JUDGMENT - Padhye R.S. J.-This is a second appeal filed by tenant against the judgment of first Appellate Court at Akola confirming decree for arrears of rent, mesne profits and ejectment passed by the trial Court with some slight modification in the amount of mesne profits. Appellant raised number of grounds in the memo of appeal but, at the time of admission, appeal was restricted to the question as to whether permission granted by Rent Controller under clause 13 of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 (referred to hereinafter for short as 'Rent Control Order') Which forms the basis of a notice of termination of tenancy under section 105 of Transfer of Property Act, must be a permission which has become final in terms of clause 21(3) of Rent Control Order. The other question which was formulated as a substantial question of !aw was as to whether a decree for mesne profits could be passed against a tenant for the period between termination of tenancy and filing of suit in a case in which permission granted by Rent Controller had not become final on the date of termination of tenancy. 2. Relevant facts for the purpose of decision of this appeal may now be referred before the question of law raised by Shri G. B. Lohia for appellant is concerned. Order by Rent Controller was passed on 25-4- 1978.which is at Ex. 32. Notice of termination of tenancy on the basis of the said order was issued on 14-7-1978 and it is at Ex. 33. Appeal against Ex. 32 Was filed before Resident Deputy Collector at Akola on 14-7-I 978. Suit for ejectment was filed on 18-9-1978 and it was decreed on 17-9-1980. The first appellate Judgment is dated 31-8-1981. It is after the decision of the first appellate judgment that the appeal filed under the provisions of Rent Control Order came to be dismissed on 12-10-1981. This was challenged in Writ Petition No. 2469 of 1981 which was dismissed in motion hearing on 13-4-1982. 3. The first appellate Judgment is dated 31-8-1981. It is after the decision of the first appellate judgment that the appeal filed under the provisions of Rent Control Order came to be dismissed on 12-10-1981. This was challenged in Writ Petition No. 2469 of 1981 which was dismissed in motion hearing on 13-4-1982. 3. Clause 13(1) of Rent Control Order provides that,-” No landlord shall, except with the previous written permission of the Controller,- (a) give notice to a tenant determining the lease or determining the lease if the lease is expressed to be determinable at his option; or (b) where the lease is determinable by efflux of the time limited thereby require the tenant to vacate the house by process of law or otherwise if the tenant is willing to continue the lease on the Same terms and conditions. “Subsequent sub-clauses of clause 13 provide for the procedure for making application to seek permission and the grounds on which permission to terminate tenancy can be granted. Clause 21(1) provides for filing of an appeal against the decision of the Rent Controller. Sub-clause (3) thereof is material for our purpose. It reads as under. “21(3) The decision of the Collector and subject only to such decision. an order of the Controller shall be final and no further appeal or revision or application for review shall lie from such decision to any authority whatsoever.'. On behalf of appellant, Shri G. B. Lohia submitted that notice of termination of lease. which is at Ex. 33, seeking to terminate the lease in question at the end of July. 1978. was an invalid notice because the permission of Rent Controller contemplated by clause 13(1) of Rent Control Order must be construed to mean to be a permission which has become final under clause 21(3) thereof and in the present case permission granted by Rent Controller on 25-4-1978 had not become final on account of filing of appeal on 14-7-1978 before Resident Deputy Collector, Akola. According to him. if clause 13 and clause 21 of Rent Control Order are read together, “written permission of the Controller” contemplated by clause 13(1) must be construed to mean written permission of Controller which has become final under sub-clause (3) of clause 21 of Rent Control Order. According to him. if clause 13 and clause 21 of Rent Control Order are read together, “written permission of the Controller” contemplated by clause 13(1) must be construed to mean written permission of Controller which has become final under sub-clause (3) of clause 21 of Rent Control Order. This contention was met by Shri Mohta appearing for respondent by pointing out that even if sub-clause (3) of clause 21 0f Rent Control Order provides that the order of Controller shall be final subject only to appellate decision of Collector, there is no provision either in clause 13 or clause 21 of Rent Control Order barring a landlord from giving quit notice on the basis of permission of Controller which has -11otbecome final. 4. Section 9 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1944, as it stood before its repeal by the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, provided that no landlord shall eject a tenant and obtain possession of tenanted premises so long as tenant paid and was ready and willing to pay rent to the full extent allowable by Part II of the said Act and perform other conditions of tenancy. Proviso to section 9, however, permitted a landlord to terminate tenancy where he obtained a certificate from Controller certifying that the tenant had committed any act contrary to the provisions of clause (u) or clause (p) of section 108 of Transfer of Property Act or was guilty of conduct which was a nuisance or annoyance to any adjoining or neighbouring occupiers or that rent charged to a sub-tenant was in excess of a standard rent or that the premises were reasonably and bona fide required by the landlord either for his own occupation or for occupation of any person for whose benefit the premises were held or for any other cause which may be deemed satisfactory by the Controller. Section 14 provided for appeal against order passed by Controller. Sub-section (3) of section 14 was in the following words. “14(3)-The decision of the Collector and subject only to such decision, the order of the Controller shall, for the purpose of this part, be final and no Civil Court shall have jurisdiction to settle or decide or deal with any question which is, by or under this part, required to be settled, decided or dealt with by the Controller and Collector.”. The question that fell for decision before a Division Bench of this Court in the case of Indra Singh and another v. Shiavax Cawasji Cambotta and others1, was as to whether landlord was entitled, on the strength of a certificate which he had obtained from the Controller, to terminate tenancy when appeal against the order of Controller was pending. Chhagla, acting C. J. speaking for the Court, referred to sub-section (3) of section 14 of the Bombay Act and observed. “Therefore, the order of the Controller is made final, but subject to this important proviso that it is subject to the decision of the Collector. In our opinion that means that the finality of the order made by the Controller disappears as soon as an appeal is preferred to the Collector, and it is only the decision of the Collector that becomes final and operative. So long as there is no appeal, the order of the Controller is final, as soon as an appeal is preferred, the matter again becomes sub-judice, and it is then the decision of the Collector which has the finality which is required under section 14(3) of the Act. The learned Judge also referred to a Privy Council decision in support of this proposition. That was a case between S. P. A. Annamalay Chetty v. B. A.Thornhill2, and the law laid down by the Privy Council, as referred to in the Bombay Judgment, is as under. The learned Judge also referred to a Privy Council decision in support of this proposition. That was a case between S. P. A. Annamalay Chetty v. B. A.Thornhill2, and the law laid down by the Privy Council, as referred to in the Bombay Judgment, is as under. “Where an appeal lies the finality of the decree on such appeal being taken, is qualified by the appeal and the decree is not final in the sense that it will form res judicata as between the same parties......” It was urged on behalf of appellant that the wording of sub-clause (3) of clause 21 of Rent Control Order and sub-clause (3) of section 14 of Bombay Rent Act is pari-materia and proviso to section 9 of Bombay Rent Act is also referred “certificate from the Controller” without there being any provision to indicate as to whether certificate referred to in proviso to section 9, was meant to be a certificate which had become final within the meaning of section 14 (3) of the Bombay Rent Act or not and, therefore, “written permission of the Controller” referred to in clause 13 of Rent Control order, though it does not contain a provision, indicating as to whether written permission of the Controller which had become final in terms of the law, it must be construed to mean written permission of Rent Controller which had become final under clause 21 (3) of Rent Control order, as laid down in the case of lndra SIngh (supra) by a Division Bench of this Court. 5. On behalf of respondent, Shri Mohta invited my attention to a Judgment delivered by Dharmadhikari J. in the case of Ruprao Pandurang v. Raghoba Bhagwanji Chaurase.3 While dealing with a similar question, the learned Judge observed as under: “It is no doubt true that an appeal was filed by the tenant against the order of the Rent Controller, but it cannot be said that only because an appeal was filed the order of the Rent Controller became inoperative. No stay was obtained or granted by the Resident Deputy Collector staying the operation of the order passed by the Rent Controller. It is not known as to when actually the said appeal Itself was filed. No stay was obtained or granted by the Resident Deputy Collector staying the operation of the order passed by the Rent Controller. It is not known as to when actually the said appeal Itself was filed. Therefore, having regard to the facts and circumstances of the present case, in my opinion, it cannot be said that only because an appeal was filed by the tenant against the order of the Rent Controller the operation of the order passed by the Rent Controller stood automatically suspended. On the contrary, as observed by this Court in Hariprasad v. Nathmal4, it is open to the landlord to act upon the permission granted by the Rent Controller and it is not necessary for him to wait till the Rent Control proceedings are finally decided. On the basis of said permission he can issue a notice to the tenant terminating his tenancy and can also file a suit though in doing so he runs the~ risk of such permission being revoked by the appellate or final authority. In this view of the matter, in my opinion, there is no substance in the first contention raised by Shri Sagdeo.” Decision in the case of Hariprasad (supra) was a decision by the same learned Judge and while dealing with the contention advanced on behalf of applicants that landlord could not issue a notice terminating the tenancy of the tenant “ unless the order passed by Rent Controller became final as contemplated in clause 21(3) of Rent Control Order, it was observed in this case, referring to three earlier decisions~ in P. K. Deshmukh v. Sudhabai5, Mahadeo v. Akaji6 and Ishwariprasad v. Shankar Dayal7, that, “It is open to the landlord to act upon the permission granted by the Controller and to issue notice terminating the tenancy of the tenant.” Shri Mohta referred to the said three decisions in support of his contention but I do not think it necessary to make reference in detail to the said three decision since there cannot be any doubt that the decisions of my learned brother Dharmadhikari J. in the two cases referred to above support the contention advanced on behalf of respondent by Shri Mohta. However, I feel that these decisions by Dharmadhikari J. cannot be followed in view of law laid down by the Division Bench decision of this Court in the case of lndra Singh (supra). 6. However, I feel that these decisions by Dharmadhikari J. cannot be followed in view of law laid down by the Division Bench decision of this Court in the case of lndra Singh (supra). 6. Another decision which supports the contention of respondent is of the then M. P. High Court in the case of Phanibhushan DEB v. Gulabchand8. Mangalmurti J. held in this case that quit notice can be given on the basis of permission granted by Rent Contro1ler even if appeal against the said permission was pending This was a case under C. P. Berar Letting of Houses and Rent Control Order, 1947. But the relevant provision in sub-clause (3) .of clause 21 of the said Rent Control Order was similar to the provision in the Rent Control Order-bf t949. According to the learned Judge, the question before him was as to whether finality of the order made by Rent Controller disappeared as soon as an appeal was preferred to the Deputy Commissioner or it continued till the order was. set aside by the Deputy Commissioner in appeal. It was observed that the decision of the Division Bench of this Court in the case of lndrasingh (supra) was based on observations of Privy Council in S. P. A. Annamalav Chetty v. B. A. Thornhill, and according to Mangalmurti J. Privy Council was considering the question of res judicata and it was while considering such a question that it observed that “where an appeal lies, the finality of the decree on such appeal being taken, is qualified by the appeal and the decree is not final in the sense that it will form res judicata as between the same parties “ The observation of the Division Bench of this Court in the case of lndrasingh (Supra) that the principle as enunciated by the Privy Council in the case of S. P. A. Annamalay (supra) had a wider application than merely to the questions of res judicata, was not acceptable to Mangalmurti J. ecause, “The extent of this wider application has not been discussed or laid down and the leamed Judges have made no reference to Order 41, rule 5 of the Code of Civil Procedure which lays down that an appeal shall not operate as a stay of proceedings under a decree or order appealed from. except so far as the appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having open preferred from the decree, but the appellate Court may for sufficient cause order stay of execution of such decree. So for purposes of execution, the decree or order remains final even after an appeal is filed till its disposal. With respect to the learned Judge, it is not possible to accept this reasoning because provisions of Order 41, rule 5 of the Code of Civil Procedure are clearly inapplicable to proceedings under Rent Control Order acording to Mangalmurti J., a quit notice can be given even during the pendency of appeal against the order of Rent Controller because giving of quit notice was “'more akin to the question “of execution of a decree or order than to the question of res judicata”. It was on this basis that the learned Judge differed from the view expressed by the Division Bench of this Court in the case of Indrasingh (supra). As indicated earlier, in the absence of applicability of Civil Procedure Code to the proceedings under Rent Control Order, it is difficult to accept that decision of Rent Controller, though not final, cou1d form a valid basis of a quit notice on the reasoning that a decree under appeal could always be executed and filing of appeal does not operate as stay. 7. My a1tention was also invited to two other unreported decisions from Second Appeal No. 137 of 1966 decided on 6-10-1979 by Waikar J. and Civil Revision Application No. 455 of 1980 decided on 18-9-1980 by Gadgil J. In the former decision, the observation is, “The legality of the quit notice was not seriously disputed by Shri Kherdekar. In fact all that was contended before the lower appellate Court was that the said notify was premature. Now the permission was granted by the Rent Controller on 28-3-1961 and the appeal preferred against that order to the Deputy Collector was dismissed on 4-9-1962. The quit J1o.tiee;nowever, was served on 1-9-1962. It was rightly observed by both the Courts below that the quit notice, though it was issued before the appeal was decided by the Deputy Collector, remained a perfectly valid and legal notice, so long it was not reversed by any competent authority. The quit J1o.tiee;nowever, was served on 1-9-1962. It was rightly observed by both the Courts below that the quit notice, though it was issued before the appeal was decided by the Deputy Collector, remained a perfectly valid and legal notice, so long it was not reversed by any competent authority. I thus find that the quit notice was rightly held by the two Courts below as legal and valid.” In the latter decision, Gadgil J. observed that, “The permission granted by the Rent Controller being the basis of a quit notice, it must be desirable that civil Court should stay the suit when the fact of pendency of appeal against Rent Control Order was pointed out to it.” As they stand, these two decisions hardly advance the case of respondent and do not lay down the proposition that is propounded by Shri Mohta. 8. Referring to the decision of the Division Bench of this Court in the case of lndrasingh (supra), Shri Mohta contended that as observed at the end of paragraph 4 of the Judgment, the proper thing in such circumstances is to stay the suit and that in the present case, an application for stay was made and though it was rejected, appellant did not challenge that order. It may be that the said order was not challenged by the appellant but that does not prevent him from raising the question of law which has now been raised in this second appeal. It was also contended that the order of Rent Controller has ultimately been confirmed right upto the stage of writ petition and the impugned decree of trial Court had already provided that it shall not be executable till the decision of Rent Controller was confirmed in appeal. According' to me, all these questions are not relevant for the purpose of deciding the question of law, viz., as to whether notice of termination given on 14-7-19W terminating the tenancy at the and of July 1978 was a valid notice or not because at that time the permission granted by the Rent Controller 'was not final and could not constitute a valid basis for the said notice. The question as to whether the permission bas subsequently become final or not is not relevant for the purpose this decision. 9. The question as to whether the permission bas subsequently become final or not is not relevant for the purpose this decision. 9. Reliance was also placed on a decision of Dharmadhikari J. in the case of Mohanlal Motilal Kothare v. Raghunath Laxman9. The learned Judge held in this case that Rent Controller dealt with grant of permission to serve quit notice and further proceedings for ejectment and possession are governed by provisions of Transfer of Property Act and Civil Procedure Code, Shri Mohta submitted that in view of this proposition of law, filing of an appeal by itself could not take away a right of a landlord to issue a quit notice under the provisions of section 106 of Transfer of Property Act. Fi1ing of an appeal against an order of Rent Controller has certainly got the effect of putting the order of Rent Controller in jeopardy and the result is that the very basis of quit notice, that is the order of the Rent Controller, becomes ineffective being sub-judice. Giving of quit notice is no doubt governed by section 106of Transfer of Property Act but the Rent Control Order or 1946 is an order which restricts this right and if written permission of Controller, as contemplated by clause 13 is to be understood as a final permission to issue notice, the; right to issue notice under section 106 of Transfer of Property Act must stand restricted the moment an appeal is filed. 10. Lastly it was contended that the question of law raised in this second appeal was not raised before the first appellate Court and, therefore, appellant should not be allowed to convass the said question. As the law stands, it is clear that a pure question of law could always be allowed to be raised at the stage of second appeal, provided of course no prejudice is caused to the other side. This appeal was admitted after notice before admission and it was so admitted specifically on the questions of law raised in this Second Appeal. It cannot, therefore, be said that respondent is prejudiced in any way by permitting the appellant to raise this question of law at the stage of second appeal. This appeal was admitted after notice before admission and it was so admitted specifically on the questions of law raised in this Second Appeal. It cannot, therefore, be said that respondent is prejudiced in any way by permitting the appellant to raise this question of law at the stage of second appeal. It is true that such a question was not in terms raised before the first appellate Court though Ground No.2 in the memo of appeal before the first appellate Court no doubt states that that the learned trial Judge erred in holding that appellant's tenancy was validly terminated. 11. Before passing the final order, it is necessary to make it clear that the permission granted by the learned Rent Controller and ultimately confirmed right upto the stage of writ-petition could certainly be used by the respondent as a basis for giving another quit notice. 12. Appeal is allowed and the impugned judgments and decrees of the Courts below, so far as they relate to ejectment and possession and damages, are quashed and set aside. In the circumstances of the case, there will be no order as to costs. Appeal allowed. ----