The tenant's failure to raise the plea regarding the sufficiency of the notice to quit before the Rent Controller amounted to waiver of the plea, and thus, the plea cannot be raised for the first time in appeal.

1. The question that arises for decision in this revision petition is whether the sufficiency of a notice to quit which is shown to have been issued to a tenant in occupation of a building can be raised for the first time in appeal.

2. The petitioner was sought to be evicted out of a building which is in his occupation as tenant under the respondent on the ground that the petitioner kept the rent in arrears and that the respondent-landlord wanted the building for her bona fide occupation. These contentions of the respondent were repelled by the Rent Controller dismissing the respondent's application for eviction. But, in appeal, the Appellate Authority found that the ground for eviction due to arrears of rent was sustainable and eviction was ordered. That order was also confirmed in revision by the Revisional Authority, which is the District

Judge. Both the Appellate Authority as well as the Revisional Authority did not permit the revision petitioner to raise the contention in appeal that the quit notice Ext. P1 was not sufficient as not in conformity with the provisions of S. 106 of the Transfer of Property Act. Both the authorities held that the revision petitioner could not be permitted to raise for the first time in appeal the contention regarding insufficiency of notice to quit. Hence this revision petition before this Court under S.115 of the Code of Civil Procedure.

3. It is conceded that the petitioner received Ext. P1, the notice issued by the respondent as condition precedent for eviction. Ext. P1 was relied upon even by the petitioner in support of the rest of his contentions before the Rent Controller. Yet the petitioner failed to take up any contention either in the counter-statement which he filed before the Rent Controller or in support of his argument before him that Ext. P1 notice is not sufficient to quit as not in conformity with the provisions of S.106 of the Transfer of Property Act. It was only before the Appellate Authority for the first time the contention in this regard was raised. The learned counsel of the respondent argued that if he had notice of such a contention before the Rent Controller, he would have produced evidence regarding the sufficiency of notice or even a contract to the contrary consistent with the provisions of S.106 of the T. P. Act. So the learned counsel argued that the petitioner having failed to take up a contention before the Rent Controller, he could not be permitted to raise such a contention for the first time before the Appellant Authority.

4. The question that arises is whether the sufficiency of the notice which is shown to have been issued can be raised for the first time before the Appellate Authority. In Krishna Prasad Singh v. Adyanath Ghatak and another (AIR. 1944 Patna 77) a Division Bench of that Court observed, dealing with an objection about notice to quit having been taken for the first time in appeal:

"This point has been raised for the first time in this court, and I gravely doubt whether an objection of this kind can be taken at this stage. In Hanmantram Surajmal Marwadi v. Shankarlal Abaji Marwadi (95 I. C. 573) it has been laid down that in a suit for possession and rent against the defendant as tenant the latter cannot for the first time in appeal be allowed to raise objection to sufficiency of notice to quit after having failed in the first Court on his plea of title."

In Nazroo and another v. Lalman and another (AIR. 1955 Himachal Pradesh 44), the above Patna decision was followed. In that case the plaint made a reference to the service of notice and the defendant did not impugn the validity of the notice and therefore the court held that the objection as to the sufficiency thereof could not be raised for the first time in appeal. In Saradaand others v. M. K. Kumaran (1969 KLT. 133) Mr. Justice Krishnamoorthy Iyer considered an allied question. His Lordship observed:

"The third ground argued on behalf of the revision petitioners was that there was n