Judgment : This appeal and the cross-objection arise out of a suit for eviction. 2. The plaintiff's case is that the defendant was a monthly tenant in respect of the suit premises under him at a monthly rental of Rs. 250/- payable according to English Calendar. The defendant failed and neglected to pay rents since the months of November, 1955 and thus became a defaulter under Clause (i) of sub-s. (1) of S.13 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act), by which the tenancy was governed. The defendant made unauthorised constructions in the tenanted premises without his consent and acted contrary to the provisions of clauses (m), (o) and (p) of S. 108 of the transfer of property act, 1882 thereby making itself liable for eviction on the grounds referred to in Clause (b) of sub-s. (1) of S. 13 of Act. By a combined notice to quit and of suit the tenancy of the defendant was duly terminated with the expiry of the month of October, 1959 but it failed to act in terms thereof. 3. In resisting the suit the defendant contended that the monthly rent was not 250/- and the description of the tenancy in the notice to quit and of suit was not correct. The defendant asserted that it had paid to the plaintiff a sum of Rs. 14,274/- and odd during the period from July 15, 1952 to November 11, 1957 by way of advance and as such was not a defaulter. The allegations of commission of acts contrary to the Causes (m), (o) and (p) of S. 108 of Transfer of Property Act were denied. The maintainability of the suit was also questioned on the ground that the owners of the land on which the suit premises was situate as well as the Receiver appointed by the High Court in respect of suit premises were not made parties to the suit. 4. The learned Munsif who originally heard the suit decreed the same in favour of the plaintiff. Against the said decree an appeal was preferred and the learned sub-ordinate judge, who heard the appeal, set aside the decree and remanded the suit for a fresh hearing on all the issues and on an additional issue framed by the learned Judge touching the maintainability of the suit. Against the said decree an appeal was preferred and the learned sub-ordinate judge, who heard the appeal, set aside the decree and remanded the suit for a fresh hearing on all the issues and on an additional issue framed by the learned Judge touching the maintainability of the suit. On hearing, after remand, the learned Munsif found the notice served on the defendant legal, valid and sufficient. Though he found that the defendant was not a dafaulter, he found him guilty of violating the provisions of Clauses (m), (o) and (p) of S. 108 of Transfer of Property Act. The learned Munsif however held that the suit was not maintainable as the receiver appointed to Suit No. 2364 of 1955 by the High Court was not impleaded as a party and accordingly dismissed the suit. 5. In the appeal preferred by the plaintiff learned Additional District Judge concurred with the findings of the learned Munsif that the notice served upon the defendant was legal, valid and sufficient, that the defendant was not a defaulter and the defendant violated the provisions of Clauses (o) and (p) of S. 108 of Transfer of Property Act. Disagreeing with the learned Munsif, the learned Judge held that suit instituted in the High Court could not be a bar to the maintainability of the instant suit and the Receiver appointed therein was not a necessary party. Accordingly he allowed the appeal and passed a decree for eviction of the defendant. 6. Against the judgment and the decree of the learned Additional District Judge the defendant has preferred the instant appeal while the plaintiff has filed a cross-objection against the finding of the learned judge on the question of default. 7. Mr. Babi Mitra, the learned Advocate, appearing for the appellant raise three points in support of the appeal. He firstly contended that having regard to the fact that a Receiver was appointed by this court in respect of the suit premises, the instant suit was not maintainable without leave of this Court or without impleading the Receiver as a party. Mr. Babi Mitra, the learned Advocate, appearing for the appellant raise three points in support of the appeal. He firstly contended that having regard to the fact that a Receiver was appointed by this court in respect of the suit premises, the instant suit was not maintainable without leave of this Court or without impleading the Receiver as a party. He next contended that the grounds referred to in Clauses (b) of Sub-s. (1) of S. 13 of the Act were available only in respect of residential premises and in view of the admitted case of the parties that the suit premises were being used as a sweetmeat shop the appellant was not entitled to a decree on those grounds. Mr. Mitra lastly contented that finding of the learned Judge that the appellant acted contrary to the provisions of Clauses (o) and (p) of S. 108 of the Transfer of Property Act, 1882 in perverse, as it is not based upon consideration and discussion of all the material evidence on record. 8. Mr. Baakim Chandra Dutt, the learned Advocate appearing for the respondent, resisted all the contentions raised by Mr. Mitra. Mr. Dutt submitted that the Receiver was not a necessary party in the suit nor was the leave of this Court necessary for its institution as the Receiver did not obtain possession of the suit properties. Besides, as the relief prayed for in the suit was not prejudicial to the interest of the Receiver appointed by this Court the Receiver was an unnecessary party, argued Mr. Dutt. As regards the second contention of Mr. Mitra, Mr. Dutt submitted that the grounds referred to in S. 13(1)(b) of the Act were not confined to residential premises only and would apply to business premises also. Mr. Dutt lastly urged that in view of the concurrent findings of the learned Courts below that the appellant acted contrary to the provisions of Clauses (o) and (p) of S. 108 of the Transfer of Property Act, 1882 this Court, setting in second appeal, will not be justified in setting aside the same. 9. In view of the submissions made by the respective parties the first question that requires determination is whether the suit is maintainable without making the Receiver a party or without leave of the Court, appointing the Receiver. 9. In view of the submissions made by the respective parties the first question that requires determination is whether the suit is maintainable without making the Receiver a party or without leave of the Court, appointing the Receiver. To decide the question it will be necessary to state certain facts regarding the appointments of Receiver. 10. The land on which the premises is situate belongs to Amar Krishna Ghosh of 116 Vivekananda Road, Calcutta. M/s. United Bank of India Limited instituted suit No. 2364 of 1955 in the original side of this court against Amar Krishna Ghosh & others for recovery of a sum of Rs. 4 Lakhs and odd, which the Bank claimed to have lent and advanced to them and for which they executed an indenture of mortgage in respect of their properties. The bank obtained a preliminary decree for sale of the properties of the said defendants and on May 29, 1956 Sri Ram Gopal Basak was appointed receiver of the rents, issues and profits of the mortgaged premises, including the suit building. On July 25, 1956 the Receiver intimated the appellant by a letter, his appointment as Receiver for the purpose of the rents, issues and profits of several properties including premises No. 24/4, Russa Road (the suit building) and the direction of the Court that all tenants and occupiers were to pay rents in arrears and growing rents to him as Receiver. This was followed by another letter dated December 18, 1956 addressed to the appellant wherein it was pointed out that in spite of repeated requests the appellant neglected and failed to pay the monthly rents to him in respect of the portion, which was under his occupation, in premises no. 24/4, Russa Road, Calcutta. In that notice the Receiver intimated the appellant that he would be compelled to proceed against the appellant legally for such non-compliance. 11. Relying upon the above facts, which are not in dispute, Mr. Mitra contended that as the suit premises were in the hands of the Receiver, the suit was not maintainable without impleading the Receiver as a party or without obtaining prior leave of the Court which appointed the Receiver. In support of his contention Mr. Mitra relied upon certain decisions to which I will presently refer. 12. Mitra contended that as the suit premises were in the hands of the Receiver, the suit was not maintainable without impleading the Receiver as a party or without obtaining prior leave of the Court which appointed the Receiver. In support of his contention Mr. Mitra relied upon certain decisions to which I will presently refer. 12. While the materials on record prove that a Receiver was appointed in respect of the suit building and the Receiver sought to enforce his right to collect rents form the tenants in respect of the same, there is nothing on record to indicate that the receiver obtained possession of the suit premises or that the appellant acted in terms of his letters. The record also indicates that the plaintiff/respondent was not a party in the suit nor did he intervene in the matter. These facts and circumstances assume importance in the context of the decisions referred to and relied upon by Mr. Mitra appearing for the appellant and Mr. Dutt appearing for the respondent. 13. Mr. Mitra firstly relied upon a judgment of this Court in the case of P. Roy Chowdhuri v. Nalini Prokash Sen, reported in 18 Calcutta Weekly Notes, page 289. In that decision it was laid down that the right of a stranger in possession to continue in possession was not affected by the order appointing a Receiver, but the fact of his possession did not give him the privilege to interfere with the Receiver directed to take possession of the property. In such a case, the Court observed, the proper course for the stranger in possession was to apply to the Court for the redress of his grievances and if he interfered with the Receiver he did so at his own peril. The above decision further laid down that the court would not permit a receiver appointed by its authority to be interfered with or dispossessed of the property he was directed to receive by any one although the order appointing him might be perfectly erroneous, as the Court required and insisted that application should be made to the Court for direction to take possession of any property of which the receiver either had taken possession or was directed to take possession. 14. Mr. Mitra next referred to the judgment of the Supreme Court in the case of Kanhayalal v. Dr. 14. Mr. Mitra next referred to the judgment of the Supreme Court in the case of Kanhayalal v. Dr. D.R. Banaji, reported in AIR 1958 SC page 725 wherein it was observed as follows :- "It is also settled law that proceedings taken in respect of a property which is in possession and management of a Receiver appointed by a Court under Order 40 Rule 1 of the code of Civil Procedure, without the leave of that Court are illegal in the sense that the party proceeding against the property without the leave of the court concerned, is liable to be committed for contempt of the Court, and that the proceedings so held, do not affect the interest in the hand s of the Receiver who holds the property for the benefit of the party who, ultimately, may be adjudged by the Court to be entitled to the same." The Supreme Court further observed :- "The general rule that property in custodia legis through its duly appointed receiver is exempt for judicial process except to the extent that the leave of that Court has been obtained, i.e. based on a very sound reason of public policy, namely, that should be no conflict of jurisdiction between different Courts. It a court has exercised its power to appoint a Receiver of a certain property it has done so with a view to preserving the property for the benefit of the rightful owner as judicially determined. If other Courts or tribunals of co-ordinate or exclusive jurisdiction were to permit proceedings to go on independently of the Court which has placed the custody of the property in the hands of the Receiver, there was a likelihood of confusion in the administration of justice and a possible conflict of jurisdiction. The Courts represent the majesty of law, and only, therefore, would not do anything to weaken the rule of law, or to permit any proceedings which may have the effect of putting any party in jeopardy for contempt of court for taking recourse to unauthorised legal proceedings. It is on that very sound principle that the rule is based". 15. Mr. It is on that very sound principle that the rule is based". 15. Mr. Mitra next referred to the following observations in the case of Jagal Tarini Dasi v. Naba Gopal Chaki, reported in ILR 34 Calcutta, Page 305 : "The title of the property for the time being, and for the purpose of administration, may, in a sense, be said to be in the Court. The Receiver is appointed for the benefit of all concerned; he is the representative of the Court and of all parties interested in the litigation wherein he is appointed. He is the right arm of the Court in exercising the jurisdiction invoked in such cases for administering the property, the Court can only administer through a Receiver. For this reason all suits to collect rent or obtain possession or the property must be prosecuted by the Receiver, and the proceeds received and controlled by him alone. If the suit has to be nominally prosecuted in the name of the different owners of the property, it is an inconvenient as well as useless form—inconvenient, because in many cases, the title of the owners may be the subject matter of litigation in which the Receiver has been appointed—useless, because the true owners have no discretion as to the institution of the suit, no control over its management, and no right to the possession or the proceeds." 16. The above principle of law was quoted with approval by the Supreme Court in the case of Venkata Mallayya v. T. Ramswami & Co., reported in AIR 1964 SC page 818, on which Mr. Mitra relied wherein it was stated as follows : "It seems to us that the view of the Calcutta High Court that a Receiver who is appointed with full powers to administrate the property which is custodia legis or who is expressly authorized by the Court to institute a suit for all the assets is entitled to institute a suit in his own name provided he does so in his capacity as a receiver. If any property is in custodia legis the contesting parties cannot deal with it in any manner any therefore there must be some authority competent to deal with it in the interest of the parties themselves. A Receiver who is placed in charge of the property on behalf of a Court can be the only appropriate person who could do so. A Receiver who is placed in charge of the property on behalf of a Court can be the only appropriate person who could do so. His function cannot be limited merely to the preservation of the property and it is open to a Court if occssion demands, to confer upon him the power to take such steps including institution of suits in the interest of the parties themselves." 17. Mr. Mitra lastly relied upon the case of Rowland Hudson v. John Pierpont Morgan, reported in 13 Calcutta Weekly Notes, 654 wherein this court answered the question, whether the Court has jurisdiction to remove form possession a person who claims under a little paramount to that of the parties to the litigation in which the Receiver is appointed, with these words : "In determining whether the Court should remove form possession or custody of property under attachment, any person who is not a party to the litigation, the test to be applied is whether the parties to the suit or some or one of them have or has right to remove him. If the intention of the legislature had been that a person who was not a party to the suit should not, under any circumstance be deprived of possession of the disputed properties, the Code would have made an appropriate provision to that effect. On the other hand, the code expressly provides for the test to be applied in cases of controversy between the Receiver and the stranger to the suit." Besides the above decisions, Mr. Mitra relied upon the following passages from Woodroffe's "Law relating to Receivers" and Kerr's 'The Law and Practice as to Receivers" : "It has been already observed that even those claming paramount to the right which the receiver was appointed to protect must obtain the leave of the Court to enforce the right. If at the time a receiver is appointed a party claming a right in the same subject matter is in possession of the right which he claims, the appointment of the receiver leaves him in possession of the right and does not interfere with the exercise of it. If at the time a receiver is appointed a party claming a right in the same subject matter is in possession of the right which he claims, the appointment of the receiver leaves him in possession of the right and does not interfere with the exercise of it. If, on the other hand, the claming is out of possession, he must apply to the Court before he institutes any legal proceeding affecting the possession which the receiver has acquired, even where the receiver has been appointed without prejudice to the rights of persons having prior charges. So too, where a receiver has been appointed over the estate of a tenant in possession, though the appointment does no affect the rights of the land-lord, the latter will not be permitted to exercise those rights, as for example, the right of distraint, without first obtaining the leave of the Court. (Woodroofe's 6th Edition, pages 71-72) "A receiver is an officer appointed to collect the rents and profits of real estate, or the income or capital of personal estate, upon the title of the parties to the action; the rights of those parties are not affected by the order, but it operates as an injunction to prevent them form receiving the subject-matter of the order, or from dealing with it to the prejudice of other parties to the action. The right of persons not parties are not affected by the order, but they cannot exercise those rights without the leave of the Court. (Kerr, 15th edition, page 129)." "The Court will not allow the possession of its receiver to be interfered with or disturbed by anyone, whether claming by title paramount to or under the right which the receiver was appointed to protect. A man who thinks he has a right paramount to that of the receiver must, before he presumes to take any step of his own motion, apply to the Court for leave to assert his right. (Kerr. Page 145)" "It has been already pointed out that persons with paramount rights, unless actually in possession of them at the appointment, must, after a receiver has been appointed, apply to the Court for leave to put them in force unless the order preserves their powers: this applies to cases where a receiver has been appointed for the estate of a tenant in possession. The appointment of a receiver as against the estate of a tenant does not affect the rights of the land-lord, but he will not be permitted to exercise those rights without first obtaining the leave of the Court. Before distraining he should come to the Court and ask for authority to distrain, notwithstanding the appointment of a receiver; he acquires no prior claim over other creditors to the proceeds of sale of chattels sold by the receiver after formal notice of his claim to rent (Kerr, page 149)." 18. Mr. Dutt in his turn firstly invited my attention to the following passage form the judgment of this Court in the case of Kanailal Jalan v. Manoo Bibi reported in XXIII, Calcutta Weekly Notes page 952 : "The rule that the possession of a Receiver may not be disturbed without leave, does not apply, so far as third persons are concerned, until a Receiver has been actually appointed and is in possession. It is not enough that an order has been made directing the appointment of a Receiver. Until the appointment has been perfected and the Receiver is actually in possession, a creditor is not debarred form proceeding to execution. The order appointing a receiver is for the benefit of the parties to the action; it does not affect third persons until the appointment is compete and perfected". 19. Mr. Dutt next referred to another Division Bench judgment of this Court in the case of Raja Jagdish v. Bhubaneshwar, reported in XXXVI, Calcutta Law Journal 265 wherein the above principle laid down in the case of Kanailal (supra) was approved. 20. The next case cited by Mr. Dutt was that of Nilkantha Narayan v. M.S. Joha, reported in AIR 1943 Patna 297 wherein also the principle laid down in the case of Kanailal (supra) was accepted and it was further observed as follows : "Merely the appointment of a Receiver does not give him possession. On behalf of the respondent, it was strongly contended that by mere appointment possession at once passes to the Receiver. It is true that when a Receiver is appointed the actual appointment operates as an injunction restraining the parties to the suit form interfering with the property but it does not affect outsiders". 21. Mr. On behalf of the respondent, it was strongly contended that by mere appointment possession at once passes to the Receiver. It is true that when a Receiver is appointed the actual appointment operates as an injunction restraining the parties to the suit form interfering with the property but it does not affect outsiders". 21. Mr. Dutt then referred to another decision of this Court in the case of Maharani Janki Koer v. Sham Sivendra Sahi reported in X Calcutta Law Journal, page 23 which laid down the following proposition : "It is perfectly true that when the decree for mesne profits is made, the decree-holder may find it necessary to proceed against the quity of redemption to enable him to realise his dues. When he finds himself in that position, if the Receiver is then fund to be in possession of the mortgaged properties, the execution creditor may obtain the leave of this Court before he can attach the properties in execution. But before he arrives at that stage it is not necessary for him to bring the Receiver before the Court" Mr. Dutt also relied upon the following passage from woodruffs : "A receiver duly appointed is form the moment of his appointment an officer of the Court and entitled to the possession of the property comprised in the order appointing him. The effect of the appointment is to remove the parties to the action from the possession of the property, subject to this that the court cannot remove form the possession or custody of property and person whom the parties to the suit or some or one of them have or has not a present right so to remove (page 61)." Mr. Dutt lastly referred to the following two passages from Kerr :- "The appointment of a receiver does not of itself effect a change in the possession of land, nor does a receiver of the rents and profits of land take possession unless the order directs him to do so. It therefore one of the parties, for instance, a mortgagor, is in possession, the order should direct him to deliver up possession to the receiver or to attorn tenant at a rent. It therefore one of the parties, for instance, a mortgagor, is in possession, the order should direct him to deliver up possession to the receiver or to attorn tenant at a rent. (Page 131)" "Effect on third parties-Persons who are not parties to the order are not bound by it in this sense, that no action could be maintained against them e.g. for rent, until something more has been done to make the order binding on them : a further order that they attorn tenant or pay their arrears to the receiver must be obtained. If, however, after notice of the order, tenants pay their rents to a party bound by the order they will not obtain a valid receipt, since the order operates as in injunction. The receipt of the receiver will be valid if a receipt could have been given by a party bound by the order, but not otherwise." (Page 135)." 22. From the above authorities cited at the bar, the following principles, which are relevant for our present purpose, are deducible : (i) to ascertain whether the receiver is a necessary party or the leave of the Court which appointed the Receiver is necessary in a suit or proceeding, the test is (a) whether there is likely to be a conflict of jurisdiction between the Court appointing the Receiver and the Court where the suit was to be instituted or proceeding initiated and (b) whether the property in the hands of the Receiver is intended or likely to be affected by the result of the suit. (ii) Mere appointment of a Receiver, does not affect the rights of a stranger to the suit but if the Receiver's right to take possession of the property is interfered with or if the receiver is dispossessed by a stranger he is liable for contempt. That necessarily means that without leave of the Court appointing the Receiver, a stranger cannot initiate proceedings in respect of the property which is in possession of the Receiver. 23. Applying the above principles to the facts of the instant case, I must hold that the Receiver was neither a necessary party in the instant suit nor was the leave of the Court necessary for institution of the suit. 23. Applying the above principles to the facts of the instant case, I must hold that the Receiver was neither a necessary party in the instant suit nor was the leave of the Court necessary for institution of the suit. The Receiver was empowered, inter alia, to take possession of the mortgaged properties and to collect the rents, issues and profits thereof, and the tenants and occupiers thereof were directed to attorn and pay their rents in arrears and growing rents to the said receiver. Though by the order and decree of this Court the Receiver was entitled to take possession of the suit premises he did not exercise the said right and, as stated earlier, he only asked the tenants including the appellant to pay arrear and growing rents to him but the said direction of the Receiver was not complied with by the appellant. It is of course true that if the defendant paid rents to the Receiver, that would have been valid payment to the landlord and for not complying with the directions of the Receiver, the defendant could have been hauled up for contempt. But these considerations are not germane in the facts of the instant case. The facts of the instant case go to show that (i) the Receiver did not take possession of the suit building (ii) the plaintiff and the defendant were not parties in that suit (iii) the interest of the Receiver was not in (any) way prejudiced by the institution of the instant suit not was there any scope conflict of jurisdiction between the Court, appointing the Receive, and Court, where the present suit was filed and (iv)the Receiver was not pointed to protect the interest of the plaintiff vis a vis the defendant. The contention of Mr. Mitra therefore fails. 24. Mr. Mitra based his second contention on the word 'residing' appearing in Clause (b) of S. 13(1) of the Act. According to Mr. Mitra a in reading of the above clause would clearly show that it was only when tenant or any person residing in the premises let to the tenant did any act contrary to the provisions mentioned therein the landlord was entitled to decree for eviction on the grounds stated therein and as much the above funds were available only in respect of residential premises. As to the meaning of the words ‘residing’ and ‘residence’ Mr. As to the meaning of the words ‘residing’ and ‘residence’ Mr. Mitra relied upon a judgment of this Court in the case of A.J. Tulloch v. M.P. Tulloch reported in 79 Calcutta Weekly Notes, page 157. I have carefully gone through the said judgment and in my considered view it has no manner of application to the facts of the instant case. In deciding whether the High Court jurisdiction to try and determine a suit for dissolution of marriage under the Divorce Act, 1869, which abegged answer to the question whether a parties resided together within its jurisdiction, this Court had to consider the meaning of ‘resides’ and it observed as follows :- "The word 'resides' no doubt clearly connotes some degree of community of stay and specifically in cases where there is a home or place of residence of permanent character or casual or brief residence together may not confer jurisdiction. But the Courts have interpreted the term 'residence' liberally". 25. It is no doubt that in common parlance the word 'resides' notes the place where an individual leaves, eats and sleeps. Primarily ‘residence’ means the dwelling place where an individual usually leaves and sleeps but the word ‘resides’ can be given an extensive meaning also so as denote a place where a man is to be found daily. The word ‘residence’ ‘resides’ therefore has to be construed to the according to the intent and subject of the particular legislation where they may be found. For example person’s ‘residence’ as regard assessment of Income Tax may mean not only the place where he sleeps but also the place of his business. If lodged in the context of the intent and object of the enactment with which are concerned there cannot be any manner of doubt that the word ‘residing’ in S. 13(1)(b) has to be given a wide meaning so as to include a person who is to be found in a particular place daily. The intention has been made amply clear by the fact that wherever the legislature wanted that particular ground under S. 13(1) would be available only in respect of a residential premises it has been expressly so stated. The intention has been made amply clear by the fact that wherever the legislature wanted that particular ground under S. 13(1) would be available only in respect of a residential premises it has been expressly so stated. In clause (g) it has been stated "where the premises were let to the tenant for use as residence person or his being in the service or employment of the landlord." Similarly in clause (h) the relevant words are “where premises let out for residential purpose.” The object of the Statute also makes the position clear. If clause (b) is to be interpreated as applying to residential premises only, it would mean that a tenant or any person residing in the premises, which are used as a place of business, act contrary to its provision with impunity. Such an interpretation would frustrate the object of the enactment which clearly is to protect the tenanted premises form being disfigured or damaged. The second contention of Mr. Mitra, therefore, also fails. 26. Coming now to the third contention of Mr. Mitra, I find that the learned Additional District Judge has not discussed all the material evidence on record and arrived at his finding in a very cryptic manner. After narrating few of the statements made by the witnesses and without any discussion thereof, the learned Judge concluded as follows :- "Considering these facts I am entirely in agreement with the finding arrived at by the learned Court below that the defendant made substantial additions and alterations in the suit premises without obtaining the consent of the plaintiff and these additional and alterations amounted to a prejudice of implied convents stated in Clauses (o) and (p) of S. 108 of the Transfer of Property Act." 27. As the last Court of fact, it was incumbent upon the learned Judge to discuss all the material evidence on record and for reasons to be recorded, to decide the issue in favour of either of the parties. Mr. Dutt contended that even if the learned lower appellate court come to a patently wrong finding of fact, the Court, sitting in second appeal, will not be justified in disturbing such a finding more particularly when the same was a concurrent one. In support of his contention Mr. Mr. Dutt contended that even if the learned lower appellate court come to a patently wrong finding of fact, the Court, sitting in second appeal, will not be justified in disturbing such a finding more particularly when the same was a concurrent one. In support of his contention Mr. Dutt invited my attention to certain decisions of the Supreme Court but as there is no dispute about this legal proposition those decisions need not be referred to. The above proposition however does not come in aid or Mr. Dutt inasmuch as in the instant case the finding of the learned Judge is not based upon discussion of the material evidence on record. 28. While on this question, Mr. Mitra drew my attention to the first notice of eviction dated May 23, 1958 served on the appellant (Ext. A). Relying upon the notice, Mr. Mitra submitted that it was nowhere stated therein that the ejectment was being sought for on the grounds of acting contrary to the provisions of Clauses (m), (o) and (p) of the Transfer of Property Act. While conceding all the grounds were not required to be stated in the notice as decided by the Full Bench of this Court, Mr. Mitra contended that absence of such an avernment at the earliest possible opportunity was a relevant consideration on the question of truth or reasonableness of the plaintiff’s case and it was obligatory on the part of the learned lower appellate Court to consider this aspect of the matter. In support of his contention Mr. Mitra relied upon the judgments of this Court in the case of Ghaffar Hazi Shakoor v. Sm. M. Said reported in 77 Calcutta Weekly Notes 648 and in the case of Biswanath Gupta v. Narendra Kumar Tandon reported in 78 Calcutta Weekly Notes 849. There two cases law down the proposition that though it is not necessary to state in the notice the grounds on which the ejectment of the defendant is sought, yet if the landlord chose not to mention one of the grounds the fact that at a subsequent stage he relied on such a ground was a circumstance which could not be overlooked, the conduct of the landlord in such a case, would be a consideration for judging the truth or reasonableness of his case. Inasmuch as the learned Judge overlooked this material piece of evidence, the judgment also suffers from the infirmity of non-consideration of material evidence on record, which again is a point of law, for which even a congruent finding of fact is liable to be set aside in a second appeal. As the finding of the learned lower appellate court on the question whether the appellant was guilty of violating the provisions of clauses (m), (o) and (p) of S.108 of the Transfer of Property Act (Point No.3) suffers from the above infirmities, the same has to beset aside and the appeal has to be remanded for a proper decision thereon. 29. Now that all the questions raised in the appeal have been disposed of, let me take up for consideration the cross-objection filed by the respondent. The cross-objection is based on the ground that the learned Additional District Judge erred in not decreeing the suit on the ground of default as well. The learned trial Court firstly found that there was no documentary or oral evidence to show that the rate of rent of the suit premises was Rs. 250/- per month as contended by the plaintiff and as he failed to discharge his onus the case of the defendant that the rent payable was Rs.150/- per month was to be accepted. The learned Court thereafter took up for consideration the actual amount paid by the defendant to the plaintiff as advance and on calculation found that the defendant paid more than the total amount of rent which was due from him. 30. The Additional Distinct Judge did not think it necessary to decide the question as to whether the rent of the suit premises was Rs. 150/- or Rs. 150/- per month, as accepting the books of accounts filed by the defendant he fou8nd that the defendant paid to the plaintiff a sum of Rs. 14,274/- annas 8 and paise 6, which was more than the rents due form the defendant, even when calculated @ Rs. 250/- per month. As both the learned Courts below concurrently found that the defendant paid, by way of advance, a sum of Rs. 14,274/- and odd, which was more that the rents due from him when calculated even @ Rs. 250/- per month and the defendant could not be a defaulter, the cross-objection must fail. 250/- per month. As both the learned Courts below concurrently found that the defendant paid, by way of advance, a sum of Rs. 14,274/- and odd, which was more that the rents due from him when calculated even @ Rs. 250/- per month and the defendant could not be a defaulter, the cross-objection must fail. But I leave the issue regarding the rate of monthly rent open, as it need not be decided in view of the above concurrent findings. 31. In the result, the appeal succeeds and the same is hereby allowed. The judgment and decree of the learned lower appellants Court are hereby set aside and the case is remanded back to the learned Court below for fresh disposal on point No.3 framed by it in accordance with law and in the light of the observations made in this judgment. In disposing of the appeal the learned lower appellate court will confine its attention to the evidence already on record and neither of the parties will be entitled to adduce any further evidence. The cross-objection however stands dismissal. In the circumstances of the case, there will be no order for costs, either in the appeal or in the cross-objection. Appeal allowed, case remanded to lower appellate court.