- (1.) This is a regular second appeal against the concurrent judgments of the Courts below decreeing the plaintiff's suit for possession of the shop in dispute. The salient facts are not in controversy and lie in a very narrow compass. Dalip Singh defendant-appellant, by means of a rent deed dated 3-8-1956, took the shop in dispute situated within the municipal limits of Luhdiana on rent from Rakha Ram plaintiff-respondent. The tenancy was for 11 months beginning from 1-8-1956 to 30-6-1957. The rent originally was Rs. 22/- per month which was later increased to Rs. 25/- P. M. The defendant-appellant did not vacate the shop after the expiry of 11 months, the original period of tenancy, whereupon the plaintiff served him with a notice to vacate the same by midnight of 31-3-1958. This notice was received by the defendant on 27-2-1958. As the defendant did not vacate the shop by the date stated in the notice, the plaintiff instituted the present suit for possession on 29-4-1958. Exemption from the East Punjab Urban Rent Restriction Act, 1949, was claimed by the plaintiff in view of a notification, issued in that behalf, by the Punjab Government in respect of the buildings constructed in the year 1955 which, according to the plaintiff, was the year when the shop in question was built. This suit was resisted by the defendant who denied that the shop had been built in 1955 and pleaded that it was actually constructed in 1956. On this ground he contended that the suit was barred by the East Punjab Urban Rent Restriction Act. The validity of the notice of ejectment was also assailed by him. The following issues were settled on the pleadings of the parties: 1. Whether the present suit is barred under the provisions of Urban Rent Restriction Act ?
(2.) Whether the notice served on the defendant is valid ? On issue No. 1, the trial Court after reproducing verbatim the notification dated 29-12-1955 observed that the building in suit was built in 1956 and therefore exempt from the provisions of the East Punjab Urban Rent Restriction Act. I appears that the relevant notification exempted all buildings constructed during the years 1956, 1957 and 1958. In view of this notification the Court gave an express finding that the East Punjab Urban Rent Restriction Act, 1949, did not apply to the shop in suit. Under issue No. 2 the Court upheld the validity of the notice. (2) On appeal, the learned Senior Subordinate Judge observed that the finding upon the question of the validity of the notice of ejectment had not been assailed before him. What was contended before the lower Appellate Court was that sufficient opportunity had not been granted to the defendant-appellant to adduce evidence to show that the building in question had been completed in 1956. For this contention reliance was placed on notification No. 10665-LB-53/957 dated 19-1-1957, by which the Governor of Punjab exempted for a period of 5 years, from the provisions of the East Punjab Rent Restriction Act, 1949, all buildings constructed in the years 1953, 1954 and 1955. The lower appellate Court, while dealing with this argument, also took notice of the notification No. 9186-LB (CH)-55/35123 dated 29-12-1955, published in the Punjab Gazette Extraordinary dated 31-12-1955, whereby the Governor of Punjab had exempted all buildings constructed during the years 1956, 1957 and 1958 from the provisions of the East Punjab Urban Rent Restriction Act, 1949, for a period of 5 years, with effect from the date of the completion of such building, and observed that the combined effect of the two notifications was that the building in dispute was exempt from the operation of the East Punjab Urban Rent Restriction Act whether it was constructed in 1955 as was the plaintiff's case, or in 1956, as was contended by the defendant. On this finding the appeal was dismissed.
(3.) On second appeal, Mr. Gujral, the learned counsel for the defendant- appellant, has contended that the notification, issued after the commencement of the tenancy in his client's favour, could not prejudicially affect his statutory right. His argument is that such notifications cannot operate retrospectively so as to take away from the tenants, their vested rights not to be ejected except in accordance with the law relating to eviction of tenants. I cannot sustain this contention. The tenancy admittedly began from the 1-81956. The notification dated 29-12-1955 had obviously been enforced long before the appellant's tenancy began. Besides, this plea does not seem to have been urged in either of the two Courts below. Even in the memorandum of appeal filed in the lower appellate Court I do not find any such ground. The lower appellate Court was not invited, to give any finding on this contention with the result that the facts necessary to sustain this argument as wholly missing from the present record. This apart, the right claimed is not such an inviolable vested right which is protected against legislative interference: The counsel has next contended that according to S. 2(a) of the East Punjab Urban Rent Restriction Act a building is defined to mean any building or part of a building let for any purpose etc. and under S. 3 of the Act the State Government is empowered to direct that the provisions of this Act may not apply to any particular building or any class of buildings etc. The argument of the learned Advocate is that unless and until the particular building or class of buildings actually exist no exemption under S. 3 can be declared by the State Government. Applying this argument to the present case, the counsel submits that if, as found by the trial Court, the building in question was build only in 1956, there could be no valid notification with respect to this building in December, 1955. Here again I cannot persuade myself to sustain this contention. This plea was also not taken by the defendant in the Courts below and no issue was framed covering this point with the result that there was no decision by either of the two Courts below. It is true that the trial Court has given a finding that the shop in question was constructed in 1956 but the lower appellate Court, in view of the two notifications mentioned by it, did not give any specific finding on the date of construction of the building in dispute. The plaintiff's case was that the shop had been constructed in 1955 and the defendant's contention, on the other hand, was that it was constructed in 1956. In order to decide the point now canvassed by Mr. Gujral certain facts have to be specifically found. Having not raised this precise plea in the two Courts below, in my opinion, the counsel has not right to urge it now for the first time on second appeal. This contention also thus fails.;