Judgment

NATARAJAN, J.-The limited question of law falling for consideration in this appeal by special leave is whether the High Court had travelled beyond its jurisdiction when in spite of accepting the appellants contention in second appeal, it had failed to allow the appeal and instead dismissed it on a ground which was not in issue in the second appeal.

2. We may first have a look at the facts. The tenant/appellant was granted lease of a nohara (an open space enclosed by a wall) belonging to the respondent in Hanumangarh town in the year 1965. On September 19, 1967, the respondent instituted a suit against the appellant praying for recovery of rent as well as the eviction of the appellant on various grounds, such as, default in payment of rent, causing material alteration and damage to the property, bona fide requirement of the nohara by the landlord for starting a factory etc. The appellant raised appropriate defences and contested the suit. On the basis of the pleadings of the parties, the trial court viz. the Munsif Magistrate 1st Class, Hanumangarh framed seven issues and two additional issues. Issue 3, 6 and additional issue 1 which alone are of relevance in this appeal were framed as under :

Issue 3 : Whether the defendant has raised walls of the said nohara, due to which material alterations have been made by defendants.

Issue 6 : Whether plaintiff is entitled to receive Rs 771-74 against defendant ?

Additional issue 1 : Whether defendant has not paid rent up to Samvat 2022, so what is its effect upon main merit of the suit?

3. After a detailed consideration of the evidence adduced by the parties, the trial court answered issues 2 to 5 in favour of the appellant. On issues 1 and 7 which related to the tenancy being monthly or yearly and whether there had been a valid termination of the tenancy, the trial court held against the appellant. However, on issue 6 and additional issue 1 which pertained to the arrears of rent, the trial court held that there were no arrears and hence no decree for eviction can be passed on the ground of arrears of rent.

4. Since the findings on issues 3 and 6 have relevance, we will advert to them in detail. On issue 3, the trial court held that the appellant had no doubt raised the height of the walls by about 5 to 6 feet but the evidence disclosed that the construction should have been made with the consent of the respondent and furthermore the raising of the height of the walls had not caused any material alteration to the premises within the meaning of the Act.

5. During the pendency of the suit, the respondent filed an application under Section 13(6) of the Act for having the defence of the appellant struck off. The application was considered along with issue 6 and dismissed in the following manner :

Plaintiff has also filed an application under Section 13 sub-clause (6) of the said Act for getting defence of the defendant struck off but same has been withdrawn by him in view of the report of office dated August 7, 1971 and payments made by defendant. In such circumstances, we have to say that rents do not stand in arrears with the defendants and it has been paid off to the plaintiff. Therefore, this issue has become redundant and not necessary to be discussed. There are no defaults in payment of rent as plaintiff has paid an advance monthly rent to plaintiff. It has been argued on behalf of plaintiff that rent for the month of July has not been made by defendant up to July 15, 1971 so, defence should get struck out, but this fact has already been considered and decided. It is an advance rent which is being paid by defendant and could have been paid by defendant up to August 15, 1971. In such circumstances, it cannot be inferred that rent has not been paid to plaintiff in time or default has been committed.

6. The appellate court, after re-apprising the evidence affirmed the findings of the trial court on issues 2 to 5 in the following manner :

As regards issues 2 to 5 I have carefully examined