BRAHAM PARKASH Vs. SHITAL PARSHAD

JUDGEMENT

(1.) The tenant-petitioner has filed this revision petition against the order of the Appellate Authority, Gurgaon, dated January 30, 1980, whereby the order of the Rent Controller, dated November 10, 1976, directing his ejectment was maintained.

(2.) The premises, in dispute consist of shop situated in Faridabad. The application for ejectment was filed on October, 29, 1975, under section 13(2)(v) of the haryana urban (Control of Rent and Eviction) Act, 1973 (hereinafter called the Act), inter-alia on the ground that the tenant had ceased to occupy the building for a continuous period of four months without reasonable cause. Prior to that ejectment application, the landlord had filed another eviction application against the tenant on the sole ground of the non-payment of rent. That application was dismissed by the Rent Controller vide order dated, October 17, 1974. In appeal, the parties entered into a written compromise, Exhibit PRW4, dated August 25, 1975. By virtue of that compromise, the rent was to be paid at the rate of Rs. 20/- per month with effect from July 21, 1975 onwards whereas the rent for the earlier period was to be at the rate of Rs. 9/- per month. consequently in view of the above-said compromise the appeal was dismissed. In the ejectment application, out of which the present revision petition has arisen, the ejectment of the tenant-petitioner was sought inter-alia on the grounds of non-payment of rent at the rate of Rs. 9/- per month from November, 1, 1973 to July 20, 1975, and at the rate of Rs. 20/- per month with effect from July 21,1975, onwards. The tenant petitioner, tendered the arrears of rent on the first date of hearing. In the written statement filed on behalf of the petitioner, the other allegations of the land-lord respondent were controverted. At that time, it was the Sub-Divisional magistrate, Ballabgarh, who was exercising the powers of the Rent Controller under the Act. It appears tha he did not frame any issues, but on the basis of the evidence adduced by the parties, he found that the tenant-petitioner had ceased to occupy the demised premises for a continuous period of four months without reasonable cause and consequently passed the order of ejectment against him. In appeal by him, he was allowed to produce additional evidence at the appellate stage and, thus, he examined four witnesses including himself. Later on, the Appellate Authority, vide its order dated May 16, 1979, framed three additional issues and directed the Rent Controller to send a report thereon, after giving necessary opportunity to the parties to produce their evidence. Those additional issues were to the following effect :

(3.) Whether the plea contained in the additional issues Nos. 1 and 2 has itself been waived ? If so, its effect ?