MODI, J. - (1.)THIS is a plaintiff's second appeal in a suit for arrears of rent and ejectment.
(2.)THE plaintiff's case was that the defendant Laxminarain had taken the suit house from the former on an annual rent of Rs. 40/- on Sawan Sudi 1 Smt. 2003 vide Ex. 1 but the defendant did not pay any rent. THEreupon the plaintiff served the defendant with a notice to quit on the 21st November, 1955, and stated that the tenancy would stand terminated on the 13th January, 1956. THE defendant refused this notice. Consequently, the plaintiff instituted the suit, out of which this appeal arises, for recovery of arrears of rent for a period of two years and five months amounting to Rs. 96/t0/-, and he also claimed Rs. 23/9/- as compensation for use and occupation for the period after the termination of the tenancy upto the date of the suit. THE plaintiff also impleaded Mayaram as defendant No. 2 in the suit as he was a sub-tenant of defendant Laxminarain. Defendant No. 2 filed his written statement merely to say that he was a tenant of defendant Laxminarain and was paying him a rent of Rs. 5/- per mensem but otherwise he did not resist the plaintiff's suit. THE main defendant who resisted the suit was Laxminarain and he denied the relationship of landlord and tenant between himself and the plaintiff, and although he admitted that he had executed the rent-note Ex. 1 in favour of the plaintiff, he raised the plea that it had been obtained from him by the plaintiff through one Dhanraj by undue pressure. This defendant also contended that the plaintiff had filed against him two suits prior to the present one and he had still continued in possession and therefore the present suit was barred by the rule of resjudicata. For facility of reference, I shall refer to Laxminarain as the only defendant in this suit.
The trial court held that the defendant's version that the rent note Ex. 1 had been extracted out of him by the plaintiff as a result of undue pressure having been brought on him through Dhanraj or for that matter any other person was wholly false and unfounded that court also held that although it was correct that the plaintiff had filed two suits against the defendant, one in 1947 and the other in 1951, it was not at all clear from the record what had been the result of those suits and whether they were decided on the merits or not, and, therefore, the plea of res judicata was futile. That court further held that under the circumstances, the relationship of landlord and tenant was fully established between the parties and consequently it decreed the plaintiff's suit in toto.

The defendant went up in appeal which came for disposal before the Additional Civil Judge, Udaipur. The only point which was raised before the learned Judge below was that the present suit was not maintainable in the form in which it was brought as there was no subsisting tenancy between the plaintiff and the defendant, a point which was never raised by the defendant in the trial court nor was it made the subject-matter of any issue. Yet, curiously enough, this point prevailed with the learned Additional Civil Judge and he came to the conclusion that there was no subsisting tenancy between the plaintiff and the defendant when the present suit was brought, it having been terminated by the notices which the plaintiff had given to the defendant in the two previous suits, and, therefore, he held that the plaintiff's suit for recovery of arrears of rent and ejectment was altogether not maintainable in law and so he dismissed the suit. Aggrieved by this decision, the plaintiff has come up in second appeal to this Court.

The principal question which arises for determination in this appeal, therefore, is whether the view of the learned Judge below that the present suit was not maintainable for the reasons relied on by him is well-founded. I have no hesitation in saying that it was not. In the first place, I should like to point out that the plea which prevailed with the learned Judge had not been raised by the defendant in his written statement at all nor was it made the subject-matter of any issue. I am quite definitely of the opinion that assuming that there was force in law in the plea raised by the defendant before the court below (I am glad to be able to say that there was none) and it had been raised at the proper time, it should have been perfectly open to and possible for the plaintiff to have amended his plaint in the trial court in the sense that he should have based his suit on title and moulded his relief as for damages for use and occupation and not for rent at all. Quite obviously, this was not done or considered necessary because no such objection was raised by the defendant in the trial court.

Now, there is authority for holding that where a plea which may go to the root of the plaintiff's case and which could have been taken in the trial court by the defendant but was not so taken and such a plea is sought to be raised by the latter for the first time in the appellate court, and where if it had been raised the plaintiff could have remedied the defect in the trial court, such a plea should not be allowed to be raised in the appellate court. See United Brokers Vs. Alagappa Corporation (1 ). In this view of the matter, my conclusion is that the learned Additional Civil Judge fell into a serious and a manifest error of law when he went to the length of dismissing the plaintiff's suit on a point which was raised before him for the first time and which should not have been allowed to be raised.

Apart from that, however, on the merits of the question which has been decided by the learned Judge below against the plaintiff, my conclusion is that he was definitely wrong. The learned Judge seems to have forgotten altogether that the property was situate in the town of Nathdwara to which the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Act No 27 of 1950, was applicable. The expression 'tenant' has been defined in clause (7) of sec. 3 of this Act as follows: - "'tenant' means the person by whom rent is, or but for a contract express or implied would be payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in posses sion after the termination of a tenancy in his favour otherwise than under the provisions of the Act. " From this definition it is quite clear that a tenant, using the expression in its restrictive sense, would to be a tenant in the sense in which this word is defined by the Act of 1950 so long as he continues in possession even though his tenancy may have been terminated within the meaning of the Transfer of Property Act and does not hand over possession "to the landlord under the provisions of the Act of 1950. In other words, the effect of this definition is that an artificial or statutory tenancy will come into existence in cases falling within the ambit of the said Act. See Hansraj Vs. Gappulal (2) in this connection. I wish to invite special attention to that part of the judgment in this case where it has been observed that: "the word 'rent' is nowhere defined and if the purposes of this Act are to be fulfilled, rent must be deemed to include whatever is paid as damages for use and occupation, for in common parlance that is nothing but rent for the house though in strict legal terminology, it is called damages for use and occupation. " Again it was held in Gour Mohan Vs. Sailendra Nath (3) by P. B. Mukharji J. that a person would still be a tenant within the meaning of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, (Act No. 38 of 1948) even though a notice to quit and/or a decree had terminated this tenancy but which notice or decree had not been satisfied by recovery of possession from the tenant within the meaning of the Act.

The same position must hold good under our Rent Control Act.

That this is the correct position in law is placed beyond any manner of doubt by a decision of their Lordships of the Supreme Court in S. B. K. Oil Mills Vs. Subhash Chandra (4) where referring to sec. 12 (1) of the Bombay Hotel and Lodging House Rent Rates Control Act, 1947 (Bom. 57 of 1947), their Lordships pointed out that the word 'tenant, included not only a tenant whose tenancy subsisted in the ordinary sense of the term but also any person remaining in possession after the determination of the lease with or without the assent of the landlord.

In this state of the law, I have no hesitation in coming to the conclusion that notwithstanding the fact that there was an earlier litigation between the parties and that the plaintiff had then determined the tenancy under the ordinary law, the defendant continued to be a statutory tenant under the Rajasthan Premises (Control of Rent and Eviction) Act, because he still continued in possession and had not made it over to the plaintiff under the provisions of the said Act. It must follow, therefore, that the finding of the learned Additional Civil Judge that there was no subsisting relationship of landlord and tenant between the plaintiff and the defendant is completely wrong and must be set aside.

In the result, I allow this appeal, set aside the judgment and decree of the learned Additional Civil Judge and restore that of the trial court. The defendant will have one month's time to give vacant possession of the suit premises to the plaintiff. Leave for special appeal is asked for and is refused. The plaintiff will have his costs throughout. .