JUDGMENT

S.S. Dhavan, J. - This is a tenant's second appeal from the concurrent decisions of the courts below decreeing the landlord's suit for his ejectment and recovery of arrears of rent from him. The facts are these. The defendant appellant Charanjit Singh is the tenant of an accommodation in Bareilly in which he carries on business under the name and style of Messrs 'Military Stores and of which the plaintiff respondent Ram Lal Kohli is the owner and landlord. The agreed rent is Rs. 35/- per month. Tile plaintiff alleged in his plaint that the appellant Charanjit Singh had taken the shop on rent on 15th November 1959 on monthly tenancy and paid the rent till December 1959, but nothing after that date; that on 22-3-1961 he served a notice on the appellant demanding payment of the arrears of rent but the latter made no payment; that on 8-5-1961 the plaintiff served another notice demanding payment of rent and simultaneously terminating the tenancy and asking the appellant to vacate the accommodation within one month; that the appellant neither paid the rent nor vacated the accommodation; hence the suit for his ejectment and recovery of arrears of rent from him.

2. The appellant resisted the suit and denied that he had committed any default in payment of rent. He alleged that rent had regularly been paid to the plaintiff. During the trial of the suit the appellant conceded that the accommodation ill; dispute was not governed by the pro. visions of the U. P. Control of Rent and Eviction Act.

3. During the hearing the defendant led evidence to prove that he had paid the arrears of rent to the plaintiffs wife. He gave evidence himself and produced one or two witnesses who deposed that the wife visited the shop regularly and received payment from the appellant in their presence. The plaintiff objected to this evidence on the ground that the appellant had not stated in his written statement that he had paid the rent to his wife and must not be allowed to put up a new case at the trial. The trial court upheld the objection and rejected the evidence alleging payment to the plaintiff's wife. It disbelieved the appellant's story and held that he had committed default in payment of rent, and also rejected his plea that the notice under Section 106 of the Transfer of Property Act terminating the tenancy was invalid. On appeal the learned Civil Judge upheld the view of the trial court that the evidence disclosing payment to the wife was inadmissible. He examined this evidence on merits but did not give any clear finding whether he believed it, though his observations indicate that he was not impressed by it. He also held that the notice terminating the tenancy was valid and confirmed the decree of the trial court. The appellant Charanjit Singh has conic to this Court in second appeal.

4. Two points were urged in support of this appeal by Mr. Brijlal Gupta. First, he contended that the finding of the learned appellate Judge that the appellant had committed default in payment of rent is vitiated because he did not apply his mind to the evidence led by the defendant in support of his case that he had regularly paid rent to the landlord's wife. Learned counsel contended that this evidence was wrongly rejected on the ground that the,appellant had created a new case Which was outside his pleadings. Secondly, Mr. Gupta argued that the notice terminating the tenancy is invalid as it is conditional.

5. I have heard learned counsel for the parties at considerable length. I am inclined to agree with Mr. Gupta that the evidence in support of the appellant's story that he had regularly paid rent to the landlord's wife was not inadmissible. I do not agree with the view of the courts' below that the appellant was trying to create a new case during the trial. This view is based on a misapprehension of the meaning of the phrase "creating a new case." If the tenant alleges in his written statement that he has paid rent to the Landlord, that is his case, a