JUDGMENT Omprakash Trivedi, J.
1. These are connected appeals and arise out of judgment passed by the Additional Civil Judge, Lucknow dated December 22, 1961. It is convenient to decide all these appeals by a common judgment They arise from Regular Suits Nos. 449 of 1958, 450 of 1958, 451 of 1958, 507 of 1958, 567 of 1958 and 118 of 1959. Suit No. 449 of 1958 was filed by Sardar Khan, Suit No. 450 of 1958 by Munna Khan and Suit No. 451 of 1958 by Smt. Fahiman. Those three suits were filed against the Municipal Board of Lucknow, as it then was, and Regular Suits Nos. 567 of 1958, 507 of 1958 and 118 of 1959 were filed by the Municipal Board, Lucknow against Sardar Khan, Munna Khan, Smt. Fahiman and others. After the death of Smt Fahiman Babu Khan and others, her sons were substituted in her place. Suits Nos. 449, 450 and 451 related to different plots of land. Those suits were filed against the Municipal Board with the allegation that the plots had been let out to the plaintiffs of the suits by the Municipal Board on certain agreed rent. According to the allegations of Suit No. 449 the agreed rent was Rs. 18/- per month. In Suit No. 450 the contention was that the rate of rent was Rs. 3/- per month and in Suit No. 451 the case was that the agreed rate of rent was Re. 1/- per month. It was alleged that the Municipal Board had started making demands from the plaintiffs of the said suits of rent at double the contractual rate. The plaintiffs of those suits asked for reduction of rent under Section 5 (4) of the U. P. (Temporary) Control of Rent and Eviction Act and asked for declaration that the rate of rent was as claimed by the plaintiffs in the suits.
2. The main defence of the Municipal Board in those cases was that the suits were bad for want of notices under Section 326 of the U. P. Municipalities Act. This plea of the Municipal Board was accepted both by the trial and the lower appellate courts and the suits were dismissed giving rise to Second Civil Appeals Nos. 89 of 1962, 91 of 1962 and 94 of 1962.
3. In the other set of suits which were filed by the Municipal Board (Regular Suits Nos. 567 of 1958, 507 of 1958 and 118 of 1959) the Municipal Board claimed to have terminated the defendants' tenancy by serving upon them notices as required by Section 106 of the Transfer of Property Act and claimed a decree for ejectment as well for arrears of rent at the enhanced rates. Those suits were resisted by the defendants on the ground, mainly, that Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act applied to the case as a leased property was accommodation within the meaning of Section 2 of the said Act and a decree for ejectment could not be granted as the Municipal Board had failed to make out any conditions enjoined by Section 3. There was also denial of service of any notice under Section 106 of the Transfer of Property Act. So far as the present appeals are concerned we are not concerned with the other pleas which were taken for the defendants in those suits.
4. I take up first Second Civil Appeals Nos. 90 of 1962, 92 of 1962 and 93 of 1962. The first submission of learned counsel for the appellants in these appeals is that the decree for ejectment could not be passed against them as the appellants were entitled to the benefit of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter to be referred to as the Act). The basis for this argument is that the disputed property is 'accommodation' within the definition given in Section 2 of the Act. This argument is entirely misconceived. It is an admitted fact that all the three plots were taken on lease about 25 years ago by Dildar Khan, predecessor-in-interest of the appellants from the Municipal Board, Lucknow. The Municipal Board, however, started treating Dildar Khan and his successors as mere licensees and not lessees. After taking possession of open place from the Municipal Board admittedly wooden stalls were put up on the spot by the lessees. The Municipal Board appears to have demolished these stalls about the year 1948 which action of the court was challenged on behalf of the appellants before the Civil Court asserting that the Municipal Board could not demolish their stalls as they possessed leasehold rights and were not licensees. This contention was upheld by the Civil Court and they were held to be lessees of the Board and not licensees. Armed with a Civil Court decree the appellants appear to have reoccupied the plots and again put up wooden stalls on them. It is therefore clear that whatever stalls existed on the disputed plots belonged to the appellants and not to the Municipal Board. It is equally clear that vacant plots were let out to the appellants by the Municipal Board and that plots with stalls already erected on them were not let out. Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act provides that no suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation. Section 2 defines 'accommodation' as residential and non-residential accommodation in any building or part of a building. It is, therefore, plain that the word 'accommodation' used in Section 3 means and implies and has reference to a building or part of a building which may have been leased out by the landlord to a tenant. In the present case the fallacy in the argument of the learned counsel for the appellants Is this that although the stalls may be 'building' in the wide sense of the word it Is not a building which was leased out to the appellants. On the other hand, it belongs to the tenants. That being so, it is not accommodation within the meaning of Section 2 and for this reason Section 3 of the Act did not apply to the case as was rightly found by the lower appellate Court. I am in respectful agreement with the view which was taken on this point in the case of Mohd. Sami v. Shrimati Savitri Devi, 1957 All LJ 435. The following observations made there have relevance for the present discussion:
"Admittedly here the property which was leased out was an open plot of land, and there was no building on it The defendants' own case was that after taking that plot of land, the building was constructed and when it was let out to them it was not a building but a plot of land. In the circumstances, Control of Rent and Eviction Act will not apply to the present case."
I, therefore, reject the argument that the appellants were entitled to the benefit of the provisions contained in the Act.
5. The second point made by learned counsel for the appellants was that the lower appellate court made an error of procedure in permitting the filing of additional evidence under Order 41, Rule 27, Code of Civil Procedure before him. It appears that service of notice under Section 106 of the Transfer of Property Act was contested by the appellants. The respondent of these appeals maintained in the trial Court that notices had been sent to the appellants under Section 106 of the Transfer of Property Act by registered post and that there was also affixation and tender of notices by hand. The trial Court was not satisfied that there was sufficient proof of the postal acknowledgements bearing the signatures of the appellants and because the postal receipts for these notices had not been filed at the trial stage the trial Court was unable to hold the contention that service of the notices upon the appellants was established through post. The trial Court, however, found sufficient evidence to establish that notice was delivered by hand to the appellants. When the matter came in appeal before the first appellate Court the respondent moved an application on 16-11-1961 under Order 41, Rule 27, Code of Civil Procedure for permission to file three postal receipts relating to the three notices served in these cases. It was averred in the affidavit accompanying the application that these postal receipts were misplaced by the clerk of the counsel for the respondents and therefore could not be produced in spite of due diligence before the trial Court and that they had been traced out subsequent to the trial Court's decree. By order dated 21-11-1961 the first appellate Court permitted the filing of these additional documents on the ground that they are 'material for proper decision of the case' and that the papers were misplaced and had been traced out after thorough and diligent search. Order 41, Rule 27 of the Code of Civil Procedure as amended by this Court leads as follows:--
"27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the evidence sought to be adduced by a party to the appeal, is evidence which after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, or
(c) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."
It is clear from the lower Court's order that discretion for permitting the filing of additional documents was exercised by the Court under Clauses (b) and (c) of Rule 27 of Order 41 of the Code of Civil Procedure as amended by this Court. The argument of the learned counsel for the appellants is that this discretion could not be exercised and additional evidence could not be permitted to be filed by the lower appellate court because the additional evidence was calculated to fill up lacuna or gap in the respondents' evidence. The courts, it is argued, refuse to permit a party to produce additional evidence at appellate stage enabling it to fill up gaps in its evidence. This argument, to my mind, is without substance. In the majority of cases there is a lacuna or gap in the evidence when an application for permission to adduce additional evidence is moved by a party under Order 41, Rule 27 of the Code and therefore in each case the discretion has to be exercised by the Court on the question whether to permit the producing of additional evidence or to refuse it on the basis of proof or disproof of the circumstances laid down in Clauses (a) to (c) of Order 27. This discretion has to be exercised on judicial principles and not arbitrarily. Permission to adduce additional evidence therefore cannot be refused for the mere reason that it will enable the party to fill up a gap or lacuna in the evidence notwithstanding the fact that it may be considered necessary by the Court to enable it to pronounce judgment or for any other substantial reason and notwithstanding the fact that the evidence after exercise of due diligence was not within the party's knowledge or could not be! produced by him at the time when the decree or order under appeal was passed or made.
Learned counsel for the appellants placed reliance on observations made by Seth, J. of this Court in Prayag Ice and Oil Mills, Aligarh v. State of U. P., 1971 All LJ 244 to the effect that an opportunity to fill in a lacuna or a defect cannot be provided under Order 41, Rule 27 (c) of the Code in a case where the parties were aware of the defect or lacuna before the trial court and ample opportunity had been given to them to remove such a defect. These observations, to my mind, were meant to govern only the case decided and were not intended to be of universal application. The proposition laid down by Seth, J. in that case in any case appears to have been too broadly stated. A party may be aware of the defect or lacuna with regard to evidence before the trial Court and also may have obtained ample opportunity to remove it yet it may have failed to lay its hands on the evidence despite exercise of due diligence. If that is so, there appears to be no reason why the case should not be treated as falling under Clause (b) of Rule 27 as amended by this Court and the party should not be accorded permission to adduce additional evidence irrespective of the fact that it would result in the filling up of a gap in evidence. The ultimate object intended to be served by law is the cause of justice and therefore no inflexible rule can be laid down that discretion under Clauses (b) and (c) of Rule 27 of Order 41 cannot be exercised in favour of a party under any circumstances if the parry was aware of the defect or lacuna before the trial Court. To do so will be to act arbitrarily and not according to judicial principles and to render the provisions contained in Clauses (b) and (c) of Rule 27 nugatory and meaningless. In the case of Arjun Singh v. Kartar Singh, AIR 1951 SC 193 the Supreme Court declared that the discretion given to the appellate court by Order 41, Rule 27 to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. The ultimate test therefore according to which permission to adduce additional evidence should be granted is whether the party has succeeded in making out circumstances enjoined by Clauses (a) to (c) of Rule 27.
The special feature of the case of 1971 All LJ 244 and which distinguishes that case with the present appeals is that in that case the plaintiff had not taken any steps to move the Court to get the land surveyed and measured in spite of being aware of the necessity of such a course but an application for issue of a commission for measurement was moved for the first time before the District Judge. The question arose whether such a permission should have been granted by the District Judge under Order 41, Rule 27 of the Code. It was not a case of permission being sought for producing documents. Had that been the case then the question would have arisen whether the circumstances under which permission could be granted as enumerated in Clauses (a) to (c) had been established. There was no occasion for any such enquiry in that case. Learned counsel in this connection relied also upon the case of Union of India v. Mool Narain, AIR 1959 All 780. It was held in that case that power under Order 41, Rule 27 of the Code of Civil Procedure could not be exercised by the appellate Court in favour of a party who was negligent in the trial Court and intended to fill up lacuna in his case. That case was also distinguishable because there no explanation was offered to show how and why the plaintiff could not produce the documents at the trial stage and there was a bare allegation to the effect that the evidence was not known to the plaintiff. or his pairokar and that it was not considered rightly to be sufficient to establish that the evidence could not be discovered in spite of due diligence, The facts of the present case are different because here there was a definite allegation that the documents remained unproved and could not be produced in spite of due search and diligence. The rule does not apply. Learned counsel then relied also on the case of AIR 1951 SC 193. The Supreme Court in that case had disapproved the order of the District Judge permitting the filing of additional document to enable him to pronounce judgment. That was a case obviously covered by Clause (c) of Rule 27 as amended by this Court and not a case covered by Clause (b). In the present case permission to adduce additional evidence was sought through application and affidavit on the basis of facts which attracted Clause (b). In the view that the order of the District Judge was not correct the Supreme Court appeared to have been impressed by the circumstance that the District Judge in granting permission had not before him the material already on record and in the circumstances held that it could not be said that the District Judge was in a position to judge whether additional evidence sought to be adduced was necessary to enable it to pronounce judgment. The considerations were wholly different and therefore this ruling also does not help the appellant.
6. Learned counsel relied also upon observations of the Supreme Court in the case of State of U. P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 to the effect that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. These observations, as appears from the report, were not of a general nature applicable to all cases but governed only the facts decided in the case. The case before the Supreme Court arose on cross appeals on a certificate granted by the High Court under Article 132(1) of the Constitution. Before the Supreme Court the State Government sought permission to produce additional evidence to show that Commission was consulted even after submission of respondent's explanation in answer to the second show cause notice. In that context the Supreme Court rejected the prayer observing that it could not see any special reason why additional evidence should be allowed to be adduced in the case. Therefore the observations relied upon by the learned counsel for the appellants must be understood to imply that the courts are not prevented from permitting a party to adduce additional evidence even if it resulted in filling up a gap or lacuna if special reasons are found to exist justifying such a permission. In the present case 'special reasons' covered by Clause (b) of Rule 27 of Order 41 were found by the lower appellate court to exist. I am therefore of opinion that there was no error of procedure on the part of the lower appellate court in permitting the filing of postal receipts relating to notices by the respondent. This argument also must consequently fail.
7. The next submission of learned counsel for the appellants was that there was no proof of service of notice under Section 106 of the Transfer of Property Act on the appellants. In the first place, this argument is not open in these second appeals because it relates to a finding of fact. Learned counsel in his long and laborious argument was unable to point out any thing which may show that this finding was vitiated by an error of law or procedure. It will appear from the judgment of the lower appellate court that it rested its finding about proof of service of notices on two circumstances. (1) The presumption which in law arose about service of notice on the postal receipts indicating that notices had been despatched to the appellants by correct addresses and (2) Admission of Sri Mangi Lal (D. W. 2) Advocate for the appellants, during the trial that he had sent replies under instructions of the appellants to notices received by them from the respondent, copy of which bad been filed on their behalf in this case. The lower courts were right in the view that service of some notice having been admitted by Sri Mangi Lal, Advocate, the burden shifted to the appellants to show that the notices which were received and replied to on their behalf by Sri Mangi Lal were different from the notice under Section 106, copy of which was produced for the respondent and was said to have been served upon them. No such attempt at rebuttal was made for the appellants. Learned counsel argued that the presumption of service arising from the postal receipts could not be raised in law because the postal acknowledgements were not found proved. This argument is also completely without substance. The presumption arises from the mere despatch of the letter by correct address and this presumption remained unaffected by the circumstance that the acknowledgments were not found by the trial court to have been proved satisfactorily.
8. Finally, the argument was that the lower appellate court erred in holding that the rent stood validly enhanced in spite of plots belonging "to the tenancy of Sardal Khan and Smt. Fahiman because, as submitted, there was no proof of any agreement altering the terms of the provisional agreement of tenancy and permitting enhancement of rent as claimed. This argument also has no legs to stand upon as an agreement between the parties can be proved in a number of ways: it can be proved by producing a written agreement if there was one; it can be proved by the admission or conduct of parties. In the present case also no doubt there were no written agreements to evidence alteration in the rate of rent of these tenancies originally fixed but there was evidence of conduct of parties which unmistakably showed that there was an agreement between the parties for enhancement of the original rate of rent. Proof of this conduct consisted of Exts. 1 and 9 referred to by the lower appellate court. Ext. 1 was receipt for rent paid by Sardar Khan to the Municipal Board for the period 1-4-1947 to 31-3-1948 at the rate of Rs. 3/- per month and Ext. 9 is the receipt granted by the Municipal Board to Dildar Khan for rent for the same period at the rate of Rs. 2/- per month. The conduct of Sardar Khan and Dildar Khan in paying rent at enhanced rates of Rs. 3/- and Rs. 2/- per month respectively with effect from 1-4-1947 clearly supported the interference that there was a mutual agreement between the parties for enhancement of the rent to the rate by which rent from 1-4-1947 was paid and finding of the lower appellate court on this point suffered neither from any error of law nor procedure.
These were the only points raised in the second appeals (Nos. 90, 92 and 93 of 1962) which are liable to be dismissed.
9. Coming now to the other set of second appeals Nos. 89 of 1962, 91 of 1962 and 94 of 1962 arising out of suits which were filed against the Municipal Board for fixation of rent and declaration and which were dismissed, the only point which arises in all these appeals is whether Section 326 of the Municipalities Act was applicable to those suits and whether there was any error on the part of the lower appellate court in holding that no notice as required by Section 326 of the Municipalities Act having been given before filing the suits, the suits were not maintainable in law. Learned counsel for the appellants submitted that Section 326 applied only to cases arising out of tort but not to cases arising out of contract and therefore since the cases which were filed by Sardar Khan, Munna Khan and Smt. Fahiman arose from contract of leases a notice under Section 326 of the Municipalities Act was not obligatory. For this view learned counsel relied upon the case of the Municipal Board, Agra v. Ram Kishan, 1933 All LJ 1414 = (AIR 1933 AH 785) where it was observed that a suit in contract is not one contemplated by Section 326 of the Municipalities Act. This ruling is no longer good law in view of the Full Bench case of this Court in Dargahi Lal Nigam v. Cawnpore Municipal Board, AIR 1952 All 382 (FB). In this case it was held that there is no basis for holding that Section 326 contemplates only an action in tort and not an action in contract. The case of 1933 All LI 1414 = (AIR 1933 All 785) was considered in this Full Bench case and dissented from on the ground that it gave no special reasons for holding that the section contemplates only an action in tort and not an action in contract I, therefore, hold that the lower appellate court was right in the view that a notice under Section 326 of the municipalities Act was applicable in these cases and the suits were not maintainable as notice under that provision was not given.
10. No other point was pressed in these appeals. These appeals also therefore have no substance and must fail.
11. For the aforesaid reasons I dismiss Second Civil Appeals Nos. 89 of 1962, 90 of 1962, 91 of 1962, 92 of 1962, 93 of 1962 and 94 of 1962 with costs to the respondent.