K.S. Varma, J. - (1.) THE question raised in this petition is whether finding recorded by the v. Additional District Judge, Hardoi that the notice terminating the tenancy has not been waived, is a correct finding or not. In order to appreciate this controversy, reference may be made to the notice dated 19 -5 -1976 sent by opposite parties 2 to 4 terminating the tenancy of the Petitioners. Another notice was issued by the landlords to the tenants dated 15th June, 1976 which is Ext. 7. The two notices are on record and this fact has not been disputed. The trial Court recorded a finding that notice dated 19 -5 -1976 was waived by notice dated 15 -6 -1976 and hence the suit filed by the landlord was liable to be dismissed. Aggrieved by the decree passed by the trial Court the landlord filed a revision application under Section 25 of the Small Cause Courts Act. The v. Additional District Judge by his order dated 20 -8 -1979 held that notice dated 19 -5 -1976 has not been waived. After recording this finding, the Plaintiffs suit for ejectment of the Defendants was decreed by the Additional District Judge. The Defendants aggrieved by the decree passed by the Additional District Judge have come up to this Court by means of a writ petition under Article 226 of the Constitution.
(2.) THE first notice dated 19 -5 -1976 is on record of this petition as Annexure land the second notice dated 15 -6 -1976 is Annexure 2 to the writ petition. A perusal of paragraph 7 of Annexure 1 would indicate that the Defendants were required to vacate the premises after service of notice terminating the tenancy. The same averment is to be found in paragraph 7 of the notice dated 15 -6 -1976, Annexure No. 2 to the writ petition. The trial Court by its judgment and decree dated 22 -2 -1978 while recording its finding on issue No. 4 observed as follows: The Plaintiffs have alleged that they have issued Ext. 1 notice dated 19 -5 -1976. The Defendants have admitted the service of this notice. The Plaintiffs again served a notice Ext. 7 on 15 -6 -1976 but the Plaintiffs did not refer the notice in the plaint nor placed any reliance on this notice. There is nothing to show that when this notice was served on the Defendants, though the Defendants have admitted the service of notice dated 15 -6 -1976 vide notice Ext. A -I but no reference has been made of Ext. 7 notice in the plaint.... It is difficult to understand what the learned Civil Judge means by recording this contradictory finding. In the first instant it is mentioned that the notice was served, in the same breath it is said that service of notice was not effected. In my opinion, the finding recorded by the learned Civil Judge, Hardoi on issue No. 4 is incomprehensible and is no finding in the eye of law. When the matter came up before the Additional District Judge, an application for amendment of the written statement was moved with a view to incorporate the plea of waiver of notice. That application was rejected.
(3.) THE trial Court has committed an obvious error in not framing proper issues. Sub -rule (5) of Rule 1 of Order XIV of the Code of Civil Procedure may be reproduced as follows: At the first bearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Rule 3 of Order XIV of the Code of Civil Procedure deals with material from which Issues may be framed. The relevant provision is quoted as below: The Court may frame the issues from all or any of the following materials: (a)... (b)... (c) the contents of documents produced by either party. It is apparent that on the date of the framing of issues Exts. 1 and 7 were already on record. Ext. 1 is dated 19 -5 -1976. The second notice is dated 15 -6 -1976. A perusal of the two notices would indicate that the tenancy of the Defendants is sought to be determined on the service of notice required by law. In this background, the trial Court should have applied its mind to the fact as to what is the effect of the second notice dated 15 -6 -1976 which contains a statement in paragraph 7 thereof regarding termination of tenancy after thirty days notice which would be a period after the date of termination of tenancy by first notice i.e. Ext. 1. The trial Court while framing issues should have borne in mind the provisions of Order XIV, Rule 3(c) of the Code of Civil Procedure which clearly provides that the contents of documents produced by either party have to be taken into account while framing issues in the case. Order XIV, Rule 4 of the Code of Civil Procedure further provides that the Court may examine witnesses or documents before framing issues. In view of the provisions of the Code of Civil Procedure referred to above it was the duty of the trial court to have applied its mind to the contents of Annexure 2 before framing issues. In my opinion, in not framing issues in the manner provided for by Order XIV, Rule 3(c) of the Code of Civil Procedure, the trial Court has committed a manifest error of law and the decree passed by the trial Court is liable to be set aside on that score. On a revision application being filed by the landlord under Section 25 of the Small Cause Courts Act, the Court below disagreed with the finding of the trial Court on the question of waiver and held that the notice terminating the tenancy has not been waived. It may also be noted that an application for amendment moved before the Court of revision was dismissed by the Additional District Judge, Hardoi. In view of the facts that have emerged from the documents on record it was the duty of the trial Court to have framed an issue on the question of waiver. The learned Counsel for the opposite parties contended that once the application for amendment was rejected by the Court of revision, the question of waiver cannot be permitted to be raised by the Petitioners. It is true that the application for amendment was rejected by the learned Additional District Judge but having regard to the provisions contained in Order XIV of the Code of Civil Procedure, it is the duty of the Court to frame proper issues. If the Court feels that a decision should be given on a point, which is a mixed question of law and fact, it is the duty of the trial Court in such circumstances to frame an issue suo moto and in this respect the provisions of Order XIV, Rule 3(c) of the Code of Civil Procedure are abundantly clear. In view of the fact that the two Courts below have not properly dealt with the case, there is no option but to set aside the judgment and decree passed by the trial Court, Annexure 10, and the judgment and decree passed by the Court of revision, Annexure 12.;