S.N. Andley, J.
(1) This second appeal has been filed by the tenant against the order dated March 18, 1968 of the Rent Control Tribunal, Delhi, by which he upheld the order of eviction which had been passed by the Additional Rent Controller.
(2) Respondent No. 1 had filed the petition for eviction on two grounds-(1) that the appellant had failed to pay the arrears of rent and (2) that the appellant had sublet the premises comprising of a shop to respondent No 2. The plea on the ground of non-payment of rent does nto survive as the arrears of rent were deposited in the trial court in accordance with the provisions of the Act.
(3) In so far as the ground for subletting of the premises is concerned, both the Courts below have come to the conclusion that the appellant had sublet the premises to respondent No. 2. This being an appeal under section 39 of the Delhi Rent Control Act, 1958, it would be competent if it involves some substantial question of law.
(4) The question whether a person is a tenant or a sub-tenant is normally a question of fact and a finding of that fact by the lower Courts would be binding upon this Court in Second Appeal.
(5) Mr. Bishambar Dayal, learned counsel for the appellant, however, argues that the finding that respondent No. 2 is a subtenant of the appellant is based upon no evidence. In so far as the Tribunal is concerned, it has come to the conclusion that there has been subletting of the premises in dispute on the basis of (1) the report of the bailiff to the effect that goods of respondent No. 2 are lying in the shop in question; (2) a payment of Rs. 225.00 per month to the appellant by respondent No.2 for the period from 11-12-63 to 10-4-64, (3) statement of Yograj Singh, a jamadar in the locality, to the effect that he had nto seen the appellant in the shop for more than six months and that respondent No. 2 had been carrying on cloth business therein during that ' period ; (4) the absence of any agreement between the appellant and respondent No. 2 with regard to the payment of commission and (5) the absence of the books of account of the appellant or of respondent No. 2 to show and prove transactions which might lead to the conclusion that the arrangement between the appellant and respondent No. 2 was one as between principal and agent. In view of these considerations which have weighed with the Tribunal in coming to the conclusion that the shop in question had been sublet by the appellant to respondent No. 2, it is nto possible for me to accept the contention on behalf of the appellant that the finding of the Tribunal as to subletting is based upon no evidence. The conclusion of subletting is possible on the circumstances which have been taken into consideration by the Tribunal and that being so, the finding of the Tribunal remains a finding of fact which cannto be interfered with under subsection (2) of section 39 of the said Act.
(6) Mr. Bishambar Dayal then contends that the statutory notice terminating the tenancy had admittedly nto been served by respondent No. 1 upon the appellant before the filing of the petition for eviction and, thereforee, respondent No. 1 was nto entitled to an order for eviction. For this contention he relies upon the decision of the supreme Court in Re. Manujendra Dutt v. Purneda Prosad Roy Chaudhury. The contention certainly finds support from this decision of the Supreme Court but the question is whether the contention has been raised by the appellant and, if it has nto been raised, whether it should be allowed to be raised. It is contended on behalf of the appellant that this contention raises a pure question of law and , appellant is entitled to raise it even in second appeal apart from the fact that the contention was raised before the Tribunal also.
(7) In paragraph 18 of the petition for eviction, respondent No. 1 has stated that 'no notice is required nor given.' In reply, the appellant has stated in his written statement as to this averment that it needs no reply. These pleadings can lead to only one conclusion and that is this that the parties were nto at issue in so far as the service of a notice od the necessity for a notice were concerned.
(8) The appellant urges that the law which prevailed before the aforesaid Supreme Court Judgment was that the Rent Control Act being a self-contained Act, no notice under section 106 of the Transfer of property Act was necessary to be served before filing a petition under the said Act and that was why the pleadings of the parties did nto touch this matter. Even if the prevailing view at the time of the filing of the present petition for eviction was that no notice under section 106 of the Transfer of property Act was necessary, that would nto be any justification for nto raising a plea about the necessity of such a notice. Far from that, the appellant has, in this case, really admitted the stand of respondent No. 1 that such a notice was nto necessary. In these circumstances, the disallowance of this plea by the Tribunal when it was sought to be raised before him cannto be held to be objectionable. It may be noted that apart from seeking to raise this plea as an argument, no application for amendment of the written statement, was made by the appellant before the Tribunal.
(9) Mr. Bishambar Dayal urges that it is a plea which involves a pure question of law. It is difficult to agree with that contention. Notwithstanding the 'application of section 106 of the Transfer of Property Act, there may be tenancies where it is nto necessary to serve any notice under this section-for example a tenancy for a fixed period. thereforee, it is nto correct to say that the question whether a notice is necessary or nto is a pure question of law much less a substantial question of law, and that being so, it is difficult to permit the appellant to raise this question now even though this question was sought to be raised before the Tribunal.
(10) I do nto find any merit in this appeal which is dismissed with costs.