SUNDER DASS Vs. RAM CHAND

JUDGEMENT

(1.) This revision petition is directed against the order of the Appellate Authority, Bhiwani, dated June 6, 1975, whereby the order of eviction passed by the Rent Controller, Bhiwani, was set aside and the eviction application was dismissed.

(2.) The brief facts, which have a bearing on the controversy between the parties at this stage, are that eviction was sought by the landlord-petitioner on the ground that the arrears of rent had not been paid by the tenant-respondent. It was contested by the tenant-respondent. The case of the tenant-respondent in his written statement was that the entire rent due had already been paid before the eviction application had been filed. The eviction application was also contested on the ground that the notice as required under section 106, Transfer of Property Act (thereinafter called the Act), had not been served by the landlord-petitioner on the tenant respondent According to the Rent Controller, the tenant-respondent was in arrears of rent which had not been paid. So far as the service of the notice under section 106 of the Act was concerned, it was held that the service of the same was not necessary. Consequently, the order of eviction was passed on the ground of non-payment of arrears of rent. In appeal by the tenant-respondent, it was held by the Appellate Authority that notice under section 106 of the Act, was essential and proper notice had not been served. On this ground alone, the eviction application was dismissed by the Appellate Authority. Regarding the contention of the tenant respondent that the arrears of rent had already been paid though notice was taken of the contention of the tenant-respondent and the alleged written statement filed by him, yet the Appellate Authority thought it fit not to give any finding on the merits of this contention. It was only on the ground of non-service of a proper notice that the eviction order passed by the Rent Controller was set aside and the eviction application was dismissed.

(3.) The contention of the learned counsel for the landlord-petitioner that notice under section 106 of the Act, was not necessary to be served on the tenant-respondent is not without substance in view of the decision of their Lordships of the Supreme Court In V. Dhanapal Chestier Vs. Yasodai Ammal, 1979(2) R. C. J. 358 . As no decision was given by the Appellate Authority as to whether the rent had been paid by the tenant-respondent before the eviction application was filed or the tenant-respondent was in default of arrears of rent, there is no alternative but to set aside the order of the Appellate Authority and to remit the case to the Appellate Authority to decide the contention of the tenant-respondent regarding the payment of the arrears of rent on merits afresh. The tenant-respondent will also be entitled to challenge the order of eviction of the scent Controller on any other ground which may be available to him. The appeal filed by the tenant-respondent against the order of the Rent Controller which was disposed of by the impugned order, will be restored to its original number. The parties through their counsel, are directed to appear before the Appellate Authority, Bhiwani, on Jan. 14, 1980. In view of the circumstances of the case, there will be no order as to costs. Revision allowed