In the absence of an express pleading or issue regarding the suitability of the alternative accommodation, the court may still consider evidence on that point if the parties were aware of the nature of the case and there was no surprise or prejudice to the defendant.

1. - Heard Mr. M.B.L. Bhargava, the learned counsel for the defendant-appellant and Mr. C.L. Agarwal for the plaintiff respondent who has entered a caveat in this appeal at some length.

2. Both the Courts have come to a concurrent finding of fact that the defendant appellant having acquired vacant possession of his bungalow which was suitable for his residence, he is liable to be evicted under sub-section (1) of Section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter called the Act. This finding is being challenged on behalf of the appellant on the ground that neither there was averment to the effect that the appellant had acquired vacant possession of accommodation suitable for his residence nor there is any issue framed on that point. It is, therefore, argued that in the absence of an averment in the pleadings to that effect and further in the absence of an issue in that behalf no amount of evidence led in the case can be looked into as the decision of the case cannot be based on ground outside the pleadings of the parties and it is the case pleaded that has to be found. In this connection learned counsel for the appellant has referred me, Trojan & Co. v. Nagappa, AIR 1953 Supreme Court 235, Khatun Jabeda v. Mohd. Ibrahim, AIR 1957 Calcutta 360, The Central Bank of India Ltd. v. Hari Prasad Jalan & others, 1971 SCD 1146, and Kusum Chand v. Kanhaiya Lal, 1974 RLW 378.

3. I have given my careful consideration to the contention put forth before me by Mr. Bhargava. Ordinarily it is true that no amount of evidence led at the trial can be made the foundation for the decision of a case which was not pleaded nor there was any issue on that point. But this rule is not inflexible one is subject to certain exception. The rule has no application to a case where parties go to trial which knowledge that a particular question is in issue though no so such issue has been framed there vide Nagubai v. Khema Rao, AIR 1956 Supreme Court 93. It must be mentioned that the rule of secundum allegatact probata is based mainly on the principle that no party should be taken by surprise by the change of case introduced by the parties. Therefore, the test when an objection of his kind is taken it is to see whether the party aggrieved has really been taken by surprise or is prejudiced by the action of the opposite party. In applying this test the whole of the circumstances must be taken into account with careful scrutiny to find out whether there has been such surprise or prejudice as will disentitle a party to relief. See Jaji Umar v. Oustadji, AIR 1915 PC 89. Every variance, therefore, between pleading and proof is not necessarily vital to the suit or defence and the rule of secundum allegatact probata will not be strictly applied where there can be no surprise and the opposite party is not prejudiced thereby vide Sagarmuil Nathany v. Glastaun, AIR 1930 PC 205. In the light of the above proposition it has to be seen whether the defendant appellant has been taken by surprise or has been prejudiced on account of the fact that there was no averment to the effect that the defendant appellant has acquired alternative vacant possession of accommodation suitable for his residence and also on account of absence of an issue in that behalf. It is true that there is no express allegation in so many words that the defendant appellant had acquired vacant possession of accommodation suitable for his residence but in para 3 of the plaint it has been clearly stated that the defendant wanted his house vacated from his tenant for his own residence and for that purpose he had filed a suit against Shri K.C. Sethi and got the house evicted from him. The appellant himself has admitted that he had filed a suit against his tenant Shri K.C. Sethi for eviction from is house for his residence. He has further admitted that he had written a letter to the respondent which is an admitted document that he would vacate the disputed