SHAMBHAVI RAI Vs. KRISHNA NAIK

JUDGEMENT

(1.) TWO points arise for consideration in this Civil revision Petition. They are (1) Whether in a suit for recovery of possession with arrears of rent based on a lease deed an issue whether the plaintiff has got title to the suit property can be raised, and (2) whether an application for deleting an issue framed in the suit can be simply disposed of saying "no ground. Dismissed".

(2.) THE plaintiff in O. S. No: 247 of 1975 on the file of the Munsiff Kasaragod is the petitioner in this Civil Revision Petition In the above suit filed for recovery of property with arrears of rent the trial court framed six issues and issue No. 2 was "whether the plaintiff has got title to R. S. 430 of Adoor Village". Thereupon, the plaintiff filed I. A. No. 239 of 1976 for deleting the above issue contending that in a suit for recovery of possession with arrears of rent based on a lease deed the question of title is not relevant. It seems, the respondent-defendant filed a counter-affidavit in the above interim application. Thereupon, the trial court dismissed the above interim application of the plaintiff for deleting the issue. The order reads: "counter-affidavit filed. No ground. Dismissed". The petitioner challenges the above order of the trial court in this Civil Revision Petition.

(3.) SHRI Kunikullaya is well-founded in his contentions. The trial court has tailed to consider that in a suit for recovery of possession with arrears of rent on the basis of a lease deed the question of title is not at all material. The trial court went wrong in framing an issue on a point on which the parties in the suit cannot join issue The trial court ought to have allowed the plaintiff's application for deleting the issue But, instead of doing that, the trial court chose to dismiss that application saying "no ground". It goes without saying that the trial court ought to have disposed of the application by a speaking order. Even this, the trial court did not do. The trial court was clearly in the wrong in refusing to exercise its jurisdiction to delete an issue which could not be raised in the facts and circumstances of the case and in the nature of the suit.