MANGAT RAI Vs. MOHAN LAL

JUDGEMENT

(1.) THIS revision arises out of an application filed by the landlord for the ejectment of his tenant as far back as 1963. It is not necessary to detail the course of litigation. All that need be said is that on a revision being filed by the landlord in this Court (Civil Revision No. 74 of 1967), the case was remanded back to the Appellate Authority with certain instructions, which included the appointment of local commission for asking a report. A report was filed, which went in favour of the landlord and then a second report was asked for, which was received and objections were raised. While these objections were pending, an application was made by the tenant on 26th June, 1970 under Order 6, Rule 17, Civil Procedure Code, praying for an amendment being allowed in the written statement filed by the tenant before the Rent Controller by taking a plea of absence of a notice under Section 106 of the Transfer of Property Act. this amendment was allowed by the Appellate Authority and hence this revision filed by the landlord.

(2.) THE contention of the learned counsel for the petitioners, in short, is that admittedly no plea for lack of notice under Section 106 of the Transfer of Property Act, was taken in the pleadings, nor was an application for amendment made throughout the proceedings that followed before the Appellate Court or before this Court in the revision mentioned above, or even in the Appellate Court after remand till the tenant took a chance to see if the report was in has favour and it was thereafter, at the fag-end of the proceedings before the Appellate Court, when the objections to the report were to be decided and the decision given, that the application for amendment as made. he urged that in these circumstances the defence of lack of notice under Section 106 of the Transfer of Property Act should be taken to have been waived and, consequently, the amendment allowed by the Appellate Court was unsustainable.

(3.) IT is not necessary for me to go into details of the matter for the simple reason that there are authorities of this Court which apply to the facts of this case squarely. There is a decision of Pandit J. in Raj Kumar v. Gurmittender Singh, (1968) 70 Pun LR 672 where the learned Judge held that when in ejectment proceedings a plea of failure to terminate the tenancy by a notice under Section 106 of the Transfer of Property Act was not raised before the Rent Controller, the plea could not be raised subsequently before the Appellate Authority. This was noticed by a Full Bench in Bhaiya Ram v. Mahavir Parshad, (1968) 70 Pun LR 1011 = (AIR 1969 Punj 110 (FB),) That part of the observations made by Pandit J. , which laid down that such a plea could be waived, was approved, but inasmuch as in Bhaiya Ram's case, (1968) 70 Pun LR 1011 = (AIR 1969 Punj 110 (FB) ), the plea had actually been taken by the tenant in his written statement, the other part of the observations of Pandit J. , that if such a plea is not taken before the Rent Controller, the same could not be taken up subsequently, did not come for consideration by the Full Bench.