ON THE DEATH OF BUDHMAL GUJRANI HIS HEIRS SMTI. CHANDA GUJRANI AND ORS. Vs. ON THE DEATH OF KASHILAL AGARWALA HIS HEIRS SMTI URMILA AGARWALA AND ORS.

JUDGEMENT

(1.) OPPOSITE party herein as Plaintiff filed the suit for ejectment of the present Petitioner from the suit premises on the ground of defaulter of rent and bonafide requirement. Both the learned courts below (sic) the suit and hence the present petition.

(2.) FROM the records it appears that prior to the present suit the apposite party filed a suit before the learned Munsiff, Nowgong which WAS registered as suit No. TS 93/72 for ejectment of the present Petitioner on the ground of defaulter etc. The suit was decreed in part only for arrears of rent for the period from 1 -3 -71 to 30 -6 -72. Subsequently the present suit bas been filed and from the copy of the plaint vide schedule B it appears that the opposite party -Plaintiff has claimed arrears of rent from 1 -7 -72 to 31 -12 -72 at the rate of Rs. 101/ - per month and also compensation for unauthorized use and occupation at the rate of Rs. 125/ - per month from 1 -1 -73 to 31 -12 -76. According to the agreement between the parties the rent was fixed at Rs. 1,212/ - per year and tenancy for 3 years from January, 1970. It was provided that the rent was to be paid at the end of each quarter of the year. The opposite party issued a notice to quit and vacate on the present Petitioner and due to his failure to do so the suit bas been filed. It is clearly stated in the plaint that the present Petitioner did not pay any rent during the entire period of tenancy. At the time of argument it was stated at the bar that the earlier decree was put into execution and some amount has been recovered. In the written statement regarding the non -payment of rent is has been stated as follows:

(3.) MR . Mahanta learned Counsel for the Petitioner has tried his best to make out a case for the present Petitioner. First contention of Mr. Mahanta is that as no issue regarding defaulter was framed by the learned trial court impugned judgment and decree are liable to be set aside. Mr. Yadav in reply bas urged that as there was no deniel regarding defaulter, the learned trial court rightly did not frame any issue. In view of the vague statement in the written statement regarding non payment of rent I find force in the contention of Mr. Yadav. Second contention of Mr. Yadav is that as the parties proceeded in trial knowing fully the contentions of each party non -framing of issue is not fatal The above position of law, us submitted by Mr. Yadav, is well settled.