ORDER
1. This revision arises out of an application filed by the landlord for the ejectment of his tenant as far back as 1963. It is not necessary to detail the course of litigation. All that need be said is that on a revision being filed by the landlord in this Court (Civil Revision No. 74 of 1967), the case was remanded back to the Appellate Authority with certain instructions, which included the appointment of local commission for asking a report. A report was filed, which went in favour of the landlord and then a second report was asked for, which was received and objections were raised. While these objections were pending, an application was made by the tenant on 26th June, 1970 under Order 6, Rule 17, Civil Procedure Code, praying for an amendment being allowed in the written statement filed by the tenant before the Rent Controller by taking a plea of absence of a notice under Section 106 of the Transfer of Property Act. this amendment was allowed by the Appellate Authority and hence this revision filed by the landlord.
2. The contention of the learned counsel for the petitioners, in short, is that admittedly no plea for lack of notice under Section 106 of the Transfer of Property Act, was taken in the pleadings, nor was an application for amendment made throughout the proceedings that followed before the Appellate Court or before this Court in the revision mentioned above, or even in the Appellate Court after remand till the tenant took a chance to see if the report was in has favour and it was thereafter, at the fag-end of the proceedings before the Appellate Court, when the objections to the report were to be decided and the decision given, that the application for amendment as made. he urged that in these circumstances the defence of lack of notice under Section 106 of the Transfer of Property Act should be taken to have been waived and, consequently, the amendment allowed by the Appellate Court was unsustainable.
3. It is not necessary for me to go into details of the matter for the simple reason that there are authorities of this Court which apply to the facts of this case squarely. There is a decision of Pandit J. in Raj Kumar v. Gurmittender Singh, (1968) 70 Pun LR 672 where the learned Judge held that when in ejectment proceedings a plea of failure to terminate the tenancy by a notice under Section 106 of the Transfer of Property Act was not raised before the Rent Controller, the plea could not be raised subsequently before the Appellate Authority. This was noticed by a Full Bench in Bhaiya Ram v. Mahavir Parshad, (1968) 70 Pun LR 1011 =(AIR 1969 Punj 110 (FB),) That part of the observations made by Pandit J., which laid down that such a plea could be waived, was approved, but inasmuch as in Bhaiya Ram’s case, (1968) 70 Pun LR 1011 = (AIR 1969 Punj 110 (FB) ), the plea had actually been taken by the tenant in his written statement, the other part of the observations of Pandit J., that if such a plea is not taken before the Rent Controller, the same could not be taken up subsequently, did not come for consideration by the Full Bench.
4. However, Narula J. in Boota Singh v. Roshan Lal, 1970 Ren CR 895 = (AIR 1971 Punj 269), observed as follows :-
“Sitting in Single Bench I am bound even by the second part of the dictum of Pandit J. and following the same I have to hold that the tenants not having taken up the plea in question in their writtens statement, they are deemed to have waived the same.”
In Boota Singh’s case, 1970 Ren CR 895 = (AIR 1971 Punj 269) the written statement was filed on 4th November, 1966, in which the plea of failure to terminate the tenancy by a notice under Section 106 of the transfer of Property Act was not taken up and the Rent Controller decided the application in favour of the landlord on 20th October, 1967. It was before the Appellate Authority on 20th July, 1968, that an application under Order 6, Rule 17, Civil Procedure Code, for the amendment of the written statement to enable the tenant to take up his plea was made. This application was granted, but Narula J. set aside the order. At page 902 of the report, the learned Judge observed as follows:-
“Moreover, on the facts of this case, it is clear from the averments made in the application of the tenants under Order 6, Rule 17 itself that the tenants were fully alive to the objection which could be taken in this regard, but had intentionally not taken up the plea to that effect in the written statement as they did not “consider it worthwhile” to do so. The learned Appellate Authority had justified the leave granted by it to amend the writtens statement on the ground that no such notice was necessary according to the law in force in (since?) 1968 and the necessity of serving such a notice arose, only after the pronouncement of the Full Bench in 1968. This view is wholly erroneous. Such a consideration could be relevant if the law had been amended or changed. Interpretation of legal provisions by the High Court does not change the law, but merely aims at stating what the law has been at all relevant times.”
5. The facts in the present case are much stronger. Even if we take the date of the decision of Bhaiya Ram’s case, (1968) 70 Pun LR 1011 = (AIR 1969 Punj 110 (FB), the application under Order 6, Rule 17, Civil Procedure Code, was made in the present case nearly two years thereafter. There is no justification for this delay and the only inference that can be drawn is that even after the matter had been clarified by the Full Bench decision, the tenant did not care to apply for an amendment and this is a case in which the inference of this plea having been waived is inescapable.
6. An objection was taken by the learned counsel for the respondent that the Appellate Authority had the jurisdiction to decide this matter and could have allowed the amendment at any stage and that it should not be interfered with under Section 15 (5) of the East Punjab Urban Rent Restrict Act, 1949. This matter was also raised before Narula,, J. in Boota Singh’s case, 1970 Ren CR 895 = (AIR 1971 Punj 269) and the learned Judged held that such an order passed by the Appellate Authority would be an order passed during the proceedings taken under the Act within the meaning of Section 15 (5) of the East Punjab Urban Rent Restriction Act, and, in any case, under the supervisory jurisdiction of this Court under Article 227 of the Constitution. As already indicated, the order of the Appellate Authority is wholly unsustainable and the same can be set aside by this Court.
7. I, therefore, accept this revision, set aside the order of the Appellate Authority allowing the amendment and remand the case to the Appellate Authority to proceed with the same in accordance with law on the material already on the record. Counsel will direct the parties to appear before the Appellate Authority on 5th April 197, to take further date. As the case is already more than seven years old, the Appellate Authority will proceed with all possible expedition. The costs of this petitioner will be borne by the respondent.
8. Revision accepted.