SONI NARANDAS SUKHLAL Vs. DECEASED HARILAL JETHALAL

JUDGEMENT

(1.) . The question which this court is called upon to decide is whether the learned trial Judge having already framed certain issues by passing an order which was not challenged before the higher forum can at the time of arguments be deleted on the parties making an application?

(2.) . To state few relevant facts the petitioners are the original plaintiffs who filed Civil Suit No. 63/87 in the court of the learned Civil Judge (JD) Botad against the opponents on the allegation that they have purchased the suit property on 22.4.1984. It is also the case of the plaintiffs that the deceased Harilal Jethalal was tenant of the suit property on the first floor and he has expired and thereafter his son Bharat Harilal became tenant and he also expired. The suit was filed to recover the possession of the first floor arrears of rent and not for using the suit premises which remained closed. It appears that Bharat Harilal died during pendency of the suit and his two sisters viz. Smt. Hansaben Harilal and Smt. Rekhaben Harilal were joined as partie to the suit proceedings. Both of them have filed their respective replies. It appears that the learned Judge thereafter had raised the following issues on 26.7.1988:- 1 Whether plaintiffs prove that the plaintiffs are entitled to get possession of the rented premises from the defendants for non user? 2 Whether defendants tenancy is legally terminated? 3 Whether defendants are tenants in arrears more than six years? 4 Whether plaintiffs are entitled to get reliefs as prayed in para 11 of the plaint? 5 What should be the standard rent of suit premises? 6 What order and decree? It further appears that the plaintiffs had also given an application Ex. 53 and prayed for raising the following additional issues: (1A) Whether reasons given by the defendants for closure of premises are proved by the defendants? 7 Whether defendants prove that the opponents prove their right as tenant by inheritance? It further appears that Bharat Harilal had also filed a written statement admitting therein that the premises in question remained closed and that the opponent sisters were married and not living in the suit premises and residing in different towns. Thereafter evidence of both the parties was closed and matter was fixed for argument on 30.3 and 21.4.1992. In the meanwhile he opponents gave an application Ex. 124 praying for deletion of issue No. 3-B which reads as under: 3 Whether defendants get right as tenant of suit premises as right of inheritance? Thereafter it appears that the learned trial Judge by an order dated 21.4.1994 ordered to delete the issue No. 3-B giving rise to the present Revision Application.

(3.) . Today when the matter was called out twice in the first session between 11.00 a.m. and 2.00 a.m. Mr. A.V. Bhatt the learned advocate for the respondents was not present. In the second session also this court waited upto 4.00 p.m. but the learned advocate for the respondents was not present. Hence this matter is heard and decided ex-parte after hearing Mr. V.J. Desai the learned advocate for the petitioners.