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Uttar Pradesh Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972-s. 2(2)-Suit for eviction of tenanted premises-Seeking exemption of applicability of the Act-Claiming the premises to be new construction falling within exemption provision-Trial Court holding that the Act was not applicable as the premises would be deemed to be newly constructed-Revision application in terms of Provincial Small Cause Courts Act-High Court holding that the Act was applicable-Supreme Court setting aside the judgment of High Court and remitting for fresh consideration-High Court denied adduction of additional evidence and refused to interfere with the question regarding applicability of the Act in exercise of revisional jurisdiction-On appeal, held: The Act was not applicable as in the facts of the case, the construction would be deemed to be new-Adduction of additional evidence rejected on valid grounds-High Court rightly refused to interfere with the finding of fact in exercise of revisional jurisdiction-Provincial Small Causes Courts Act-s. 25. Provincial Small Causes Courts Act-s. 25-Revisional jurisdiction under-Scope of-Held: Such jurisdiction can be exercised only when a question of law arises-A pure finding of fact based on appreciation of evidence may not be interfered with-But, if such finding is based on irrelevant factors, it can be interfered with-Revisional jurisdiction under the Act is wider than the jurisdiction u/s 115 CPC-Code of Civil Procedure, 1908-s. 115. Pleadings-Inadequate pleadings-Effect of-Held: When parties go into trial knowing fully well about the issues involved, the judgment based on inadequate pleadings would not have effect. Appellant was the tenant and respondent was the landlord of the premises in question. Respondent filed a suit for eviction, rather than filing an application under Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, on the ground that the premises being a new construction, the Act was not applicable to the same under exemption provision i.e. Section 2(2) of the Act. One of the issues was with regard to applicability of the Act to the premises. Trial Court held that the property in question would be deemed to be newly constructed and hence the Act was not applicable on the same. Appellant filed Revision Application thereagainst in terms of Section 25 of Provincial Small Causes Courts Act. High Court though approved finding of fact by trial Court, but relying on a judgment, held that the Act would be applicable as period of 10 years [the exempted period by Section 2 (2)] have lapsed during the pendency of the suit. In appeal Supreme Court set aside the order holding that the judgment relied on by the High Court, had been overruled by another decision. The matter was remitted to High Court for disposal in accordance with law. Before High Court, appellant filed an application for adduction of additional evidence in terms of Order 41 Rule 27 CPC. High Court refused to exercise its discretionary jurisdiction stating that the requirements of the said provision had not been fulfilled and regarding applicability of the Act, it held that the finding of fact arrived at by the Court below, cannot be interfered with in exercise of revisional jurisdiction. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1.1. Appellant’s application for adduction of additional evidence has been rejected on valid grounds by the High Court. It, for cogent and sufficient reasons, refused to exercise its discretionary jurisdiction. There is no reason to interfere therewith. Even if the purported admission made by the respondent, a subsequent pleading was to be taken into consideration, still then the respondent was required to be cross-examined. Another round of litigation would have started. [Para 19] [109-D-E] 1.2. The revisional jurisdiction of the High Court under Section 25 of the Provincial Small Causes Courts Act is wider than Section 115 CPC. But the fact that a revision is provided for by the statute, and not an appeal, itself is suggestive of the fact that ordinarily revisional jurisdiction can be exercised only when a question of law arises. However, that does not mean that under no circumstances finding of fact cannot be interfered therewith. A pure finding of fact based on appreciation of evidence although may not be interfered with but if such finding has been arrived at upon taking into consideration irrelevant factors or therefor relevant fact has been ignored, the revisional court will have the requisite jurisdiction to interfere with a finding of fact. Applicability of the provisions of Section 2(2) of the Act may in that sense involve determination of mixed question of law and fact. [Paras 20 and 21] [109-E-H] Suresh Kumar Jain v. Shanti Swarup Jain and Ors., [1997] 9 SCC 298, Sudha Rani Garg (Smt.) v. Jagdish Kumar (Dead) and Ors., [2004] 8 SCC 329 and Sanjay Kumar Gulati v. N.P. Singh and Anr., [2005] 12 SCC 396, relied on 2.1. What would amount to a new construction, being essentially a question of fact, would depend upon the nature and extent of the additions and alterations made in the whole building. It does not confine to a floor where the tenanted premises is situate. Where several tenants are inducted in different parts of the same building, it would be difficult to hold that one part of the building shall be governed by the Act and the other part would not be. Clause (c) of the Explanation I makes the legal position absolutely clear. [Para 18] [109-A-C] 2.2. The allegation contained in the plaint that the constructions were made in the year 1975 and tax was assessed with effect from 1.4.1978, being the issue involved in the suit, have been gone into by the trial court at great details. A finding of fact has been arrived at with reference to clause (c) of explanation 1 of Section 2(2) of the Act. Such a finding was based on the appreciation of evidence. [Para 26] [112-E-G] 2.3. The provisions of Section 2(2) contain a deeming provision. By reason thereof, a legal fiction has been created. It therefore, must be given its full effect. [Para 28] S.M.S.Pharmaceuticals Ltd. v. Neeta Bhalla and Anr., [2007] 4 SCC 70, Ramesh Chandra Sharma v. Punjab National Bank and Anr., (2007) 8 SCALE 240, referred to. 2.4. It is true that respondent could have made more elaborate pleadings; but no grievance was made in regard thereto. The parties knew the stand taken by the other. The issue involved in the suit was a simple one namely whether the construction was an old one or a new one. Even in the revision application, no such question was raised. Such a ground was taken before this Court for the first time. There is also nothing to show that the appellant has been prejudiced in any manner whatsoever. It is a well settled principle of law that when parties have gone into trial knowing fully well the issue involved, inadequate pleading, if any, may not be sufficient to set aside the judgment. [Para 29] [113-C-E] Raju Ramachandran, Mohit Choudhary and Dr. Kailash Chand for the Appellant. Jaideep Gupta, Pramod Dayal and Nikunj Dayal for the Respondents.

CASE NO.:
Construction works at a prefabricated house

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Appeal (civil) 4348 of 2007

PETITIONER:
Shri Mundri Lal

RESPONDENT:
Smt. Sushila Rani & Anr

DATE OF JUDGMENT: 18/09/2007

BENCH:
S.B. Sinha & Harjit Singh Bedi

JUDGMENT:
J U D G M E N T 

CIVIL APPEAL NO. 4348 OF 2007
[Arising out of SLP (Civil) No. 84 of 2007]

S.B. SINHA, J :

1. Leave granted.

2. Relationship between the parties is landlord and tenant. Appellant 
herein was inducted as a tenant in a shop premises which is a part of House 
No. 177-E, Abu Lane, Meerut Cantt., Meerut (U.P.). Respondent purchased 
the said house in the year 1969. The shop, in question, was newly 
constructed. 
3. Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and 
Eviction) Act, 1972 (hereinafter called and referred to as the "said Act") 
contains an exemption provision in Section 2(2) in regard to applicability 
thereof which reads as under:-
"Sec. 2(2) Except as provided in sub-section (5) of 
Section 12, sub-section (1-A) of Section 21, sub-section 
(2) of Section 24, Sections 24-A, 24-B, 24-C or sub-
section (3) of Section 29, nothing in this Act shall apply 
to a building during a period of ten years from the date 
on which its construction is completed."

 Explanation I appended to the said provision defines as to what is 
meant by the term "construction" in the following terms:-
"Explanation I.  For the purposes of this section, -
(a) the construction of a building shall be deemed to have 
been completed on the date on which the completion 
thereof is reported to or otherwise recorded by the local 
authority having jurisdiction, and in the case of a 
building subject to assessment, the date on which the 
first assessment thereof comes into effect, and where 
the said dates are different, the earliest of the said dates, 
and in the absence of any such report, record or 
assessment, the date on which it is actually occupied 
(not including occupation merely for the purposes of 
supervising the construction or guarding the building 
under construction) for the first time :

 Provided that there may be different dates of completion of 
construction in respect of different parts of a building which 
are either designed as separate units or are occupied 
separately by the landlord and one or more tenants or by 
different tenants ;

a. "construction" includes any new construction in place of 
an existing building which has been wholly or 
substantially demolished.

(b) where such substantial addition is made to an existing 
building that the existing building becomes only a 
minor part thereof the whole of the building including 
the existing building shall be deemed to be constructed 
on the date of completion of the said addition."

4. A notice under Section 106 of the Transfer of Property Act was served 
on the appellant asking him to quit and vacate the said tenanted premises. 
As he did not comply with the said demand, respondent filed a suit for 
eviction of the appellant on the premise that Section 2(2) of the Act was 
applicable stating:-
"3. That the said accommodation was constructed in the 
year 1975, but after construction the building was first 
assessed on new constructions since 1-4-1978 only and the 
U.P. Act 13 of 1972 is made applicable to Meerut 
Cantonment area, is not applicable to the said construction 
and according to law it is a new construction."

5. Appellant traversed the said allegation in his written statement in the 
following terms :
"That contents of para 3 of the plaint are denied. The 
allegation that the shop in dispute was constructed in the 
year 1975 is false. Similarly it is denied that the said shop 
was for the first time assessed to house tax on 1-4-78. It is 
further denied that U.P. Act XIII of 1972 is not applicable 
to the shop in dispute or that the said shop is a new 
construction within the meaning of U.P. Act XIII of 1972 
as applicable to the Cantonment."

6. No objection was raised that the said pleading was insufficient for 
attracting the exemption provisions contained in the said Act. Parties went 
to trial, knowing the issues arising in the suit. 
One of the issues which was framed in the said suit was as under:-
"[1] Whether the property in question is a newly 
constructed and the U.P. Act No. 13 of 1972 is not 
applicable? If yes then effect?"

7. The learned Trial Judge having regard to the evidences adduced by 
the parties opined that requirements of both clauses (b) and (c) contained in 
the explanation I appended to Section 2(2) were satisfied stating:-
"In this respect clause 1(c) of explanation of section 2 is 
important, in which it has been stated that where such 
substantial addition is made to an existing building that 
the existing building become only a minor part thereof 
the whole of the building including the existing building 
shall be deemed to be constructed on the date of 
completion of the said addition. In the light of the 
clarification, which is fully applicable in the 
circumstances of the present suit, that earlier the house, 
which was being used for residential purpose and was on 
rent of Rs. 100/- per annum with the two tenants has been 
let out on Rs. 1600/- per month to a tenant for 
commercial use and substantial constructions have been 
made in this property, which were detailed by P.W. 1, 
there is no question of disbelieving the version of P.W. 1 
that they demolished the earlier existing store room, bath 
room and passage and constructed pillars and beams, by 
removing other passage and store they constructed an 
attached bathroom and latrine, a new room was 
constructed by removing the earlier existing store and 
kitchen and pillars and beams were constructed by 
removing 5 arches in earlier existing veranda, pillars and 
beams were constructed and a window was made by 
constructing a linter of 26 by 35 feet in between earlier 
existing room and verandah. The defendant has not 
rebutted this statement of P.W. 1 by any material 
evidence nor he has denied specifically this statement of 
P.W. 1 in his statement that substantial alterations were 
made as such the earlier building has become a small part 
of present building as such the building is deemed to be a 
new construction and the enhanced house tax was 
imposed first time on 1-7-1978 on this property, therefore 
the property in question will be deemed as newly 
constructed on 1-4-1978.

8. A Revision Application was filed thereagainst by the appellant in 
terms of Section 25 of the Provincial Small Cause Courts Act. It does not 
appear from the Order passed by the High Court in exercise of its revisional 
jurisdiction that any contention that the pleadings in regard to the 
jurisdictional fact namely applicability of the provisions of the said Act was 
raised. The High Court, however, without going into the contentions raised 
before it, relying on or on the basis of the decision of this Court in Vineet 
Kumar Vs. Mangal Sain Wadhera (1984 (3) SCC 352) opined that as the 
period of ten years have elapsed during the pendency of the suit and the 
revision application, the Act would be applicable. 
9. Respondent approached this Court thereagainst. By a judgment and 
order dated 28.2.2005, the said decision was set aside, on the premise that 
Vineet Kumar (supra) had been overruled by a larger Bench of this Court in 
Suresh Chand Vs. Ghulam Chisti (AIR 1990 SC 897). The matter was 
remitted to the High Court directing:-.
" In the facts and circumstances of the case, we 
remit the matter to the High Court for disposal in 
accordance with law. If the High Court finds that there 
are other questions which arise for consideration in the 
Civil Revision before the High Court, it will hear the 
parties and pass appropriate orders. If the High Court 
finds that the matter requires to be remitted to the Trial 
Court for any reason, it may do so. We express no 
opinion in the matter."

10. The impugned judgment had been passed by the High Court on 
hearing the parties afresh.

11. Concededly, the appellant filed an application for adduction of 
additional evidence in terms of Order XLI Rule 27 of the Code of Civil 
Procedure. The High Court refused to exercise its discretionary jurisdiction 
in the matter stating that the requirements of the said provision had not been 
fulfilled.

12. In regard to the submission that the said Act was applicable since the 
High Court was of the view that the findings of the learned Trial Judge 
cannot be said to be wholly unsustainable attracting the revisional 
jurisdiction of the Court holding :
"Besides, I can not loose sight of the fact that it is a 
findings of fact arrived at by the Court below which 
cannot be interfered in exercise of revisionist jurisdiction. 
I am conscious of the fact that this is a revision under 
Section 25 of the Provisional Small Causes Court Act but 
this alone would not entitle this Court to reassess the 
evidence and upset a finding of fact. It is also to be 
noted that while recording the findings on the question as 
to whether the building was new building or an old 
building, it was taken into consideration that previously 
the building was assessed at the rental value of Rs. 330/- 
per annum, subsequently after the new construction, the 
value was enhanced to Rs. 22,800/- w.e.f. 1.4.1978. 
This was done taking into substantial additions made to 
the existing building. This was earlier let out to one 
Satish Chander Jain for residential purposes and after he 
vacated, major additions and alterations have been made 
and it was converted into commercial building and was 
let out to the tenant for commercial purpose. The trial 
Court took into consideration the oral evidence as well as 
documentary evidence that was placed before the Judge 
Small Causes Court. I do not find any illegality what so 
ever in the impugned judgment which calls for 
interference. This Court interfere under section 25 
Judge Small Causes Court only, in the event learned 
counsel could establish that the findings of the trial Court 
was perverse and not sustainable in law. Admittedly the 
building in question is subject to assessment of municipal 
taxes and date of construction will be assessed on the 
basis of assessment as well as other factor and evidence 
to be taken into consideration, which was admittedly 
been done by the trial Court and this Court at the time 
when this civil revision was decided on 24.8.2004, since, 
the findings of the trial Court regarding the date of 
construction of the building was confirmed in civil 
revision and upheld by the Apex Court, I am of the view 
that it cannot be reopened in this second innings. The 
Apex Court has only remitted the case to consider the 
other points which were not canvassed when the revision 
was decided previously. In the fact and circumstances, 
what has been discussed above, I do not find it a fit case 
for interference. The judgment dated 20th October, 1987 
is absolutely a legal. The decree for eviction and arrears 
of rent are confirmed. The civil revision is accordingly 
dismissed."

13. Mr. Raju Ramachandran, learned senior counsel appearing on behalf 
of the appellant would submit that the High Court committed a serious error 
insofar as it failed to take into consideration that the learned Judge, Small 
Causes Court had committed an error of law in recording a finding of fact on 
issue No.1 upon taking into consideration irrelevant facts and ignoring 
material evidence. Had such facts which had been brought on record, Mr. 
Ramachandran would submit, been taken into consideration, it could have 
been shown that most of the constructions were raised on the first floor and 
not on the ground floor. It was urged that the finding recorded by the 
learned Trial Judge that the existing building had undergone substantial 
addition is vitiated in law, as the same was arrived at without any basis, 
particularly when in terms of clause (c) of Explanation I appended to Section 
2(2) of the Act, it was necessary to record a finding as regards total existing 
construction vis-`-vis total new addition which would lead to the conclusion 
that new constructions within the meaning thereof have been made.
14. The High Court, it was contended, having regard to the fact that an 
admission had been made in a rejoinder filed by the respondent in a pleading 
made in another litigation in the year 1996 ought to have allowed the 
application for adduction of additional evidence.
15. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the 
respondent, on the other hand, would submit that the explanation raises a 
legal fiction and in that view of the matter, the judgment of the High Court is 
unassailable. The learned counsel contended that in the plaint, evidence 
need not be pleaded and in any event as the parties had understood the merit 
and purport of the issue between them, the respondent cannot be said to have 
been taken by surprise, it was contended that even no ground had been taken 
before the High Court. 
16. By reason of sub-section (2) of Section 2 of the Act, an exemption has 
been created from operation of the Act. What would constitute 
"Construction" is explained by Explanation I appended thereto. For the said 
purpose, a legal fiction has been created. The criteria laid down therefor, 
inter alia, is that the completion of a building should be reported to or 
otherwise recorded by the local authority having jurisdiction, and in a case 
of building subject to assessment, the date on which the first assessment 
thereof comes into effect. Clauses (b) and (c) of Explanation I provides for 
an expansive definition so as not only to include a construction upon 
demolition of the existing structure but also substantial addition to an 
existing building to the effect that the existing building becomes only a 
minor part thereof.
17. Indisputably, new assessment was made in the year 1978. 
Respondent had brought on record, the vast difference in the amount of tax 
payable before and after reconstruction. 
18. What would amount to a new construction, being essentially a 
question of fact, would depend upon the nature and extent of the additions 
and alterations made in the whole building. It does not confine to a floor 
where the tenanted premises is situate. Where several tenants are inducted 
in different parts of the same building, it would be difficult, in the event, the 
submission of Mr. Raju Ramachandran is accepted to hold that one part of 
the building shall be governed by the Act and the other part would not be. 
Clause (c) of the Explanation I in our considered opinion makes the legal 
position absolutely clear.
19. Appellant's application for adduction of additional evidence has been 
rejected on valid grounds by the High Court. It, for cogent and sufficient 
reasons, refused to exercise its discretionary jurisdiction. We do not see any 
reason to interfere therewith. Even if the purported admission made by the 
respondent, a subsequent pleading was to be taken into consideration, still 
then the respondent was required to be cross-examined. Another round of 
litigation would have started. We do not think that the appellant has made 
out a case for grant of such indulgence.
20. There cannot be any doubt whatsoever that the revisional jurisdiction 
of the High Court under Section 25 of the Provincial Small Causes Courts 
Act is wider than Section 115 of the Code of Civil Procedure. But the fact 
that a revision is provided for by the statute, and not an appeal, itself is 
suggestive of the fact that ordinarily revisional jurisdiction can be exercised 
only when a question of law arises.
21. We, however, do not mean to say that under no circumstances finding 
of fact cannot be interfered therewith. A pure finding of fact based on 
appreciation of evidence although may not be interfered with but if such 
finding has been arrived at upon taking into consideration irrelevant factors 
or therefor relevant fact has been ignored, the revisional court will have the 
requisite jurisdiction to interfere with a finding of fact. Applicability of the 
provisions of Section 2(2) of the Act may in that sense involve 
determination of mixed question of law and fact. 
22. Strong reliance has been placed by Mr. Raju Ramachandran on a 
decision of this Court in Suresh Kumar Jain Vs. Shanti Swarup Jain And 
Others [(1997) 9 SCC 298] wherein having regard to the facts involved 
therein and particularly the averments made in regard to completion of entire 
construction and assessment notice issued by the municipality, the question 
which arose for consideration was in regard to the date for completion of the 
building. It was in the aforementioned premise this Court opined:-
"32. The contention of the respondent landlord that the 
tenant appellant having wrongly contended that he had 
been continuing in the old premises even prior to 1973, is 
not permitted to rely on the subsequent construction of 
the tenanted premises, cannot be accepted for the simple 
reason that the landlord having instituted the eviction suit 
in the Small Causes Court, instead of filing such eviction 
suit before the appropriate forum under the Rent Act, on 
the plea that the building in which the tenant was 
inducted in 1973 was a newly constructed building for 
which he was entitled to exemption under Section 2(2) of 
the Rent Act, was under an obligation to strictly prove 
that such building, in fact, had been constructed within 
ten years from the date of the institution of the suit."

23. This Court exercised its discretionary jurisdiction under Article 136 of 
the Constitution of India in the fact situation obtaining therein stating:-
"33..The deemed date of construction as found earlier 
by the courts below was not approved by this Court in 
allowing the appeal arising out of the earlier special leave 
petition preferred by the tenant appellant and the High 
Court was specifically directed to decide the deemed date 
of construction under Section 2(2) of the Rent Act in the 
light of the observation made by this Court. In the facts 
of the case, such determination of deemed date of 
construction by appreciating and interpreting municipal 
records and assessment proceedings was not 
determination of a fact simpliciter but such determination 
involved a determination of mixed question of law and 
fact"

24. It, however, appears that another Bench of this Court in Sudha Rani 
Garg (Smt.) Vs. Jagdish Kumar (Dead) And Others [(2004) 8 SCC 329] held 
as under:-
"12. "When a statute gives a definition and then adds 
that certain things shall be 'deemed' to be covered by the 
definition, it matters not whether without that addition 
the definition would have covered them or not." (Per 
Lord President Cooper in Ferguson v. McMillan )

13. Whether the word "deemed" when used in a statute 
established a conclusive or a rebuttable presumption 
depended upon the context. (See St. Leon Village 
Consolidated School Distt. V. Ronceray.)

14. "I  regard its primary function as to bring in 
something which would otherwise be excluded." (Per 
Viscount Simonds in Barclays Bank v. IRC.)

15. "Deems" means "is of opinion" or "considers" or 
"decides" "and there is no implication of steps to be 
taken before the opinion is formed or the decision is 
taken". [See R. v. Brixton Prison (Governor), ex p 
Soblen, All ER p. 669 C.] (See Ali M.K. v. State of 
Kerala.)

16. It is not in dispute that the first assessment came into 
effect from 1-4-1983 and in the relevant column relating 
to enhancement or reduction of the tax "Q September 
1982" is recorded. According to learned counsel for the 
appellant it means that the completion of the shop has 
been recorded by the local authority on 1-7-1982. The 
plea is clearly untenable. A quarter is a period of time, 
covering in the instant case from 1-7-1982 to 30-9-1982. 
It only shows that when assessment was made, 
construction was completed earlier sometime in the third 
quarter of September 1982. The quarter started from 1-7-
1982. It cannot mean that the construction of the 
building was completed by the date. The date of 
completion of construction can be any date falling 
between two terminals i.e. 1-7-1982 to 30-9-1982. The 
hypothetical presumption that the first date of the quarter 
being 1-7-1982, it shall be deemed to be the date of 
completion of construction, has no basis. In case the first 
three dates are available then the modality for working 
out the date of completion is provided in the Explanation. 
As the records go to show, the first assessment came into 
effect on 1-4-1983. That is the third date provided in the 
Explanation."

25. We may, however, notice that another Division Bench of this Court in 
Sanjay Kumar Gulati Vs. N.P. Singh and Another [(2005) 12 SCC 396], by 
a short Order opined as under:-
"3. We see no ground to interfere with the order of 
eviction passed by the trial court as affirmed by the High 
Court in revision. The trial court after referring to the 
evidence has given a clear finding that the building was 
constructed only in or after the year 1988. Therefore, by 
the time the suit was filed, the building was less than ten 
years old. Hence, it was rightly held that the landlord can 
invoke the benefit of Explanation 1 to Section 2(2) of the 
Uttar Pradesh Urban Buildings (Regulation of Letting, 
Rent and Eviction) Act, 1972."26. Each case, therefore, depends on its own facts. In this case, we are 
not concerned with different dates of construction. The allegation contained 
in the plaint that the constructions were made in the year 1975 and tax was 
assessed with effect from 1.4.1978, being the issue involved in the suit, have 
been gone into by the trial court at great details. We have noticed 
hereinbefore that a finding of fact has been arrived at with reference to 
clause (c) of explanation 1 of Section 2(2) of the Act. Such a finding was 
based on the appreciation of evidence. Before the High Court, it had not 
been pointed out, as to what relevant facts have not been considered and 
what irrelevant fact had been considered in arriving at the said decision. 
27. The High Court may not be entirely correct in its approach so far as 
construction of Section 25 of the Provincial Small Cause Courts Act is 
concerned, but as noticed hereinbefore, a finding of fact has been arrived at 
keeping in view the pleadings of the parties and the issue framed on the 
basis thereof, viz., as to whether the construction was an old construction or 
a new one. The High Court in the revision application also noticed that the 
finding of fact arrived at by the trial court had been approved in the earlier 
round of litigation before the High Court. 
28. The provisions of Section 2(2) contain a deeming provision. By 
reason thereof, a legal fiction has been created. It therefore, must be given 
its full effect. See S.M.S.Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr. 
[(2007) 4 SCC 70] and Ramesh Chandra Sharma Vs. Punjab National Bank 
and Anr. [2007 (8) SCALE 240, Para 13]
29. It is true that respondent could have made more elaborate pleadings; 
but we have noticed hereinbefore that no grievance was made in regard 
thereto. The parties knew the stand taken by the other. The issue involved 
in the suit was a simple one namely whether the construction was an old one 
or a new one. Even in the revision application, no such question was raised 
as it appears from the impugned judgment of the High Court. Such a ground 
was taken before us for the first time. There is also nothing to show that the 
appellant has been prejudiced in any manner whatsoever. It is a well settled 
principle of law that when parties have gone into trial knowing fully well the 
issue involved, inadequate pleading, if any, may not be sufficient to set aside 
the judgment.
30. For the reasons aforementioned, we do not find any merit in this 
appeal which is dismissed accordingly with costs. Counsel's fee assessed at 
Rs.10,000/- (Rupees ten thousand only).

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