Deoki Nandan, J.
1. This is a defendant's second appeal in a suit for ejectment and arrears of rent from a shop situate as Jaspur in District Nainital.
2. The appellant was defendant No. 2 in the suit and the plaintiff's case was that she has purchased the shop by a registered sale deed dated 20th November, 1968, that the first defendant who is alleged to have died on 28th October, 1971 during the pendency of the appeal before the lower appellate court, was the tenant of the shop since the time of the plaintiff's predecessor-in-interest and on purchase of the shop by her he became the tenant, that the rate of rent was Rs. 25/- per month which was the due from 20th November, 1968, and a notice of demand dated 12th November, 1969 was sent by the plaintiff to the first defendant which was served upon him on 24th November, 1969 but the full rent had not been paid and the first defendant was consequently a defaulter in payment of rent.
It was further alleged that the first defendant had illegally and without the plaintiff's permission sub-let the shop to the second defendant and on this ground also both of them were liable to ejectment. It was then pleaded that the second defendant had by fraud and concealing the facts got the shop allotted in his favour and was claiming himself to be the tenant with effect from 20th January, 1969 on the basis of that allotment order, that the allotment order was without jurisdiction and illegal because the shop was vacant at that time and was based on fraud and mis-representation of facts.
3. The first defendant does not appear to have filed any written statement. Only the second defendant put in defence. He pleaded that the rate of rent was Rs. 19/- per month and that on receipt of the plaintiff's notice, he, the second defendant had remitted the rent at the rate of Rs. 19/- per month to the plaintiff on 9th December, 1969 which was refused by her on 10th December, 1969 and that the shop had been lawfully and properly allotted to him. With regard to his earlier possession, the second defendant pleaded that he was a partner with the first defendant and the partnership was dissolved in November, 1968 whereupon the first defendant surrendered the tenancy and removed his possession from the shop and also gave intimation thereof to the plaintiff whereupon the plaintiff had applied to the Rent Control and Eviction Officer for the release of the shop in her favour, that the application for the release was dismissed and the shop was allotted in his favour by the Rent Control and Eviction officer's order dated 20th January, 1969 the trial Court dismissed the suit on the findings that the first defendant had ceased to be the tenant even before the plaintiff became the owner of the shop and there was no question of any default in payment of rent by him, that the rate of the rent was Rs. 19/- per month and not Rs. 25/- per month, that the second defendant was never a sub-tenant of the first defendant nor his co-tenant and the allotment order in his favour was within the jurisdiction of the Rent Control and Eviction Officer to pass and was fully effective in law and that the second defendant was a tenant by virtue of the allotment order and not liable to be ejected under the notice which was sent to the first defendant, and also on the ground that he had not committed any default in payment of rent. The lower appellate Court came to the conclusion that the allotment order was invalid, that the trial court had taken a case not pleaded by any of the parties inasmuch as the plaintiff had pleaded that the second defendant was a sub-tenant of the first defendant while the second defendant had pleaded that he was a co-tenant but the Court had held that the second defendant was a tenant under the allotment order.
The lower appellate Court held that the second defendant was the sub-tenant of the first defendant and the tenancy of the first defendant had duly been terminated. On this finding the lower appellate Court decreed the suit for ejectment although the rate of rent was held to be Rs. 19/- per month only and arrears of rent and damages were decreed and calculated at that rate, Mr. R. H. Zaidi, learned counsel for the appellant has contended before me firstly that the judgment and decree of the lower appellate court is without jurisdiction inasmuch as the first defendant who according to the plaintiffs case was the tenant in chief had died during the pendency of the appeal before it and his heirs and legal representatives not having been im-pleaded, the appeal abated, and that being so the judgment and decree of the trial Court dismissing the suit became final. There is substance in this contention of the learned counsel and the appeal is fit to be allowed on this ground alone. However, since on the merits also I am satisfied that the finding of the lower appellate court cannot be sustained, I may as well give my reasons for the same.
4. It was the own case of the plaintiff that the second defendant was claiming to be the tenant on the basis of the allotment order and the second defendant had also stated in the written statement in clear words that he was a tenant under that allotment order and further that the first defendant had removed his possession and had surrendered the tenancy of the shop before its allotment to him. Under these circumstances, the observation of the lower appellate court that the trial court had proceeded to carve out a new case for the second defendant is without any basis on the record. With regard to the validity of the allotment order also the reasoning adopted by the lower appellate Court is erroneous in law. It has brushed aside Ext A-14 the plaintiff's application for the release before the Rent Control and Eviction Officer on the ground that the plaintiff was not confronted with it.
A Full Bench of our court in the case of Ajodhya Prasad Bhargava v. Bhawani Shanker Bhargava (1957 All LJ 350): (AIR 1957 All 1) has laid it down that it is not always necessary in a civil case to confront a party with a document containing his admission if the document has already been filed, and the document itself can be relied upon as substantive evidence under Section 21 oft the Indian Evidence Act. I have looked into Ext. A-14 It contains a clear admission on behalf of the plaintiff of the fact that the shop had fallen vacant. The lower appellate Court has further proceeded to observe that the illegal continuance of possession of the second defendant as a sub-tenant in the shop also showed that it was not vacant. This reason given by the lower appellate court also proceeds on a misapprehension of law. Where a tenant vacates the whole accommodation and the same is alleged to be occupied by a person illegally, it can be said that the accommodation is vacant in law such as to confer jurisdiction on the Rent Control and Eviction Officer to pass an allotment order in respect thereof. For all these reasons, I hold that the finding of the lower appellate Court that the shop was not vacant when it was allotted to the second defendant is erroneous in law and must be set aside and it must be held that the allotment rorder in favour of the second defendant was valid in law.
5. In the result, the appeal succeeds and is allowed with costs. The judgment and decree of the lower appellate Court are set aside. The decree of the trial Court dismissing the plaintiff's suit is restored with costs throughout.