D. C. SRIVASTAVA, J. ( 1 ) THIS is landlords revision under Sec. 29 (2) of the Bombay Rent act. ( 2 ) THE facts giving rise to this revision are as under : the revisionist filed Civil Suit No. 170 of 1984 for eviction of the respondent. Another Suit No. 132 of 1983 was also filed by the plaintiff - revisionist against the respondent for permanent injunction restraining the defendants from preventing the entry of the plaintiff interear Court yard on the ground floor. Another Civil Misc. Application no. 443 of 1983 was also filed by the plaintiff landlord seeking decision of the Court as to who is tenant in the premises. ( 3 ) WHEN the Trial Court does not apply its mind to marshalling the facts and remains careless in going through the pleadings while framing issues, issues have to be recasted time and again. This is what happened in the eviction Suit No. 170 of 1984. ( 4 ) THE grounds for eviction in the said suit were many, but issues were framed in instalments. At first only four issues were framed in which only two issues were material, viz. , whether the relationship of landlord and tenant subsists between the parties and whether the tenant created nuisance or annoyance to the landlord in the suit premises. ( 5 ) ON 10. 9. 1987 issues were recasted by deleting issue No. 2, issue No. 2-A was wholly redudant which can be covered in the ground of nuisance. Issue No. 2-B was likewise redudant so also issue No. 2-C and all these allegations could be considered under Issue No. 2. ( 6 ) ON 5. 1. 1990 Issue No. 2-D was added to the effect whether the defendant constructed permanent structure in the suit premises without the permission of the plaintiff. ( 7 ) THE suits and applications were resisted by the tenant. In the eviction suit, with which this revision is primarily concerned, the Trial Court found that the relationship of landlord and tenant subsisted between the parties. It further found that the landlord failed to establish allegation of nuisance or annoyance to him at the instance of the tenant respondent. Issue Nos. 2-A to 2-C were subsequently deleted which further exhibits non- application of mind by the Trial Court while framing and re-casting issues. It further found that the landlord failed to establish allegation of nuisance or annoyance to him at the instance of the tenant respondent. Issue Nos. 2-A to 2-C were subsequently deleted which further exhibits non- application of mind by the Trial Court while framing and re-casting issues. The Trial court on recasted issue No. 2-D found that the tenant constructed permanent structure without permission of the plaintiff Accordingly the suit for eviction was decreed. ( 8 ) THE tenant preferred an Appeal which was allowed by the lower Appellate Court. The Decree for tenants possession was re versed and set aside by the lower Appellate court. Hence this revision. ( 9 ) THE only point argued by the learned Counsel for the landlord revisionist was that there is Concurrent finding recorded by the two Courts below that the tenant respondent has made permanent structure in the suit accommodation without written permission of the landlord. The appellate Court on such finding, according to the learned Counsel for the revisionist, could not have reversed the decree for possession taking shelter behind the reasoning that since there is variance between pleadings of the plaintiff and his evidence regarding permanent structure the suit for eviction can be dismissed. ( 10 ) THE learned counsel for the respondent, on the other hand, contended that in the plaint it was not specifically averred what was permanent structure raised by the tenant and also place where such structure was raised and sicne Issue on this point was framed at a very late stage when the evidence was to being the defendant respondent was seriously prejudiced and was prevented from adducing proper evidence. He further contended that in case there is variance between pleadings and proof the decree of the Trial Court become illegal hence it was and correctly reversed by the Appellate Court, and as such no interference in this revision is required. He also filed English translation of depositions of the plaintiff and the defendant. He referred to the statement and tried to convince the revisional Court that there has been variance between the pleadings and the evidence produced by the revisionist and as such decree for possession was rightly set aside by the lower Appellate Court. He also filed English translation of depositions of the plaintiff and the defendant. He referred to the statement and tried to convince the revisional Court that there has been variance between the pleadings and the evidence produced by the revisionist and as such decree for possession was rightly set aside by the lower Appellate Court. ( 11 ) THE Trial Court while deciding Issue No. 2-D discussed the oral evidence, pleading of the parites, report of the Commissioner and concluded that the defendants have constructed permanent structure in the suit prmises which cannot be removed without serious damage to the premises, hence the defendants are liable for eviction. It is, therefore, clear that the Trial Court recorded finding of fact based upon appreciation of evidence on record that the constructions raised by the defendant respondent were of permanent nature. The Trial Court was conscious of the fact that for determining the nature of permanent structure test of removability should be kept in mind and that is why it observed that these constructions in dispute cannot be removed without causing serious damage to the premises. ( 12 ) THE lower Appellate Court in Para : 8 of its Judgment has also mentioned that the trial Court has decided this question on evidence and considering various decisions of the high Court that the construction is of permanent nature. In the opinion of the Appellate court such construction cannot be considered as temporary construction. The Appellate court further observed that actually the construction is made of cement, concrete by constructing 3 ft. high wall and iron grill has been erected over it and such construction is utilised as room hence it cannot be considered as temporary construction. It further observed that such decision has been rightly taken by the Trial Court. Howevr, inspite of this agreement of the appellate Court with the finding of the Trial Court the Appellate court took shelter behind excuse of variance between the plaintiffs pleadings and his evidence and dismissed the Suit. It further observed that such decision has been rightly taken by the Trial Court. Howevr, inspite of this agreement of the appellate Court with the finding of the Trial Court the Appellate court took shelter behind excuse of variance between the plaintiffs pleadings and his evidence and dismissed the Suit. ( 13 ) THE short question for consideration in this revision, therefore, is whether on the said reasoning of variance in pleadings and proof the suit could be dismissed by the lower appellate Court and if so whether the decree of the lower Appellatte Court is in accordance with law or it is contrary to law inasmuch as it has wrongly dismissed the Suit despite recording concurrent findings. ( 14 ) SECTION 13 (1) (b) of the Bombay Rent Act, 1947 provides that the landlord shall be entitled to recover possession of any premises if the Court is satisfied that save as otherwise provided in Sec. 23 (a) the tenant has without the landlords consent given in writing erected on the premises any permanent structure. ( 15 ) UNDER this Section, therefore, a landlord becomes entitled to a decree for eviction of the tenant provided he proves firstly that the tenant has erected on the demised premises any permanent structure and secondly such structure of permanent nature was made by the tenant without landlords written consent. ( 16 ) IT is not a case where the pleading on this score did not find place in the plaint. The occasion for recasting issues twice arose probably because the Trial Court did not apply its mind to the pleadings correctly and did not understand how issues are to be framed. I am however unable to accept the contention of the learned counsel for the respondent that by late framing of Issue No. 2-D great prejudice has been caused to the defendant respondent. The reason is that issues can be added, altered and recasted at any time during trial. Supposing amendment application is allowed naturally additional issues have to be framed. Instances are not rare where the amendment application had been allowed at a belated stage even in a second Appeal. Consequently additional issues can be framed at any stage. The reason is that issues can be added, altered and recasted at any time during trial. Supposing amendment application is allowed naturally additional issues have to be framed. Instances are not rare where the amendment application had been allowed at a belated stage even in a second Appeal. Consequently additional issues can be framed at any stage. The only requirement is that after framing of additional issue opportunity of meeting the said issue should be afforded to the parties so that they can lead evidence knowing fully well there case and the issues framed. In this case additional issue was framed not because of some amendment, but because of over-sight of the Trial court. Additional issue was framed before commencemenr of evidence, hence, it cannot be said that the respondent was in any way prevented from adducing proper evidence an the issue in rebuttal. ( 17 ) IT is thus to be seen as to what was permanent structure alleged to have been made by the tenant and whether such structure is permanent or temeporary. It has come in evidence that 3 ft. height wall was raised by the tenant in the Suit accommodation and iron grill was erected over such wall upto the roof and two rooms were so constructed which were used by the tenant. In addition to this platform (Otala) was also constructed by the tenant. ( 18 ) LEARNED Counsel for the respondent contended that in the plaint it is not specifically pleaded that two rooms were so construced by the tenant or that the otala was constructed by the tenant. My attention was drawn to the deposition of the defendant who has denied these construction. However, in the written statement the defendant pleaded that whatever alterations were made they were made with the sweet will of the landlord. This implies that the tenant admitted to have made alterations. He further admitted in this way that the alteraitions were made with the sweet will of the landlord. The word "sweet will" has no place under Sec. 13 (1) (b) of the Act. On the other hand this section obliges the tenant to obtain landlords consent in writing- before making alterations or structures of permanent nature. There is no written permission from the landlord in the instant case. It is also nobodys case that those constructions have been made by the landlord or by some outsider. On the other hand this section obliges the tenant to obtain landlords consent in writing- before making alterations or structures of permanent nature. There is no written permission from the landlord in the instant case. It is also nobodys case that those constructions have been made by the landlord or by some outsider. The findings of fact recorded by the two courts below based on the evidence on record and also after considering the report of the Commissioner cannot be disturbed in this revision. ( 19 ) THE question whether such construction is of permanent nature or temporary construction was also decided by the two Courts below that such construction is a permanent construction. ( 20 ) WHETHER the construction is a permanent construction or temporary, the nature of construction is to be kept in mind. It has also to be kept in mind whether such construction can easily be removed without causing damage to the tenanted accommodation. Thus, the test of removability in easy manner or the disputed alterations is the main test on which it is to be decided whether the construction is temporary or permanent. The test of removability per se is not enough because one can say that even the room constructed of bricks, cement and having RCC slab can be removed and demolished. It has to be seen whether such removal would cause damage to the main accommodation. There is concurrent finding of the two Courts below and there is specific finding of the Trial Court that such construction is of permanent nature which can not be easily removed without causing damage to the main accommodation. Thus on the nature of construction no interference in this revision is called for. . ( 21 ) SO far as variance between the pleadings and proof is concerned cases were cited from the two sides. The settled law is that if there is variance in the pleading and evidence, the evidence adduced by a party which is in variance with the pleading has to be ignored and no finding can be based on such evidence. The learned Counsel for the revisionist in support of his contention has cited the case of this Court reported in 1998 (1) glh 728. The lower Appellate Court has also take shelter behind the case of Abdulsamad vs. Sudh Anant, reported in AIR 1982 Bombay 585. However, this case is distinguishable on facts. The learned Counsel for the revisionist in support of his contention has cited the case of this Court reported in 1998 (1) glh 728. The lower Appellate Court has also take shelter behind the case of Abdulsamad vs. Sudh Anant, reported in AIR 1982 Bombay 585. However, this case is distinguishable on facts. The material fact in this case that the alternative accommodation was purchased benami by the land-lady was not pleaded. Hence this was considered to be material omission in pleadings and evidence to the contrary could not be accepted. ( 22 ) THE learned Counsel for the revisionist on the other hand placed reliance upon two Supreme Court decisions in Ram Sarup Gupta vs. Bhishun Narain, reported in AIR 1987 SC 1242 and Majati Subbarao vs. P. V. K. Krishna Rao, reported in AIR 1989 SC 2187 . The law relating to variance between pleadings the evidence was clearly enunciated by the Apex Court in these two Cases. ( 23 ) IN the case of Majati Subba Rao (Supra) the facts were that in a Suit for eviction the ground of eviction, viz. , the denial of landlords title by the tenant was not pleaded in the plaint by the landlord. However, the tenant himself raised plea that the denial of title was bonafide upon which the Trial Court framed issue as to whether tenants denial of landlords title to the property including the suit premises was bonafide. In view of this specific issue the Apex Court held that the parites went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. As such he could not be saved from eviction. ( 24 ) IN Ram Sarup Gupta (Supra) the Apex Court laid down the proposition regarding variance between pleadings and evidence as follows:"the question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Sec. 60 (b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is well settled that in the absence of pleading, evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pledings and that all necessaary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however, should receive 3 liberal construction, no pedantic approach should be adopted to defeat instice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form instead the substance of the pleadins should be considered. Whenever, the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal in Bhagwati Prasad vs. Shri chandramaul, 1966 (2) SCR 286 = ( AIR 1966 SC 735 ) a Constitution Bench of this Court considering this question observed (at p. 738 of AIR): if a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily dissentitle a party from relying upon if it is satisfactorily proved by evidence. . . The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportuity to lead evidence, woi. 1 introduce consideraions of prejudice, and in doing justice to one party, the court cannot do injustice to another. " ( 25 ) IT is clear from the decision of the Apex Court that it is not desirable to place undue emphasis on the form only but substance of the pleadings should be considered. Whenever question about lack of pleading is raised inquiry should not be so and about that form of pleading the Court must find out whether is substance the parties knew the case and issue upon which they went to trial. Once it is found that if inspite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, it would not be open to a party to raise the question of absence of pleadings in Appeal or Revision. ( 26 ) IN this case necessary ingredients for raising construction of permanent -nature making licence irrevocable were set out in the pleadings, viz. , that the licence was coupled with grant, it was permanent and irrevocable licence and, in persuance of the licence the licensee had carried out the work of permanent character. Issues were framed on this point. As such above proposition of law was laid down by the Apex Court. , that the licence was coupled with grant, it was permanent and irrevocable licence and, in persuance of the licence the licensee had carried out the work of permanent character. Issues were framed on this point. As such above proposition of law was laid down by the Apex Court. ( 27 ) IN the case before me also necessary ingredients required under Sec. 13 (1) (b) were disclosed in the plaint. If it was not specifically pleaded that two rooms and otala have been constructed it cannot be said that there was no pleading that the tenant has raised permanent structure without written permission of the landlord. Since allegations constituting requisite requirements of Sec. 13 (1) (b) of the Act were already there and a specific Issue No. 2-D was framed by the Trial Court, though at a belated stage, parties fully knew their case and the defendant respondent cannot be said to have been prejudiced in any manner whatsoever. Mere omission to mention in the plaint that two rooms were constructed and an otala cannot be said to be variance between the pleadings and evidence. If there was some vagueness in pleadings it could have been clarified by statement under Order 10, Rule 2 CPC or by seeking better particulars from the plaintiff. Nothing of the sort was done by the defendant- respondent. It is not a case that the said constructions were made after institution of the suit. Thus, this omission of the landlord to mention clearly that two rooms were constructed with the help of walls and iron grills is hardly fatal nor it can be said to be variance between the pleadings and evidence. It is also not a case where the landlord has procured evidence for the purposes of the Suit. Defendants admission that whatever construction was made, was made with the sweet will of the landlord implies two admissions. The first is that he did make construction and the second is that he had made it with the sweet will, but not under any written permission from the landlord. This admission, therefore, fully attracted the provisions of Sec. 13 (1) (b) of the Act. In addition to this there was evidence from the side of the plaintiff on the point which was duly considered by the Trial Court and the findings by the Trial Court were confirmed by the Appellate Court. This admission, therefore, fully attracted the provisions of Sec. 13 (1) (b) of the Act. In addition to this there was evidence from the side of the plaintiff on the point which was duly considered by the Trial Court and the findings by the Trial Court were confirmed by the Appellate Court. ( 28 ) ONE could have appreciated the approach of the lower Appellate Court that because there was variance in pleadings of the plaintiff and his evidence, the evidence adduced by the plaintiff was liable to be ignored and after ignoring such evidence the lower Appellate Court could have recorded finding that the tenant did not make any structure of permanent nature. On the other hand the lower Appellate Court gave finding that such construction was of a permanent nature and it was made without consent of the landlord. On the other hand the lower Appellate Court agreed with the findings of the trial Court on this point. In face of such finding the lower Appellate Court fell in menifest error of law in setting aside the decree for eviction against the respondent. The judgment and decree of the lower Appellate Court, being contrary to law, can safely be set aside in this revision. The revision has, therefore, to be allowed and is hereby allowed. The judgment and decree of the lower Appellate Court are set aside and that of the Trial court are restored. In the facts and circumstances of the case the parties shall bear their wn costs. .