A plea of law, having its foundation in the amended reply and would, if not hit by rule of waiver, have serious impact on the outcome of the proceedings before the Tribunal, should be allowed to be raised at any stage of the proceedings.

( 1 ) RESPONDENT 1 had sued appellant for eviction. Appellants by way of amendment of Written statement had contended that petition was not maintainable for lack of notice U/s 106 of T. P. A. The Controller held against them on the basis that they were statutory tenants. In appeal they did not specifically challenge this in the grounds of appeal to urge this as an additional ground. The Tribunal rejected this application and they appealed to the High Court against it. ]. Para 11 onwards the judgement is :-

( 2 ) LEARNED counsel for appellant assailed the impugned order on the ground that in considering the question whether the ground had been left out inadvertently or not, the Tribunal: took into account the considerations which were wholly irrelevant while ignoring those on record which were material and that in any event, the Tribunal completely misdirected itself by ignoring that the plea regarding. the maintainability of the petition was a plea of law, had been raised before the Controller and its decision would so to the root of the matter and, if not waived, may change the outcome of the proceedings in appeal and should, therefore, have been allowed to be added to the Grounds of Appeal or otherwise to be raised at the hearing of the appeal.

( 3 ) LEARNED counsel for the respondent, however, submitted that the appellants. had waived the requirement , regarding notice or would be deemed to have waived it in their failure to raise it in the first reply to the petition for eviction and subsequently in their failure to incorporate it in the Grounds of Appeal and would hot be entitled to raise it at this stage and in any event, having been. waived, such a plea would have no impact on the outcome of the appeal because want of notice could not prove fatal to the petition if the requirement of notice had been waived by the tenant. He further contended that thand waiver was a question of fact and the present appeal was not maintainable because it did not raise any substantial question of law because the Tribunal was called upon to consider if the ground had been inadvertantly left out and it has returned a finding that according to it, the cause for ommission was not any inadvertance but the state of the law when the appeal was filed iand that such an order being purely procedural, was even otherwise not appealable. It appears to me that the order of the Tribunal must be set aside.

( 4 ) IT is well settled that a notice terminating the tenancy is an essential pre-requisite for a valid petition for ejectment of a tenant and unless such a requirement is waived by the tenant, the ommission to serve notice of termination may be fatal to the petition. It is also not in dispute that though the plea was not incorporated in the original reply, it was duly incorporated in the amended reply with the leave of the Court and the appellants raised the plea at the hearing before the Controller and, for the reason with which we are not concerned at this stage, the Controller turned it down.

( 5 ) ALTHOUGH the appellants sought permission to raise the ground in a manner- which was not in conformity with the law, and sought leave merely on the ground that it had been left out on account of inadvertance, clerical error etc. , it is difficult to resist the conclusion that the plea sought to be raised is a plea of law, having its foundation in the amended reply and would, if not hit by rule of waiver, have serious impact on the outcome of the proceedings before the Tribunal. If that be so, the Tribunal clearly misdirected itself in ignoring the well settled law regarding leave to urge additional grounds, that grounds which were legal in character and would on some reckoning go to the root of the matter, should be allowed to be raised at any stage of the proceedings and that rule would be easily attracted particularly because the plea had been raised in the amended reply, was canvassed at the hearing and was dealt with and rejected by the Con