1. The tenant under the Madras Buildings (Lease and Rent Control) Act is the petitioner in this civil revision petition. He had taken on lease premises No. 49-A Upper Bazar, Ooty, on a rent of Rs. 35 per mensem. On 13-8-1965, the landlords issued a notice to the petitioner-tenant terminating the tenancy and calling upon him to pay Rs. 595 which was the amount due to them as rent. This notice was served on the petitioner-tenant on 18-8-1965. The petitioner-tenant gave a rely on 25-8-2965 in which he denied his liability to pay Rs. 595 and also contended that the notice was not in accordance with the provisions of S. 106 of the Transfer of Property Act. On 17-1-1966, the landlords filed a petition for exiction of the petitioner-tenant on various grounds namely, willful default etc. They claimed arrears of rent upto that date Rs. 770. On 25-2-1966 an ex parte order was passed against the tenant. It was restored on 18-3-1966 and time was granted for filing written statement (counter). The petitioner-tenant filed the same on 4-4-1966. He did not deposit any amount; nor did the raise the question as to lack of proper notices under S. 106 of the Transfer of Property Act.

On 18-4-1966, he paid Rs. 400 when a sum of Rs. 875 was due. On 13-6-1966, the Rent Controller directed the petitioner-tenant to deposit the arrears and posted the petition for being called on 20-6-1966. On 20-6-1966 the counsel reported no instructions and the petition was allowed with costs. On 29-7-1966, the petitioner-tenant paid a sum of Rs. 510 out of Rs. 580 that was due. As already observed, in the written statement before the Rent Controller, the petitioner-tenant did not raise the plea about the defect in notice. The Rent Controller allowed the petition and ordered eviction. the tenant preferred an appeal, C. M. A. 39 of 1966. In the original memorandum of appeal, he did not raise the question about want of notice but filed an additional memorandum of grounds on 24-2-1967 wherein he contended that proper notice under S. 106 of the Transfer of Property Act was not given.

There is some dispute between the parties as to whether the question of proper notice was argued before the Subordinate Judge or not. The order of the Subordinate Judge does not refer to the contention that the notice was not in accordance with the provision under S. 106 of the Transfer of Property Act. The Subordinate Judge also upheld the plea of the respondent-landlords and confirmed the order of the Rent Controller directing the eviction of the petitioner-tenant on the ground of wilful default. The tenant took up the matter to the District Judge. Before him, the question as to the defect in notice was argued elaborately. The learned Judge found that the notice was not in accordance with S. 106 of the Transfer of Property Act, but from the circumstances of the case inferred that the tenant had waived his right to raise this contention.

2. The petitioner-tenant has taken the matter before this court in civil revision petition. It is contended, that failure to give notice in accordance with the provisions of Sec. 106 of the Transfer of Property Act is fatal the petitioner as the Rent Controller has no jurisdiction to entertain the petition and in any event the order for eviction cannot be passed when there is failure to comply with the provisions of S. 106 of the Transfer of Property Act. The petitioner-tenant has also contended that the superstructure belongs to him and, therefore, the proceeding under the Rent Control Act is not competent. The landlords, on the other hand, would contend that the superstructure also belongs to them. As the dispute regarding superstructure has not been pleaded before the trial Court, this question cannot be allowed to be raised at this stage and, therefore, I refrain from dealing with this question.

3. Regarding the question of notice under S. 106 of the Transfer of Property Act, it is common ground that it is not in accordance with the requirements of the section as the notice was received by the tenant only on 18-8-1965 wherein he was called upon to vacate the premises by the end of that month. There is no clear fifteen days' notice and, therefore, the notice is not in accordance with S. 106 of the Transfer of Property Act. The contention that is raised by Mr. Sridevan, the learned counsel for the respondents land lords is that by his conduct the petitioner-tenant has waived his right to raise this question, and, therefrom, he cannot be permitted to raise this question before this court. On the other hand, Mr. Parasurama Iyer, learned counsel for the petitioner-tenant would submit that when there is absence of proper notice under S. 106 of the Transfer of Property Act, the court itself has no jurisdiction to proceed with the matter and, therefore, the entire order of the trial court and further proceedings are non est. In any event. it is submitted that there is no question of any waiver of proper noticed as he did not knowingly refrain from questioning the defect in the notice.

4. The point as to lack of jurisdiction of the Rent Control Court because there is not proper notice under S. 106 of the Transfer of Property Act, is based on the decision of the single Judge of this court in C. R. P. No. 866 of 1967 (Mad), Soundarapandia v. Meenakshi Achi. The learned Judge was of the view that the question as to the validity of notice of determination of tenancy pertains to jurisdiction and if the notice is defective, the proceeding before the Tribunal is without jurisdiction. The learned Judge, in support of this view, has stated that the ratio of the decision of the Supreme Court in Manujendra Dutt v. P. P. Roy Chowdhury, would lend support to the view that if proceedings under act 18 of 1960 are not preceded by a notice of determination, of tenancy under S. 106 of the Transfer of Property Act, the such proceedings are deemed to be irregular and Tribunals hearing such proceedings do not have requisite jurisdiction to adjudicate upon them.

I have been taken through the two decisions and I am unable to construe the decisions as laying down that in the absence of proper notice of determination of the tenancy, the court will not have jurisdiction to entertain the application. It may be open to the petitioner-tenant to plead that the notice is defective and on such ground the landlord should not be given any relief. But it is not laid down that the court will have no jurisdiction to try a petition where the notice is not in conformity with the requirements of S. 106 of the Transfer of Property Acts.

5. In Krishnamurthi v. Parthasarathi, 1949-1 Mad LJ 412 = (AIR 1949 Mad 780), a Bench of this court considered whether a Rent Controller had no jurisdiction to deal with an application by the landlord in the absence of notice to quit on the assumption that a notice to quit was necessary. After detailed consideration of the question raised, the court observed--

"It would follow from this, therefore, that if notice to quit was necessary, it would be merely one of the issues to be decided by the Rent Controller and would not in any way affect his jurisdiction to entertain the application."

The correctness of the Bench decision on this point has not been doubted by any subsequent decision of this court though its view that notice, under S. 106, Transfer of Property Act is not necessary has been overruled. Mr. Parasurama Iyer, learned counsel for the petitioner-tenant submitted that an inference as to absence of jurisdiction in the case of defective notice can be deduced from the reasonings of the decisions in Abbasbhai v. Gulmanbai, , Mangilal v. Suganchand, and Manujendra Dutt v. P. P. Roy Choudhury, . I have carefully gone through the passages relied only the learned counsel and I am unable to accept the contention of the learned counsel. All that the decisions say is that a notice as required under. S. 106 of the Transfer of Property Act is necessary before the landlord could get an order of eviction. The decisions do not say that absence of a proper notice would deprive the Rent Control Court of its jurisdiction to entertain the petition by the landlord. The decision of the Bench in 1949-1 Mad LJ 412 = (AIR 1949 Mad 780) is binding on me and, therefore, it has to be held that a Rent Control Court has jurisdiction to entertain a petition by the landlord even though there is no proper notice under S. 106 of the Transfer of Property Act.

6. Mr. Sridevan, the learned counsel for the respondents, submitted that from the conduct of the tenant, it is clear that he has waived his right to insist on proper notice under S. 106 of the Transfer of Property Act; it may be remembered that though in his reply to the notice to quit by the landlords, the tenant had raised the plea that the notice was not in accordance with the provisions of S. 106 of the Transfer of Property Act, in his written statement, he did not take this plea. No issue was raised before the Rent Controller and the point was not argued before him. In the appeal, as already pointed out, the ground was taken up as an additional ground, but it is not clear as to whether it was argued before the Appellate Court or not. Order VIII, Rule 2, C.P.C. runs as follows:

"The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transactions either void or voidable in point of law, and all such grounds of defence as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact arising out of the plaint as for instance, fraud, limitation, release, payment, performance, or facts showing illegality.'' The rule thus requires that the defendant must raise all matters which show that the suit is not maintainable. The effect of failure to raise such plea and to raise an issue for determination of the question may lead the plaintiff to be under the impression that the defendant is not relying on this point.

7. In a decision of ythe Priv Council in Vellayan v. Madras Province, AIR 1947 PC 197 the court was considering the question whether the notice required to be given under S. 80 C.P.C. could be waived or not. The Privy Council raised two questions, namely, (1) whether it is competent for the defendant in a suit to which S. 80 applies, to waive his right to a proper notice and (2) whether, upon the assumption that it is so competent, the respondents in the case waived their right. Upon the question as to whether it is competent for the defendant in a suit, to which S. 80 applies, to waive his right to a proper notice, the Privy Council held that the notice is intended for the protection of the defendant and if in the particular case he does not require that protection and says so, he can lawfully waive his right. So far as the second question whether on the facts the respondents had in effect waived their right, the Privy Council came to the conclusion that there was no such waiver. In considering this question, the Privy Council referred to the fact that in the written statement filed by the Government before the District Munsif who had no jurisdiction to try the suit the Government did not deny having received proper notice. On that basis, it was contended that the Government must be held to have waived their right to proper notice. It was found that the District Munsif had no jurisdiction try the suit and, a fresh plaint was filed before the Subordinate Judge. In the written statement filed before the Subordinate Judge the Government had taken the plea that the notice was not in accordance with law. On these facts, the Privy Council observed that the conduct on which the appellants relied on took place before an effective suit was instituted and that it could not be suggested that until a suit is instituted, the question of proper notice or the want of it could be raised. As the District Munsif, before whom the original plaint was filed and where in the written statement no objection was taken, had no jurisdiction, the Privy Council came to the view that the conduct in not raising the plea in the written statement in the court without jurisdiction would not amount to waiver. Though the Privy Council has not specifically stated so it may be inferred that it would have been inclined to accept the plea that if in the written statement before the court which had jurisdiction, the plea of want of notice had not been raised, the plaintiff would be entitled to contend that the defendant had waived his right to proper notice.

8. In a case in which the point was taken in the pleadings and was raised but was not argued in the trial court that there was no valid notice to quit, the Supreme Court in Maganlal Chotalal Desai v. Chandrakant Motilal, held that the point regarding the validity of the notice to quit not having been raised before the Assistant Sessions Judge, the High Court had properly fused to allow the point to be taken for the first time inversion. The court held that the point about the absence of a proper notice under Section 12(2) was not open before it. It is thus clear that if the plea of want of notice was not raised during trial even though had been pleaded, the High Court could properly refuse to allow the point to be taken.

9. In this case, the plea was not taken in the written statement and was not argued in the trial court. Apart from the failure to raise the point before the trial court in this case, there is not pleading and that would put the petitioner in the worse position. When the point was not taken in the written statement and no issue was raised, the landlords will not be in a position to anticipate that this question would be allowed to be raised t any subsequent point of time. In this case, the notice to quit was on 13-8-1965 and the petition was filed on 7-1-1966. If the point as to the defect in notice had been taken, the landlords would have given fresh notice and pursued their remedies. It is grossly unfair to permit the tenant to raise this question after a period of 4 1/2 years and to deprive them of their remedy. Mr. Parasurama Iyer, learned consul for the petitioner, submitted that the Privy Council has not held specifically that the plea of waiver is available to him and that the court will not be unjustified to infer from it that the plea of waiver would be available to the tenant. I am unable to accept this contention for buy his conduct in not raising the plea in the written statement in the trial court and by depositing the moneys in several installments, the landlords were made to believe that the tenant had given up this plea. Learned counsel also submitted that the Madras Buildings (Lease and Rent Control) Act being a special legislation for the purpose of protecting the tenants, the right conferred under the statute cannot be bartered with. In support of this contention learned with. In support of this contention learned counsel relied on certain passages in Estoppel by Representation by Spencer Bower and Turner. At page 132, the learned author has stated-

"Similarly it has been held that an estoppel cannot be used to render nugatory such provisions as S. 13 of the Land Charges Act, 1925 for estoppel cannot be invoked to negative the operation of a statute'."

Again at page 140 in paragraph 148, it is stated:--

"Tenants of rent-controlled premises may be similarly said to constitute a class of protected persons to whom similar principles may be applied. They may not contract themselves out of the legislation; and it is clear that no estoppel can arise in favour of a landlord by which the tenant can be deprived of protection."

The rule requiring notice, is not under the special Act, namely the Madras Buildings (Lease and Rent Control) Act, but it is only in the Transfer of Property Act which governs the rights of parties S. 106 being in favour of a party, there can be no difficulty in holding that the party can waive his right. This is the view that is taken by the Privy Council in Air 1947 PC 197, regarding S. 80, C.P.C. What is applicable to S. 80, C.P.C. is equally applicable to S. 106 of the Transfer of Property Act. As observed by the Full Bench of the Punjab High Court in Bhaiya Ram v. Mahavir Prasad, , if notice under S. 80, C.P.C. does not form part of cause of action of a suit, there is nothing to show that the notice under S. 106 of the Transfer of Property Act which cannot be required to be served at all in certain contingencies, is necessarily a part of a cause of action for eviction.

10. It was contended by Mr. Parasurama Iyer the learned counsel for the petitioner-tenant that in order to amount to waiver the action of the tenant must be with the knowledge of his right. In this case, it is submitted, that the decision which was holding the field was the one in 1949-1 Mad LJ 412 = (AIR 1949 Mad 780) which held that notice under S. 106 of the Transfer of Property Act was not necessary before the landlord could ask for eviction under the Madras Buildings (Lease and Rent Control) Acts. This view was further reinforced by the Full Bench decision in Raval and Co. v. Ramachandra, (FB) which was rendered on 20-1-1966. According to the learned counsel, when the petition was filed by the landlords on 17-1-1966, no notice was required under S. 106 of the Transfer of Property Act and it is futile to expect the tenant to take up this point. The learned counsel is right in his submissions so far as the dates and the state of law when he filed the written statement. But if a subsequent judicial decision were to change the law, the parties cannot be heard to say that their failure to plead was due to their misunderstanding of the position of law regarding the rights of parties. Reliance is placed by Mr. Parasurama Iyer in the decision in Basheer Nath v. I. T Commissioner, . The court after setting out the circumstances on which the Attorney General founded his plea of waiver, namely, that the assessee submitted to the discriminatory procedure applied to him by the Commission, that he asked for settlement under which he agreed to pay 75 per cent of his alleged tax liability and a small amount of penalty and that he made some payment, found that when the discriminatory procedure of the Act was applied to him and the report against him as made by the Commission on which the settlement was based, the assessee did not know, nor had it been declared by a court of competent jurisdiction that Section 5(1) of the Act was ultra vires. In the circumstances, the court held that it was not a voluntary or intentional relinquishment of a known right. The position of law was not declared by a competent court of jurisdiction and under the misapprehension the he was bound, he made certain payments and that was held to be not voluntary relinquishment of his right.

11. In this case, the position is different as the court of law has held that no notice was necessary and both the parties were bound by it. If the petitioner-tenant could be allowed to say that because of a misappreciation of the position of his rights, he did not plead, it would be equally open to the respondent-landlords to plead that as it had been held that S. 106 of the Transfer of Property Act is not applicable the provision as to notice could not be gone into at all. Therefore, embarking on an enquiry into the state of mind or the position of law as it then existed and subsequently changed, would be irrelevant so far as the rules of pleadings are concerned. The parities are bound by the state of law as it then existed and if any of the parties had reservation about the correctness of the decision, they ought to have pleaded in their case. In the absence of such plea and when the parties had gone to trial and invited a judgment on the basis of pleadings because of subsequent change of law, the parties cannot be heard to raise the pleadings for the first time.

12. Mr. Sridevan referred to a Bench decision of this court in 1969-2 Mad LJ 585 at p. 592, which held that if the lower appellate court had decided the lower appellate court had decided against the tenant on the ground that he had failed to take the point before the Controller, normally this court would not interfere with that view, and submitted that as the learned District Judge decided the point against the tenant on the ground that he had failed to take the point before the Rent Controller, the decision of the Bench would be applicable to the facts of this case. The observations are in favour of the learned counsel for the respondents-landlords, nut as pointed out by the learned counsel for the petitioner-tenant, the reasoning for the conclusion is not very clear. Therefore, I would base my conclusion on the ground that when the point had not been taken in the pleadings and put at issue and not adverted to at all before the trial court, the tenant will not be permitted to raise this plea in this court. The Supreme Court has held that even though the point had been taken in the pleadings, if it was not argued before the trial court, the High Court will be right in refusing to permit the point to be taken. In the circumstances accept the plea of the landlords that under the circumstances of this case, the petitioner-tenant cannot be allowed to raise this point at this stage.

13. The petition is dismissed with costs. Time for vacating three months form this date.

14. Revision dismissed.