MANOHAR LAL Vs. SADHU RAM

JUDGEMENT

(1.) THIS revision petition has been filed by a landlord under Section 15(5) of the East Punjab Urban Rent Restriction Act, No. 3 of 1949 (hereinafter briefly referred to as the 'Rent Act') against the order of the Appellate Authority, Hissar, allowing the Respondent -tenant to take up the objection, for the first time at the appellate stage, that the Petitioner landlord had failed to serve a notice of termination of the tenancy in terms of Section 106 of the Transfer of Property Act, No. IV of 1882 (hereinafter briefly referred to as the 'Property Act'). The Appellate Authority, relying on the recent Full Bench decision of this Court in Bhaiya Ram v. Mahavir Parshad , I.L.R. (1969) I P&H 132 :, 1968 P.L.R. 1011., upheld this objection of the Respondent -tenant and accepted his appeal to set aside an order of eviction granted by the Rent Controller on the ground of non -payment of rent, on the Petitioner -landlord's application under Section 13(2)(i) of the Rent Act. The ejectment application filed by the Petitioner -landlord has, therefore, been dismissed by the Appellate Authority leaving the parties to bear their own costs.

(2.) THERE have been recent changes in the case law on the subject of service of notice of eviction on the tenant before the filing of an ejectment application by the landlord and the position when the pleadings were filed by the parties before the Rent Controller was very much different with the result that these pleadings were not drafted to suit the present state of law as it has emerged after two recent Bench decisions of this Court in Sawaraj Pal v. Janak Raj , I.L.R. (1969) 1 P&H. 440 :, 1968 P.L.R. 720., and Bhaiya Ram v. Mdhavir Parshad (1). A different view had been taken in two Single Bench decisions in Raj Kumar v. Major Gurmitinder Singh, 1968 P.L.R. 672., and Jag jit Rai Shatma v. Bihari Lal Guliani 1969 Rent Control Journal 139., but the Bench decisions in Sawaraj Pal's case, I.L.R. (1969) 1 P&H 440 :, 1968 P.L.R. 720., and Bhaiya Ram's case (1), were followed by the same Judge in a later ruling in Smt. Gargi Devi v. Som Datt, 1969 Curr. L.J. 926. The decisions in the cases of Raj Kumar, 1968 P.L.R. 672, and Sawaraj Pal, I.L.R. (1969) 1 P&H. 440 :, 1968 P.L.R. 720., were given almost simultaneously during the same month and either of these cases could not be noticed in the other, but the Full Bench decision in Bhaiya Ram's case (1), was brought to the notice of the Hon'ble Judge when he decided Jagjit Rai Sharma's case, 1969 RCJ 139., and he was pleased to observed that his decision in Raj Kumar's case, 1968 P.L.R. 672., had been approved by the Full Bench in Bhaiya Ram's case (1), and that the Appellate Authority had, therefore, rightly disallowed the prayer of the tenant to amend the written statement at the appellate stage to take up the objection about the absence of service of notice of eviction by the landlord before the filing of the ejectment application against the tenant. A different view was, however, taken by the Hon'ble Judge in Gargi Devi's case, 1969 Curr. L.J. 926., where the Appellate Authority's order rejecting the tenant's application for amendment of his written statement to take up the plea of absence of a notice of termination of the contractual tenancy was set aside on the ground that there was No. waiver on the part of the tenant in spite of the late stage at which his application for the amendment of the written statement had been made. Reliance had been placed on the Division Bench ruling in Sawaraj Pal's case, I.L.R. (1969)1 P&H 440 : 1968 P.L.R. 720., and the Full Bench decision in Bhaiya Ram's case (1). The main contention of the Learned Counsel for the Petitioner, Shri Jain, in this case is that the contractual tenancy had already been terminated by forfeiture when the present ejectment application on the ground of non -payment of rent was filed against the Respondent -tenant and that n6 notice of eviction was necessary because the Respondent was continuing in possession of the premises only as a statutory tenant. Reliance is placed on a certain compromise, arrived at between the parties in a similar ejectment application filed earlier during the course of the same year.

(3.) IT is the common ground of the parties that the Respondent tenant failed to pay up the balance of the arrears in accordance with the terms and conditions of this compromise. The present ejectment application on the ground of non -payment of rent was, therefore, filed on 2nd December, 1966. Reliance was placed on a condition of the original rent note to claim advance rent for a period of 6 months and a breach of the terms and conditions of this rent note has been alleged in paragraph 2 of the ejectment application. There is No. allegation in the ejectment application that any forfeiture of the tenancy had taken place on 29th May, 1966, because of the tenant's default in the payment of the balance of the arrears in accordance with the compromise deed, Exhibit P.W. 5/A, or that the landlord had determined the lease on the ground of any such forfeiture. The rent note, Exhibit P 1, dated 15th May, 1960, was initially for a period of 6 months, but gave the tenant an option to continue in possession on the old terms after the expiry of that initial period. As already observed, this ejectment application had not been framed so as to suit the position as brought about by the recent changes in the case law. The cause of action according to paragraph 4 of the ejectment application had accrued to the landlord from 29th April, 1966 and not on 29th May, 1966, which was the date of default leading to the alleged forfeiture of the tenancy which is now set up as a ground for the termination of the contractual tenancy prior to the filing of the ejectment application.