BIPAN KUMAR Vs. SHAM SUNDER

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for pre-emption.

(2.) The respondent filed a suit for preemption, and the suit was decreed by the learned Senior Subordinate Judge. An appeal against that decree has been dismissed by the learned District Judge.

(3.) In this second appeal, two contentions are raised by learned counsel for the appellant. One is that ,the appellant was sued as a minor through his father Ved Brat when in fact the appellant was a major. It is stated that the plea was raised in the written statement, and yet no issue was framed by the learned Senior Subordinate Judge. When the appeal against the trial court decree was pending before the learned District Judge, an application was made by the appellant raising this point and urging that it be taken into consideration for disposing of the appeal. It appears that the application remained undisposed of and the appeal was dismissed. Learned counsel for the appellant urges that the learned Senior Subordinate Judge was under a duty to frame an issue on the point when trying the suit, and because he omitted to do so he Bailed to decide a material point of controversy between the parties. It is also contended that the learned District Judge erred in omitting to dispose of the application filed before him. It seems to me that having regard to the facts of this case the contention cannot succeed. Although the appellant was sued as a minor, he filed a written statement signed by himself and the defence set forth in the written statement received the consideration of the court when framing issues. That was the only written statement filed in the suit. The pleas raised in defence on the merits by the appellant were tried by the learned Senior Subordinate Judge and adjudicated upon. It has not been shown how the mere circumstance that the appellant was sued as a minor through his father prejudiced the opportunity of defence which the law allows to a defendant, and which, in this case, was actually availed of by the appellant. Then, when the issues were framed by the learned Senior Subordinate Judge counsel for both parties were present in Court. The issues were framed in their presence, and it does not appear that counsel for the appellant pressed for the framing of an issue on the question whether he was a minor. Indeed, the trial court has recorded specifically that besides the issues framed by him no other issues were claimed. It is evident from the material on the record that counsel for the appellant abandoned the plea of minority raised in the written statement. Learned counsel for the appellant has referred me to Haridas v. Indian Cable Co. Ltd., AIR 1965 Cal 369, which supports the proposition that besides the duty of counsel for the party, there is a clear duty imposed by law on the Court to frame all the issues which relevantly arise. There can be little doubt that the court is under a duty to frame issues on matters in controversy between the parties. But where it appears that the points of controversy at the stage of framing issues are limited and do not include the entire ambit of the controversy initially raised in the pleadings, the court is not bound to frame an issue on points abandoned. The Court is fully justified in concluding that the plea has been abandoned and the point is no longer in controversy. That was the point of distinction adverted to by the learned Judges in Haridas (Supra), where reference was made to Venkata Narasimha Naidu v. Bhashyakarlu Naidu, (1899) ILR 22 Mad 538, Haridas (supra) is a case where counsel were absent at the time when the issues were framed. The first contention is rejected.