Gur Sharan Lal, J.
1. This second appeal arises out of a suit for ejectment and recovery of arrears of rent. The suit was decreed by Sri R. P. Nigam, 2nd Additional Munsif, Lucknow and on appeal by the tenant, the trial court's decree was maintained by Sri B. P. Srivastava. Civil Judge Malihabad, Lucknow. The tenant Moinuddin has come up in the second appeal.
2. The facts of the case are briefly these. The appellant was admittedly a tenant of the plaintiff-respondent Choudhry Mohammad Imamuddin Ashraf, A suit for ejectment and recovery of, arrears of rent was also filed by the landlord, being suit No. 201 of 1962. In that suit the allegation was that the tenancy related to an open piece of land. The tenant pleaded that the rented premises consisted not only of land but also of some roofed constructions on a part of the land and so the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act) was applicable to the rented accommodation and the suit could not therefore have been instituted by reason of the bar created by Section 3 of the Act, In that suit it was found as a fact by the first appellate court that what had been let out to the tenant was an open piece of land along with a kothri and latrine existing thereupon, and the suit was therefore barred by Section 3 aforesaid. Therefore the suit was decreed for a very small part of the rent claimed, the rest having been held to be paid up. In the second appeal filed by the landlord in this court the matter was ultimately left to the special oath of the tenant who stated on special oath that the tenancy covered a kothri and a latrine. The second appeal was therefore dismissed on 6-12-1966.
The very next day a notice of demand of arrears of rent and ejectment was sent by the landlord to the tenant, but again a fresh notice of ejectment was later given which was served on the tenant on 17-1-1967. The suit under appeal was then instituted on 16th February. 1967 giving out the rented premises to be a piece of land with kothri having five Dars, that is to say, five shutterless doors or gates. The suit for eviction was said to be maintainable on two of the several grounds on which a suit under Section 3 of the Act can be filed without obtaining the permission of the District Magistrate. These grounds were that the tenant had failed to pay the arrears of rent for more than three months to the landlord within one month of the service upon him of the notice of demand and, secondly, that the tenant had, without the permission in writing of the landlord, made constructions which had materially altered the accommodation. A sum of Rs. 1,260/-was claimed as arrears of rent and damages for use and occupation recoverable upto the date of institution of the suit.
3. The suit was contested by the tenant. According to him he had not failed to pay the arrears of rent demanded as he had sent the rent both prior to the receipt of the notice of demand and thereafter by money orders but the landlord has refused to accept the same. He also denied having made any such construction as he had materially altered the accommodation. His third plea was that when the first suit for ejectment was filed the premises were in the same condition in which they were when the second suit was filed and because the landlord had not taken the plea in the first suit that the suit was maintainable under Section 3 of the Act because of material alteration in the accommodation, the claim on the basis of material alteration was barred by the rule of constructive res judicata.
4. The position in regard to payment of rent was this. It came to be admitted between the parties that rent which was unpaid by the time the notice dated 7-12-1966 was given, that is to say, rent payable upto the month of November, 1966, amounted to Rs. 1,120/-. The notice was received by the tenant on 10-12-1966. The tenant had remitted by money order Rs. 490/- on 27-11-1964 and again a similar sum by money order on 9-12-1966. Both the amounts were accordingly sent before the receipt of the notice. Both the money orders were refused by the landlord and the amount remitted came back to the tenant. After the receipt of notice and after the return of the amounts already sent under the two aforesaid money orders, the tenant remitted again by two money orders on 6-1-1967 a total amount of Rs. 1126/-, there being one money order for Rs. 600/- and the other for Rupees 526/- The landlord refused to accept these money orders on 14-1-1967 and the monies came back to the tenant. Since there is no evidence that the said two money orders were taken by the Postman to the landlord prior to 14-1-1967 also, it is to be assumed for the purpose of the case that they were first taken to him on 14-1-1967. The controversy which arose for decision was whether the money orders for Rs. 600/- and 520/- not having actually reached before the landlord by 10-1-1967, the tenant was to be regarded as having failed to pay the arrears within one month of the notice of demand. The trial court held that the defendant had not committed default in the payment of rent because he had sent the same within reasonable time to reach the landlord before the expiry of the period of one month from the receipt of the notice. The appellate court however took a different view and held that the tenant had failed to pay the arrears of rent demanded within one month of the notice of demand.
5. As to the making of constructions by the tenant so as to materially alter the accommodation both the courts held in favour of the landlord, the trial court thought that because at the time of the taking of premises on rent there was one kothri on the land while in the examination-in-chief the tenant had stated that there existed two kothris, one tin-shed and one latrine on the land, there was therefore material alteration. The appellate court held likewise.
6. On the plea of res judicata both the courts held against the tenant.
7. In the appeal it has been contended by Sri Bishun Singh, learned counsel for the appellant, that the appellate court erred in its decision on all the three pleas which it had to decide. All the three pleas will therefore need to be considered, each raising a question of law.
8. Clause (a) of Section 3 as providing a situation in which a suit can be instituted without the permission of the District Magistrate runs thus;--
'(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand;' There is no controversy about more than three months' rent having been recoverable from the tenant when the notice dated 7-12-1966 was given. The point in controversy is only whether the tenant 'has failed to pay the same to the landlord'. It is now the settled view which has not been controverted in the appeal before me, that it is not necessary that the landlord should have accepted the rent within one month of the notice of demand before it could be said that the tenant has not failed to pay the arrears of rent to the landlord within the meaning of Clause (a) quoted above. It is undisputed that at least if the rent is actually tendered to the landlord within the period of one month, the tenant cannot be said to have failed to pay'.
See for example, the Full Bench case Mst. Indrasani V. Din Ali (1968 All WR (HC) 167) (FB).
As the provisions in Section 3 of the Act show the scheme of the section in regard to institution of suits for eviction of tenants by landlords is that no suit can be instituted without the permission of the District Magistrate but in the case of certain objectionable conduct on the part of the tenant as narrated in Clauses (a) to (f) of sub-section (1) of Section 3, a landlord can sue his tenant for eviction without the District Magistrate's permission. There is only Clause (g) in which the question of the tenant's conduct does not come in. One of the expressly avowed objects of the Act as appearing from its preamble is to prevent the eviction of tenants from residential and non-residential accommodation. Where, therefore, eviction has been permitted as an exception, the particular provision permitting eviction needs to be strictly construed and in the case of any doubtful meaning the provision has to be interpreted in favour of the tenant. Because it is the tenant's conduct under Clause (a) which permits the landlord to file a suit for his eviction, the landlord cannot by his own conduct create for himself a favourable situation to sue for eviction. It is for this reason that even though rent has not been actually received by a landlord on account of his refusal to accept the same upon its being tendered and there is no case of rent having been paid up, the tenant is yet held not to have failed to pay the same to the landlord. The liability for arrears of rent does not cease by the landlord refusing to accept the rent when tendered and yet the tenant is not held to have 'failed to pay'. In other words, the expression 'has failed to pay' has been taken to mean that the tenant has not defaulted in tendering the rent in arrears within one month of the receipt of notice of demand.
9. There are many ways in vogue of paying rent and naturally the question whether a tenant has failed to pay rent within the meaning of Clause (a) aforesaid arises before courts in diverse circumstances. One of the common ways of paving rent is by money order. Even where the tenant and the landlord live in the same city the tenant sends rent by money order either because it may be for him a convenient mode of paying money or he may be overcautious and may try to avoid a situation in which upon tender in cash of rent personally to the landlord the latter has refused to accept the same and yet alleges that the tenant has failed to pay rent. Such a situation is heightened when the running of tenancy is not smooth and the landlord wants to find out some method of being able to evict his tenant.
The Transfer of Property Act does not provide for any special manner of paving rent by a tenant to the landlord. Payment by money order is one of the recognized ways of paying rent. If rent in arrears is sent by money order and the money order is taken beforethe expiry of the period of one month from the date of service of notice of demand upon the tenant the tenant is held not to have failed to pay even though the landlord may not have accepted the money order and may have refused it. In fact even where the rent demanded is attempted to be paid either personally or through money order and the personal tender is attempted before the expiry of the period of one month or the money order reaches the addressee's place before the expiry of one month but the landlord is not found and therefore the amount remains unpaid, it has been held that the tenant cannot be held to have failed to pay.
In Raja Ram Gupta v. Har Prasad Bajpeyi. (1966 All LJ 477). Dhavan. J. held that a tenant can claim exemption from the consequences of non-payment if he or his agent goes to the landlord's place of residence or business for the purpose of making payment but fails to meet him. In that case a money order had been sent and evidence was given to show that the Postman took the money order to the landlord's place of residence within the period of one month but he was told that the addressee would be found at the place of his business and he went there and did not find him and later on the Postman was told that the addressee had gone out of station with, the result that the money order was returned. This was not a case in which there was actual tender of the money to the landlord and return of the money on account of his refusal. Yet the decision was in favour of the tenant, obviously because he had done what he could be expected to do so as to enable the landlord to get the rent within the period of one month from the service of notice of demand.
10. It has been argued by Sri D. C. Sinha, learned counsel for the landlord respondent, that in the just mentioned case the fact that the money did not reach the hands of the landlord was because of his own absence from his place of residence and place of business and not on account of any fault of the tenant but where a money order is not taken at all within the prescribed period of one month before the landlord even though he is available to accept it. It must be regarded as a case of the tenant having failed to pay the arrears within the prescribed period. The argument recognises that it is the conduct of the tenant which has to be judged. Reference has been made to a decision of this Court in Raja Ram v. Bisram : AIR1960All747 in which where a compromise decree directed lesser payment into court within a stipulated time in full satisfaction but otherwise a larger payment and a money order sent by the tenant within time was received in the Court after the stipulated date it was held that the condition in the decree was not satisfied as the post office was not the agent of the payee and therefore it was not the date of sending the money order but the date of its receipt by the court that mattered. No argument has been raised on behalf of the appellant that the payment of money in the post office against a money order amounts to payment to the addressee and therefore no question arises in the instant case whether the post office can be regarded as agent of the payee or not; but the case cited is quite distinguishable. The payment into court within a particular time was an initial condition for the lesser amount to be paid within that time being accepted as payment in full satisfaction. The question whether the decree-holder was entitled to execute the decree for larger amount was to be determined with reference to the fact whether the lesser amount had been paid in court within the stipulated time or not and not with reference to any default on the part of or the conduct of, the judgment-debtor. If the money was received in court within time it was to be deemed that there was full satisfaction of decree but not otherwise.
What has to be considered with reference to Clause (a) of Section 3 (1) of the Act is whether the tenant 'has failed to pay' the rent demanded within the period of one month from the service of notice of demand and this has to be considered with reference to the object and purposes of the Act as mentioned earlier already. In my opinion, having regard to the said objects and purposes, a tenant who remits the rent by money order within such reasonable time in the circumstances of the particular case in which the money order may in the ordinary course be expected to reach the landlord, should not be regarded as having failed to pay the rent within the prescribed period. If it does not reach the landlord within that period, it will be the default of someone else and not the tenant.
Such a view has been taken already by brother K. B, Asthana, J., in Ratan Lal v. Jagannath Prasad, (1967 All LJ 1029) and I respectfully agree with the view taken in that case. In the instant case even before receiving the notice the tenant sent Rs. 490/-twice by money order. The landlord refused to accept either of them. If the money orders had been accepted Rs. 980/- would have reached the hands of the landlord. It is true that a sum of Rs. 140/- would still have remained unpaid and that would have meant nonpayment of more than three months' rent but on 6-1-1967. But he took the care of remitting again not only the amounts which had been refused earlier but also more than, the remaining amount due that is to say, a total sum of Rs. 1,126/- as against the sum of Rs. 1,120/- recoverable- He sent the two money orders on 6-1-1967. As the landlord was residing in the city of Lucknow itself at a short distance from the tenant's place, the money orders could very reasonably be expected to be taken to the landlord on 10-1-1967 -- in fact even earlier. If no evidence had come about the date of refusal it could very well have been presumed under Section 114 of the Indian Evidence Act that the money orders had reached the landlord by 10-1-1967. In the circumstances of the case, therefore, there was timely remission of the arrears of rent by the tenant for the payment of the landlord and he could not therefore be regarded as having 'failed to pay' the arrears demanded within the prescribed period.
11. Reference may be made to two decisions cited by the learned counsel for the respondent. One is Saliq Ram v. Moti Lal (1960 All LJ 459) in which Oak, J. (as he then was) appeared to interpret Clause (a) of Section 3 (1) of the Act as meaning that remitting of rent by money order within time was not sufficient. That was however a case where the trial court held that the T. M. O. with which the rent was sent was not sent within the period of one month while the first appellate court held that the telegraphic money order was sent within time but the defendant failed to prove that the amount was taken or tendered to the plaintiff within time. The evidence produced only showed that the money order was refused by the plaintiff on a date which was beyond the period of one month. The question whether the telegraphic money order was sent within such due time as to enable it to be taken to the landlord in the ordinary course within the period of one month and if so, what would be its effect was not considered at all. The decision is therefore not directly In point as it did not decide the question which is being considered in the instant case. Where it is not proved that the telegraphic money order was taken before the landlord within one month of the demand notice or that it was sent in good time so as to have reached the landlord within the prescribed period in the ordinary course no other conclusion would be reached but that there was default. The other case is Beni Madho Nigam v. Smt. Murti (1968 All WR (HC) 726). In this case no doubt S.N. Singh, J. took the view that because the post office was not the agent of the landlord so if there was negligence on the part of the post office in delivering the money in time, the tenant was to suffer, I respectfully disagree with the view taken because, as stated earlier under Clause (a) of Section 3 (1) of the Act, failure to pay is to be judged with reference to the conduct of the tenant and not whether the money has actually reached or not the hands of the landlord within the prescribed period of one month.
12. Learned counsel for the appellant has contended that the tenant cannot be regarded as being in default on another consideration as well. According to him after the landlord had refused to accept the two money orders for Rs. 400/- each, one of which reached him before the sending of notice and the other after the sending of notice, the sending of money order would have been a mere form as the landlord would have refused to accept the money as he actually did on the sum of Rs. 1,126/- being remitted to him by money order on 6-1-1967. Reliance has been placed on the decision of the Privy Council in Venkatarayanim Garu v. Venkata Subadrayamma Jagapathi Bahadur Garu, (AIR 1923 PC 26) for the principle underlying his contention and upon the decision of this Court in Wasim Khan v. Shahid All (Second Appeal No. 93 of 1970, decided on 4-2-1971 (All) by a Division Bench of the Court sitting at Lucknow) as a practical illustration of the principle directly to a case relating to Clause (a) of Section 3 (1) of the Act
In Wasim Khan's case Second Appeal No. 93 Of 1970, D/- 4-2-1971 (All) the landlord was demanding rent at the rate of Rs. 25/- per month in spite of the rent having been fixed at the rate of Rs. 6/- per month under Section 3-A of the Act. Rents sent by the tenant from time to time at the rate of Rs. 6/- per month had been refused by the landlord. On the landlord giving notice of demand of rent at the rate of Rs. 25/- per month, the tenant did not send the rent demanded or any lesser amount calculating the arrears at Rs. 6/- per month, nor sent any reply to the notice. The question arose whether the tenant had failed to pay the arrears of rent within one month of the service of notice of demand within the meaning of Clause (a) of Section 3 (1). Relying upon the aforesaid Privy Council decision it was held that the sending of rent at Rs. 6/-per month would have been a mere formality as it was definite that the landlord would have refused to accept rent spent at the rate of Rs. 6/- per-month and since the demand at Rupees 25/- per month was not warranted on account of fixation of rent according to law at Rupees 6/- per month and the notice was not bona fide, the non-sending of rent as demanded or even the lesser amount calculated at Rs. 6/- per month did not amount to failure on the part of the tenant to pay the arrears demanded.
In the instant case the moneyorders sent before the receipt of notice of demand were for Rs. 980/- only. Though no doubt the landlord should have accepted that money in part-payment of his dues yet it cannot be inferred with certainty that if the tenant had sent the whole amount due, that is Rs. 1,120/-, after the service of demand notice, the money order would have been refused even if same had reached within one month of the service of notice of demand. The decision cited cannot therefore be said to help the appellant on the alternative plea that he was under no obligation, after the refusal of the earlier money orders, to remit the rent again after receipt of notice of demand, but the principles on which the question of default was judged in the said case helps the appellant as the meaning of 'failed to pay' was judged in the context of objects and purposes of the Act
Another Single Judge decision of this Court has also been cited by the learned counsel for the appellant on his aforesaid alternative plea, the same being Zareef Khan v. Mukhtar Ahmad, (1964 All LJ 148). This case also is not directly on the point because the amount remitted before receiving of notice of demand would, if accepted, have reduced the arrears of a sum less than three months' rent and after the receipt of the demand notice the tenant had enquired from the counsel of the landlord in view of the landlord's earlier refusals to specify the manner in which the rent was to be remitted and if the lawyer was prepared to accept it on behalf of his client. No reply was given by the lawyer to the tenant.. It was accordingly held that the appellant had not failed to pay the rent within the meaning of Clause (a) of Section 3 (1) of the Act The case however supports the view that it was on the basis of his conduct that the tenant was held not to have failed to payeven though he did not comply with the notice of demand.
13. Taking the second point of controversy it will be useful to reproduce Clause (c) of Section 3 (1) of the Act on which the claim of right to sue without the District Magistrate's permission is additionally based. The Clause reads:--
'(c) that the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as, in the opinion of the court, has materially altered the accommodation or is likely substantially to dimmish its value;'
Before proceeding to consider the question of the application of the above Clause to the facts of this case, it may be stated that both the courts below have misdirected themselves in dealing with this second point of controversy. They have travelled outside the pleadings and based their conclusions on oral evidence detached from the actual point of controversy. It is settled law that though liberal consideration to pleading is to be given in Indian courts so as to allow every question to be raised and discussed in the suit yet a plaintiff cannot be entitled to relief upon facts and documents neither stated nor referred to in the pleadings, vide Mohummud Zahoor Ali Khan v. Mt. Thakooranee Rutta Koer, (1866-7) 11 Moo Ind App 468 (PC).
In the instant case it was stated in paragraph 7 that the defendant had made 'material and substantial alterations and additions in the aforesaid kothri inasmuch as that he has closed the four Dars and put a fifth Dar.' The entire case of material alteration was thus founded upon the closing of four Dars and putting a door in the fifth Dar of the Kothri let out. It was only with reference to this alteration that the question whether the defendant's case was covered by Clause (c) of Section 3 (1) reproduced above had to be judged. The decisions of both the courts on the point are vitiated by ignoring the principle of confining disputes to those emerging out of the pleadings. It therefore needs to be examined whether the aforesaid construction in the form of closing up four open Dars and putting up door frames and shutters in the fifth Dar amount to materially altering the accommodation. In this connection certain decisions of our High Court and one decision of the Supreme Court have been cited and they will be examined.
14. The earliest case is Sardar Bahadur Mathur v. Kali Prasad Gupta, (1961 All LJ 137) decided by A. P. Srivastava, J. In that case the criterion laid down for determining whether the constructions had materially altered the accommodation was whether they had affected the form or structure of the building and in any way they were such which could not be prevented by an injunction nor could any damages be claimed for their erection. In the instant case the tenant has closed open Dars or gates by filling them with brick work and in the fifth Dar he has attached shutters. The kothri is still a Kothri and the difference simply is that instead of having five openings it has only one now and that too with shutters. It is nowhere alleged that any foundation had been, laid under the ground or the brick work cannot be removed easily and quickly or the door frame and shutters cannot be removed easily. The alteration is of course there but it has not affected the form or structure of the building and cannot be regarded as material alteration, nor could it have been possible for the landlord to prevent the said alteration by an injunction or to claim damages for the erection.
Under Section 108 of the Transfer of Property Act, which governs the rights and liabilities of the lessor and the lessee in the case of a lease of immoveable property, Clause (p) only states that the lessee must not, without the lessor's consent, erect on the property any permanent structure, except for agricultural purposes. The brick work which has been made to close the doors for more convenient enjoyment of the leased accommodation and for privacy and security cannot be regarded as permanent construction unless the same is not easily removable which is not the case of the landlord.
15. In the next case Jai Dhawan y. Padam Sen, (1964 All WR (HC) 612) it was laid down that the words 'material alteration' must be interpreted with common sense and not so as to make reasonable enjoyment of accommodation impossible for a tenant. It was held that construction of a roof ever a part of terrace did not amount to material alteration. Referring to the principles laid down in the aforesaid case of Sardar Bahadur Mathur v. Kali Prasad Gupta, the learned Judge observed that though he subscribed to those principles but he would Uke to add that they were not exhaustive. The same learned Judge held in Anup Singh v. Chhajjan, (1964 All WR (HC) 616) that the conversion of the Kotha from kutcha to pucca did not amount to a material alteration as it would only be the reconstructing with better material.
16. The next case is Delhi Iron Syndicate (Private) Ltd. v. Sidh Nath. (1965 All WR (HC) 211). In this case a wall existing between two rooms was demolished and the two rooms were converted into a single big room. It was held that the act of demolition of the partition wall amounted to construction within the meaning of Section 3 (1) (c) of the Act because in such process the existing wall had to be pulled down and that portion of the roof on which the partition wall rested had to be mended and the floor space on which the partition stood had to be levelled. All these works cumulatively amounted to construction and the conversion of two rooms into a single big room amounted to material alteration in the accommodation. The case is not in point as no alterations of that nature have been made.
17. The next case is Manmohan Das v. Bishun Das : 1SCR836 . In this case it was laid down that the question whether there has been material alteration depends upon the circumstances of each case; that alterations may not amount to an unreasonable use of leased premises or constitute a change in the purpose of the lease but if they have the effect of altering the form and structure of the premises they would be material alterations. It was observed that the expression 'material alterations' in its ordinary meaning would mean important alterations, such as those which materially or substantially change the front or the structure of the premises. Judged even with reference to this meaning alteration in the instant case would not be covered by the expression 'material alterations' as there is no material or substantial change in the front or structure of the accommodation let out. The Supreme Court held in that particular case the alterations to have been material but the alterations consisted in lowering the level of the ground floor by about lift, by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger door lowering correspondingly the height of the Chabutira so as to bring it on the level of the new door-step; the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinth band on which the door originally rested so as to bring the entrance to the level of the new floor.
18. There is next the case. Dr. Jai Gopal Gupta v. Budh Mal, (1969 All LJ 477) decided by a Division Bench of this Court. In this case the tenant had not touched the house whichhad been let out to him. He had however added two rooms on a portion of the courtyard, these being a kitchen and a bath-room. They appeared to the Court to be necessary for the proper and convenient use of the house let out to him. They had no foundations although they are built up with pucca bricks and had been plastered with cement. They could be demolished any time without causing any damage to the accommodation. The Court also took notice of the fact that the temporary character of those rooms was also evinced by the tenant's use of a side of a bed as a support for one of them. They occupied a small portion in the court-yard. On these facts it was held that the constructions made could not be regarded as materially altering the accommodation. Judged by the view taken in this Division Bench case, the case of the appellant before me stands on a such safer ground.
19. The last case in Kishan Lal v. Ram Baboo, (1970 All LJ 1154). Here again it was a case of pulling down a partition wall between two shops and converting them into a big single shop. It was stated that the change had the effect of making the leased accommodation lose its original identity and convert it into a different accommodation and it was therefore the case of material alteration. The instant case is not of that nature.
20. In the result in my opinion the construction in this case does not amount to a material alteration and Clause (c) of Section 3 (1) of the Act cannot therefore be availed of by the respondent to institute a suit for the appellant's eviction.
21. Coming to the third point of bar to reliance on the said Clause (c) by the principle of res judicata, it may be stated that the decision of the courts below is again vitiated by consideration of statements made in the witness-box by the appellant in disregard of the pleadings. The landlord had sued on the basis that the tenant had closed four Dars of the Kothri let out and had put a door in the fifth Dar. So far as the fact part of the defendant's plea was concerned, the courts below had to examine whether these constructions had been made before the institution of the first suit or thereafter and in case they were found to have been made before the institution of the first suit then it was further to be decided whether failure to make the said constructions as a ground for the right to sue for eviction without the District Magistrate's permission had the effect of barring a fresh suit for eviction onthat ground by the principle of constructive res judicata. It is evident from the statement of the plaintiff-respondent in the witness box that the construction in the form of closing of four Dare and putting up a door in the fifth Dar had been made before the first suit had been instituted and therefore there arises the need of determining the legal question whether in the second suit the plaintiff cannot raise the question of material alternation in the rented premises by closing four Dars and putting up a door in the fifth Dar.
22. Learned counsel for the respondent has argued that the suit instituted in 1962 was based on the assertion that the tenancy was in respect of open land only with the result that the application of the U. P. (Temporary) Control of Rent and Eviction Act was not attracted and that even when the defendant pleaded that the tenancy included roofed structure, there was no obligation upon the tenant to take up, by filing a replication or amending the plaint, an alternative plea that if the Act applied a suit was still maintainable because of the tenant having materially altered the accommodation within the meaning of Clause (c) of Section 3 (1) of the Act It is not possible to accept this argument. The law does not envisage multiplicity of suits in the form of a suit being filed on one ground and if that ground fails a second suit being filed on another already existing ground for obtaining the same relief. All the grounds need to be taken in support of the relief which a plaintiff claims, the respondent could have sued the appellant on the basis of tenancy of open land and he could have further pleaded that even if the Act was found to govern the tenancy he had right to sue to evict the tenant on the ground of material alteration in the accommodation. At any rate when the tenant took up the plea that the tenancy included roofed structures the plaintiff was bound to plead, in case he wanted to rely on the constructions made by the tenant as enabling him to get over the bar to the institution of suit for eviction created by Section 3 of the Act, that the defendant had made material alterations in the leased accommodation.
Section 11 of the Code of Civil Procedure bars the trial of any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. Explanation 4 in the sections lays down that any matter which might or ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Thus the question whether the suit for eviction was maintainable on the ground of material alteration in the accommodation would be deemed to have been a matter directly and 'substantially in issue in the former suit and since that suit for eviction was dismissed it will be taken that the question whether the defendant had made material alterations in the leased accommodation within the meaning of Clause (c) of Section 3 (1) of the Act had been decided against the plaintiff landlord.
A relevant precedent cited on behalf of the appellants is Behari Lal v. Ram Swarup : AIR1949All265 decided by a Division Bench of this Court. The facts concerning that case were these. A filed a suit against B in respect of a certain property, claiming that A's father was the sole owner of the property and B was merely a servant. Accounts were asked for from B, It was further alleged that B was falsely setting up partnership with his father which if existing was dissolved by the father's death on 30-3 1935. No reference was made to an agreement of partnership dated 6-3-1935 but it was further prayed by A that the partnership be dissolved between himself and B if it were held still to be existing. B in his written statement claimed to be the sole owner of the property and stated that as a certain amount was found due to A's father as a creditor an imperfect agreement of partnership was entered into between A's father and B on 6-3-1935 but that it was never executed and they were never partners. In that suit B was held to be the sole owner of the property and it was further held that A not having referred to the partnership agreement in his pleadings could not rely on it and hence there was no partnership between A and B. Subsequently A filed a suit alleging an agreement of partnership entered into on 6-3-1935 between himself and B and giving out that he had served a notice of its termination on B. The suit was for money due to him after accounting and in the alternative A prayed for dissolution of partnership in case its dissolution was not proved. In that subsequent suit B pleaded the finding in the earlier suit to operate as res judicata, barring A's claim to be partner with B by virtue of the agreement dated 6-3-1935. It was held that on account of Explanation 4 of Section 11 Civil Procedure Code A's claim was barred as he ought to have pleaded the agreement in his earlier suit for dissolution of partnership. It will thus appear that the claim of right to institute a suit on Clause (c) of Section 3 (1) of the Act is barred by the principle of res judicata.
23. In the result the appeal needs to be allowed and is hereby allowed with costs and the suit of the respondent is dismissed in so far as the claim for ejectment is concerned. The appellant shall also get his costs of the two lower courts in so far as the same relate to the claim of the respondent for ejectment of the appellant