SHAFIQ AHMED Vs. CHANDER KANT

JUDGEMENT

(1.) Respondent 1 had sued appellant for eviction. Appellants by way of amendment of Written statement had contended that petition was not maintainable for lack of notice U/S 106 of T. P. A. The Controller held against them on the basis that they were statutory tenants. In appeal they did not specifically challenge this in the grounds of appeal to urge this as an additional ground. The Tribunal rejected this application and they appealed to the High Court against it.]. Para 11 onwards the judgement is :-

(2.) Learned counsel for appellant assailed the impugned order on the ground that in considering the question whether the ground had been left out inadvertently or not, the Tribunal: took into account the considerations which were wholly irrelevant while ignoring those on record which were material and that in any event, the Tribunal completely misdirected itself by ignoring that the plea regarding. the maintainability of the petition was a plea of law, had been raised before the Controller and its decision would so to the root of the matter and, if not waived, may change the outcome of the proceedings in appeal and should, therefore, have been allowed to be added to the Grounds of Appeal or otherwise to be raised at the hearing of the appeal.

(3.) Learned counsel for the respondent, however, submitted that the appellants. had waived the requirement , regarding notice or would be deemed to have waived it in their failure to raise it in the first reply to the petition for eviction and subsequently in their failure to incorporate it in the Grounds of Appeal and would hot be entitled to raise it at this stage and in any event, having been . waived, such a plea would have no impact on the outcome of the appeal because want of notice could not prove fatal to the petition if the requirement of notice had been waived by the tenant. He further contended that th& waiver was a question of fact and the present appeal was not maintainable because it did not raise any substantial question of law because the Tribunal was called upon to consider if the ground had been inadvertantly left out and it has returned a finding that according to it, the cause for ommission was not any inadvertance but the state of the law when the appeal was filed iand that such an order being purely procedural, was even otherwise not appealable. It appears to me that the order of the Tribunal must be set aside.