P L D 1964 (W (PLP)

The tenant went up in appeal to the learned District Judge of Hyderabad who observed that the order of the learned Rent Controller was justified, that there was no support to the appellant's case that he was actually ill on that day, and, therefore, in these circumstances the appellant tenant had deliberately defaulted in the deposit of the amount resulting in non‑compliance with the Rent Controller's orders dated the 24th of September and the 9th of October 1961. On these grounds, he dismissed the tenant's appeal.

4. In the present second appeal, the first contention raised on behalf of the tenant is that the Rent Controller had no jurisdic tion to proceed in the matter for the reason that the appellant was protected under the provisions of proviso (b) of subsection (1) of section 30 of the Act for a period of three years from the date the notice of transfer was received by him. It is further con tended that under clause (1) of subsection (3) of section 30 of the Act, it is necessary for the transferee to send a notice of demand to the tenant by registered post, acknowledgment due, for the payment or tender of the amount of rent or arrears of rent due for any period after the transfer, and that only when Mach notice is sent, the period of throe months mentioned in this clause comes into play, and if no rent is paid within those three months, only then the tenant is liable to forfeit the protection given by section 30 of the Act. It was finally contended that there has to be a fresh notice of demand every time the arrears of rent accumulate and every time the period allowed to the tenant would be three months for the payment of these arrears. On the basis of these contentions, the argument is that in the present case no such notice having been served with each successive default, the tenant continues to be protected under section 30, and the Rent Controller acting under the ordinary law of the land had no jurisdiction to adjudicate between the parties.

5. On behalf of the respondent it was objected that a question of jurisdiction cannot be allowed to be raised at this late stage in the proceedings. This contention, however, does A not appear to me to have any substance in view of the dictum in Mongal Muchi v. Abu Musa Mustafa and others (P L D 1958 Dacca 26) to the effect "When a question of law is raised for the first time in a Court of last resort, upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent, but expedient, in the interest of justice, to entertain the plea." I am in respectful agreement with these observations and would therefore, proceed to consider the question of jurisdiction raised on behalf of the appellant.

6. I find that the contentions raised by the learned counsel for the appellant have no force. In the first place, the notice served by the transferee on the 6th of January 1961, is a com posite notice, firstly intimating that the property had been transferred to the respondent in an open unrestricted auction held by the Settlement Authorities, and in the second place, demanding arrears of rent ft7cLthe tenant, and finally requesting him to execute a proper rent note in the respondent's favour. It seems to me that this notice clearly satisfies the requirements of proviso (u) to subsection (1) and clause (1) of subsection (3) of section 30 of the Act. The notice of demand contemplated in clause (1) to subsection (3) is only one notice for the arrears relating to the period after the transfer, and does not appear to me to relate to every successive default. It is clear that the intention of the Legislature was to provide for allowing a reason able time to the tenants to clear the arrears of rent accruing in favour of the transferee, and not to so materially alter the relation ship of landlord and tenant that even in cases of monthly tenancies every time a default accrues, a notice of three months has to be given. The result, therefore, is that in the present case, notice of transfer and notice of demand having, been given simultaneously, and the appellant having defaulted m the payment of the arrears within the period of three months from the date of the notice, he has forfeited the protection allowed by section 30 of the Act, and his case is to be governed by the ordinary law of the land. The learned Rent Controller therefore had jurisdiction to proceed in this matter.

7. It was next contended that the learned Rent Controller had erred in calculating the arrears of rent due from the appellant tenant to be Rs. 720, when in paragraph 4 of the application the landlord himself stated that "The appellant has paid only Rs. 100, and as such he is in arrears of three months rent after the rent note, and Rs. 20 has been paid out of a total arrears of Rs. 480 payable for the period before the rent note." The argument is that under the written agreement entered into between the parties on the 16th of May 1961, as supplemented by the oral agreement referred to in paragraph 3 of the application the appellant was called upon to pay only Rs. 100 per month, consisting of Rs. 80 as the current rent and Rs. 20 as instalment towards the payment of arrears. As he had paid Rs. 100 in July, on the date the learned Rent Controller made his order for depositing the arrears of rent, only three months arrears at the rate of Rs. 100 per month were due from the appellant. 8. 1 think there is force in this contention. Subsection (6) of section 13 of the Ordinance under which the Rent Controller acts in cases of the present kind, provides that "In proceedings under this section, on first day of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him." It will be seen, therefore, that the deposit required from the tenant is to be of "all the rent due from him", as regards the arrears arc concerned. In the present case, although the arrears had amounted to Rs. 480 at the time the parties entered into an agreement of tenancy on the 16th of May 1961, those arrears were not to fall due at the rate of more than Rs. 20 per month This position clearly emerges from the statements made by the respondent transferee himself in paragraphs 3 and 4 of his applica tion made to the Rent Controller on the 9th of August 1961. Such being the case, the rent which was due from him by way of arrears was only Rs. 300 for a period of three months com mencing after the agreement of tenancy. As this rent had been deposited by the appellant on the 9th of October 1961, the date originally fixed for such deposit there was no question of any further default on his part. On this view of the matter, I would hold that the appellant had not defaulted in carrying out the order for depositing the arrears of rent due.

9. It was argued on behalf of the respondent that although under the agreements of tenancy, written as well as oral, the arrears were to fall due only at the rate of Rs. 20 p.m., yet the appellant had accepted the order of the Rent Controller fixing Rs. 720 as arrears instead of Rs. 300 as now contended. It is, therefore, argued that in view of the appellant having accepted that amount, he cannot now be permitted to agitate on that ground.

10. It is correct that the appellant did not appeal against the order of the Rent Controller fixing the amount of arrears due from him at Rs. 720, yet applying the principle embodied in section 105 of the Code of Civil Procedure, it is clear that "where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal." In the case before me, the incorrect fixation of the rent due has led to serious consequences for the appellant, resulting in an ex parte order being passed against him for his ejectment from the shop fn dispute. The incorrect order of the Rent Controller on the question of the amount of rent due has, therefore, affected the final decision of the case and for that reason, I think, the question can be agitated in the present appeal.

11. The last contention raised on behalf of the appellant is that the learned Rent Controller has erred in law in holding that there was no provision for the grant of extension of time for depositing the arrears of rent. In view of my conclusion that the rent due was only Rs. 300 and that was deposited by the date named by the learned Rent Controller, it does not appear to be necessary to examine this question.

12. One last point made by the learned counsel for the respondent may also be briefly noticed. Mr. K. A. Ghani argued that once the defence of a tenant is struck off under subsection (6) of section 13 of the Ordinance, the only order that can be passed in the matter is the one directing him to put the landlord into possession of the property, and, therefore, the tenant could not be heard even in appeal against that order. The argument certainly has the merit of being ingenious, but it has no substance. When the question raised in appeal is precisely whether the defence was legally and properly struck off, then to say that the tenant is debarred from raising that question is, to say the least, a very curious position to take. It is well‑established that if the legality of an order is being challenged, then for the purpose of those proceedings in which the challenge is made, the order is sub judice and open to scrutiny, provided, of course, that there is no other legal bar in the way of the Court to examine the order in question. In the present case, the District Judge and the High Court have been designated as appellate authorities under the Ordinance an it is clearly open to them to examine the legality and correctness of orders passed by the learned Rent Controller under sub‑ D section (6) of section 13 of the Ordinance, and it cannot be said that because the defence of the tenant was struck off by the learned Rent Controller, the tenant now cannot be heard in any, superior forum as well.

13. For the reason, that, in my view, the rent due from the appellant had been deposited by him by the date fixed by the Rent Controller, namely, the 9th of October 1961, there was no default on his part, entailing the consequences embodied in subsection (6) of section 13 of the Ordinance. I would, therefore, accept this appeal, set aside the orders of the learned District Judge as well as of the learned Rent Controller and direct that the matter should be heard on merits, the appellant being given an opportunity to defend his case. In the circumstances, there shall be no order as to costs. K. B. A. Appeal accepted.