JAIN, J. - (1.) THIS special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 has been filed by Jagannath Joshi against the order of learned Single Judge dated 13. 1. 1993 dismissing his writ petition.
(2.) THE facts which are necessary to be noticed for the disposal of this special appeal briefly stated as follows : - THE petitioner took on rent three Kothries No. 12, 13 and 21 situated beneath the temple of Shri Raj Ratan Bihariji, Bikaner at the rate of Rs. 2. 75/- per month in the year 1953-54. A notice (Ex. P-1) was issued to him on 30-7-1983 by the respondent No. 1, whereby the tenancy of the appellant was terminated which was received by him on 12. 8. 1983. THE respondent No. 1 moved an application on 22. 8. 1984 under the provisions of the Rajasthan Public Premises (Eviction of the Unauthorised Occupant) Act, 1964 (hereinafter referred to as 'the Act') mentioning therein that the tenancy of Jagannath Joshi has been terminated by the Dy. Commissioner. However, neither the rent due has been paid by the tenant nor the Kothries were vacated by him. Rather they were sub-letted to Madan Lal who is using them for commercial purposes and he being in unauthorised occupation of these premises is liable to be evicted. A notice under section 4 (1) of the Act (Ex. 3) was also served on the appellant on 13. 11. 1984. The petitioner-appellant filed reply dated 24-11-1984 to the notice denying the allegation of sub-letting and non-payment of the arrears of rent, levelled against him. Madanlal also filed a reply on 26. 11. 1984 stating that notice is uncalled for as he has no connection with the Kothries and has also denied his possession over the disputed Kothries. As the appellant did not appear, the respondent No. 2 passed an order to take ex-parte proceedings against the petitioner vide his order dated 29. 1. 1985 and after considering the material on record passed an order dated 27. 3. 1985 holding him to be an unauthorised occupant and issued notice under section 5 (1) of the Act. The petitioner-appellant preferred an appeal before the Appellate Officer-Distt. Judge, Bikaner which was rejected on 21. 10. 1992. Being aggrieved with the order of learned Appellate Officer, the petitioner-appellant filed a writ petition before this Court raising certain points. The learned Single Judge has observed that the petitioner has not raised these points before the learned Distt. Judge and new points cannot be allowed to be raised for the first time in the writ jurisdiction and further observed that the grounds which were argued before the Distt. Judge need not be interfered as they were properly dealt with. Furthermore, the learned Single Judge has also observed that arguments raised before the Appellate Officer were never agitated before him and dismissed the writ petition. Hence, this special appeal. Mr. Bhoot, learned counsel for the petitioner-appellant has submitted that the notice issued to the appellant was not a valid notice and without terminating the tenancy he cannot be evicted. He has also submitted that the entire action taken against the appellant is without jurisdiction. He has placed reliance on Rameshwar & Anr. Vs. Rameshwar & Anr. (1) and Mohanlal vs. State (2 ). We have heard learned counsel for the appellant and perused the record as well as the case law. In Rameshwar & Anr. Vs. Rameshwar & Anr. (supra) in a suit for ejectment of two shops which were given on lease for a period of three years on fixed rent, the document of lease was inadmissible for want of registration. The trial court held that the alleged document of lease being unregistered was inadmissible in evidence and could not be referred to for deciding the terms on which the lease was granted, but as the defendants admitted the tenancy, they would be considered to be tenants-at-will, and no formal notice beyond a simple demand was necessary to terminate such tenancy. It was observed that it was not necessary to decide whether the notice was or was not in accordance with the Act. This Court held that even in cases where the defendant admits having received notice but denies its legality the burden of proof stile lies on the plaintiff, because service of a valid notice to quit is essential part of the plaintiffs cause of action in a suit for ejectment.
(3.) IN Mohanlal Vs. State (supra), a rent note was written by one Nandlal but the disputed rented shop was run by Mohanlal, who was in possession of it. Even after the death of Nandlal, Mohanlal was paying rent to the Department. Mohanlal, the petitioner was asked to attend the office by Estate Officer but notice under section-4 (l) of the Act was not issued to the petitioner and Ambalal, partner of the shop. This Court, while repelling the contention of Government Advocate that notice under section 4 (1) of the Act was not necessary, held that a show cause notice must be served on the alleged unauthorised occupant and allowed the writ petition. So far as the contention of Mr. Bhoot that the notice Ex. 1 is not in accordance with the provisions of Section 106 of the Transfer of Property Act, it is true that a legal point which goes to the root of the case can be raised at any time but the point which the petitioner now wants to agitate that the notice has to expire with the end of the month of tenancy could be raised in the year 1983 before the authorities below and that could have been decided. Despite there being sufficient opportunities he did not agitate this point in his reply to the notice before the Estate Officer as well as before the Appellate Officer, the Distt. Judge before whom he preferred an appeal, so also it was not pressed in so many words even before the learned Single Judge. Before the learned Single Judge he only argued that the notice Ex. 1 terminating the tenancy of the petitioner is no notice in the eye of law and the learned Single Judge has observed that as the points which the petitioner wants to raise before this Court were never agitated before the Estate Officer or before the learned Lower Appellate Court and, therefore, no relief can be granted to him in exercise of extraordinary jurisdiction of this Court without showing any error apparent on the face of the record. The learned Single Judge has also observed that if the points were not agitated before the learned Lower Appellate Court then the order of the Appellate Authority cannot be set-aside on fresh grounds in this writ jurisdiction when they were not agitated before the first Appellate Court. In view of this, the appellant cannot be allowed to raise this new point in special appeals as the scope of special appeal is limited and while sitting in the appellate jurisdiction, we can only entertain the points which have been argued by the appellant before the learned Single Judge. The case of Rameshwarlal & Anr. vs. Rameshwarlal (supra) pertains to a suit for ejectment is not helpful as in that case the point of Section 106 was very much before the learned trial court but that was not decided and under the circumstances, the same was considered by this Court in second appeal whereas the present case relates to public premises and governed by Rajasthan Public Premises (Eviction of the Unauthorised Occupant) Act, and as stated above, this point was not raised before, the courts below. However, in cases where the tenancy is created for a fixed period (in this case 11 months) then after efflux of time the tenant becomes a statutory tenant and, therefore, no notice under section 106 of the Transfer of Property Act is required to be served before filing an ejectment suit. In this regard reference may be made to Kajodmal vs. Baluram, (3) and Kunj Behari Vs. Achary Hari (4 ). As regards the contention of notice under section 4 (1) of the Act, 1964 the proforma given in the Rules of 1966 framed under the Act of 1964 does not require that notice must end with the end of month of tenancy. The only condition imposed in the notice under section 4 (1) of the Act is that in the show cause notice if any against the proposed order or before such date as is specified in the notice being a date not earlier then ten days from the date of issue of notice. In the present case admittedly a notice under Section 4 (1) of the Act has been served on the appellant and it is not in dispute that the notice did give the appellant a time of 10 days for eviction. In this view of the matter, the decision rendered in Mohanlal Vs. State (supra) is not helpful as in that case notice was issued intimating the date of proceeding whereas in the present case sufficient notice to show cause has been issued to the appellant as to why he should not be evicted. Thus, this contention has no substance. ;