1984 Supreme(MP) 457

K. M. Agarwal, J.
K. C. Jain v; Gopi Bai.
S. A. No. 139 of 1981 (G); Decided on 10-8-1984.

Headnote:(1) Accommodation Control Act, 1961 (M P.) -- S. 12 (1) (e) -- eviction suit under -- insufficiency of accommodation pleaded -- evidence on such pleading cannot be overlooked.

        (2) Civil P. C., 1908 -- S. 100 -- no perversity pointed out in finding of fact -- no interference can be mode in second appeal.

        (3) Civil P. C., 1908 -- O. 6, R. 17 -- amendment application in second appellate Court -- case not improving by amendment -- application dismissed as belated.

        (4) Practice (civil) -- pleading and proof -- insufficiency of accommodation pleaded -- evidence on such pleading cannot he overlooked.

        This second appeal filed by the defendant (tenant) against the reversing judgment and decree of the lower appellate Court, was admitted on 15-7-1981 for hearing on the following substantial questions of law:--

       (1) Whether a case of necessity can be said to have been made out when alternate accommodation is shown to be in possession of the plaintiff, but the plaintiff does not plead its unsuitability and rather attempts to conceal it?

       (2) Whether a decree under section 12 (1) (a) of the Act can be sustained where allegedly a dispute under section 13 of the Act raised in the written statement but the Court has omitted to pass an interim order directing to deposit the amount in arrears?

        Held : Before I proceed to deal with the rival contentions of the parties. I propose to dispose of the respondents application (I. A. No. 3293/84) for amendments of the plaint pleadings. According to me, the proposed amendments do not improve the case of the respondent. The application is also belated. It therefore, deserves to be rejected and is accordingly rejected.

        Now coming to the merits of the case, I am of the view that the submissions of the learned counsel for the appellant cannot be accepted, looking to the facts and circumstances of the present case. Although the pleadings of plaint para 10 are not happily worded, they also give an impression, vis-a-vis the pleadings in plaint paras 7, 8 and 9, that the accommodations available to the respondent and to her husband were not sufficient to meet the family need. Consequently the evidence given by the respondent in this regard cannot be over-looked on the ground of want of pleadings.

        Once, it is held that the evidence given by the respondent cannot be excluded on the ground of want of pleadings, the finding arrived at by the lower appellate Court on the basis of such evidence, becomes a finding of fact, which cannot be interfered with in a second appeal under section 100 CPC, looking to the large number of family members, as disclosed from the plaint pleadings and proved by PW 1, I do not find any perversity in the lower appellate Courts finding about respondents need under section 12 (1) (e) of the Act. The first question of law is, therefore, decided against the appellant.

        As a result of my finding on the first question of law, the appellant cannot succeed in his appeal, even if the second question of law is decided in his favour. Hence, it is not necessary for me to deal with the second question of law framed in this appeal. 1981 JLJ 716 (SC) and 1958 JLJ 137 referred to. Appeal dismissed. Nine months time allowed for vacating the suit premises.