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Judgment
Hon''ble Dilip Gupta, J.—The tenants have filed this petition for quashing the order dated 5th August, 2010 passed by the Prescribed Authority by which the application filed by the landlord u/s 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act'') for release of the shop was allowed. The tenants have also sought the quashing of the judgment dated 10th October, 2011 passed by the Appellate Court by which the appeal filed by the tenants for setting aside the aforesaid order has been dismissed.
The application u/s 21(1)(a) of the Act was filed by the landlord on 7th December, 2007. In the written statement filed on 10th December, 2007, the tenants raised a plea that mandatory requirement of service of six months notice contemplated under the proviso to Section 21(1)(a) of the Act had not been complied with. Thereafter, an affidavit was also filed by the tenants that the said notice has not been served by the landlord. An application was also filed on 16th July, 2010 that this issue may be decided as preliminary issue. The Prescribed Authority ordered that it shall be decided alongwith main application filed by the landlord u/s 21(1)(a) of the Act. The Prescribed Authority, while allowing the application filed by the landlord u/s 21(1)(a) of the Act, also examined this issue and held that the tenants had waived their right in coming to this conclusion had relied on the decision of the Supreme Court in Martin and Harris Ltd. Vs. VIth Additional District Judge and Others, The Appellate Court has also confirmed this finding.
It is the submission of the learned counsel for the petitioners that in view of the decision of the Supreme Court in Nirbhai Kumar Vs. Maya Devi & ORs. 2009 (1) ARC 767, the services of six months notice is mandatory. It is also his submission that the tenants had not waived the service of the notice inasmuch as not only was a specific plea raised in the written statement but an affided followed by an application was filed for deciding this issue. It is also his contention that this ground ws also raised by the tenants in the appeal filed by them against the order passed by the Prescribed Authorty.
Prima-facie, the contentions advanced by learned counsel for the petitioners has force. In Martin & Harrins (supra), the Supreme Court observed that after the filing of written statement the tenant had kept quiet and had not even raised the issue in the appeal and nor had he pressed this issue during the course of hearing of the appeal.
Learned counsel for the petitioners states that the tenants are ready to pay rent at the enhanced rate of Rs. 500/-per month from 7th January, 2012 instead of Rs. 100/- per month.
Sri M.K. Gupta has put in appearance on behalf of respondents. It is his submission that the impugned orders do not call for any interference by this Court in view of the decision of the Supreme Court in Martin and Harris (supra).
The matter requires consideration.
Learned counsel for the respondent prays for and is granted four weeks'' time to file a counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.
List this petition for admission/hearing in the week commencing 23rd January, 2012.
In view of the submissions advanced by learned counsel for the petitioners, the petitioners shall not be evicted from the shop in dispute pursuant to the judgment dated 10th October, 2011 passed by the Appellate Authority provided the petitioners pay rent to the landlord at the rate of Rs. 500/-from 7th January, 2012 and continue to pay the same during the pendency of the writ petition.