LEKHRAJ DIDDI Vs. SARDAR SAWAN SINGH

JUDGEMENT

(1.) THIS revision and two others, namely, Civil Revisions Nos. 203 and 204 of 1970, come before us on a reference made by Bhave J., who has doubted the correctness of two earlier decisions of this Court. Before referring to the precise points in controversy, it is necessary to recall the facts of the case in the words of Bhave J. himself:

(2.) THE facts of the case, in brief, are that the applicant Sardar Sawan Singh had obtained a registered sale deed for a consideration of Rs. 40,000 from Lekhraj Diddi, the non -applicant. It was alleged that the premises so purchased were given to the non -applicant on rent. The non -applicant, however, committed default in payment of rent and hence the applicant filed the suit for ejectment of the non -applicant. The non -applicant stated in his written statement that the sale deed was nominal and was not to be acted upon. The amount alleged to have been paid towards rent was, as a matter of fact, paid towards interest on the amount of Rs. 40,000 which the non -applicant had borrowed from the applicant. In other words, the plea was that the non -applicant was not the tenant of the applicant and was not, therefore, liable to be ejected. The abovesaid pleas were contained in paragraphs 3, 4 and 5 of the written statement. On these pleadings, necessary issues were framed. Issues Nos. 3 to 5 refer to the abovesaid pleadings of the non -applicant. On 23 -12 -1969 an application under Order 14, Rule 1, Code of Civil Procedure was filed on behalf of the applicant to the effect that issues Nos. 3 to 5 should not be tried as they were irrelevant. That application was, however, rejected by the trial Court by its order dated 9 -1 -1970 on the ground that the issues were framed on the basis of the pleadings in the written statement and so long as the pleadings were not struck off, the issues also could not be omitted. After this, an application under Order 6, Rule 16, Code of Civil Procedure was filed by the applicant on 10 -1 -1970 for striking out all references in the written statement questioning the title of the applicant, as the plea about title was foreign to the suit between the landlord and tenant. In paragraph 5 of the application, the portions to be struck off in paragraphs 3, 4 and 5 of the written statement have been specifically mentioned. That application was dismissed by the trial Court by its order dated 31 -1 -1970. Civil Revisions Nos 203 of 1970 and 204 of 1970 are against the abovesaid two orders. It was held by the trial Court that inasmuch as the Defendant had denied the tenancy, the pleadings setting up his own title were necessary to show that he could not have become the tenant of the Plaintiff.

(3.) AT this stage, it may be mentioned that the non -applicant had also filed a suit for declaration that the sale deed in question was not to be acted upon and thus passed no title to the applicant. As the suit filed by the non -applicant was a previously instituted suit as it was alleged that common issues were involved in both the suits, the non -applicant had filed an application under Sec. 10 of the Code of Civil Procedure for staying the suit filed by the applicant till the disposal of the previous suit filed by the non -applicant. That application was also rejected by the trial Court. The non -applicant has, therefore, preferred Civil Revision No. 168 of 1970.