P KOCHUKRISHNA PILLAI Vs. ACHI AMMAL AMMALU AMMAL

JUDGEMENT

(1.) The question that arises for decision in this revision petition is whether the sufficiency of a notice to quit which is shown to have been issued to a tenant in occupation of a building can be raised for the first time in appeal.

(2.) The petitioner was sought to be evicted out of a building which is in his occupation as tenant under the respondent on the ground that the petitioner kept the rent in arrears and that the respondent landlord wanted the building for her bona fide occupation. These contentions of the respondent were repelled by the Rent Controller dismissing the respondent's application for eviction. But, in appeal, the Appellate Authority found that the ground for eviction due to arrears of rent was sustainable and eviction was ordered. That order was also confirmed in revision by the Revisional Authority, which is the District Judge. Both the Appellate Authority as well as the Revisional Authority did not permit the revision petitioner to raise the contention in appeal that the quit notice Ext. P1 was not sufficient as not in conformity with the provisions of S.106 of the Transfer of Property Act. Both the authorities held that the revision petitioner could not be permitted to raise for the first time in appeal the contention regarding insufficiency of notice to quit. Hence this revision petition before this Court under S.115 of the Code of Civil Procedure.

(3.) It is conceded that the petitioner received Ext. P1, the notice issued by the respondent as condition precedent for eviction. Ext. P1 was relied upon even by the petitioner in support of the rest of his contentions before the Rent Controller. Yet the petitioner failed to take up any contention either in the counter statement which he filed before the Rent Controller or in support of his argument before him that Ext. P1 notice is not sufficient to quit as not in conformity with the provisions of S.106 of the Transfer of Property Act. It was only before the Appellate Authority for the first time the contention in this regard was raised. The learned counsel of the respondent argued that if he had notice of such a contention before the Rent Controller, he would have produced evidence regarding the sufficiency of notice or even a contract to the contrary consistent with the provisions of S.106 of the T. P. Act. So the learned counsel argued that the petitioner having failed to take up a contention before the Rent Controller, he could not be permitted to raise such a contention for the first time before the Appellant Authority.