JASWANT SINGH, J.

Appellant/tenant/defendant no.1 Dinesh Kumar is in second appeal against the judgment of reversal, whereby respondent no.1/landlord Chander Kala's suit for ejectment by way of possession of shop no.3 was decreed by the learned Additional District Judge, Bhiwani vide its judgment and decree dated 1.12.2005, thereby reversing the findings returned by learned Additional Civil Judge(Senior Division), Bhiwani vide judgment and decree dated 30.08.2000.

In brief, the facts of the case are that plaintiff had filed a suit for ejectment of the defendants from the shop situated in Bhiwani by alleging that the same was constructed in the year 1989 and was let out to defendants on 3.2.1993 on a monthly rent of Rs.2250/- inclusive of taxes. Since the defendants did not pay rent from 1.12.1994 to 31.10.1996, thus a notice under Section 106 of the Transfer of Property Act was served upon them for termination of their tenancy. Since the defendants did not vacate the premises, present suit was filed.

Upon notice, joint written statement was filed by both tenants/defendants whereby it was inter alia contended that the suit itself is not maintainable and the civil court has no jurisdiction to try the suit as the property is more than 10 years old. On merits, relationship was admitted and it was further stated that they had been regularly paying the rent to the plaintiff/respondent no.1 and no notice under Section 106 of the Transfer of Property Act was ever served upon them.

Replication was filed wherein the entire contents of plaint were reiterated and those of the written statement were denied.

From the pleadings of the parties issues were framed. Both sides lead evidence in support of their respective claims and after appreciating their evidence, learned trial Court had dismissed the suit vide its judgment and decree dated 30.08.2000 and the findings thereof were reversed by learned lower Appellate Court vide its judgment and decree dated 1.12.2005. Hence the present second appeal.

I have heard learned Counsel for the parties and have also gone through the case file carefully with their able assistance.

Learned Counsel for the appellant/tenant has argued that the learned lower Appellate Court has committed grave error by allowing the appeal partly by holding that the plaintiff/respondent no.1 was entitled for recovery of arrears of rent/mesne profits for use and occupation of the shop in dispute at the rate of Rs.2250/- per month along with interest at the rate of 9% per annum without considering the fact that once it has been held that the suit itself is not maintainable, as the shop in dispute is covered under the Haryana Urban(Control of Rent and Eviction)Act 1973 and thus the findings thereof are liable to be set aside and consequently the suit has to be dismissed. In support of his arguments, learned Counsel for the appellant has relied upon 1999(2) Apex Court Journal 694(SC) T.K. Lathika Vs. Seth Karsandas Jamnadas whereby it has been held that the prime most question that has to be gone into by the court is that whether the petition itself is maintainable or not and only if it is found that the petition is maintainable, the court can further go into the merits of the case. However, if it is found that the petition is not maintainable, then Court should not go into merits because whatever is said or found on merits then would be without jurisdiction.

On the other hand, learned Counsel for plaintiff/respondent no.1 has argued that the defendants/tenants did not pay any rent/mesne profits etc within stipulated period and their defence was struck off by the learned trial Court for non compliance of Order 15 Rule 5 CPC vide order dated 21.7.2000. Thus, it was argued that since there was non compliance of the order passed by the learned trial Court regarding deposit of arrears of rent/mesne profits, the learned lower Appellate Court had rightly allowed the recovery of arrears of rent/mesne profits from the defendants and thu