R. K. ABICHANDANI, J.

( 1 ) THIS revision application filed under Section 29 (2) of the Bombay Rents (Hotel and Lodging House Rent Control) Act, 1947 (hereinafter referred to as `the said Act) has been placed before this Division Bench pursuant to the order dated 11-10-2001 made by the learned Single Judge stating that the view taken by a Single Judge of this Court in Shantaben Harilal Brahmbhatt v. Hasmukhlal Maneklal Chokshi, reported in 2001 (2) G. L. R. 1615, was inconsistent with the principle enunciated by the Supreme Court in V. Dhanapal Chettiar v. Yasodai Ammal, reported in AIR 1979 SC 1745.

( 2 ) A contention was taken up before the learned Single Judge in the revision application that the suit of the respondent for eviction was not maintainable, because, contractual tenancy of the petitioner was not terminated by serving any notice determining the tenancy under Section 106 of the Transfer of Property Act, 1882. The petitioner, in support of this contention, relied upon the decision of this Court in Shantabens case (supra), more particularly the observations made therein to the effect that the basic principle was that, without determination of the tenancy, no suit for eviction was maintainable.

( 3 ) THE facts of the case are in a narrow compass. The suit was filed by the respondent against the petitioner for eviction on the ground of breach of terms of tenancy, nuisance and annoyance. The breach of terms of tenancy was alleged on the ground that, as per the rent note exh. 38, the premises were let out for using them as a godown, but, the appellant had, instead, made an electric furnace in the rented premises contrary to the specific prohibition contained in the terms of tenancy. As per Clause (7) of the rent note exh. 38, the tenant was to use the premises only for godown for the purpose of storing gram and groundnut, and it was stipulated that he would not put up any furnace therein working either by fire or by electricity. It is not disputed that, under Clause (7) of the rent note exh. 38, the appellant could not have put up any furnace, including an electric furnace. 3. 1 the ground of nuisance was given up before the trial Court and the matter was contested only on the ground that the appellant had violated the terms of tenancy.

( 4 ) THE trial Court, on the basis of material on record, came to the conclusion that, by putting up an electric furnace, the appellant had committed breach of the conditions of tenancy, and decreed the suit on 6th March 2002. In the appeal, the Appellate Bench of the Small Causes Court, Ahmedabad, on its own appreciation of the material on record, concurred with the finding of the trial Court, by holding that it was clear from the evidence on record that the appellant had committed breach of the terms of the rent note exh. 38, and was liable to be evicted.

( 5 ) THE only contention raised before us, in the background of the above concurrent findings of the trial Court and the Appellate Bench, is that, since admittedly no notice terminating the tenancy of the appellant was given as per the provision of Section 106 of the Transfer of Property Act, 1882, the suit was not maintainable, and therefore, no decree for eviction could have been passed. The learned counsel for the appellant has placed reliance on certain observations made by the learned Single Judge in Shantabens case (supra) in support of his contention.

( 6 ) THE learned counsel for the respondent submitted that the above contention, which is now sought to be raised, was never raised before the trial Court or before the Appellate Bench, and therefore, ought not to be considered. He submitted that, in any event, the contention was devoid of merit in view of the decision of the Supreme Court in V. Dhanapal Chettiars case (supra ). He submitted that the present suit was not filed for the purpose of arrears of rent and therefore, there was no question of serving even a notice of demand of arrears in the mode prescribed by Section 1

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