- (1.) THIS appeal has been filed by Smt. Saraswati Devi plaintiff against the judgment and decree dated 24-2- 1968 passed by the Civil ludge, Mohanlalganj, Lucknow.
(2.) IT appears that Smt. Saraswati Devi filed a suit for ejectment of the res pondent Sarju Prasad from a certain shop on the allegation that he was her tenant on a monthly rent of Rs. 15, had been in arrears for four months, that he had failed to pay the arrears or to vacate the pre mises in spite of notice demanding pay ment of Rs. 100. The defendant-respon dent admitted the relationship of landlord and tenant but pleaded that the rate of rent was Rs. 10 per month and not Rs. 15. It was disputed that there was any default in the payment of rent. It was alleged that the defendant having remitted the rent through money orders and the plain tiff having refused the remittances there was no default. It was further contended that after refusal of these remittances the defendant had deposited the rent also in court. There was a denial of the service of notice. The trial Court found that the rate of rent was Rs. 10 and that the defen dant had committed default in payment of rent because at that rate the arrears for the period in question amounted to Rs. 40 whereas it was shown that only Rs. 30 were remitted to the plaintiff by money order and not Rs. 40. There was also an argument raised at the trial that the de fendant had deducted Rs. 10 towards the expenses of repairs and white-washing and adjustment was claimed for this amount but this argument was rejected by the trial Court on the ground that there was no proof of any contract or agreement by which any amount could be spent over repairs or white- washing. The suit for ejectment and recovery of Rs. 109 was decreed by the Munsif. The defendant appealed. The appeal was allowed and the case was remanded to the trial Court with a direction that an opportunity shall be provided to the defendant to prove the notice said to have been served on the plaintiff before effecting repairs. It is this order of remand which is challenged be fore this Court. The main submission is that the notice remained unproved at the trial on account of laches or negligence of the de fendant himself and the appellate court could not pass an order of remand in order to permit the defendant to fill up this gap in his evidence and to take advantage of his own laches. It was further submitted that there was no pleading in the written statement about repairs having been effect ed to the premises; about Rs. 10 being spent towards repairs, the same having been effected after due notice to the plain tiff and about defendant's entitlement to deduction on account of repairs and it was submitted that in the absence of this plead ing also no amount of evidence adduced for the defendant could be received. It is no doubt true that the only plea in the written statement to meet the allegation of default was tender of the amount by money order and plaintiff's refusal and the subse quent deposit in court. Strictly speaking, therefore there was no pleading about re pairs after notice and adjustment but it will appear that the defendant produced three certified copies of money order cou pons along with receipts, the genuineness of which was admitted by the plaintiff's counsel. These money order coupons con tained recital suggesting the spending of Rs. 10 over repairs and defendant mak ing a deduction of Rs. 10 on that account from rent due for October. When the de fendant entered the witness box he depos ed on oath that he had sent the rent by money order after making deduction of the amount spent over repairs which clear ly implied that he had made a deduction of the short amount of Rs. 10. No objec tion appears to have been taken on the plaintiffs' behalf to the leading of evidence on repairs in the absence of pleading. Having regard to these circumstances it appears to me that the parties when they went to trial had in their mind the im pression that they were at issue on the question whether the defendant was en titled to deduction on account of repairs and its bearing on the question of default. In the case of Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593 one of the argu ments raised was that no plea of lis pen-dens having been taken in the pleading the evidence bearing on that question could not be properly looked into and no decision could the given based on such a document and for this argument reliance was placed on the Privy Council decision in Mahomed Shah v. Mt. Saran, AIR 1930 PC 57, where the Privy Council observed that no amount of evidence can be look ed into upon a plea which was never put forward. This plea was overruled by the Supreme Court with the following observa tions:- "The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of ano ther and different issue, which was not present to the minds of the parties and on which they had no opportunity of adduc ing evidence. But that rule has no appli cation to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto." They referred with approval to another decision of the Privy Council in the case of Rani Chandra Kunwar v. Narpat Singh, (1907) 34 Ind App 27 (PC) where the defendants put forward at the time of trial a contention that the plaintiff had been given away in adoption, and was in conse quence not entitled to inherit. No such plea was taken in the written statement; nor was any issue framed thereon and be fore the Privy Council the argument was that in the absence of pleading the ques tion of adoption was not open to the de fendants. This objection was overruled by Lord Atkinson with the observation that "as both the parties had gone to trial on the question of adoption and as the plain tiff had not been taken by surprise, the Elea as to adoption was open to the de-aidants, and indeed, the defendants suc ceeded on that very issue." In this case also I observe that no sur prise can be said to have been sprung on the plaintiff-appellant by the absence ol pleading about repairs because the defen dant filed not only the original but also certified copies of money order coupons and actually in his statement deposed about deduction of money spent over re pairs and at no stage of the trial the plain tiff-appellant appears to have taken any ob jection to the reception of this evidence bearing on the question of repairs or ad justment on that account. There was how ever some confusion at the trial for the Court did not care to obtain endorsement of admission or denial on the original money order coupons which were filed by the defendant and the defendant also on his part did not produce evidence in proof of the notice although the postal receipt and the acknowledgment thereof had been produced but denied by the other side. In the peculiar circumstances of this case with all the relevant documents bear ing on the question of repairs and the ad justment claimed in that pehalf the appel late Court cannot be said to have acted improperly or illegally in thinking that the ends of justice would be served by sending back the case to the trial Court for a determination of the issue whether there were any repairs effected by the defendant and whether the defendant was in law en titled to any deduction or adjustment on that account towards the rent as that ques tion has bearing on the main issue whe ther the defendant had committed default The plea therefore that the remand order was without jurisdiction or illegal cannot in the peculiar circumstances of this case to my mind stand. However, I would like to make certain observations.-Despite the fact that there was no specifics pleading about repairs and adjustment of Ks. 10 towards rent on that account in the circumstances of the case to my mind it would be proper for the trial Court to frame an additional issue in the following terms: "Whether the defendant effected any repairs after proper notice to the plaintiff as alleged and whether the defendant is On. that account entitled to any adjustment towards rent. If so, its effect on the question of default in the payment of rent? After adding this issue both the parties should receive equal opportunity of placing their case before the trial Court. The burden of this issue will have to be on the defendant and after the defendant has led evidence on it the plaintiff-appellant should have an opportunity of producing such evidence in rebuttal as he may like to produce.
(3.) WITH the above observations this appeal is dismissed. Costs are made easy. Appeal dismissed.;