(1) Respondent 1 had sued appellant for eviction. Appellants by way of amendment of Written statement had contended that petition was not maintainable for lack of notice U/S 106 of T. P. A. The Controller held against them on the basis that they were statutory tenants. In appeal they did not specifically challenge this in the grounds of appeal to urge this as an additional ground. The Tribunal rejected this application and they appealed to the High Court against it.]. Para 11 onwards the judgment is :-
(2) Learned counsel for appellant assailed the impugned order on the ground that in considering the question whether the ground had been left out inadvertently or not, the Tribunal: took into account the considerations which were wholly irrelevant while ignoring those on record which were material and that in any event, the Tribunal completely misdirected itself by ignoring that the plea regarding. the maintainability of the petition was a plea of law, had been raised before the Controller and its decision would so to the root of the matter and, if not waived, may change the outcome of the proceedings in appeal and should, thereforee, have been allowed to be added to the Grounds of Appeal or otherwise to be raised at the hearing of the appeal.
(3) Learned counsel for the respondent however, submitted that the appellants. had waived the requirement , regarding notice or would be deemed to have waived it in their failure to raise it in the first reply to the petition for eviction and subsequently in their failure to incorporate it in the Grounds of Appeal and would hot be entitled to raise it at this stage and in any event, having been . waived, such a plea would have no impact on the outcome of the appeal because want of notice could not prove fatal to the petition if the requirement of notice had been waived by the tenant. He further contended that th& waiver was a question of fact and the present appeal was not maintainable because it did not raise any substantial question of law because the Tribunal was called upon to consider if the ground had been inadvertently left out and it has returned a finding that according to it, the cause for ommission was not any inadvertence but the state of the law when the appeal was filed iand that such an order being purely procedural, was even otherwise not appealable. It appears to me that the order of the Tribunal must be set aside.
(4) It is well settled that a notice terminating the tenancy is an essential pre-requisite for a valid petition for ejectment of a tenant and unless such a requirement is waived by the tenant, the ommission to serve notice of termination may be fatal to the petition. It is also not in dispute that though the plea was not incorporated in the original reply, it was duly incorporated in the amended reply with the leave of the Court and the appellants raised the plea at the hearing before the Controller and, for the reason with which we are not concerned at this stage, the Controller turned it down.
(5) Although the appellants sought permission to raise the ground in a manner- which was not in conformity with the law, and sought leave merely on the ground that it had been left out on account of inadvertance, clerical error etc., it is difficult to resist the conclusion that the plea sought to be raised is a plea of law, having its foundation in the amended reply and would, if not hit by rule of waiver, have serious impact on the outcome of the proceedings before the Tribunal. If that be so, the Tribunal clearly misdirected itself in ignoring the well settled law regarding leave to urge additional grounds, that grounds which were legal in character and would on some reckoning go to the root of the matter, should be allowed to be raised at any stage of the proceedings and that rule would be easily attracted particularly because the plea had been raised in the amended reply, was canvassed at the hearing and was dealt with and rejected by the Controller. It was immaterial if the omission to incorporate the plea in the Grounds of Appeal was occasioned by inadvertence or error as alleged by the appellants before the Tribunal or on account of the state of law at the time when the appeal was filed because even if it was not raised in view of the state of the law at the material time. the appellants would nevertheless be entitled to raise it at the hearing of the appeal subject of course to the right of the respondent to urge that either because of the appellants' failure to raise the plea in the original reply or their failure subsequently not to incorporate it in the Grounds of Appeal, they would be deemed to hive waived the requirement bat the right of the respondent to set up the rule of waiver would be no ground to turn down the plea of the appellants that they should be allowed to raise the additional ground with regard to want of notice.
(6) The contention urged on behalf of the respondent that waiver was a question of fact is wholly irrelevant for the present purpose because what is sought to be raised as an additional ground is the plea that the petition was not maintainable for want of notice and the question whether or not the requirement of notice bad been waived by the appellants by their past conduct would be a matter which the respondent would be entitled to urge at the hearing of the appeal as indeed the Tribunal would be entitled to consider but whether or not waiver is a question of fact, would not effect the maintainability of the present appeal or of the sustainability of the plea for leave to urge the additional ground.
(7) The contention urged on behalf of the respondent that the impugned order would be beyond the ambit of the appellate jurisdiction of this Court under Section 39 of the Act appears to be untenable because in considering the application of the appellants for leave to urge an additional ground, the Tribunal should have considered the question if having regard to the principles laid down in that behalf, leave to urge additional ground should or should not be granted but the Tribunal confined its consideration to the question if the omission was on account of inadvertence or clerical error or because of state of the law at the time when the appeal was filed. The Tribunal, thereforee, clearly misdirected itself by devoting no attention to the question if, having regard to the nature of the plea sought to be added, it should or should not be allowed to be urged and in ignoring that the plea had been raised in the amended reply, had been canvassed at the hearing before the Controller even if it had been left out by the counsel dealing with the matter at that time because of the state of the law then existing. The examination by the Tribunal of the reasons which led to the omission appear to me to be wholly irrelevant andthe question had to be considered by the Tribunal in the context of the propriety to allow an additional plea being raised and interference in Second Appeal in the circumstances would be clearly justified.
(8) The last contention urged on behalf of the respondent that the impugned order is not appealable is also without substance. An order whereby a party is prevented from raising a plea, which on some reckoning would have a serious impact on the proceedings and may have the result of non-suiting one of the parties, could not be said to be merely proce- ural as it would substantially affect the rights of the parties and would, thereforee, be appealable and in the view that this Court has taken in a number of matters following the decision of the Punjab and Haryana High Court, if an interlocutory order which is appealable was not challenged in appeal against it, it could not be made a ground of attack in the final order that may be made in the proceedings and that being so, if the appellants did not challenge the present order, the right of the appellants to make that order a ground of attack in the appeal against the final order that may be made by the Tribunal would appear to be in serious jeopardy. Reference may be made in this connection to the decision ofthe Punjab and Haryana High Court in the case of Durga Siwaroop v. Murari Lal 1964 P. L. R. 586 which has been followed in some of the cases in which the question arose before this Court. The cases that I am aware of in which this view was taken by this Court are Shrimsti Urmila Rani v. Shrimati Savitri Devi 1970 (2) R. C. R. 763, L. T. Thadani Vs . Yogeshwar Daval : 7(1971)DLT275 , Shrimati Sanyukta Uppal v. Shri Vidya Parkash 1972 R. C. R. 168 and Hukam Chand v. Smt. Kaushalya Devi and another, S. A. O. 131 of 1969 decided on August 25, 1972.
(9) In the result, the appeal succeeds. The order of the Tribunal is set aside and leave is granted to the appellants to urge the additional ground at the hearing of the appeal but without prejudice to the right of the respondent to set up a plea that either by their omission to incorporate it in the original reply or for their omission subsequently to incorporate in the Grounds of Appeal, the appellants would be deemed to have waived the requirement, on which I have advisedly expressed no opinion.