Bachhulal vs Ghisibai

Samvatsar, J.—The facts giving rise to this revision application are very simple.

The opponent No. 2 executed a mortgage with respect to the house in suit in favour of opponent No. 1, Ghisibai on 23-5-1949. The mortgage was a possessory mortgage and in token of delivery of possession, the opponent No. 2 executed a rent-note and continued to occupy the house as her tenant. Subsequently the opponent No. 2 vacated the house and delivered possession of it to the petitioner Bachhulal.

On 5-1-1953 the opponent No. 1 Ghisibai filed a suit for ejectment and arrears of rent against the opponent No. 2 Balchand. She alleged in the plaint that Balchand had sub-let the house to the petitioner and therefore impleaded him as a party to the suit.

The opponent No. 2 admitted the claim but the petitioner contested the suit. He denied the mortgage transaction under which the plaintiff claimed to be in possession of the house in dispute. He also denied the execution of rent-note by defendant Balchand and the plaintiff''s allegation that Balchand was her tenant and that the petitioner was a sub-tenant.

On these pleadings, the Court framed issues and proceeded with the trial.

On 6th August, 1953 the petitioner applied to the Court to frame an additional issue, but the application was rejected by the Court. Hence he has filed this revision-application to this Court.

Mr. J.D. Patel contended that the petitioner had denied that Balchand was plaintiff''s tenant and that the petitioner was subtenant. He further submitted that the rent-note/was also denied by the petitioner and that the plaintiff had to prove her case in that respect also.

There is considerable force in this contention. No doubt the defendant No. 1 Balchand has in his written mstatement admitted the rent-note but his admission in the written statement is no evidence against the petitioner. The petitioner has put the plaintiff to the proof of her case and there should have been an issue on that point.

It is the duty of the Court to frame issues on all the material points raised in the pleadings of the parties and failure in that respect constitutes material irregularity in exercise of the Court''s jurisdiction.

In the present case, the main controversy is whether the defendant Balchand is plaintiff''s tenant and for a proper decision of the suit an issue on that point is necessary. With the consent of the parties I therefore frame the following additional issue:--

Whether the plaintiff proves that the defendant No. 1 executed a rent-note in her favour and if so, whether it is binding on defendant No. 2.

The revision-application is allowed, the order of the lower Court is set aside and the case is sent back for proceeding further according to law.

Under the circumstances of this case, I leave the parties to bear their own costs.