The withdrawal of rent deposited by the tenant amounted to payment to the landlady, and a thing not pleaded cannot be supported by evidence.

At the time of hearing, no one appeared on behalf of landlords contesting respondents. Accordingly, only the arguments of Sri G.M. Kamil, learned counsel for tenant petitioner were heard.

2. Landlady Smt. Kaniz Fatima Bibi, original opposite party No.2 since deceased and survived by legal representatives filed two SCC suits against two tenants. Number of the suit filed against the petitioner of this writ petition was S.C.C. Suit No.10 of 1982, Kanij Fatima Vs. Shambhu Nath. S.C.C. Suit No.9 of 1982 was filed by the same landlady against Jagdish Prasad, tenant of the adjoining accommodation. Property in dispute is a shop. Both the suits were dismissed by Munsif, Akbarpur, Faizabad exercising power of J.S.C.C. on 23.08.1984. Landlady filed two revisions against the said judgments being Civil Revisions No.165 and 167, both of 1984. Number of the revision filed against the petitioner was 167 of 1984. Both the revisions were allowed on 22.08.1986 and the suit of the plaintiff for eviction was decreed in each case. The number of the writ petition filed by Jagdish Prasad was Rent Control No.8870 of 1986. The said writ petition was heard by me. Initially both the writ petitions were allowed by me on 22.08.2013. However on the same date, i.e. 22.08.2013 I passed another order in this writ petition directing it to be listed for further hearing. Order dated 22.08.2013 is quoted below:

"This petition was connected with Rent Control No.8870 of 1986. Learned counsel for petitioner addressed the court in the other writ petition and accepting the argument of learned counsel for petitioner, the said writ petition was allowed. Thereafter, learned counsel stated that this petition was also exactly similar. Accordingly, it was dictated that this petition should also stand allowed in terms of the said judgment. However, while finalising the judgment, it transpired that in the suit giving rise to the instant writ petition, an additional point (of material alteration on the ground of construction of a room on the first floor) was involved, which was not involved in the suit, which was subject matter of the other writ petition.

Accordingly, the order of date allowing this writ petition is recalled. Let this petition be disconnected with the other writ petition and listed for further hearing. This course is open in view of the following authorities.

(i) Surendra Singh Vs. State of U.P. AIR 1954 SC 194

(ii) Sangam Lal Vs. R.C. and E.O., Allahabad and others, AIR 1966 All 221

List for further hearing at the top of the list on 04.09.2013."

3. As far as question of default is concerned, the same is decided in favour of the petitioner on the same ground on which it was decided in favour of Jagdish Prasad through judgment dated 22.08.2013 passed in his writ petition, i.e. Rent Control No.8870 of 1986. Relevant para of the said judgment is quoted below:

"The tenant had deposited the said amount under Section 30 of U.P. Act No.13 of 1972 subsequently which had been withdrawn by the landlady even though under protest. The deposit and withdrawal (even though under protest) amounted to payment to landlady. The contrary view of the lower revisional court is also erroneous in law. It is only withdrawal of amount deposited under Section 20(4) of the Act or under Order 15 Rule 5, C.P.C., which does not jeopardise the interest of the landlady (prejudice her pleading) by virtue of Section 20(6) of U.P. Act No.13 of 1972. "

4. As far as question of material alteration involved in this case is concerned, the revisional court in para-11 onward discussed this aspect. The case of the tenant was that landlady in writing had permitted him to make alterations. The written permission was to the effect that as the condition of the shop in tenancy occupation of Shambhu Nath had become very bad hence landlady permitting him (the tenant) for necessary repair in walls, floor to roof. It was also mentioned in the said written permission that the permission was