S.S. RANJALKAR Vs. MANGALAGIRI KHAJAMIAH

JUDGEMENT

(1.) This is a revision, under section 26 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act (XX of 1954) against an appellate order of the District Judge, Secunderabad, confirming the order of the Rent Controller.

(2.) The facts which have culminated in this revision may be briefly stated. The respondent is the owner of a Mulgi comprised in premises Nos. 3272 and 3273, Rashtrapathi Road, Secunderabad, and the petitioner is its tenant on a monthly rent of Rs. 75/- (H.S.). It appears that the respondent had previously made unsuccessful attempts to have the petitioner evicted, but welfare now concerned in this revision with an application filed by the respondent on the 16th June, 1955, before the Rent Controller, Secunderabad. The grounds on which the respondent sought the eviction of the petitioner were substantially that the petitioner was in arrears of rent within the meaning of Sub-section (2) of Section 10 and that he was a wilful defaulter. The petitioner contested the application for eviction. He denied that he was in arrears of rent or that he was a wilful defaulter. He pleaded that the respondent was evading to receive the rent when offered and that therefore, he was obliged to send the same by money order and that these remittances were also refused. On a consideration of the evidence adduced before him, the Rent Controller reached the conclusion that the petitioner was a wilful defaulter. On this finding, he directed that the petitioner should be evicted from the premises on or before the 28th July, 1957. Against the order of the Rent Controller directing his eviction, the petitioner preferred an appeal to the District Judge, Secunderabad, the appellate authority under the provisions of the Rent Control Act. The appellate authority confirmed the decision of the Rent Controller. Hence, this revision.

(3.) Mr. Gopalrao Ekbote, learned counsel for the petitioner, has contended that by reason of the fact that the respondent had not given the notice to quit as required by section 111 (h) of the Transfer of Property Act, the Rent Controller had no jurisdiction to grant eviction. It is fairly conceded by the learned counsel for the petitioner-tenant that this ground of objection had not been raised in answer to the petition by the landlord for eviction and that it was not raised even before the appellate authority. It is contended by Mr. Vaidyanathan, learned counsel for the landlord, that the omission to raise this objection at any anterior stage precludes the petitioner from raising it now. Though this contention is not without force, I have allowed Mr. Gopalrao Ekbote to argue the point as it raises a question of law.