H.L. Anand, J.
(1) This Second Appeal by an alleged tenant is directed against an appellate order of Tribunal setting aside the order of the Controller dismissing the landlord's petition for eviction and remanding the case for further trial.
(2) The landlord sought eviction on the around of default in payment of rent, bona fide personal need for a residence. The petition was resisted, inter alia, on the grounds that there was no relationship of landlord and tenant, and that the alleged tenancy had not been determined in accordance with law. At the trial, notice, Exhibit A.W. 2/4, was proved in support of the plea that the tenancy had been determined even though the landlord set up a case in the petition that the tenancy was for a fixed term of 11 months, and that it was unnecessary to terminate it, the period having expired. The landlord relied on the cheques by which rent had been admittedhy paid which was sought to be explained by the alleged tenant on the plea that these payments were made on behalf of his father, who was the tenant in respect of the premises. The landlord did not produce any other evidence of relationship between the parties but put the original agreement to the alleged tenant in cross-examination This agreement which is of November 22,1970, and purports to create an 11 months tenancy with effect from November, 24, 1970 was allegedly entered between the landlord and and the tenant and purports to bear the singnature of the tenant. The document was marked Ax, but was neither proved nor exhibited. The tenant denied having anything to do with the document or the tenancy. Even though the case of landlord has been that the 11 months tenancy having determined by efflux of time. no notice was necessary and the tenant was merely statutory tenant or a tenant who was holding over, interestingly enough, notice, Exhibit A.W. 2/4, which is dated 4th June, 2973, in terms states that the tenancy starts on the first of each English month and ends on the last day of the same English month. The notice required the tenant not only to pay arrears, but also to vacate 'immediately on the expiry of one month of the receipt' The Controller dismissed the petition on the short ground that even if the original tenancy came to an end in November, 1971, as is made out by document marked Ax a fresh tenancy came into existence because the tenant was allowed to continue in the premises necessitating its termination by a valid notice and since this tenancy was said to be from 1st day of month to the end of the month, the aforesaid notice was not valid. Before the Tribunal, a plea was raised that the landlord should be allowed to prove the agreement marked Ax so as to establish the relationship of landlord and tenant. The Tribunal accepted the plea, set aside the order of the Controller and remanded the case to the Controller for decision according to law after recording further evidence with regard to relationship between the parties.
(3) I have heard learned counsel for parlies and it appears to me that this appeal must succeed. It is true that before the Controller evidence was led on all the issues and there may, thereforee, be some justifiable criticism on the failure of the Controller to determine the issues other than the issue with regard to validity of the notice. It is equally true that the relationship between parties was a basic question to be determined in proceedings before a Tribunal of limited jurisdiction because unless the relationship existed, the proceedings would not be maintainable. There can, however be no escape from the conclusion that the notice, Exhibit A. W 2/4. being invalid, whether or not one takes into account the fixed term tenancy that was allegedly created by a document marked Ax, it would be futile at this stage to let the trial proceed particularly having regard to the fact that a civil suit has since been filed by landlord where the question of relationship is one of the issues. The notice is absolutely quiet with regard to the agreement or the 11 months 197 tenancy, but contains the admission on the other hand that there was a month to month tenancy starting from the 1st of the month and ending with the end of the month. Notice is of dated June 4, 1973. The 11 months tenancy with was supposed to have commenced from the 24th of November, 1970, was determined on the 23rd of the month on the expiry Ii months. Now, this is true that if it was fixed term tenancy, it was determined on the expiry of the period by efflux of time obviating the need for its termination. But when one looks at the notice, one finds a clear admission of the existence of the tenancy which commences on the, 1st and ends with the end of the month. It follows, thereforee that the notice is invalid whether or not there was initially a fixed term tenancy, and that being so, since the petition for eviction must fail on that ground, any finding with regard to relationship would have been futile because if such a finding had been given and the petition for eviction was nevertheless dismissed, it would not constitute rest judicata because the tenant could not in that case have challenged it in appeal. Such proceedings would, thereforee, be futiie particulary where the landlord must file fresh proceedings in accordance with law and the question of relationship between the parties could to gone Into either in such proceedings or of a suit which the landlord has already filed for the recovery of rent.