(1.) The dissatisfied tenants are before this Court challenging the judgment and decree dated 19th August, 1996 passed in Civil Appeal No. 91 of 1992 by the learned Appellate Bench of the Small Causes Courts, Ahmedabad, confirming the judgment and decree dated 25.1.96 passed by the Small Causes Court Judge, Small Causes Court No. 6, Ahmedabad in H.R.P.Suit No. 3944 of 1981, whereunder a decree for eviction has been made against the present petitioners. Short facts leading to the present revision petition are that, the landlord Harivadan Vadilal Modi, since deceased, filed a suit against Shahbuddin Maganlal petitioners no.1 and Sirajali Alibhai petitioner no.2, submitting inter alia that the suit premises were let out to Shahbuddin who had sub-let the premises in favour of Sirajali and as such they are liable to be evicted.
(2.) The defendants appeared before the Court and submitted that the defendant no.2 was inducted as a partner in the partnership created by the defendants and the suit was not maintainable, because, the premises were leased out jointly in favour of three tenants and as the suit has been filed against one tenant only, the suit was bad for non-joinder of necessary parties. The learned trial court framed number of the issues, but did not frame any issue relating to non-joinder of parties. It allowed the parties to lead evidence and also granted them hearing. After hearing the parties, the court found that the plaintiffs were successful in proving that the tenant-defendant no.1 had created sub-tenancy in favour of the defendant no.2 and as such, they were liable to be evicted. On the question of non-joinder of parties, the court did not record any finding, because, neither there was any issue cast nor any evidence led nor the defendant craved indulgence of the trial court to the fact that an issue was required to be framed on his pleading. After the eviction order was made, the tenants took up the matter in appeal. The appellate court also held that parting with possession was proved, the defendant no.2 was in exclusive possession of the property, the defendant no.1 had lost control over the property and therefore, presumption could be drawn that there was sub-tenancy or there was assignment or there was transfer, and in its conclusion, it held that in view of the assignment, sub-tenancy is proved. It accordingly confirmed the judgment. Being aggrieved by the said judgment, the tenant and the alleged sub-tenant are before this Court under Section 29(2) of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947.
(3.) Mr. Shah, learned counsel for the petitioners has raised number of the questions, which this Court shall take one by one. His first submission is that the suit was bad for non-joinder of the parties and as a specific plea was raised by the tenant, the court was obliged and duty-bound to cast an issue and if the court did not cast any issue, the defence of the defendants would not be allowed to suffer.