TMI Blog1972 (4) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 1, 1958. The deed of compromise was signed by Krishan Lal and all the other parties concerned. On May 26, 1958 a decree was passed in accordance with the compromise. On June 12, 1958 the appellant gave notice to the respondent company to pay rent to him with effect from January 1, 1958. A copy of this notice was sent to Krishan Lal as well. On July 7, 1958 the appellant sent a reminder to the respondent to expedite the sending of the reply or to discuss the matter with him personally. On July 17, 1958 the appellant demanded by means of a letter the rent due apart from the supply of certain information with regard to the measurements of the building and land in possession of the respondent. A reply was sent by D. Sanghi Managing Director of the respondent company dated July 18, 1958. He wrote, inter alia that regarding the rent for the month ending on 30th June 1958 the matter had been referred to Krishan Lal and on receipt of his instructions in writing the rent shall be paid accordingly. By means of a letter dated July 23, 1958 Krishan Lal wrote to two tenants including the respondent that the factory in which they were tenants had gone to the share of the appellant Gauri Shan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant filed an application for eviction of the respondent on the ground of non-payment of rent. Krishan Lal and Hari Shanker were Impleaded as pro forma respondents to the petition. On Nov. 30, 1959 a written statement was filed on behalf of the respondent-company by D. Sanghi in his capacity as the Managing Director. The relationship of landlord-tenant was denied between the appellant and the company but no plea was taken that the notice to quit had not been served or that it was defective. It appears that the proceedings before the Rent Controller dragged on for several years. On October 23, 1967 for the first time the respondent applied under Order 6, Rule 17, Civil Procedure Code, for permission to amend the written statement so as to introduce the plea of want of notice to quit. That application was allowed by the Rent Controller on the ground that only a question of law was involved although the appellant seriously contested the grant of the prayer relating to the amendment at that stage. 3. It may be mentioned that the appellant had applied under Section 15 of the Delhi Rent Control Act 1958 for deposit of rent but the respondent company filed objections denying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The other question which appears to have been argued before the Tribunal was the effect of non-compliance with the Order made under Section 15(4) of the Rent Act. It was conceded before the Tribunal that the tenant did not deposit the arrears of rent within the period of two months of the receipt of the notice of demand sent by the landlord. It was urged on behalf of the present appellant before the Tribunal that the protection granted to the tenant from eviction from the demised premises could be availed of by him only if he complied strictly with the Order made under Section 15(4) read with Section 15(1) of the. Rent Act in respect of his liability to deposit the arrears of rent and rent accruing after the date of the making of the Order under Section 15(4). The Tribunal followed a judgment of the Delhi High Court and upheld the contention raised on behalf of the present appellant. In paragraph 15 of the Order the Rent Control Tribunal stated as follows: No other point having been urged before me, the result is that the appeal fails.... 5. The present respondent, namely, the tenant filed an appeal to the High Court under Section 39 of the Rent Act. Sub-section (2) of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge. He set aside the Order of the Rent Controller and the Rent Control Tribunal directing eviction of the tenant on the ground that there was no legal and valid notice terminating the contractual tenancy. 7. It seems to us that the learned Judge did not bear in mind certain salient facts and circumstances as also the well settled legal principles in entertaining and deciding points in appeal which had not been raised or which had been expressly abandoned before the lower Court. It is true that a question not agitated before the lower appellate Court or expressly given up there can be allowed to be raised if it is a pure question of law but in permitting the same to be done the has to consider whether in exercise of proper and judicial discretion such a point should be permitted to be agitated when it has been conceded or abandoned before the Court below. While giving permission to argue that point the Court has to look at all the facts and circumstances, the conduct of the parties seeking to raise that point is of great importance. In the present case as soon as the premises in dispute fell to the share of the appellant in 1958 by virtue of the compromise decree in the suit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been abandoned before the Rent Control Tribunal should or ought to have taken this fact into consideration and in combination with other facts should have disallowed any argument on the question of the invalidity of the notice. In our judgment the course the litigation between the parties had taken and the manner in which the plea was sought to be raised by an amendment after eight years of the institution of the eviction petition and further the abandonment of any contention based on that plea before the Rent Control Tribunal were more than sufficient to persuade the Court that any argument based on the absence of a valid notice should not have been allowed. 8. Mr. Chagla has, pointed out that after the judgment under appeal was delivered an application for review was filed by the appellant. In the judgment dated March 17, 1971 it has been pointed out by the learned Judge in paragraph 6 that grounds 18 and 19 of the Memorandum of Appeal filed before the Tribunal contained contentions relating to the validity of the notice. This is what the learned Judge proceeded to say: I have noticed the fact in my judgment that the consideration of the question of the legality and vali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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