Oriental Dairy v De Souza (Civil Appeal No. 22 of 1946) [1948] EACA 53 (1 January 1948)

### APPELLATE CIVIL

## Before BOURKE, J.

ν.

#### ORIENTAL DAIRY, Appellants (Original Defendants) $\mathcal{L}_{\text{max}} = \mathcal{L}_{\text{max}} + \mathcal{L}_{\text{max}}$

# THOMAS SEBASTINO CAITANO EMAR DE SOUZA, Respondent (Original Plaintiff)

## Civil Appeal No. 22 of 1946

Pleadings—Practice—Civil Procedure Rules, 1927, Order 13, rule 1 (5)—Issue raised on the pleadings not framed-Duty of Court-Action for possession, rent and other charges—Increase of Rent and Mortgage Interest (Restrictions) Ordinance, 1940.

The respondent sued the appellants for possession of certain premises, arrears of rent and other charges. The statement attached to the plaint showed the standard rent at Sh. $70/10$ per month exclusive of charges for water, etc. The written defence, in traversing the allegations in the plaint generally, alleged that the standard rent was Sh. 67/50 per month inclusive of all charges, that it had been regularly paid and nothing was owing.

At the trial, by consent between the parties' advocates, three issues were framed which did not include an issue as to whether the amount claimed for arrears of rent was due and owing. No evidence was led for the appellant. At the close of the case the appellants' advocate submitted that no evidence had been offered by the respondent to establish that the amount claimed was due and owing but the Magistrate, declining to go outside the issues framed held that the question was never in issue.

*Held* (11-3-48).—(1) That the issue was clearly raised on the pleadings.

(2) Because there was no framing and recording of the issue as to what sum, if any, was due, and no request by the advocate appearing for the appellants for the framing and recording of such issue, that does not justify the inference that the appellants intended to admit liability for the amount claimed if the framed issues went against him.

(3) That it rested with the Court to adjudicate upon the issue.

Ganoo v. Shri Dev Sidheshwar 26 I. L. R. (1902) Bom. 360, followed.

Findings of the magistrate on the framed issues upheld. Decree set aside and case remitted to the lower Court for trial and determination on the issue raised on the pleadings. Costs of appeal to appellants. Costs of proceedings in the lower Court to abide the event.

Trivedi for the Appellants.

E. K. Figgis for the Respondent.

JUDGMENT.—The respondent brought a claim in the Court of the Resident Magistrate, Nairobi, to recover possession of an entrance hall and the amount of Sh. 137/46 as arrears of rent and other charges disclosed in the statement of account filed with the plaint. In the result a decree was obtained for the Sh. 137/46. It is a short point that now arises for decision. The respondent showed by the account mentioned the standard rent at Sh. $70/10$ a month and a separate amount due in respect of water, etc., charges, the balance due being alleged to be Sh. 137/46. By his defence the defendant traversed generally the allegations made in the plaint; that in itself would not be enough under $0.6$ r.7 but he went on to allege that the standard rent was Sh. 67/50 inclusive of all charges and it was alleged further that such monthly amount of Sh. 67/50 had been regularly paid and that nothing was owing. There can be no doubt, and learned Counsel for the respondent conceded as much before this Court, that on the pleadings an

issue arose as to whether the Sh. 137/46 was owing as claimed. At the outset of the trial three issues were fixed by agreement between the advocates appearing for the parties as follows: —

- (1) Are defendants entitled to occupy entrance hall? - (2) Has the standard rent been properly fixed? - (3) Has a proper notice of increase of rent been served on the defendants?

No evidence was led for the appellant (defendant) and at the conclusion of the case for the respondent (plaintiff) the latter's advocate addressed the Court. The advocate for the appellant followed and submitted that no evidence had been offered by the respondent to establish that the Sh. 137/46 were due and owing. The learned Magistrate, however, declined to go outside the issues framed; he found in favour of the respondent on issues 2 and 3 and held there was no jurisdiction as to the first issue, which does not now concern us. Having so found on the second and third issues the Court below held the quantum was never in issue and entered judgment for the respondent for Sh. 137/46 as claimed. The learned Magistrate took a wrong view as to the effect of the pleadings, and indeed no point now turns upon that; the question before this Court and as argued comes down to this: Where there has been a fixing of issues with consent of the advocates for the parties, was the appellant entitled at the very last moment to say that there was an issue raised on the pleadings as to the amount owing and that the respondent had not led any evidence to discharge the onus of proof lying in the first place upon him as claimant? Should the Magistrate not have recorded and tried the issue as to what amount, if any, was owing? The finding as to the standard rent decided nothing in respect of the other charges as set out in the account. O.13 r.1(5) of the Civil Procedure Rules correspond with $O.14 r.1(5)$ of the Indian Civil Procedure Code. I have been referred to the case of Ganoo $v$ . Shri Dev Sidheshwar 26 I. L. R. (1902) (Bombay Series) 360; the following passage is taken from the judgment (p. 362) and is quoted by Mulla in his commentary on the rule (10th edn. p. 641), as follows—"The duty of raising issues rests under the code of Civil Procedure on the Court and it would be unsafe to presume from the failure of the Court to raise the necessary issues an intention of the defendant to admit the facts which the plaintiff is bound to prove". The headnote to the case as reported reads: "The fact that no issue is raised as to matters which the plaintiff is bound to prove does not justify the inference that the defendant intends to admit them. The duty of raising issues rests under the Civil Procedure Code with the Court". I can see no reason for departing from that principle in the circumstances of the present case. The issue was clearly raised on the pleadings and because there was no framing and recording of the issue as to what sum, if any, was due, and no request by the advocate appearing for the appellant for the framing and recording of such issue, that does not justify the inference that the appellant intended to admit liability for the amount claimed if the two framed issues as to standard rent and the notice of increase of rent went against him; it rested with the Court to notice and adjudicate upon the issue. Now findings have been made as to the issues fixed concerning the standard rent and the notice to increase the rent and I can discern no sufficient reason for interference with such findings by this Court. The issue that remains undecided is as to whether the standard rent at Sh. 70/10 was the only payment for which the appellant was liable in respect of his occupation of the premises or whether in addition money is owing as alleged for "water, light, conservancy and sweepers charges"; in other words, what amount, if any, is due and owing to the respondent on foot of the claim made for arrears of rent at the now ascertained rent of Sh. 70/10 plus other charges. I set aside the decree made and remit the case to the lower Court for trial and determination of the said issue after hearing such evidence as the parties may wish to call and to proceed to judgment in accordance with law. The appellant will have the costs of this appeal; the costs of the proceedings before the lower Court to abide the event.