MITTER, J. - (1.) THE following judgment of the court was delivered by
(2.) THIS is an appeal by special leave from a judgment of the High court of Gujarat passed in a Civil Revision Application arising out of a suit filed by the plaintiff respondent against the defendant-appellant to recover possession of certain premises situate in Surat. The facts are as follows. The appellant became a tenant of the respondent under a rent note executed on 27/02/1947 whereby rent was fixed at Rs. 40.00 per month and the tenancy was to be for a period of one year from 22/02/1947. After the expiry of the said period, the appellant continued as a monthly tenant on the same terms and conditions as were to be found in the rent note. He fell into arrears of payment of rent and the respondent sued him for eviction some time in 1951. The suit s eventually compromised by a petition put in court bearing date 16/09/1952. Under the terms of the compromise, the defendant continued as a tenant from 1/09/1952 on the terms and conditions of the rent note dated 27/02/1947: the original conditions in respect of rent also continued excepting that the rate was lowered from Rs. 40.00 to quote the words of the compromise-to `standard rent of Rs. 27.00 and `in the matter of taxes and interest also the defendant was to act in accordance with the conditions of the aforesaid rent note.` Paragraph 2 of the compromise petition contained an account of payments made by the defendant the final. result thereof being that it was agreed between the parties that the defendant had-paid Rs. 104-5-3 `which amount was to be rcmbursed by the plaintiff to the defendant when accounting the future payment of rent.` It should be noted here that according to the rent note of 1947 the tenant had agreed to pay the monthly rent of Rs. 40.00 together with interest at Rs. 0-12-0 per cent per annum in respect of any balance due for rent. Even after the compromise, the defendant fell in arrears again. The only payments made thereafter up to the institution of the second suit out of which the present proceedings have arisen were a sum of Rs. 250.00 on 19/07/1954 and Rs. 200.00 on 17/03/1955. The defendant did not make any payment to the plaintiff in rcspect of the permitted increases under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 from the 1 st of April, 1954; neither did he pay the taxes agreed upon. The plaintiff gave a notice to the defendant on 18/04/1955 demanding the arrears of rent and permitted increases in terms of the said Act and also terminating the tenancy of the defendant with effect from 31/05/1955 in terms of s. 106 of the Transfer of Property Act. The notice was received by the defeiidant on 21/04/1955. No reply was sent thereto nor was any payment made to the plaintiff. The suit for ejectment was filed on 15/03/1956 the ground thereof as laid in the plaint being that the defendant was in arrears of payment of rent and permitted increases and as such not entitled to the protection of the Act. In paragraph 6 of the plaint the dues under various heads were specified showing the arrears of rent, increases permitted thereon, interest in terms of the rent note and taxes for three years. It was pleaded by the defendant in the written statement that rent at Rs. 27.00 had been fixed by the court without going into the merits of the case and that standard rent or reasonable rent of the property in suit had to be fixed first and a preliminary issue in that respect should be framed. The defendant did not admit the claim to the arrears as laid in paragraph 6 of the plaint. He also pleaded that the notice of ejectment was not a valid one as the with section 12(3)(b) of the Act he passed a decree for eviction. The defendant went in appeal to the District Judge, Surat. He raised no contention even at the hearing of the appeal either in regard to the standard rent of the premises or in regard to interest on arrears of rent or municipal taxes or permitted increases. The finding of the trial Judge that the standard rent of the premises exclusive of permitted increases and water tax and sanitary tax was Rs. 27.00 per month was not challenged by the defendant. Nor was any question raised as to the finding that the defendant was liable to pay the plaintiff a sum of Rs. 123-4-0 as and by, way of interest on arrears of rent, a sum of Rs. 81.00 as and by way of water tax and sanitary tax for a period of three years prior to the date of the suit and a sum of Rs. 2-1-9 per month as and by way of permitted increases from 1/04/1954. The point regarding the validity of the notice of ejectment was however raised in the appeal. According to the judgment of the High court, `the only contention urged before the learned Assistant Judge was, whether the defendant had or had not complied with the requirements of section 12(3)(b) of the Rent Act.` The Assistant Judge concluded that there had been no compliance with that section and upheld the decree for eviction.
(3.) IN revision three contentions were. raised before the High court, namely, (1) as to the validity of the notice of ejectment; (2) whether s. 12(3)(a) or 12(3)(b) of the Act applied; and(3) whether the defendant was entitled to protection under s. 12(1) of the Act. The High court held that it was not open to the tenant to raise the question of the validity of the notice in a revision application. Moreover, there was no substance in it as the compromise petition expressly recorded that the tenancy in terms of it should commence on 1/09/1952. With regard to the second question the High court held that `it was common ground between the parties before the Assistant Judge that the case of the defendant fell within section 12(3) (b) of the Rent Act.` The learned Judge of the High court noted: (a) The trial Judge turned down the applicability of s. 12(3) (a) of the Act holding that the defendant had disputed the municipal taxes and permitted increases; (b) The, conditions under s. 12(3) (b) of the Act were not fulfilled; (c) No contention about the applicability of 12(3) (a) was raised before the Assistant Judge in appeal and he therefore did not go into the question at all; and (d) The conditions necessary for the applicability of s. 12(3)(a) were not present, as besides the amount of Rs. 27.00 mentioned in the compromise petition, the tenant had to pay other sums not due from him every month. The High court further found that after the first date of hearing of the suit on 3/09/1956 rent of the premises which fell due on 1/10/1956, 1/11/1956, 1/12/1956, 1/01/1957, 1/02/1957 and 1/03/1957 remained unpaid on 25/03/1957 when the suit was disposed of. As the d (1) The provisions of S. 12(1) of the Act were applicable throughout the hearing of the suit and down to the date of the final hearing. If at that stage it was found that the defendant had paid up all arrears due from him he could not be ejected. (2) Ev applying S. 12(3)(b) there was no default on the part of the defendant which would render him liable to eviction.;