H.B. Datar, J.
1. Petitioner in this case is the landlord who filed an application for eviction of the respondent under the provisions of Section 21(1) (a) and (f) of the Mysore House Rent Control Act before the Principal First Munsiff at Bangalore. In the said H. R. C Case No. 740 of 1965 there were two respondents D. R. Naidu and M. V. Venkatappa.
2. In Para 2 of his petition before the Munsiff the petitioner has stated that 'first respondent on 1-2-63 executed a lease agreement in respect of the schedule premises for the purpose of his film business which he was carrying on in the name and style of Shamprasad Movies on a monthly rental of Rs. 200/-payable on the 1st of every calendar month as agreed to be the date of commencement of tenancy period and the rents were being paid on that date'. It was further alleged that the second respondent was a sub-tenant under the first and that the said tenancy was illegal. In para 5 of the petition the petitioner has clearly averred that 'the petitioner on 12-6-1965 issued a notice to the 1st respondent calling upon him to pay the arrears of rent. The first respondent did not comply with the demand made by the petitioner nor sent a reply to the said notice and hence this petition.'
3. Respondent 1 who is the tenant did not appear or contest the application. It was only respondent 2 who was alleged to be the sub-tenant that appeared and contested the proceedings. In his objection statement, he admitted the allegations made in paras 1 and 2 of the petition. Regarding the suit notice, in para 4 of the objection statement he stated that 'regarding the allegations in para. 5 the second respondent submits that he is not aware of the notice being issued by the petitioner. This respondent alone is paying the rents regularly.' This was all the denial which was made in the objection statement.
4. The learned Munsiff framed points for determination and the two points that were framed are:
1. Whether the petitioner proves that the premises have been sublet by the 1st respondent to the 2nd respondent?
2. Whether the petitioner proves that the respondents are in arrears of rent; if so, how much?
It is important to note that the person who contested the application, namely respondent 2, never sought the framing of any issue regarding either the factum or the validity of the notice. Ultimatelythe learned Munsiff upholding the contentions of the petitioner on both the grounds, allowed the application under Section 21 (1) (a) and (f) of the Rent Control Act.
4A. Against that order, an appeal H. R. C. A. 207/69 - was preferred to the District Judge and the learned First Additional District Judge, Bangalore, by his judgment dated 29-1-1970, allowed the appeal on the sole ground that the landlord had not issued a notice to quit before filing his present application. It is important to note that on all other contentions, the claim of the alleged subtenant has been rejected. It is also interesting to note that before the appellate Court the original tenant was neither impleaded nor did he himself seek for his being impleaded as a respondent. The appeal was by the sub-tenant and his contentions were rejected. But the appeal was allowed on the ground that the tenant who was not before Court should have been given a notice and since there was no notice to him, there was no valid termination of the tenancy and therefore the application was not sustainable in law. The view taken by the learned District Judge was that jurisdiction is vested in an authority to pass an order for eviction, that the jurisdictional fact that must be established was that the landlord had terminated the tenancy and if that was not established, the eviction proceedings must fail. It is the correctness of this order that is challenged before this Court.
5. Several points have been mentioned before this Court to show as to how the judgment of the learned District Judge is unsustainable in law. It was firstly submitted that according to the allegations made in Para 2 of the petition which were accepted by the subtenant there was a lease agreement on 1-2-1963 and that lease agreement having not been registered, the case would fall within the ratio of the decision of this Court in Mohammad Khan v. Gopal Shetty, 1963-2 Mys LJ 494. It was next submitted that as the tenant became a statutory tenant, he does not require any notice for termination of his tenancy and for that position reliance was placed on the decision in A. Hasan Sab v. Kakubalappa, 1969-1 Mys LJ 295. It was then contended that it was not open to the appellate court to allow a new plea to be raised regarding the factum and validity of notice for the first time at the stage of arguments in appeal before it and that had greatly prejudiced the petitioner. Therefore It was contended that the order of the appellate court must be set aside and that of the trial court restored.
6. As against this the learnedAdvocate for the respondent, Sri Amble contended that the tenant had not been made a party in this revision petition and therefore, the order of the appellate court could not be set aside. He also relied upon the decision of this Court in Bipathumma v. Mariam Bibi, 1966-1 Mys LJ 162 and contended that a contractual tenant requires his tenancy to be terminated and as the tenancy had not been terminated, the petitioner cannot get an order for restoration of the property.
7. I first propose to dispose of the two contentions raised by the respondent and then deal with the several points urged by the petitioner. It may be seen, as earlier noticed, the sub-tenant did not implead the tenant before the appellate Court and the tenant neither contested the application nor challenged the order of the trial court. The subtenant having not himself impleaded the tenant as a party before the appellate court, it is not open to him to contend before this court that before the court hears and passes an order for eviction it was necessary that the tenant should be before court. The only person who challenged the order for eviction was respondent 2 and he got an order in his favour and it is that order that is being challenged before this court- In these circumstances, I am unable to accept the contention of the learned Advocate for the respondent that without the tenant being impleaded here, the present proceedings cannot go on.
8. Regarding the contention based upon the judgment of this court in 1966-1 Mys LJ 162 it is important to bear in mind that the condition precedent for invoking the principle laid down in this decision must first be satisfied and that is, that there is a contractual tenancy between the parties and not a statutory tenancy. As it will be clear from the records in the case, in 1963 there was a lease unregistered agreement. It is not the case of the original tenant or of even the sub-tenant that there were any fresh terms of agreement arrived at between the parties with the result that the present case falls within the principles laid down by this court in 1963-2 Mys LJ 494. In that case this court held that a person in occupation of property under an unregistered but compulsorily registrable lease, does not become a tenant from month to month and a notice terminating the tenancy under Section 106 Transfer of Property Act is not necessary, In the present case, it is admitted that the tenant came in possession of the property under the unregistered lease deed of the year 1963 and that lease being compulsorily registrable it was urged, the tenant does not become a tenant from month to month and therefore, a notice terminating his tenancy was not required to be issued.
9. When an averment was made In the application filed under Section 21 (1) and that allegation is not disputed, it is not necessary for the court to embark upon the question whether the notice to quit has or has not been given. The tenant who was in a position to contest the contention regarding the service of notice or the validity of the notice, was required to raise that contention and it he failed to raise such a contention, it is not open to him to have such a contention raised at a later stage. As already stated, the tenant at no time contended that notice of termination had not been given. 'If so, it is not open to the subtenant to come and plead before court that notice had not been given to the tenant and therefore, the tenancy is not duly determined. As already mentioned the factum or the validity of notice being a question of fact, was required to be specifically raised and if it was not raised, such a contention cannot be raised before the appellate court.
10. This view finds support from a judgment of the Calcutta High Court in Lalchand v. Union of India, : AIR1960Cal270 wherein it has been stated as follows:--
'If the provisions of law were waived in the course of trial, they cannot afterwards be said to be by way of objection taken or about to be taken upon the footing of a waiver. When the litigant had, without mistake induced by the opposite party, taken a particular position in the course of litigation, he must act consistently with it, specially, if to allow him to do otherwise would prejudice the opponent.'
It may be seen that in the trial court the entire proceedings went on the basis that there was no complaint either regarding the factum or validity of the issue of notice. It rejected all the contentions of the sub-tenant. But the appellate court allowed the appeal on the ground of validity of the notice to quit. In my opinion, the learned appellate Judge was entirely in error in allowing a new point of fact to be raised and deciding the appeal on that basis.
11. In so far as the reliance placed on the decision in 1969 (1) Mys LJ 295 is concerned, it may be seen that as held in 1963-2 Mys LJ 494, a person in occupation under an unregistered lease does not become a tenant with the result he will not require any notice. Therefore, since he is neither a tenant nor a statutory tenant, the principle laid down by this court in A. Hassan Sab's case, 1969-1 Mys LJ 295 is inapplicable. Similarly, the decision of the Supreme Court in Ganga Dutt v. Kartik Chandra Das, : 3SCR813 is equally inapplicable to the facts of the present case as, according to the judgment of this court in Mohammad Khan's case, 1963-2 Mys LJ 494 there is no tenancy at all. Thus, the non-issue of notice to quit is not fatal to the present case.
12. For the reasons stated above, this revision petition is allowed, the order of the District Judge is set aside and that of the Munsiff is restored with costs throughout. The respondent is granted three months' time to vacate the premises.