JUDGMENT J.M. Lal, J.
1. This Judgment shall govern second appeals Nos. 478 of 1968, 286 of 1969 and 349 of 1969 which were connected and heard together. Each of these cases arises out of the suit for ejectment and arrears of rent filed by the landlord. In each case a decree for ejectment and arrears of rent was passed in favour of the landlord against the tenant. An appeal filed by the tenant against that decree passed by the trial Court in each case was dismissed by the lower appellate Court. Hence the tenants have now approached this Court by filing the second appeals.
2. I heard the learned counsel for the parties. The common question of law that was raised on behalf of the appellants in all the three appeals was that the notice of termination of tenancy under Section 106 of the Transfer of Property Act was pre-mature in view of the provisions contained in tine U. P. (Temporary) Control of Rent and Eviction Act. At this place it may be pointed out that the landlord in the suit out of which second appeal No. 478 of 1968 has arisen had sought the ejectment of the tenant on the basis of permission prayed for from the District Magistrate and which was ultimately granted by the Commissioner in revision filed before him though the District Magistrate had originally refused to grant the permission. In the other two suits out of which second appeals Nos. 286 and 349 of 1969 have arisen the landlord had sought ejectment of the defendant on the ground that he made default in payment of arrears of rent due for more than three months in spite of a notice being served on him under Section 3 (1) (a) of the said Act. In these two cases the notice of termination of tenancy under Section 106, Transfer of Property Act was combined with the notice under Section 3 (1) (a) of the Rent Control Act while in the third case the landlord had served the notice under Section 106 prior to obtaining the permission from the Commissioner for filing tihe suit for ejectment against the tenant
3. The contention of the learned counsel for the appellant is that the cause of action to terminate the tenancy arises only after the bar placed by the Rent Control Act is removed on account of the failure of the tenants to pav the arrears of rent within the prescribed period after service of notice on him under Section 3 (1) (a) or after obtaining permission from the District Magistrate for filing a suit for ejectment A notice under Section 106 purporting to terminate the tenancy even, prior to that It is contended on behalf of the appellants, is pre-mature and as such, invalid. In my opinion, this argument is without any substance. The bar that has been placed by the Kent Control Act is in the way of filing a suit and not in the way of terminating tenancy. A tenancy by notice under Section 106 can be terminated either by the landlord or by the tenant. For terminating such tenancy the Bent Control and Eviction Act does not place any bar. What has been barred by Section 3 of that Act is that no suit for ejectment shall be filed unless one or more of the conditions prescribed therein have been fulfilled. That being so a landlord is at liberty to give a notice to his tenant under Section 106, Transfer of Property Act requiring him to vacate the premises within one month from the date of receipt of that notice. If the tenant wants to vacate the house within this period he is at liberty to do so. He need not himself give a notice to the landlord about his intention to vacate the house in such circumstances and he can simply comply with the notice of the landlord. If. however, the tenant does not want to vacate the house, the landlord will not be competent to file a suit for ejectment against him unless he is able to fulfil one or the other of the requirements laid down in Section 3. If none of those requirements is fulfilled the notice of termination of tenancy would remain infructuous and on its basis the landlord would not be able to elect the tenant so long as the Temporary Rent Control Act remained in force.
4. In view of the position stated above there can be no legal objection to a landlord giving a composite notice to his tenant under Section 106, Transfer of Property Act and Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act If the tenant pays the arrears of rent demanded from him under Section 3 (1) (a) he shall not be liable to ejectment and the notice under Section 106 will again remain infructuous. If, however, the arrears of rent are not paid within the prescribed period the tenancy would stand terminated on the expiry of the period prescribed by Section 106 and [thereafter the landlord would be competent to file a suit for ejectment against the tenant if the latter does not voluntarily vacate the premises. This view is supported by a string of decisions of this Court as well as of Supreme Court. A reference may be made to Mangilal v. Sugan Chand Rathi, AIR 1965 SC 101; Jagan Nath Prasad v. Smt. ChandrawatI, 1969 All LJ 881 = (AIR 1970 All 309 (FB)); Mohd. Ismail v. Nanney Lal, AIR 1970 SC 1919; Shamsher Ali v. Smt. Mohini Jagtiani 1972 All LJ 331; Ganga Ram v. Smt. Phulawati, 1970 All LJ 336, AIR 1970 All 446 (FB) and Fannilal v. Smt. Chironja, 1972 All LJ 499.
5. The position with regard to obtaining permission of the District Magistrate subsequent to the termination of tenancy under Section 106 also stands on the same footing. It is permissible to a landlord to terminate the tenancy by giving a notice to his tenant under Section 106, Transfer of Property Act and thereafter to obtain the permission of the District Magistrate. The suit for elect-inent can. however, be filed only after the permission has been obtained and not before that. In Janki Prasad Hanuman Prasad v. Pt. Harish Chandra Tewari, AIR 1960 All 211 it was held by a Bench of this Court that a notice under Section 106 will not be dependent on the existence of permission under Section 3 of Act 3 of 1947. It can be given before the permission, simultaneously on the same date when the permission is sought and accorded or after the permission has been granted. The same view was held by me in 1972 All LJ 331 (Supra). So this common point raised on behalf of the appellants in all these appeals is without any merit.
6. We now come to the special points raised in each of these appeals besides the above common point. With regard to second appeal No. 478 of 1968 the learned counsel for the appellant contended that though the landlord has secured permission to file a suit for ejectment against the tenant, as contemplated by Section 3 from the Commissioner before whom a revision was filed against the order of the District Magistrate refusing that permission, the same was obtained by fraud and misrepresentation-The plea of fraud or misrepresentation should have been taken before the Commissioner. It cannot be taken in collateral proceedings like the present one where the suit for ejectment was filed on the basis of that permission. If the permission is shown to be illegal or without jurisdiction which would make it nullity in law the matter would stand on a different footing as was held by the Supreme Court in Ram Swarup v. Shikar Chand, AIR 1966 SC 893.
7. Assuming for argument's sake that a plea of the permission being obtained by fraud can also be looked into by the Civil Court in the suit filed on the basis of that permission it was necessary for the defendant to set forth full particulars of the alleged fraud in his written statement as held by the Supreme Court in Bishundeo Narain v. Seogani Rai, AIR 1951 SC 280. In the present case, as observed by the Courts below, the defendant did not set forth any particulars of the fraud besides making a general allegation that the permission was obtain-
ed on the basis of fraud and mis-representation. It appears that the landlord's case before the District Magistrate was that the house was in a dilapidated condition and she wanted to reconstruct the entire house of which a portion was in the tenancy of the defendant while the other portion was in her own occupation-The tenant contested that case of the landlord before the District Magistrate and the Commissioner. In suits of that contest the permission was granted by the Commissioner under his order dated 9-8-1968. The merits of this order on the ground that the house was not in a dilapidated condition so as to require its reconstruction cannot be challenged in Civil Court because that order is not justiciable on this ground as was held by this Court in AIR 1960 All 211 and also by the Supreme Court in Ramji Das v. Trilok Chand, AIR 1971 SC 2361. As observed by the lower appellate Court even on the fact proved on record the challenge to the Commissioner's order was not justified because the tenant himself had admitted in his written statement that the house needed extensive repairs, On behalf of the appellant it was further contended that almost seven, years had passed since this permission was granted but neither the house has been reconstructed so far nor it has fallen down. Obviously, the occasion for reconstruction has not arisen because the landlord has not been able to secure possession so far due to the pendency of this appeal. In her application for expediting this case the respondent had alleged that some portions of the house had fallen down and she had to shift elsewhere and due to the pendency of this second appeal she could not rebuild this house. This allegation was supported by an affidavit which was not controverted. Any way it is not a matter for decision by this Court whether or not the circumstances existed which justified the grant of the permission by the Commissioner on 9-8-1966. No other point was pressed on behalf of the appellant in this appeal. The appeal is, therefore, without any merits and liable to be dismissed.
8. In Second Appeal No. 286 of 1969 it was contended by the learned counsel for the appellant that the arrears of rent due by the tenant did not exceed three months' rent after making adjustment for the amount paid by him on account of water tax and the amount that had been remitted by him through a money order. So far as the latter amount is concerned both the courts below have found that there was no legal evidence to prove such tender through money order. The courts below after adjusting payment of water tax have arrived at the conclusion that more than four months' rent was due by the tenant which he failed to pay within the prescribed time after the receipt of the notice under Section 3 (1) (a). That being finding of fact cannot be questioned in this second appeal. In view of this finding the defendant was liable to ejectment and his appeal is also without any force.
9. In second appeal No. 349 of 1969 the allegation of the tenant was that the rent was Rs. 4.38 per month as determined by the Rent Control and Eviction Officer on an application made by the tenant under Section 3-A of the Rent Control Act and on the basis of this monthly rent the tenant was not in arrears when the notice under Section 3 (1) (a) was served on him. Both the courts below have found that the agreed rent was Rs. 15/- per month though subsequently a rebate of Re. 1/- per month was allowed and in this way the rent payable by the defendant was Rs. 14.00 per month. On that basis he was in arrears of rent for more than four months a notice was given to him and he failed to pay the same within the prescribed time. The courts below have noted that the original landlord of the house was one Srimati Ram Lali Devi and the tenants were the defendants and one Merhai Lal to whom this house was allotted in the year 1963. After that the rent which these tenants agreed to pay to the landlord was Rs. 15/- per month but Srimati Ram Lali Devi, who appeared as witness for the plaintiff, had given a rebate of Re. 1/-per month. In this way the agreed rent was Rs. 14/- per month. This finding of fact has been arrived at by the courts below on an appraisal of the evidence on record. Srimati Ram Lali Devi transferred this house to the plaintiff-respondent by means of a sale deed dated 14-11-66. Merhai Lal tenant also left the house and thereafter the defendant appellant alone remained as tenant. The defendant-appellant had, no doubt, made an application against Srimati Ram Lali Devi in December, 1966 to the Rent Control and Eviction Officer praying for fixation of the rent on the representation that there was no agreed rent. In that case Srimati Ram Lali Devi had filed her written statement dated 24-1-67 in which she clearly stated that she had already transferred the house to the plaintiff-respondent on 4-11-66 and as such she had no interest in the house at that time. Even after that the defendant-appellant did not implead the plaintiff-respondent in these proceedings and obtained an ex parte order dated 16-5-67 fixing the rent at Rs. 4.38 per month. The plaintiff-respondent not being a party to those proceedings cannot be bound by this order. Since there was already an agreed rent, there was no occasion for the Rent Control and Eviction Officer to fix the rent under Section 3-A. This tenant was also in arrears of rent for more than four months which he failed to pay in spite of service of notice under Section 3 (1) (a). He also incurred a liability to be ejected under that provision.
10. As a result of the above findings all the three appeals are dismissed with costs. The stay orders passed in all the three appeals are discharged.