TARUN KUMAR GUPTA,J. - (1.) THE defendant tenant is the appellant against this judgment of reversal. THE respondent as the plaintiff filed a suit being Title Suit No.153 of 1989 against the defendant in respect of the suit shop room on the grounds of default in payment of rent at the rate of Rs.100/- per month from Kartick, 1386 B. S., causing damages to the suit property as well as reasonable requirement of the same. It is further case that plaintiff sent a lawyer's notice to quit dated 31.07.1989 to the defendant tenant under registered post with A/D and that defendant received said notice by putting his L. T. I. thereupon but in spite of receipt of said notice he did not vacate the suit premises by the end of Bhadra, 1396 B. S. and hence was the suit for eviction.
(2.) THE defendant tenant contested said suit by filing a written statement alleging inter alia that plaintiff was not the sole landlord and that rate of rent was Rs.25/- per month and that plaintiff earlier brought a suit being Title Suit No.136 of 1980 praying for eviction of this defendant claiming him to be a licensee in respect of the suit property and that the same was dismissed not only in the Trial Court but also in the appellate Court in Title Appeal No.189 of 1983. It is further case that notice was illegal, invalid and insufficient and that the suit was liable to be dismissed. Both the Courts came to the concurrent findings of fact that the defendant was a tenant at a rental of Rs.100/- per month under the plaintiff in respect of the suit premises and that he defaulted in payment of rent since Kartick, 1386 B. S. and that a notice to quit dated 31.07.1989 was duly sent to defendant tenant under registered post with A/D asking him to vacate the suit premises by the end of Bhadra, 1396 B. S. and that the notice was legal and valid. Learned Trial Court, however, dismissed the suit on the ground that the plaintiff failed to prove that the notice to quit was duly tendered to the defendant or that he accepted the same by putting his L. T. I. thereupon. In the process learned Trial Court further observed that the postal peon (P.W.2) tried to prove said service of notice upon the defendant by setting one Amal Kumar Roy as identifier of the L. T. I. of the defendant, who was none but the brother of the postal peon and that there was no explanation as to why the brother of the postal peon should be identifier in the case. learned Trial Court further observed that son of the defendant (D.W.1) categorically deposed that he had inimical relation with both postal peon and his brother Amal Kumar Roy. In this connection he further observed that said Amal Kumar Roy was not examined and the postal peon came to depose by taking casual leave from his office and hence he was an interested witness and was not a reliable person. Accordingly, learned Trial Court declined to pass any ejectment decree on the ground that the service of notice was not proved to the satisfaction of the Court. Learned Lower Appellate Court, however, accepted said service of notice upon defendant tenant as proper service and passed the ejectment decree after setting aside the judgment and decree of learned Trial Court. At the time of hearing of this second appeal preferred at the instance of the defendant tenant, the following substantial question of law was framed on which learned counsels of the parties have argued. Substantial question of law Whether learned Lower Appellate Court substantially erred in law by accepting the service of notice upon the defendant tenant as proper without applying correct legal test and thereby caused miscarriage of justice. Mr. Sudipta Moitra, learned counsel for the appellant tenant, submits that during argument before learned Lower Appellate Court it was prayed from the side of the landlord that the suit should be sent back on remand for framing an issue on the point of service of notice but learned Lower Appellate Court framed an issue to that effect and decided the same without referring the matter to the learned Trial Court. According to him, learned Lower Appellate Court should have referred the matter to learned Trial Court for fresh decision after framing a proper issue on that score.
(3.) I find little merit in the aforesaid submission of learned counsel for the appellant tenant. As both the parties adduced evidence in support of their respective stand on the point of service of notice upon the defendant tenant in spite of not framing of any specific issue, then no prejudice was caused to any of the parties for not framing of that specific issue by the learned Trial Court. This is more so as learned Lower Appellate Court has framed a specific issue to that effect and analyzed the evidence on record to dispose of the same. Learned counsel for the appellant tenant next submits that learned Lower Appellate Court has come to a wrong finding on that issue by observing that the postal peon Nityananda Roy (P.W.2) proved L. T. I. of the defendant Phanindra Nath Ghsoh and that there was no proof of existence of any inimical relation between the defendant in the one hand and the postal peon and Amal Kumar Roy, the identifier of the L. T. I. of the defendant in the other hand and that there was no specific denial in the written statement about non-receipt of the notice by putting L.T.I. or having any inimical relation with the postal peon. According to the learned counsel for the appellant tenant said observations of learned Lower Appellate Court were not correct as defendant's son while deposing as D.W.1 categorically stated that they had inimical relation with the postal peon and his brother Amal Kumar Roy. He further submits that there was no explanation as to why of all persons postal peon's brother Amal Kumar Roy should be identifier of the L. T. I. of the defendant. He next submits that even if there was no averment in the written statement as to the denial of the receipt of the notice to quit by putting L. T. I. thereupon but parties led evidence on that score, and that the absence of said specific pleading in the written statement lost its significance. In this connection he refers a case law reported in AIR 1966 Supreme Court page 735 (Bhagwati Prasad vs. Chandramaul) wherein it was held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. He refers another case law reported in AIR 1989 Supreme Court page 1530 (Kali Prasad Agarwalla and others vs. M/s. Bharat Coking Coal Ltd. and others) wherein it was held that where the parties went to trial knowing fully well what they were required to prove and they had adduced evidence of their choice in support of their respective claims and that evidence was considered by both Courts below, they could not be allowed to turn round and say that the evidence should not be looked into. In this connection he refers a case law reported in 1956 SC page 593 (Nagubai Ammal and others vs. B. Shama Rao and others) wherein it was held as follows: "Evidence let in no issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application 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." According to him, as both sides adduced evidence in support of their respective claims regarding service / non-service of the notice upon the defendant tenant it mattered little whether there was any specific denial to that effect in the written statement or not.;