Judgment

UNTWALIA, J. - In this appeal by special leave the appellants and respondent No. 2 were the defendants in a suit filed by plaintiff-respondent No. 1 for eviction and other reliefs in respect of the suit premises. The suit was dismissed by the trial Court but decreed by the First Appellate Court. The second appeal filed by the defendant in the High Court of Madhya Pradesh was dismissed.

2. The demised property is a shop situated at a place in the district of Hoshangabad. It was let out by the father of the plaintiff to the husband of defendant No. 1 and the father of the other defendants in the year 1951 at a monthly rent of Rs. 50. A Bhojnalaya was being run in the shop by the tenant. The plaintiffs father was running a sweetmeat shop in a rented premises the rent of which was Rs. 225 per month. The plaintiffs father died in 1970. Sometime later the original tenant, the predecessor-in-interest of the defendants, also died. He had paid rent up to September, 1972. After the death of the original tenant, the defendants became the tenants of the suit shop. The plaintiff served a notice on the defendants terminating the contractual tenancy w.e.f. 31-12-1972. The suit for eviction was filed on 8-3-1973 claiming therein a decree for eviction chiefly on the ground of bona fide personal necessity of the plaintiff, for arrears of rent amounting to Rs. 150 for October, November and December, 1972 and damages for the months of January and February, 1973 @ Rs. 225 per month as also future damages till the delivery of possession.

3. The trial Court dismissed the suit holding that the plaintiff did not require the suit shop bona fide for his personal necessity. On appeal by the plaintiff, the First Appellate Court by its judgment dated 11-8-1975 took a contrary view and held in favour of the plaintiff. It decreed the suit for eviction arrears of rent and also for past and future damages @ Rs. 125 per month - damages to be payable on and from 1-1-1973 until delivery of the vacant possession to the plaintiff. The High Court has affirmed this decree.

4. Mrs. Leila Seth, learned counsel for the appellants advanced a very able and succinct argument and urged only the following three points:

(1) The business for which the accommodation was required by the plaintiff was not "his business" within the meaning of cl. (f) of sub-sec. (1) of S. 12 of the Madhya Pradesh Accommodation Control Act, 1961 hereinafter referred to as the Act.

(2) That the rented shop in which the business of sweetmeat and Namkin was carried on should have been held to be an accommodation "of his own in his occupation" within the meaning of the second part of the cl. (f).

(3) That no decree for damages could be awarded from the date of termination of the contractual tenancy. It could be awarded only from the date when an eviction decree was passed.

5. In our judgment the first two points of the appellants have got to be rejected but the third must succeed.

6. The plaintiff had clearly pleaded in paragraph 8 of his plaint that the sweetmeat shop which he was running in the rented premises was his business and he wanted to shift it to the accommodation in question. The defendants did not deny the statement made in paragraph 8 of the plaint - rather in paragraph 8 of their written statement they admitted them to be correct. In such a situation it was not open to them to take a stand at a very late stage of the litigation that the sweetmeat shop was the business of the joint family of the plaintiff - the karta of which was his father and on his death it was the business not of the plaintiff alone but of his entire joint family. The High Court has rightly rejected this point on this ground. In Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 (1) it has been pointed out that where a claim has never been made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. If it could be so even at the trial stage, undoubtedly, such a new ques