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Judgment
Patherya, J.
This appeal is directed from the order dated 5.5.2014. By the said decree T.S. No. 3832 of 2010 was decreed and the counter claim of the defendant
was dismissed. By virtue of the said decree the defendant/appellant was to vacate the suit premise within the time specified therein and although an
appeal was filed, the decree was not stayed. It is because of this that the decree holders/respondents put the decree into execution and possession of
the subject premise was handed in satisfaction of the decree.
It is at this juncture that this appeal has been heard and while perusing the plaint and the reliefs sought therein so also the written statement we find
that the plaintiffs initiated the suit against the registered partnership firm, based on the lease granted for 21 years which was terminated on expiry by
efflux of time. Notice was served on the defendant and inspite of receipt of such notice no reply was given too. On the contrary, the appellant filed the
written statement and took the plea that the partnership firm could not be sued as on the death of S.Wali Mohd. the status of the partnership firm was
changed to a proprietorship firm. In fact dissolution of the partnership firm on the death of S. Wali Mohd. also was effected.
A counter claim was made in the written statement. A preliminary issue was raised by the appellant with regard to the maintainablity of the suit under
Section 69 of the Indian Partnership Act thereby seeking dismissal of the suit. An objection was also filed thereto and the court below passed an order
on 15.02.2012 and all that it said was that the application filed under Section 9 read with Section 151 of the Code of Civil Procedure was premature
and the parties were at liberty to file an appropriate application in accordance with law.
In view of the aforesaid, the court below framed the issues and undoubdtely suggested issues were placed before the court below by the parties and
based on the said suggested issues, the issues were framed. The issues framed, for ready reference are set out hereinbelow:
“ 1. Is the suit maintainable in its present form?
Are the plaintiffs owner in respect of the suit property by way of deed ofconveyance dated 4.9.2009?
Whether the lease of the defendant dated 15.5.1975 expired by efflux of time onthe last day of April, 1996?
Whether the plaintiffs are entitled to a decree for recovery of possession?
Whether the plaintiffs or their vendors accepted rent from the defendant afterexpiry of the lease and thus the defendant is continuing in possession
as tenant?
To what other relief or reliefs are the plaintiffs entitled?
Is the suit barred by limitation?â€
On a perusal of the said issues framed we cannot find the preliminary issue which had been raised before the court below by the appellant/defendant
filed under Section 9 read with Section 151 of the Code of Civil Procedure. Therefore, admittedly the appellant had given a gobye to the preliminary
issue which in fact it had pursued much earlier and the court below rightly addressed the issue raised before him and came to a conclusion as set out
in the decree dated 5.5.2014. It will not be out of place to mention that the defendant/appellant did not adduce evidence in the court below. No exhibits
were also produced. Therefore, all that can be said is that the appellant/defendant gave a cakewalk to the plaintiffs, without contesting the suit or the
facts in the plaint.
Although, counsel for the appellant submits that the issue with regard to the partnership and proprietorship firm ought to have been addressed by the
court below and it is only for this reason that the decree should have been set aside and be heard on remand. This submission of the appellant’s
counsel cannot be addressed, nor are we inclined to support or accept it. In the memorandum of appeal, too, these issues have not been raised or
addressed. In view of the aforesaid, F.A. 1 of 2015 is rejected and dismissed. The decree dated 5.5.2014 is upheld. Certified copy of this order, if
applied for, be given to the parties on priority basis.