IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY NINETH DAY OF JANUARY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.3421 of 2009 Between: Golla Prema Kumari .. Petitioner AND Ranga Sarojanamma .. Respondent Petition under Article 227 of the Constitution of India praying to set aside the order dated 09-04-2009 in I.A. No.23 of 2009 in O.S. No.43 of 2005 on the file of the Junior Civil Judge, Andole at Jogipet. The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri N. Sridhar Reddy, Advocate for the petitioner and of Sri Samudrala Anantaram, Advocate for the respondent, the Court made the following: ORDER: Heard Sri N. Sridhar Reddy, learned counsel for the revision petitioner and Sri Samudrala Anantaram, learned counsel for the respondent. The civil revision petition is directed against the order passed by the Junior Civil Judge, Andole at Jogipet in I.A. No.23 of 2009 in O.S. No.43 of 2005 on 09-04-2009 refusing to delete issues 1 and 2 from the seven issues framed by the trial Court originally on the conflicting pleadings of the parties. The suit is one for eviction of the defendant from the suit house and recovery of arrears of rent and damages from her and the defendant resisted the suit contending that the entry of her husband into possession of the suit house was not under any lease but under an agreement with the plaintiff on 08-09-1978. The defendant elaborated the terms and conditions of the agreement under which her husband came into possession and pleaded that continuance of possession by her and her children in the suit house was as successors to the defendant’s husband, whose possession was never under a lease. The trial Court framed seven issues on the pleadings of the parties and issues 1 and 2 relate to the agreement claimed by the defendant between her husband and the plaintiff and whether payments were made and promissory note was executed as pleaded by the defendant in pursuance of such an agreement. The 3rd issue relates to the nature of possession of the defendant’s husband and after him, the defendant as lessee in the suit premises, while issues 4 and 5 relate to the questions of arrears of rent and damages, while the 6th and 7th issues relate to the reliefs to which the plaintiff is entitled. The defendant objected to the framing of issues 1 and 2 on the primise that they are not necessary for determination of the suit for eviction, which has to succeed or fail solely on the plaintiff proving or not being able to prove the alleged lease set up by the plaintiff. The trial Court, however, found that issues 1 and 2 were not wrongly framed opining that these two issues specifically arise out of the conflicting pleadings of the parties and as issues have to be framed on all questions of fact, which are asserted by one and denied by the other for just and proper adjudication of a civil dispute. The suit being one for eviction from the suit house, necessarily the capacity in which the defendant and her children are staying in the suit house has to be decided by the civil Court before considering the entitlement of the plaintiff to evict them from the suit premises. As a natural corollary, the Court has to go into the question whether the entry of the defendant’s husband into the suit house was under an agreement with the plaintiff as pleaded by the defendant or under a lease as pleaded by the plaintiff. While it is true that the plaintiff can succeed or fail on the strength of his own case and not on the weakness of the defendant, the question relating to the agreement set up by the defendant cannot be said to be irrelevant or unnecessary for effective and proper adjudication of the dispute between the parties. However, the question concerning the nature of possession of the defendant and her children of the suit house can be re-moulded by combining issues 1 to 3 into one issue and making the question of the nature of possession of the defendant of the suit house to be decided with reference to either the lease set up by the plaintiff or the agreement set up by the defendant. The other incidental questions of fact will automatically receive consideration from the trial Court while deciding the composite issue. Therefore, the impugned order can be modified by recasting the issues framed by the trial Court by deleting issues 1 to 3 framed by the trial Court and framing a fresh issue “whether the defendant’s husband came into possession of the suit premises under a lease or under an agreement, dated 08-09-1978 and whether the defendant is continuing in possession of the suit premises in the same capacity” and issues 4 to 7 already framed by the trial Court should be renumbered as issues 2 to 5. Accordingly, the order in I.A. No.23 of 2009 in O.S. No.43 of 2005 on the file of the Junior Civil Judge, Andole at Jogipet, dated 09-04-2009 is modified by directing recasting of issues in O.S. No.43 of 2005 as follows: 1. Whether the defendant’s husband came into possession of the suit premises under a lease or under an agreement, dated 08-09-1978 and whether the defendant is continuing in possession of the suit premises in the same capacity ? 2. Whether the defendant is due of payment of arrears of rent commencing from August, 2004 to August, 2005 (i.e. 13 months) at the rate of Rs.900/- per month to an extent of Rs.11,700/- to the plaintiff ? 3. Whether the plaintiff is entitled for damages at the rate of Rs.3,000/- per month from September, 2005 till eviction ? 4. Whether the plaintiff is entitled for eviction of defendant from the suit premises and recovery of possession ? 5. To what relief ? The civil revision petition is ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 29-01-2010 Svv