- (1.) D. C. Srivastava, J. This is plaintiff's second appeal.
(2.) A suit for permanent injunction was filed by the plaintiff- tenant against the defendant-respondent- landlord praying that the landlord be restrained from obstructing in getting the roof and wall of the disputed shop in the tenancy of the ap pellant repaired. The shop in dispute was alleged to be in tenancy of the appellant on monthly rent of Rs/15/ -. The landlord wanted to evict the appellant and created all sorts of obstructions and made a plan in the year 1982 to forcibly demolish the shop so that it may be vacated. A suit for permanent injunction numbered 311 of 1982 was filed in the Court of Munsif, Hathras in which the relief sought was that the landlord be restrained from forcibly evicting the plain tiff-appellant. The said suit was dismissed, but the appeal was allowed. It was alleged that a wall of the shop and roof were got damaged and demolished by the defendant by digging ditches around the wall. The plaintiff wanted to carry out repairs which was obstructed, hence, the suit was filed. The landlord contested the suit on the ground that the shop was old construc tion and in the year 1986 it fell down in the rainy season and not that the roof and wall were got demolished by the defendant. The suit was decreed by the trial Court but in appeal the judgment and decree of the trial Court were set aside and the suit was dismissed. It is, therefore, this second appeal.
(3.) THE only point for adjudication in this appeal is whether the suit of the plain tiff-appellant could be dismissed on the ground of bar created by Order 2, Rule 2, C. RC. It may be mentioned that this bar was not pleaded in the written statement. It was raised for the first time in the trial Court during arguments. The learned appellate Court disagreeing with the findings of the trial Court on this plea dismissed the suit.;