
of an individual. Where the condition prescribed by the statute exists
solely for safeguarding the rights of a particular party, such party may
relinquish or abandon the benefit either expressly or by conduct. The
doctrine of waiver proceeds on the principle that a person may renounce
a right introduced for his own benefit, provided no public interest is
affected. Accordingly, objection regarding non-compliance of the notice
requirement under the proviso to Section 21(1)(a), if not raised at the
appropriate stage, cannot subsequently be permitted to invalidate the
proceedings after the tenant has already participated in the adjudication
on merits.
25. The failure to comply with the requirement of six months’ notice
under the proviso to Section 21(1)(a) would ordinarily amount to a
procedural irregularity and not a nullity, particularly where waiver is
established from the conduct of the tenant. A defect may be treated as a
nullity where the provision violated is founded upon considerations of
public policy or goes to the root of inherent jurisdiction in a manner
incapable of waiver by the affected party. Conversely, where the

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objection is one capable of waiver and the statutory protection exists
solely for the benefit of an individual, breach thereof does not render the
proceedings void ab initio . Thus, once the tenant submits to the
jurisdiction of the authority and participates in the proceedings without
raising timely objection regarding notice, the release proceedings cannot
subsequently be assailed solely on that ground.
26. In Martin & Harris Ltd. the Supreme Court held that although
the requirement of six months’ notice under the proviso to Section 21(1)
(a) is mandatory, the same is nevertheless capable of waiver since the
protection is intended solely for the benefit of the tenant. The Court
observed that where the tenant, despite being aware that the release
application had been filed prior to expiry of six months from the date of
notice, participated in the proceedings on merits and failed to pursue the
objection at the appropriate stage, such conduct would amount to
conscious waiver of the statutory protection. The Supreme Court noticed
that although the objection regarding the premature institution of the
release application had initially been taken in the written statement, the
tenant thereafter joined issues on merits before the Prescribed Authority,
did not raise the plea in appeal and sought to revive the objection only at
a belated stage. In that context, the Court observed as follows:
“ 12. 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 17-9-1986. 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 20-9-1985 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

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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 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 shown 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. On the
contrary the 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….”
27. The principle that even a mandatory statutory requirement may be
waived where it is enacted solely for the benefit of an individual has
consistently been recognised in judicial precedent. In Vellayan Chettiar
2
v. Government of the Province of Madras , the Privy Council held that
although notice under Section 80 C.P.C. is mandatory, defect or absence
thereof would not render the proceedings void since the protection is
intended for the benefit of the person concerned and may therefore be
waived. The same principle was reiterated in Dhirendra Nath Gorai v.
3
Sudhir Chandra Ghosh , S. Raghbir Singh Gill v. S. Gurcharan
4 5
Singh Tohra , Lachoo Mal v. Radhey Shyam and Indira Bai v. Nand
6
Kishore , and it was consistently held that where a statutory protection
is enacted for the benefit of an individual and is not founded upon
considerations of public policy, the same is capable of waiver and breach
thereof would not render the proceedings void ab initio .
2 AIR 1947 PC 197
3 AIR 1964 SC 1300
4 1980 Supp. SCC 53
5 (1971) 1 SCC 619
6 (1990) 4 SCC 668

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28. The aforesaid principles were comprehensively considered in
7
Krishan Lal v. State of Jammu & Kashmir , wherein the Supreme
Court drew a distinction between provisions enacted in public interest
and those intended solely for the benefit of an individual. The Court held
that where the statutory requirement is personal in nature and capable of
waiver, non-compliance thereof would not ipso facto render the
proceedings a nullity.
29. The judgment in Krishan Lal also took note of the principles
stated in leading authorities on statutory interpretation and
8
administrative law including Maxwell on Interpretation of Statutes ,
9 10
Craies on Statute Law , Crawford on Interpretation of Laws ,
11 12
Francis Bennion on Statutory Interpretation and H.W.R. Wade on
Administrative Law, all of which recognise the principle embodied in
the maxim quilibet potest renunciare juri pro se introducto, namely that
a person may waive the benefit of a law enacted solely for his private
protection, provided no question of public right or public policy is
involved. In this regard, Maxwell on Interpretation of Statutes states
as follows:
“Everyone has a right to waive and to agree to waive the advantage of a law
made solely for the benefit and protection of the individual in his private
capacity, which may be dispensed with without infringing any public right or
public policy, Cuilibet licet renuntiare juri pro se introducto .”
30. The same principle has been reiterated in Craies on Statute Law
in the following terms:
“If the object of a statue is not one of general policy, or if the thing which is
being done will benefit only a particular person or class of persons, then the
conditions prescribed by the statute are not considered as being
indispensable...”
7 (1994) 4 SCC 422
8 Maxwell On The Interpretation of Statutes, 12 th Edition (P.St.J.Langan)
th
9 Craies On Statute Law, 7 Edition (S.G.G.Edgar)
10 Crawford On Interpretation of Laws (1989 Reprint)
11 Francis Bennion On Statutory Interpretation (1984)
12 Administrative Law by H.W.R. Wade, 6 th Edition

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31. A similar principle has been noticed by H.W.R. Wade in
Administrative Law, while quoting Lord Denning in Wells v. Minister
of Housing and Local Government, wherein it was observed that:
“a defect in procedure can be cured, and an irregularity can be waived, even
by a public authority, so as to render valid that which would otherwise be
invalid.”
32. The distinction between a nullity and an irregularity was
elaborately explained by a Full Bench of the Calcutta High Court in
13
Ashutosh Sikdar v. Behari Lal Kirtania , referring to Macnamara on
14
“Nullities and Irregularities” and the judgment in Holmes v. Russell .
It was observed that the effect of breach of a statutory provision must be
determined having regard to the nature, scope and object of the provision
violated. The Court explained that an irregularity is merely a deviation
from prescribed procedure which does not destroy the foundation of the
proceeding, whereas a nullity is a proceeding wholly without authority.
The “workable test” laid down in Holmes v. Russell is that where the
objection is capable of waiver, the defect amounts to an irregularity;
where it is incapable of waiver, the defect may assume the character of a
nullity.
33. The legal position with regard to the notice under the proviso to
Section 21(1)(a) being mandatory yet subject to the doctrine of waiver
has also been recognised by this Court in Anoop Kumar & Ors. v.
15
Doongermal Singodiya & Anr. and also in Smt. Kamla Devi v.
16
Ikram Ali , wherein it was held that failure to raise objection regarding
notice at the appropriate stage would amount to waiver and the defect
would constitute only an irregularity and not a nullity.
34. The requirement of six months’ notice under the proviso to
Section 21(1)(a), though mandatory in nature, having been held in
Martin & Harris Ltd. to be subject to waiver, non-compliance thereof
would not render the proceedings void ab initio . Since the objection is
13 (190607) 11 CWN 1011
14 (1841) 9 Dowl 487
15 (2019) 134 ALR 565
16 2019 SCC OnLine All 4755

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one capable of waiver and does not involve any question of public policy
or inherent lack of jurisdiction, breach thereof would ordinarily amount
to a procedural irregularity and not a nullity, particularly where waiver is
established from the conduct of the tenant. The consequence of waiver is
not that the statutory requirement ceases to be mandatory, but that the
beneficiary of such protection becomes disentitled from impeaching the
proceedings on that ground.
.
35 The principle of waiver in such cases does not retrospectively
validate the initial procedural defect; it merely disentitles the tenant, by
reason of conscious acquiescence, from assailing the proceedings on that
ground at a belated stage.
36. The doctrine of waiver in relation to an objection regarding notice
or the premature institution of proceedings under the proviso to Section
21(1)(a) of U.P. Act No.13 of 1972 may arise in different factual
situations. Waiver may readily be inferred where no objection regarding
notice or premature institution of proceedings is raised despite
participation in the proceedings. Equally, waiver may arise where such
objection, though initially raised, is subsequently abandoned, not pressed
or consciously given up during the course of proceedings. However,
there may also arise cases where the tenant, despite full knowledge of
the alleged defect from the inception, participates in the proceedings for
a prolonged period, contests the matter extensively on merits and raises
the objection only at a highly belated stage after substantial progress of
adjudication. In such cases also, the Court may examine whether the
cumulative conduct of the tenant demonstrates acquiescence and
relinquishment of the procedural protection available under the proviso.
37. A distinction must, however, be maintained between cases where
objection is raised with reasonable promptitude at the threshold stage
and cases where the party, despite full knowledge of the alleged defect
from the inception, permits the proceedings to continue substantially on
merits and seeks to invoke the objection only at a highly belated stage
after considerable advancement of adjudication. A procedural protection
intended for the benefit of a party must ordinarily be invoked with

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reasonable diligence and promptitude; otherwise, prolonged participation
in the proceedings may itself furnish evidence of acquiescence. In the
latter category of cases, the Court is required to examine not merely the
formal existence of an objection in pleadings, but the entire conduct of
the party throughout the proceedings in order to determine whether the
procedural protection stood waived by acquiescence, deliberate inaction
or conduct inconsistent with an intention to insist upon such procedural
protection at the appropriate stage. Whether belated assertion of such
objection amounts to waiver would necessarily depend upon the facts of
each case, the stage at which the objection is raised and the overall
conduct of the parties.
38. The doctrine of waiver is founded not merely upon express
relinquishment of a right but equally upon conduct inconsistent with an
intention to insist upon such right. Therefore, where a tenant knowingly
participates in proceedings for a prolonged duration, invites adjudication
on merits, files applications, evidence, interrogatories or other pleadings
and permits the matter to proceed substantially without questioning
maintainability at the threshold, the Court may legitimately infer that the
tenant elected not to insist upon the procedural protection available
under the proviso. Mere eventual incorporation of an objection in
pleadings at a belated stage cannot by itself exclude waiver, for
otherwise a party could continue participating in proceedings, test the
outcome on merits and thereafter revive a procedural objection available
from the very inception.
39. The law on the point is that the notice contemplated under the
proviso, though mandatory in character, is enacted for the personal
benefit of the sitting tenant and is therefore capable of waiver. Such
waiver may be express or implied from acquiescence, inaction or
prolonged participation in proceedings on merits. The true test is one of
cumulative conduct. Thus, where the tenant, despite being aware of the
alleged defect from the inception, fails to press the objection at the
appropriate stage, permits the proceedings to progress substantially, joins
issue on bona fide r equirement and comparative hardship, invokes

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procedural remedies and seeks to revive the objection only at a belated
stage after considerable advancement of the proceedings, the Court may
legitimately infer conscious relinquishment of the procedural safeguard.
Mere delay may not by itself amount to waiver; however, substantial
delay coupled with active participation in proceedings on merits may
justify such inference. The law does not countenance a course by which
a party keeps such objection in reserve, contests the matter on merits
and, upon apprehending an adverse outcome, seeks to invalidate the
proceedings on a defect which was available from the very beginning.
Equally, a landlord who has prosecuted proceedings on the legitimate
assumption that no serious objection regarding maintainability survives
cannot ordinarily be non-suited at an advanced stage merely because the
tenant belatedly invokes a procedural defect already within his
knowledge.
40. Accordingly, particularly in cases where objection regarding the
premature institution of proceedings or maintainability is raised only
after prolonged participation in proceedings on merits, the issue of
waiver must be examined on the basis of a cumulative assessment of the
entire conduct of the party throughout the proceedings and not merely on
the basis of eventual incorporation of a formal plea in pleadings. While
adjudicating such issue, the Court may ordinarily consider the following
relevant factors:
(i) whether the objection regarding premature institution of proceedings
or want of statutory notice was raised at the threshold stage immediately
upon appearance in the proceedings or, on the contrary, withheld despite
knowledge of the alleged defect from the inception;
(ii) whether, after raising such objection, the party pursued the same with
reasonable diligence and sought adjudication thereof at the earliest
appropriate stage, or instead permitted the proceedings to continue
substantially on merits;
(iii) whether the party actively participated in the proceedings for a
prolonged duration by filing applications, affidavits, evidence, cross-

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examination applications or other pleadings inconsistent with an
intention to challenge maintainability at the threshold;
(iv) whether the objection came to be pressed only after substantial
progress of the proceedings, particularly after advancement of
evidentiary stages or near culmination of adjudication on merits;
(v) whether the cumulative conduct of the party indicates acquiescence
in continuation of the proceedings and an election to contest the matter
on merits rather than insist upon the procedural protection available
under the proviso, or suggests that the objection was retained merely as a
technical plea to be invoked at a convenient stage after testing the merits
of the case; and
(vi) whether permitting belated invocation of such objection would result
in frustrating adjudication on merits despite prolonged participation and
prior acquiescence of the objecting party.
41. The aforesaid factors are illustrative and not exhaustive, and the
question of waiver must ultimately depend upon the facts and conduct
emerging in each individual case.
42. Where these factors cumulatively indicate conscious inaction,
prolonged participation in proceedings without timely protest, repeated
submission to the adjudicatory process and conduct inconsistent with an
intention to insist upon the procedural protection at the appropriate stage,
the Court may legitimately infer waiver notwithstanding eventual
assertion of such objection at a later stage of the proceedings.
43. Applying the aforesaid principles to the facts of the present case, it
is evident that both the courts below have concurrently recorded a
categorical finding that the petitioner-tenant did not raise any objection
regarding non-compliance of the proviso to Section 21(1)(a) of U.P. Act
No. 13 of 1972 at the threshold stage and continued participating in the
proceedings for a prolonged period after institution of the release
application. The release application was instituted on 15.01.2014. The
petitioner entered appearance on 22.04.2014 and thereafter actively

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participated in the proceedings by filing interrogatories under Section
34(1)(d) of the Act on 15.07.2014, seeking adjournments on various
dates and contesting the matter on merits. However, no objection
regarding want of six months’ notice was raised at the initial stage of the
proceedings. Both the Prescribed Authority as well as the Appellate
Court have specifically recorded that such objection came to be raised
for the first time only in the written statement filed on 23.11.2021, i.e.
after lapse of more than seven years from institution of the release
proceedings.
44. The order-sheet of the proceedings reflects that after appearance
on 15.07.2014, the petitioner repeatedly sought adjournments for filing
written statement and the proceeding continued at that stage for several
years. After disposal of the application Ga-12 on 29.10.2018, the
Prescribed Authority specifically directed the petitioner to file written
statement forthwith while observing that the controversy had remained
pending for nearly four years at the stage of written statement. Despite
such direction, the written statement ultimately came to be filed only on
23.11.2021. Thereafter , the proceedings continued extensively on issues
relating to evidence, applications for cross-examination, handwriting
expert examination, filing of affidavits, rebuttal evidence and final
arguments, culminating in judgment dated 21.12.2022. The record thus
demonstrates prolonged participation in the proceedings over several
years after entering appearance before the Prescribed Authority.
45. The courts below, while considering the conduct of the petitioner
throughout the proceedings, have drawn an inference that the petitioner,
despite having full knowledge of the proceedings and despite
participating therein for several years, consciously chose not to object to
the alleged defect relating to notice at the appropriate stage and,
therefore, waived such objection.
46. In Martin & Harris Ltd., while considering the effect of non-
compliance with the six months’ notice contemplated under the proviso
to Section 21(1)(a), the Supreme Court held that although the tenant had
initially raised an objection regarding the premature institution of the

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release application, the same was subsequently abandoned by
participating in the proceedings on merits and by failing to pursue the
objection either before the Prescribed Authority or in appeal. The Court
observed that the requirement of six months’ notice was enacted solely
for the benefit and protection of the tenant and therefore was capable of
waiver. Referring to the distinction between a statutory bar going to the
root of maintainability and a protection intended for the benefit of a
party, the Court held that where the provision merely affords protection
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.” The Court further held
that once the tenant failed to press the objection at the appropriate stage
and joined issue on merits, the landlord altered his position irretrievably
and it was not open to the tenant to revive such objection at a belated
stage after concurrent findings had been recorded on merits.
47. In the present case, the objection regarding non-compliance of the
requirement of six months’ notice was neither raised at the threshold
stage nor pursued with reasonable promptitude. On the contrary, the
petitioner participated in the release proceedings for several years,
contested the matter extensively on merits by disputing the landlord’s
bona fide requirement, comparative hardship and availability of
alternative accommodation, and permitted the proceedings to advance
substantially before introducing the objection for the first time in the
written statement filed after more than seven years from institution of the
release application. The factual position in the present case thus stands
on an even stronger footing than in Martin & Harris Ltd., where the
objection had at least initially been raised though subsequently not
pursued. The cumulative conduct of the petitioner, as noticed by both the
authorities below, was therefore rightly treated as indicative of
acquiescence and relinquishment of the procedural protection available
under the proviso to Section 21(1)(a) of the Act.
48. Thus, the inference drawn by the authorities below is that the
petitioner, by his prolonged participation in the proceedings without
raising timely objection, acquiesced in the continuation of the release

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proceedings and cannot subsequently seek to invalidate the same on a
procedural ground which was available to him from the very inception.
The findings recorded by the authorities below proceed on the principle
that a procedural objection intended for the tenant’s personal benefit
must be asserted with reasonable promptitude and, if not so asserted,
may legitimately be treated as waived by conduct.
49. Accordingly, in view of the discussions made hereinabove, this
Court finds no illegality, perversity or jurisdictional error in the
concurrent findings recorded by the Prescribed Authority as well as the
Appellate Court. Both the authorities below have rightly held that
although the requirement of six months’ notice under the proviso to
Section 21(1)(a) of the U.P. Act No.13 of 1972 is mandatory in nature,
the same being a procedural protection intended for the benefit of the
tenant was capable of waiver and, in the facts of the present case, stood
waived on account of the petitioner’s prolonged participation in the
proceedings without raising timely objection.
50. The objection regarding maintainability of the release application
on account of alleged non-compliance of six months’ notice having been
raised for the first time after more than seven years from institution of
the proceedings, the courts below were justified in drawing an inference
of waiver from the conduct of the petitioner. The findings so recorded
are based on appreciation of pleadings and conduct of the parties and do
not suffer from any manifest error warranting interference under Article
227 of the Constitution of India.
51. No other ground has been made out to interfere with the impugned
judgments and orders passed by the courts below.
52. It is well settled that jurisdiction under Article 227 of the
Constitution is supervisory and not appellate. This Court does not re-
appreciate evidence or substitute its own conclusions merely because
another view is possible. Interference is warranted only where findings
suffer from patent perversity, manifest illegality, jurisdictional error or
failure of justice. Concurrent findings of fact, particularly in rent control

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proceedings, ordinarily do not warrant interference unless shown to be
wholly arbitrary or unsupported by evidence.
53. So far as the findings recorded by the courts below on the
questions of bona fide requirement and comparative hardship are
concerned, the same are pure findings of fact based upon appreciation of
oral and documentary evidence on record. Both the Prescribed Authority
and the Appellate Court have concurrently held the requirement of the
respondent-landlord to be bona fide and have further recorded findings
on comparative hardship in favour of the landlord after considering the
respective pleadings and evidence relating to availability of alternative
accommodation and the nature of hardship likely to be caused to the
parties. No material has been placed before this Court so as to
demonstrate that the findings recorded suffer from perversity, patent
illegality or non-consideration of material evidence warranting
interference in exercise of supervisory jurisdiction under Article 227 of
the Constitution of India.
54. In view of the aforesaid discussion, this Court does not find any
illegality, perversity or jurisdictional error in the impugned judgment and
order dated 21.12.2022 passed by the Prescribed Authority/Civil Judge
(Junior Division), Najibabad, District Bijnor in P.A. Case No. 1 of 2014,
nor in the appellate judgment and order dated 16.01.2026 passed by the
Additional District Judge/F.T.C.-II, Bijnor in Rent Control Appeal No.
02 of 2023.
55. The concurrent findings recorded by the courts below on the
issues of maintainability, bona fide requirement and comparative
hardship call for no interference in exercise of supervisory jurisdiction
under Article 227 of the Constitution of India.
56. The petition lacks merit and is, accordingly, dismissed . There
shall be no order as to costs.
(Dr. Yogendra Kumar Srivastava, J.)
May 26, 2026
Arun K. Singh/RKK/-
Digitally signed by :-
RAJ KUMAR KANNAUJIA
High Court of Judicature at Allahabad