1. This is a revision application by the original defendant of the Civil Suit No. 10 of 1978, pending in the Court of the Civil Judge (J. D.) Baria in Panchmahals District. This application is directed against the order passed by the learned trial Judge below on the opponents (plaintiffs) application Ex. M As per the order passed by the learned trial Judge, the issue about tenancy being issue No. 8 at Ex. 16 was deleted by the learned Judge at the instance of the opponents-plaintiffs. The original defendants have, therefore, invoked the revisional jurisdiction of this court, by contending that jurisdictional illegality has been committed by the learned trial Judge by deleting the said issue.
2. The opponents-plaintiffs have filed the suit against these petitioners' defendants for possession of a piece of land on the ground that the defendants are trespassers on the land of their ownership. The defendants inter alia contend m the suit that they are tenants (farmers) on the land. Because of this particular contention raised by the defendants, the issue No. 8 was raised about the tenancy. The learned Judge who struck the issues came to be transferred and the present incumbent came to hold the charge of the office. The plaintiffs, therefore, gave an application, Ex. 18, to the learned successor Judge praying for deletion of the issue No. 8. The learned Judge having granted that request, the defendants have moved this court.
3. The learned trial Judge has deleted the issue on two counts. The first ground is that there is no evidentiary material on the record to justify prima facie the raising of the issue because in the opinion of the learned trial Judge, the issues are required to be struck not only out of pleadings but also out of the documents on the record. The view of the learned Judge is ex facie erroneous. If there is a pleading, the issue will be required to be raised. The reference to documents in Order 14 Rule 3 of the Code is for the purpose of enabling the court to raise the issue even if there is no clear pleading calling for a particular issue. This does not and cannot mean that unless the plea in the written statement is buttressed by some documentary evidence,, the issue is not to be raised. Secondly,' the learned trial Judge has misconstrued the word 'farmer'. As a matter of fact, the defendants have used the word 'khedut' in the written statement. The Learned Judge translated that term as a 'farmer' and then held that whoever is a 'khedu', meaning a cultivator, cannot necessarily be said to be a tenant. If the learned Judge was feeling doubt about the exact import of the defendants' using the word 'khedut' in the written statement, it was perfect1V open to him to examine any of the defendants for elaboration and clarification. When his predecessor Judge interpreted the word 'khedut' to mean a tenant and in Gujarati this word is equally capable of importing the meaning Of a tenant, the learned Judge should not have taken only one meaning of the term 'khedut' and then concluded that there was no pleading about tenancy.
4. The second ground on which the learned trial Judge allowed the application of the plaintiffs to delete the issuep is with reference to constructive res judicata. Here the approach of the learned Judge is more erroneous than on the earlier occasion, the very plaintiffs, had filed a suit only against the defendant No. 1's president and had procured an ex parte decree against the defendant No. 1, which is a society. When the plaintiffs tried to execute the said ex parte decree, the present defendants objected to the execution on the ground that the decree was in executable against them. The executing court having not agreed with, them and having ordered to proceed ahead with the execution, these petitioners-defendants hid preferred the Civil Appeal No. 85 of 1972, in the District Court at Godhra. The learned District Judge by his judgment-dated 29-9-73 had held that the decree was in executable against the -trustees and also against the society, because the decree was only against the president of the society. To me it appears that that judgment is untenable at law, -but that is quite a different thing. The judgment today stands as a live-force between the parties. When the decree itself was held to be not against the present defendants the question of any res judicata, either direct or constructive, would not -arise. When the earlier suit itself was non-existent as far as the present defendants are concerned, as per the judgment in that Civil Appeal No. 85 of 1972, the learned -trial Judge was obviously in jurisdictional error in holding that there was bar of constructive jurisdiction, Such a bar is to be invoked only against the parties. It is somewhat surprising that the learn ed trial Judge could be successful persuaded to adopt this ex facie untenable view.
5. The result is that the order passed by the learned trial Judge deserves to be set aside and is hereby set aside. The issue No. 8 as was originally framed by the learned trial Judge, would therefore stand. Rule is accordingly made absolute with no order as to costs.
6. Petition allowed.