V.B. Raju, J.
1. This is a civil revision application by the original plaintiff who filed Civil Suit No. 266 of 1957 in the Court of the 1st Subordinate Judge at Anjar (Kutch) against his tenant for possession of the suit premises on the grounds of arrears of rent and bona fide and reasonable requirement of the plaintiff and on the ground that the tenant had committed breach of the terms of tenancy in regard to the payment of rent. The tenancy is in writing and the written lease is a Kabuliyat dated 28-6-55 which provided that the rent should be paid every month which became due and in case of breach of tenancy the right of the tenant would come to an end. The notice to quit was given on 15-7-57 and the suit was filed on 13-8-57. In the written statement the defendant admitted that he had not paid rent that he was in arrears of rent and that he had not paid rent because the landlord had not effected the necessary repairs to the suit premises. The first Court decreed the suit for possession on the first two grounds and it did not go into the third ground.
In appeal the learned Assistant Judge held that the plaintiff had not proved her bona fide and reasonable requirement of the suit premises. He also held that the suit was premature because the suit was filed before the expiry of 30 days from the date of the notice. The suit had been filed on 13-8-57 whereas the date of the notice was 15-7-57. On these two grounds the learned Judge allowed the appeal and set aside the decree of the first Court. He also did not consider the terms of the tenancy regarding the irregularity in the payment of rent.
2. In revision it is contended that this civil revision application should be allowed because the suit need not be filed after the expiry of 30 days from the date of the notice if the suit is filed on the breach of the terms of tenancy and when the suit is not filed on the solitary ground of the non-payment of rent. It is also contended that the learned Assistant Judge discarded the evidence of the plaintiff on the ground that she had been examined after the defendants evidence had been closed and after the plaintiff had examined her power of attorney holder. It is contended that the view taken by the learned Assistant Judge that it was not correct for the Court to take the evidence of the plaintiff herself is erroneous.
The Learned Counsel for the opponent has contended that he has a preliminary objection because the case of the breach of the terms of tenancy was not argued in the trail Court nor was it argued in the appellate Court and it is not even referred to in the revision application. He relies on Haridas Chakubhai v. Ratansey Raghavji 23 Bombay Law Reporter 802 and on Keshardeo v. Radha Kishan : 4SCR136 .
Their Lordships of the Supreme Court in : 4SCR136 explained the scope of Section 115 Civil Pro. Code. As decided by their Lordships Section 115 C.P. Code applies to jurisdiction alone the irregular exercise or non-exercise of it or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. An erroneous decision whether on a question of law or a question of fact upon one of the issues arising for determination in the case not affecting jurisdiction would not justify interference in revision. The material illegality or irregularity in the exercise of jurisdiction means that the Court must have acted illegally in breach of some provisions of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision.
In view of these principles laid down by their Lordships of the Supreme Court the instant case is not one of exercising jurisdiction not vested in the Court by law or having failed to exercise jurisdiction so vested. The question remains whether the Court has acted in the exercise of jurisdiction illegally or with material irregularity.
Order 14 Rule 1 C.P. Code reads as follows:
(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds; (a) issues of fact (b) issues of law.
(5) At the first hearing of the suit the Court shall after reading the plaint and the written statement if any and after such examination of the parties as may appear necessary 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.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
It is therefore necessary for the Court to frame and record the issues upon material propositions of fact or of law on which the parties are at variance.
Section 12(1) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 reads as follows:
A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases if any and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of this Act.
3. The question whether the defendant had failed to observe and perform some of the conditions of the tenancy and the fact if any of such failure was raised in the pleadings and it was necessary to decide these questions of law and fact. The failure to do so would be a material irregularity in the exercise of jurisdiction. The question whether Sub-section (2) of Section 12 of the Bombay Rents Hotel and Lodging House Rates Control Act would apply to a case where the suit is filed for possession on the ground of arrears of rent and where the terms of tenancy regarding the mode of payment of rent have also to be decided. The failure to decide these questions would amount to a material irregularity in the exercise of jurisdiction because even if the first two grounds on which the suit was filed were negatived it may be open to the plaintiff to succeed on the this ground set out in the plaint viz. breach of the terms of the tenancy. There has been therefore a material irregularity in the exercise of juris- diction in not deciding the points at issue between the parties.
But it has been contended by the Learned Counsel for the opponent that this point has not been argued in the trial Court or in the appeal Court or even is not referred to in the revision memo. A distinction between ground and argument must always be kept in mind. As laid down in Order 41 Rule 1(2) Civil Pro. Code there is a distinction between a ground and argument. Sub-rule (2) of Rule 1 of Order 41 C.P. Code reads as follows:
The memorandum shall set forth concisely and under distinct heads the grounds- of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.
Order 41 Rule 2 C.P. Code reads as follows:
The appellant shall not except by leave of the Court urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this rule.
According to Rule 2 of Order 41 C.P. Code therefore the appellant shall not except by leave of the Court be heard in support of any ground of objection not set forth in the memorandum of appeal. The memo of appeal should not contain any argument but should only set forth concisely and under distinct heads the grounds of objection to the decree appealed from.
No doubt these two rules relate to appeals from original decrees and do not in terms apply to revision applications under Section 115 C.P. Code. There is no such provision in the C.P.Code regarding revision applications under Section 115 C.P. Code but the principle contained in Order 41 Rules 1 and 2 C.P. Code may be safely applied to Revision Applications also. Order 8 Rule 2 C.P. Code reads as follows:
The defendant must raise by his pleading all mutters which show the suit not to be maintainable or that the transaction is either void or voidable in point of law and all such grounds of defence as if not raised would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the plaint as for instance fraud limitation release payment performance or facts showing illegality.
This rule also makes it clear that there is a distinction between a ground of defence and argument in support of the ground of defence. Several arguments may be urged in support of the ground of defence without any of the arguments being mentioned in the written statement. Several arguments may also be urged in support of a plaint or appeal although none of the arguments is contained in the plaint or in the memo of appeal.
4. I am therefore of the opinion that if a ground has been raised at the proper stage any number of arguments may be urged in support of that ground at any stage even if the arguments have not been urged earlier provided that they do not involve the determination of any fact not already pleaded and not already determined. In the instant case the plea of the plaintiff that he is entitled to a decree for possession in view of Section 12(1) and Section 12(2) of the Bombay Rents Hotel and Lodging House Rates Control Act and in view of the pleadings of the parties without any additional evidence can be urged even in revision application because the ground that the plaintiff is entitled to a decree for such reasons has been advanced in the plaint. The plaintiff having succeeded on the first two grounds contained in the plaint the learned Judge to the first Court did not go into the third ground. There is no justification in holding that the third ground should not be gone into by the first appellate Court or the revising Court. The revising Court is however bound by the limitation contained in Section 115 C.P. Code as explained by their Lordships of the Supreme Court in : 4SCR136 . I do not propose in this civil revision application to decide the scope of Section 12(1) and Section 12(2) of the Bombay Rents Hotel and Lodging House Rates Control Act. But as already observed the Courts below have committed a material irregularity in the exercise of jurisdiction in not deciding the third ground urged in support of the suit namely breach of the terms of the tenancy regarding the manner of payment of rent and the scope of Section 12(1) and Section 12(2) of the said Act and in particular whether Section 12(2) would apply to a suit filed for possession on the ground of breach of the terms of the tenancy and also on the ground of non-payment of rent.
The Learned Counsel for the opponent relied on 23 Bom. L.R. 802. In that suit the defence of the defendant was that the plaintiffs suit was not maintainable because the defendant was a partner of the plaintiff and he failed to substantiate that defence. In revision before the High Court a new question was raised on behalf of the defendant that the plaintiffs suit was not maintainable as the plaintiffs title had been determined on the date of the suit. As laid down in Order 8 Rule 2 C.P. Code such a ground of defence would raise an issue of fact not arising out of the plaint namely whether the plaintiffs title had been determined on the date of the suit and such a question was therefore necessary to be pleaded in the written statement. But that point was never raised in the first Court where the defendant never attempted to prove that the plaintiffs title had been determined prior to the date of the suit. On this ground the learned Judges of the Bombay High Court with great respect rightly decided that such a point could not be taken up in revision.
The Learned Counsel for the opponent also relied on the following observations in the same case:
If a party does not choose to take a point of law in the Court below then it cannot be said that the lower Court has acted illegally or with material irregularity in deciding the case without taking into consideration a point of law that was never raised before it.
But these observations would not apply to the facts of the instant case because the point that the plaintiff is entitled to a decree for possession on the ground of breach of the terms of tenancy was raised specifically in the plaint and also was referred to in the written statement. In the written statement it was conceded that the rent had not been paid because the plaintiff had not effected repairs to the suit premises. The learned Assistant Judge held that the suit was premature because the suit had been filed before the expiry of 30 days from the date of the notice. In support of the contention that that view is erroneous it is open to the Learned Counsel for the applicant in revision to contend that Section 12(2) of the Bombay Rent Hotel and Lodging House Rates Control Act does not apply where the suit is for possession on the ground of breach of the terms of tenancy apart from the breach relating to non-payment of rent and where the breach alleged is regarding the manner of payment of rent. I do not propose to decide in this case whether Section 12(2) would apply to a suit for possession filed on the ground of breach of the terms of tenancy other than that relating to the amount of rent
5. For the reasons given above I hold that the Courts below have committed a material irregularity in the exercise of jurisdiction by not considering the points of controversy between the parties and deciding the case without the complete determination of all the points in controversy between the parties. The revision application is therefore allowed the decrees passed by the Courts below are set aside and the matter is remanded to the first Court for fresh determination after considering all the points of controversy between the parties. No order as to costs.