DALIP SINGH Vs. TOTARAM

JUDGEMENT

(1.) THESE two petitions under Article 227 of the Constitution of India arise out of proceedings under Section 7 of the M.B. Sthan Niyantran Vidhan Samvat 206 for the assessment of reasonable annual rent of a shop.

(2.) DALIP Singh made an application on 14th March 1950 to the Rent Controller, Gonad alleging that he was a tenant of a shop belonging to non -applicants, Totaram and Gangaram in the town of Gohad for about twenty years; that formerly he had been paying Rs. 2/4/ - as monthly rent but since 14th October 1949 the land enhanced it to Rs 13/ - and that that rent was excessive. It was prayed that fair rent be assessed. The landlords opposed this application. After recording evidence produced by the parties, the Rent Controller by his order dated 23rd July 1953, assessed Rs. 7/ - per month as fair rent of the shop. As both the parties were dissatisfied with that decision, they filed cross appeals before the District Judge, Bhind. The learned District Judge dismissed both the appeals. Being aggrieved by the decision of the appellate authority, both the parties have come to this Court under Art. 227 of the Constitution.

(3.) THIS contention cannot be allowed to be raised here because it has been taken for the first time in this Court. In their written statement filed before the Rent Controller, the landlords did not take that objection at all. As has been held in Madhav Rao vs. Ram Bharose (1955 M.B.L.J. 1530) the objection must be deemed to have been waived and cannot be taken up now. It has also, been held in A.I.R. 1952 Nag 213 (Secretary of State vs. Sheoramjee) that the objection as to want of statutory notice under Section 80 of the Civil Procedure Code could be waived and once it is not taken at the earliest opportunity, it could not be allowed subsequently and it amounts to estoppel by conduct. In fact that point is now well settled. The Privy Council decision reported in A.I.R. 1914 P.C. 140, on which Shri Mishra relies, it is laid down that the plea of want of jurisdiction can be raised at any stage. But that is not precisely the point before us. The Privy Council decision on the question of waiver of notice required under Section 80 of the Civil Procedure Code is the one reported in 74 I.A. 223 (Vellyan Chettiar vs. Government of Madras). In our opinion that authority applies to this case as the principle is the same.