1. - Heard learned counsel for the parties.The main grievance of the petitioner is that an application was filed by him before the lower appellate Court u/O. 41 R. 27 CPC, copy of that application was duly served on the opposite party and the case was posted on 24.4.1999 for reply and arguments on that application, the learned counsel for the respondents sought adjournments and thereafter on 4.8.1999 the reply to that application was filed, the case thereafter went on being adjourned and the appeal was dismissed on merits on 2.12.1999 without deciding the application filed u/O. 41 R. 27 CPC. According to the learned counsel in adopting this course the learned lower appellate Court has committed a jurisdictional error which has occasioned substantial failure of justice.

2. The next contention of the learned counsel is that since in the learned trial Court both the parties had their different versions as to the rate of monthly rent in as much as according to the plaintiff it was Rs. 700/- per month while according to the defendant it was only Rs. 100/- per month.

3. Before making provisional determination under section 13(3) the learned trial Court should have recorded the sta