Satya Brata Sanyal, J.

1. The plaintiff has preferred this Second Appeal against a judgment of reversal The suit was for realisation of a sum of Rs. 6897.96 Paise, which the plaintiff is said to have sustained loss because of the negligence of the carrier, namely, the railways.

2. For the purpose of disposal of this appeal there is no need of setting out the facts of the case. Suffice it to say that the plaintiffs suit was decreed against which the defendant railway preferred the appeal, and the judgment of the lower court was set aside on merit. The appellate court, however, held under issue No. 4 that the written statement filed by the railways was not properly verified and, therefore, the defence taken in the written statement, could not be looked into.

3. The substantial question of law framed at the time of admission of the appeal is whether after having found that the written statement filed in the case was not proper and the defence taken in the written statement could not be taken notice of, the lower appellate court has committed an error of law in accepting the evidence of the defendant to rebut the averment made in the plaint regarding the validity of the notice under Section 78-B of the Railways Act or Section 80 of the Civil P. C. and in so doing whether the lower appellate court was correct in disbelieving the case of the plaintiff, that notices were not served.

4. Mr. Rama Kant Verma, appearing for the plaintiff-appellant, submitted that on the finding of the lower appellate court the court of appeal below should not have looked into the evidence of the defendant at all to non-suit his client The learned counsel contended that it is a settled law, if a plea has not been taken in the written statement, then the evidence beyond the pleading, is inadmissible in evidence. In the present case the written statement having been found to be not in accordance with law and, therefore, it should have been ignored. The learned counsel contends that the court below ought to have granted a decree on the basis of the averment made in the plaint, of course supported by the evidence adduced by the plaintiff.

5. Mr. Ojha appearing for the railways, submitted that the lower appellate court was not at all justified to decide the question of maintainability and/or admissibility and/or legality of the written statement, inasmuch as, in the trial court no such objection was taken. The illegality complained of is with respect to verification of the written statement. Mr. Ojha contended that any defect in verification is merely an irregularity and the concerned party can always remove the irregularity, provided such an objection is taken at the appropriate time and stage. In any view of the matter, according to the learned counsel it is merely an irregularity and in view of Section 99 of the Civil P. C. (hereinafter referred to as "the Code") no judgment or decree can be varied because of the said irregularity. Learned counsel also contended that if such an objection is not taken at an appropriate stage, the said objection cannot be allowed at the appellate stage.

6. Mr. Rama Kant Verma, in reply to the said argument contended that the railways having not filed any cross-objection in the High Court to the said finding rendered by the appellate court against them, they cannot be allowed to challenge the said finding in view of Explanation of Order 41, Rule 22 (1) of the Code brought in by the Amendment Act (104 of 1976).

7. Mr. Ojha has very fairly conceded that if it is held that the written statement cannot be looked into because of the defect in the verification, then the contention of Mr. Verma learned counsel appearing for the plaintiff that he shall be entitled to a decree on the evidence adduced by his client, may be correct He has drawn my attention to the decision of Rustun Gazi V/s. Tara Prosanna Chowdhuri (1907) 11 Cal WN 871 where it has been held that where a written statement filed on behalf of the defendant was act