Nawal Kishore, J. - (1.) THIS is a defendant's second appeal against the judgment of the learned District Judge upholding that of the trial court by which the plaintiff's suit was decreed.
(2.) THIS appeal arises out of a suit for possession of the house in dispute by ejectment and recovery of Rs. 250/- on account of arrears of rent. The house was taken on rent, according to the allegations of the plaintiff, in October, 1947 on a rent of Rs. 50/-per mensem. The rent was paid up to March, 1949 but not thereafter. The defendant being in arrears for seven months, the plaintiff instituted a suit for his ejectment and payment of arrears as stated above, on 25th of November, 1949. In the plaint, there was no specific prayer for ejectment on the ground that the house was required by the plaintiff for his personal residence although there is some reference to the inconvenience which was being experienced by him on account of his residence in the house occupied by him at the time of the institution of the suit. A notice was referred to in the plaint as having been sent to the defendant calling upon him to vacate the house and pay up the arrears. The defendant pleaded that he had taken the house on rent but the rent agreed upon and fixed between the parties was Rs. 20/-per mensem and not Rs. 50/- per mensem as alleged by the plaintiff and, therefore, according to this rate he had paid up to October, 1949. In reply to the notice sent by the plaintiff demanding arrears at the rate of Rs. 50/- per mensem, the defendant took up identical position. Both the courts below have found that the rent fixed was Rs. 50/- per mensem and that, accordingly, the defendant was in arrears. The learned counsel for the appellant has urged in the first instance that notice of ejectment as required by law had not been served upon the defendant. The contention is that according to section 106 of the Transfer of Property Act, a lease of immovable property which is from month to month is terminable on the part of the lessor or lessee by fifteen days' notice expiring with the end of a month of the tenancy. It was conceded that this plea was not specifically taken in the Jawabdawa but it is urged that it is a pure question of law and accordingly, can be put forward at any stage of the litigation. This, however, is not a correct legal position. In the lower appellate court, this aspect of the case was not developed at all. It was held in 1923 Mad. 990 (1) (K. Ittihan vs. Govindan Nambudri and others) following 42 I. C. 655 (2) (Shah Wali Ahmad vs. Hussaini Begam) that where the defendant in a suit for ejectment did not raise in the lower appellate court the point as to whether the notice to quit on which the plaintiff relied was legal and sufficient, the point could not be raised in second appeal in the High Court. Accordingly, the contention of the learned counsel to the above effect must be repelled. It is next contended that according to section 13 of the Rajasthan Premises (Control of Rent and Eviction Act of 1950) a decree evicting the tenant should not be passed unless the court is satisfied that the tenant had neither paid nor tendered the whole of the arrears of rent due within one month of the service on him of a notice of demand from the landlord or unless the tenant paid in court on the first day of hearing, the arrears of rent together with the costs of the suit. Reference in this connection is made to sec. 26 of the Act according to which if a decree for eviction is not based on any of the grounds mentioned in section 13 and under the circumstances specified in the Act, it shall not be executed. Apart from the fact whether this Act is applicable to the present case, which was instituted before it came into force, it is obvious that the appellant has not either tendered the arrears of rent within one month of the service on him of a notice of demand or paid them in this court on the first day of hearing. Accordingly, the question raised by the learned counsel hardly arises. Lastly, it is urged that the learned Judge of the trial court was wholly unjustified in closing the defendant's evidence. After hearing the learned counsel for the parties, it appears to me that there is force in this ground. The learned District Judge has dealt with this question but has failed to consider all the facts in a proper perspective. It appears that on 30th of March, 1951 when the defendant applied for summonses being issued to various witnesses, he filed a list containing the names of eight witnesses. On 24th of April, 1950, the statements of certain witnesses were recorded and the position with regard to four witnesses, namely, Ajitlal, Walayatiram, Amarsingh and Prabhudayal was that while the summons issued to Ajitlal had not been returned at all, summonses issued to the remaining three witnesses had come back unserved. A summons was ordered to be issued to Ajitlal again. As regards the others, an order was passed to the effect that they shall not be summoned as the defendant had not helped the process-server in the service of summonses upon these witnesses as he had been directed to do by an order of the court dated 4th of April, 1950. So far as Ajitlal is concerned, it was found on 22nd of May, 1950 that the summons issued to him had come back with an endorsement that since he was an employee in the Meteorological Department, summons should be sent to him through the Regional Commissioner in charge of that department at New Delhi. Without giving any reasons, the learned Munsif ordered that summons should not be issued to him again. To me it appears to be obvious that the reasons assigned by the learned Munsif for closing the defendant's evidence were not at all sufficient. It is plain that summonses issued to the three witnesses mentioned above had come back unserved and accordingly, it was the duty of the court to issue summonses to them again. So far as Ajitlal is concerned, the endorsement at the back of the summons gave the proper indication but it was ignored and his statement was shut out rather arbitrarily. In the circumstances, there seems to be no alternative but to send this case back to the trial court with a direction that it will issue summonses on a proper application made by the defendant to the above mentioned four witnesses again, and dispose of the case afresh after recording their statements. I accordingly accept this appeal, set aside the decree of the court below and send the case to the trial court as above. Costs will abide the result. Learned counsel have been directed to inform their clients that they shall appear in the court of the Munsif City Bikaner on 7th of May, 1961. .;