GURUSHARAN SHARMA,J. - (1.) 1. Smt. Pratibha Saha filed Eviction Title Suit No. 103 of 1981 against Sanat Kumar Mukherjee, under the provisions of Bihar . Buildings (Lease, Rent and Eviction) Control Act, 1977, for eviction from the suit premises, bearing holding no. 1538, Ward no. 11/8 in Ranchi town on the ground of default in payment of rent. 2. Sanat Kumar Mukherjee neither appeared, nor filed written statement, nor contested the suit. 3. One Manas Kumar Chatterjee intervened in the suit and was added as defendant no. 2, who, according to plaintiff was a sub -tenant in the suit premises. 4. The intervenor defendant no. 2 subsequently filed written statement and contested the case claiming himself to be a tenant and alleging that it was a collusive suit filed against Sanat Kumar Mukherjee, who was not the tenant. In his written statement defendant no. 2 asserted to have been paying rent to the landlady through her husband, Pramod Kumar Saha some times hand to hand as and when he used to come to Ranchi from Calcutta to collect rent and some times by money order. 5. Inspite of aforesaid contention of defendant no. 2, plaintiff neither amended the plaint nor claimed any relief against defendant no. 2 treating him as tenant and continued with the suit on the basis of averment made in the plaint. 6. Trial court dismissed the suit holding that there was relationship of landlord and tenant between the plaintiff and defendant no. 2, who was not a sub -lessee in the suit. 6. It was further held that plaintiff's requirement to the suit premises was neither reasonable nor in good faith and the tenant, defendant no. 2 had also not committed any breach of tenancy. 7. Plaintiff, therefore, preferred appeal against the said decree which was allowed by impugned judgment and decree dated 10.4.1991 and the trial court's judgment and decree were set aside. It was observed that in view of the fact that Manas Kumar Chatterjee was shown as sub -tenant in the plaint and was also made a party and the relief was claimed for eviction from the suit premises, there was no lacuna in the plaint, even though in the relief portion it was not added that the sub -tenant may be directed to be evicted from the suit premises. The relief was claimed against the defendant and it was for eviction from the suit premises. 8. The court of appeal below also held that there was default in payment of rent by defendant no. 2 for the months April, 1978 to August, 1978 and as such he was liable to be evicted from the suit premises. 9. At the time of admission of the second appeal following substantial question of law were framed : (i) "Whether the court of appeal below could have decreed the suit on the finding that in absence of postal stamps on money order coupons it cannot be held that in fact money was tendered through the post office, without properly construing the Ext. A and B series - (ii) "Whether in view of the finding of the trial court that the appellant was not a substenant rather was a tenant the lower appellate court could have decreed the suit as against the appellant when he was not made a party in the plaint and initially no relief was sought for against him - (iii) "Whether the learned appellate court has committed an error of law in making out a new case for the plaintiff that the defendant no. 2 appellant has defaulted in payment of rent which was never pleaded by the plaintiff in plaint save and except in course of argument before learned appellate court - 10. Mr. S.N. Rajgarhia, councel for appellant submitted that in the present case the landlady never accepted the alleged sub -tenant as her tenant nor sought ejectment on the ground of non -payment of rent and as such the plaintiff could not have been given any relief contrary to her case on the admission of defendant -appellant, if it was going to cause prejudice and injustice to him. 11. In this regard Mr. Rajgarhia placed reliance on a decision of Apex Court in Om Prakash and others vs. Ram Kumar and Others (AIR 1991 SC 409). 12. It is true that in the present case defendant no. 2 was described as subtenant of the plaintiff and was not impleaded in the suit. The decree for eviction was sought against the person, who was found by both the courts below not a tenant in the suit premises. Defendant no. 2 himself applied to be impleaded as party in the suit and was added. Plaintiff, therefore, did not amend the plaint or seek eviction of defendant no. 2, though the court ordered him to be brought on record as a necessary party. Nothing known that defendant no. 2 was in actual possession of the suit premises as tenant. Plaintiff for the reason best known to her did not seek relief for his eviction. It cannot be said that defendant no. 2 by getting himself impleaded in the suit cannot be considered to have agreed to suffer ejectment. So according to averment in plaint, the question was whether the sub -tenant can be ordered to be evicted for non -payment of rent when he claims to be direct tenant under the landlady, even when the landlady had not sought his ejectment on that ground. 13. Mr. Debi Prasad, Senior counsel for the respondents placed reliance on a decision of the apex Court in Firm Sriniwas Ram Kumar Vs. Mahabir Prasad and others (AIR 1951 SC 177), wherein it was held that ordinarily the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings, but when alternative case pleaded by plaintiff was admitted by the defendant in his written statement, there was nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes out. 14. The aforesaid proposition was based on consideration that the statement of plaintiff based on defendant's own plea cannot possibly be regarded and there was no question of adducing evidence on those facts when they were expressly admitted by the defendant. 15. In such circumstance, there was no occasion for any injustice to the defendant and in such circumstance plaintiff should not be driven to a separate suit. In my view, in the facts and circumstances of the present case, aforesaid proposition is not applicable. Here, no doubt defendant claimed himself to be tenant, but the plaintiff did not accept it and continued to prosecute the suit against defendant no. 1 as tenant. Secondly, so far as question of default being a ground for eviction was concerned, defendant no. 2 besides the fact that he admitted himself to be the tenant, he never accepted that he was a defaulter in payment of rent and the plaintiff treating the defendant no. 2 as sub -tenant was also not in a position to allege default in payment of rent by defendant no. 2. 16. In the aforesaid circumstance, I need not go into the aforesaid question of law framed in respect of default in payment of rent by defendant no. 2, at the time of admission of the appeal. I have no option but to set aside the impugned judgment and decree, passed by the court of appeal below. 17. In the result, the appeal succeeds and is allowed, but without costs. The suit stands dismissed.;