JUDGMENT
Prakash Krishna, J.
1. This is landlord’s petition filed against the judgment and order dated 29th of October, 1988 passed by the First Additional District Judge, Moradabad in S.C.C. Revision No. 11 of 1982 whereby the court below has remanded the case to the court of J.S.C.C. with specific direction to decide whether a single suit in respect of two tenements was maintainable on the basis of single notice in the present case.
2. The case has a chequered history and was remanded twice by the revisional court to the trial court and thus, the litigation which was initiated in the year 1981 is still surviving.
3. The petitioner is, admittedly, landlord of house No. 47/A9 situate in Mohalla Banbataganj, district Moradabad. The said accommodation consists of one room, latrine, verandah on the ground floor and one room on the first floor, of which the respondent No. 3 (who died during the pendency of the writ petition) was the tenant on a monthly rent of Rs. 37. The S.C.C. suit No. 207 of 1981 was instituted for the ejectment of respondent No. 3 (hereinafter referred as the tenant) on the ground that he is in arrears of rent since 1st of January, 1981 and has failed to pay the same in spite of notice of demand dated 12th of October, 1981 served on. 14th of October, 1981 and has made material alterations and has disfigured the tenanted building and is, thus, liable for ejectment under Clauses (a) and (c) of Sub-section (2) of Section 20 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the U.P. Act No. 13 of 1972). The suit was contested by denying the plaint allegations and the deposit was made under Section 20(4) of the Act, 13 of 1972. The trial court by its judgment and decree dated 14th of May, 1984 found that the tenant is not liable for ejectment on the ground of default in payment of arrears of rent as he has deposited the requisite amount under Section 20(4) of the Act. However, the decree for ejectment was passed on the finding that the tenant has made material alterations on the first floor of the tenanted accommodation, as detailed in the judgment. The said judgment and decree was challenged by filing Civil Revision No. 124 of 1984 by the tenant. The revisional court in para 7 of its judgment found that the tenant has made the additions and alterations and structural changes in the accommodation in his possession without the permission of the plaintiff landlord and is thus liable for eviction on the said ground. It was found that the tenant has constructed two rooms on the roof of the tenanted accommodation and has demolished the staircase and has constructed one bathroom at this side and has also reconstructed a kitchen in its area. During the pendency of the revision an application for amendment of written statement was filed by the tenant respondent to incorporate para 18A in the written statement. By means of the said paragraph the tenant inserted a plea that the lower portion of the house was allotted to him on 4th of October, 1950 and the first floor of the house was allotted to him on 11th of October, 1955, the rents of these two tenements were Rs. 12 to Rs. 13 per month respectively. The landlord added a tin shed and the rent was increased to Rs. 16 and to Rs. 25 and as such the present suit is not maintainable.
4. The revisional court although confirmed the findings recorded by the trial court on all counts, but allowed the revision and remanded the matter to the learned trial court with the direction that the amendment sought for to be permitted to be incorporate in the written statement and to proceed with the trial of the case after giving an opportunity to the landlord to file replication and recording evidence of both the parties. However, it was made clear by it that the trial court will have no jurisdiction to open the findings given earlier which have been confirmed by him in the revision vide order dated 3rd of August, 1985.
5. After remand the written statement was amended accordingly and after filing of the replication, issue No. 6 to the effect whether the disputed accommodation was allotted to the defendant through two different allotment orders and the present suit in respect of the accommodations is not maintainable, was framed.
6. The trial court proceeded to decide the said issue in the light of the evidence produced by the parties. After recording the finding and accepting the case of the respondent tenant that two tenements were let out to him separately in pursuance of the two allotment orders referred to above held that the suit was maintainable. It proceeded further to redecide the issue No. 2 notwithstanding the clear cut decision given by superior court, i.e., the revisional court that the point which has already been decided shall not be reopened by the trial court. The issue No. 2 reads as follows:
Whether the defendant has caused substantial damages to the building and has caused structural alterations diminishing its value and utility and disfiguration of building? If so its effect.
7. Under the aforesaid issue No. 2 it was held that the defendant tenant did not make any material alterations in the ground floor of the accommodation and has not incurred liability of eviction in respect of that portion, modified the relief claimed in the plaint and decreed the suit for ejectment from the first floor with proportionate cost and dismissed for the rest vide its judgment and decree dated 12th of February, 1987.
8. The aforesaid judgment and order was challenged by the plaintiff landlord as well as by the defendant tenant by filing S.C.C. revision Nos. 11 of 1987 and 17 of 1987. The revisional court by the impugned order allowed both the revisions and remanded with specific direction to the trial court to decide whether the suit in respect of two tenements was maintainable on the basis of single notice in the present case. The revisional court, however, in the impugned judgment set aside the finding recorded by the trial court in its judgment dated 12th of February, 1982 under issue No. 2. It was of the view that the trial court held that the suit is maintainable without making much discussion in the judgment and the trial court committed illegality in invoking the theory of waiver on the ground that it was incumbent upon the trial court to decide the maintainability of the suit in view of specific direction given by the revisional court. The revisional court observed that “it was not open for the trial court to look back”.
9. Feeling aggrieved by the aforesaid order of remand only the landlord has come up in the present writ petition. The tenant respondent has not filed any writ petition.
10. During the pendency of the writ petition the respondent No. 3, Bramha Swarup, the tenant has expired and to substitute his heirs a substitution application No. 7745 dated 21st of March, 1994 was filed with the allegation that in view of Section 3(a)(t) of U.P. Act No. 13 of 1972 the tenancy right has been inherited by his son Harish Vardhan Rastogi only who was living in the house in dispute. Notice was issued to Shri Harish Vardhan Rastogi but no counter-affidavit to the substitution application has been filed. He is represented by Shri Khaleel Ahmad Ansari, advocate. In this view of the matter the said substitution application is, allowed and Shri Harish Vardhan Rastogi is substituted in place of his father Shri Brahma Swarup.
11. The only question which survives in the present writ petition is as to whether the suit giving rise to the present writ petition for ejectment, recovery of arrears of rent and damages in view of para 18A is added by way of amendment is maintainable or not. All other issues regarding structural changes, disfigurement and diminishing the value and utility of the building are all recorded in favour of the petitioner landlord and against the tenant, and have become final as the tenant has not come forward to challenge these findings.
12. To appreciate the controversy involved in the present case, it is desirable to have a look to the written statement itself. The respondent tenant in para 1 of the written statement has stated that the present rent is Rs. 37 per month and the rented accommodation on the ground floor consists of a room, verandah and courtyard plus kitchen and on the first floor there was a room plus temporary room and that the tenancy commenced on the first of English calender month. The receipt of notice has been accepted. Only this much has been stated in paras 14 and 18 that illegal notice dated 12.10.1981 was received on 14.10.1981 and its correct reply was sent on 9.11.1981, without pointing out any illegality in the notice. In para 17 assertions regarding deposit of rent in court have been made. The tenant respondent has not pointed out nor established any illegality in the notice. It may be noted that issue No. 3 with regard to the question of validity of notice was framed. Under that issue according to the tenant he was not in arrears of rent and the notice terminating tenancy being in praesenti, is invalid. Rejecting the contention of the respondent tenant it was decided by the trial court earlier to the order of remand that the notice is valid. The said finding was not set aside or disturbed in the revision preferred by the tenant or at any subsequent stage of the litigation. This was state of affair, prior to the amendment in the written statement.
13. The contents of the para 18A which were introduced by way of amendment for the first time in the written statement before the revisional court and it reads as under:
18A. That the lower portion of the house was allotted to the revisionist on 4.10.1950 on vacation by it Brahma Devi and the rent of the ground floor was Rs. 12/2 p.m. The first floor of the house was allotted to the tenant on 11.10.1955 on vacation by Sri Ghanshyam Das at a monthly rent of Rs. 16 the landlord added a tin shed and rent was increased to 16 p.m. to Rs. 25 p.m. As such the present suit is not maintainable.
14. On a plain reading of the aforesaid paragraph it is evident that the only plea raised by the defendant tenant was that on account of two separate allotment orders allotting two tenements in his favour of which the petitioner is landlord, “the suit is not maintainable”. To decide the said plea the matter was remanded to the trial court and the trial court by its judgment and decree held that the suit was maintainable. It is really unfortunate that the revisional court remanded the matter again by the impugned order on the premises that the issue was decided by the trial court by making a brief discussion in the judgment. It is difficult to appreciate the said approach of the revisional court. Even assuming that the discussion is brief one in the judgment of trial court, it being a legal issue, remand was not necessary. Moreover, it is in the nature of a legal plea and the relevant findings were recorded by the trial court. The revisional court remanded the matter back to the trial court finding it convenient and just to avoid adjudication by itself.
15. Learned single Judge in the case of Ram Chandra v. Judge. Small Causes Court 1984 ALJ 143, held that “one suit against two tenements of the same tenant cannot be filed. It shall be bad for joining two different causes of action”. The correctness of the aforesaid legal position was doubted and was not followed subsequently by other learned Judges of this Court including in Smt. Samudri Devi v. Shanti Prakash Gupta 1984 UP RCC 561. To set the controversy at rest the matter was referred to Division Bench in Jamiluddin v. Samsuddin AIR 1999 All 150 : 1998 (4) AWC 384. The Division Bench after taking into consideration the relevant judgments on the point held that such a suit is maintainable in view of Rule 3 of Order II of the Code of Civil Procedure. The judgment delivered in the case of Ram Chandra v. Judge, Small Causes Court (supra) was held per incurium and was overruled as is clear from para 10 of the report. In this view of the matter, the order of remand passed by the court below cannot be sustained. The controversy involved in the present case is squarely covered by authoritative pronouncement of this Court in Jamilluddin (supra). The impugned order of remand, thus, on merits also cannot be sustained.
16. The question regarding validity of notice was not raised even by the defendant through paragraph 18A of the written statement and the revisional court exceeded in its jurisdiction while passing the impugned order and remanding the matter to the trial court to decide the question of legality of the notice.
17. Additionally, question of validity of notice cannot be raised, if not raised earlier, for the first time before a revisional court. In the written statement the defendant tenant except making a general allegation that the notice is illegal has failed to point out any illegality therein. During trial the validity of notice was challenged on the different grounds and it was held valid and this finding stands confirmed by the earlier judgment of revisional court. The validity of the notice cannot be challenged on altogether with a new ground, not even pleaded in the written statement. The Apex Court has gone to the extent that the validity of the notice cannot be challenged even by way of amendment as it shall be deemed that the defendant has waived the illegality, if any, in the notice, in Gauri Shanker v. Hindustan Trust (Pvt.) Limited and Ors. . The plea of validity of notice was not raised in the written statement initially filed by the tenant. The said plea was introduced by way of amendment in the written statement merely after eight years. The amendment application was allowed and the order permitting the amendment in the written statement was not challenged by the plaintiff landlord. When the matter reached to the Apex Court, the Apex Court held as follows:
The respondent waited for 8 years before seeking an amendment to include a plea on. the absence of such a notice. The trial court did allow the amendment but in our opinion no such amendment should have been allowed on account of the gross delay and laches on the part of the respondent in raising such a plea. In such matters it must be remembered that if a technical plea of the nature sought to be raised had been raised at an earlier stage the appellant could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice. By not raising that plea for nearly 8 years a great deal of prejudice was caused to the appellant. It has been pointed but by Mr. Chagla on behalf of the respondent that an appeal was competent against the order allowing amendment under Section 38(1) of the Rent Act and since no such appeal was filed the order allowing amendment became final. Without expressing any opinion whether such an order could be appealed against and on the assumption that an appeal was competent the question still remains whether the learned Judge of the High Court while allowing a point to be raised after it had 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.
18. Similar view has been reiterated in Parwati Bai v. Radhika , which reads as below:
The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under Section 106 T.P. Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity.
19. In this view of the matter the impugned order is indefensible.
20. Viewed from any angle the impugned order cannot be sustained and the same is hereby set aside. Since all the other issues were decided in favour of the petitioner, and the suit for ejectment was decreed by the trial court in respect of the first floor and dismissed for the ground floor on the basis of the finding recorded under issue No. 2 which has been set aside by the revisional court, the petitioner is entitled to a decree of ejectment of the respondent No. 3 in respect of the entire tenanted accommodation besides the other reliefs granted by the courts below.
21. The writ petition is allowed. The S.C.C. Suit No. 270 of 1981 for ejectment, recovery of arrears of rent and damages for use and occupation stands decreed against the respondent No. 3 with costs assessed at Rs. 5,000.