- (1.) This petition under section 15(5) of the East Punjab Urban Rent Restriction Act arises out of the following facts. The premises in dispute were leased out in favour of the respondent on a monthly rental of Rs. 45/-. It was alleged that the respondent did not pay the rent from August, 1967, upto date and was liable to be ejected on that score. The respondent denied these allegations and stated that though the rent was originally fixed at Rs. 45/- per month but afterwards on an application made by him the fair rent of these premises was later on fixed by the Rent Controller at Rs. 17.33/- per month with effect from December 8, 1906, onwards, and urged that the rent of the premises should have been calculated at this rate. He also asserted that he had spent a sum of Rs. 428/- on the repairs of the premises and tendered Rs. 33/- as rent which according to him was outstanding with effect from May 31, 1971, up to the date of the petition. He also tendered Rs. 2/- as interest and Rs. 15/- as costs. This rent was accepted by the petitioner under protest. 2. The learned Rent Controller framed the following issues :- 1. Whether the respondent is liable to eviction on the ground of non-payment of rent ?
(2.) Whether a valid notice terminating the tenancy has been given. If not its effect. 2. On issue No. (1) he held that the respondent failed to prove that he had spent any amount on the repairs of the premises. Consequently, the tender made by him was held to be against the provisions of law On issue No. (2), the learned Rent Controller held that no argument had been advanced on that point and so the same would be deemed to have been given up by the respondent. In appeal, the learned Appellate Authority came to the conclusion that the petitioner-landlord had not put the tenancy an end by serving a notice under section 106 of the Transfer of Property Act and that the mere omission of the counsel for the respondent to raise arguments on the issue of notice did not mean that that point had been given up.
(3.) The learned counsel for the petitioner has cited Raj Kumar v. Major Gurmitinder Singh, 1968 70 PunLR 672 for the proposition that when the issue regarding notice is waived in the trial Court, it cannot be raised for the first time in appeal. There is no quarrel with this proposition of law. As has been found by the learned Appellate Authority, this point was not given up by the respondent before the learned Rent Controller. What happened was that his learned counsel failed to address any argument on this point. Such an omission on the part of the learned counsel cannot be equated with the waiver of such a plea. I am of the view that the learned Appellate Authority acted properly in allowing the appeal of the respondent and deciding the case against the petitioner. There is no merit in this revision.;