JUDGMENT

Gokaran Nath Misra, A J C - This is a second appeal from a decree passed by the District Judge of Lucknow, confirming the decree of ejectment passed by the Munsif (South) of Lucknow.

2. The facts of the case are a little bit complicated. The premises in dispute belong to the Raja of Jahangirabad, from whom the plaintiff took them as a tenant under a lease for five years, commencing from the 1st January, 1918. The plaintiff then sub-let those premises to the defendants-appellants from July, 1922, at a monthly rent of Rs. 35. The defendants did not pay their rent regularly and soon after the plaintiff had to bring a suit against them in the Court of Small Causes at Lucknow for arrears of rent which was decided on the basis of a compromise on the 27th March, 1923. It is alleged that it was stipulated in that compromise that whenever the plaintiff wanted to eject the defendants he would be at liberty to do so provided he gave one month's previous notice. The defendants again defaulted and on the 28th May, 1923, the plaintiff served the defendants with a notice for ejectment, requiring them to vacate the premises by the end of January next. They had also stated in that very notice that if the defendants did not vacate they would be charged rent at the rate of Rs. 100 per mensem. On the 13th July, 1923, the plaintiff brought the present suit for ejectment against the defendants in which he claimed Rs. 245 on account of 7 month's rent, that is, from December, 1922, to June, 1923, and also prayed for ejectment of the defendants. The defendants admitted the plaintiff's right to eject them from the disputed premises but contested only the amount of rent for which they had been sued. They alleged that they had paid Rs. 40 on account of rent sued for and had deposited another sum of Rs. 70 with the plaintiff for which they should be allowed a credit.

3. The learned Munsif tried this question of payment and found that the payment of Rs. 40 as alleged by the defendants had not been established but it had been proved that the defendants had deposited Rs. 70 with the plaintiff. Consequently he gave the plaintiff a decree for Rs. 175, the balance still due after deducting the amount held by plaintiff in deposit and also gave the plaintiff a decree for ejectment. Five days after this decree another suit was brought by the plaintiff in the Court of Small Causes for the recovery of rent for the period after the one for which he had already got a decree in the suit which is at present in appeal. The rent was claimed for six months at the enhanced rate which came to Rs. 600, but he relinquished his claim to the extent of Rs. 150, and sued only for Rs. 450. This was probably with a view to bring his claim within the jurisdiction of the Court of Small Causes. On the 21st January, 1924, a compromise was arrived at in this case between the parties and the suit of the plaintiff was decreed for Rs. 250. The defendants had in the meanwhile filed their appeal in the previous suit in the Court of the District Judge of Lucknow on the 16th January, 1924, and thereafter put in an application on the 8th February, 1925, alleging that they should be allowed to file the judgment of the Court of Small Causes dated the 21st January, 1924, as additional evidence under Order 41, Rule 27, of the Code of Civil Procedure. Their main object in making this application was that the fact that the plaintiff had claimed an enhanced rent for the period which was subsequent to the one for which he had claimed under the decree in appeal showed that he had waived his right to eject the defendants from the premises in dispute. Before this application could be decided the defendants put in another application in the same Court on the 3rd April, 1924, asking for permission to be allowed to file further additional evidence under Order 41, Rule 27, of the Code of Civil Procedure. The additional evidence, which they now said they wanted to file, was a lease, dated the 29th Dece