Non-framing of an issue is not a ground for dismissal of a suit when the courts below discussed the evidence and the parties were aware of the fact.

This revision petition is directed against the judgment and decree dated 19-9-84 passed by the Assistant District Judge, No. 1, Kamrup, Guwahati, in Title Appeal No. 3/84 dismissing the appeal and affirming the judgment and decree passed in Title Suit No. 35/80 by the Munsiff, Nalbari.

2. The opposite party brought a suit (TS No. 35/80) in the Court of the Munsiff Nalbari, praying for a decree for khas possession of the suit house and for recovery of Rs. 8,100/- on account of compensation and mense profit for wrongful use and occupation etc. The petitioner filed written statement and contested the suit. The learned trial court framed five issues and after examining the witnesses by his judgment, dated 19-12-83 decreed the suit; answering all the issues in favour of the plaintiff.

3. The petitioners preferred an appeal (T.A. No. 3/84) before the Assistant District Judge, No. 1, Kamrup. The appeal was also dismissed with costs giving two months time to defendants petitioner to vacate the suit premises. The learned Assistant District Judge, however, while deciding the appeal reversed the decision on issue No. 4 in favour of the petitioner holding that there was no bona fide requirement of the suit premises. Hence this revision petition.

4. The case of the petitioner is that the opposite party brought the suit against the petitioner for ejectment from. the suit premises on the ground of default in payment of rent for bona fide requirement. The petitioner appeared in the suit and filed written statement denying the allegations made in the plaint. The courts below granted decree. However, the trial court granted decree both on the ground of default in payment of rent and for the bona fide requirement of the opposite party/plaintiff, but the appellate court reversed the finding on issue No. 4 holding that the suit premises was not bona fide required by the opposite party, The Appellate court dismissed the appeal and granted ejectment on the ground that the petitioner was a defaulter.

5. I have heard both sides. Mr. N. Chakraborty, learned counsel for the petitioner submits that the petitioner was not a defaulter and the learned courts below committed illegality in exercise of his jurisdiction by completely ignoring the relevant materials on record. The main grievance of Mr. Chakraborty is that the trial court rejected the Exhibit-Ka, a Khata maintained by the petitioner in respect of expenditure of suit house including payment of rents etc. The learned trial court ignored the Exhibit-Ka and rejected the contention of the petitioner that he made payment of rent as required under the law. The Opposite Party disputed the authenticity of the said Khata and also stated that the entries made in the Khata did not tally with the statements made in the written statement as well as in the evidence of the defendants. The trial court, held that the whole book was kept untidily and page number were over-written in many places and the book was silent about the dates and persons to whom house rents were paid. The trial court also found that the Exhibit-Ka was not kept in regular course of business and as such it could not be relied upon as envisaged under S. 34 of the Evidence Act, and, therefore, the petitioners attempt to show that the rent was paid, with the help of Exhibit-Ka was rejected by the trial court. The learned trial court while coming to that finding discussed all the materials including the Exhibit - Ka.

6. The learned appellate court also discussed the materials on record regarding the ground of default in payment of rent. In doing so, the learned appellate court dealt with the Exhibit-Ka and took into account all the relevant materials of Exhibit-Ka by which the petitioner claimed to have paid rent. The appellate court held that the manner in which the entries made in Exhibit-Ka, it could not be said that the petitioner/defendant paid rents in time. There was also nothing to show that the petitioner/defendant was prevented