1. The respondents-plaintiff filed a suit for permanent prohibitory injunction before the trial court restraining the petitioner-defendant from evicting and dispossessing the respondents herein or interfering in any manner into the peaceful possession of the shop. The petitioner-defendant has filed the written statement taking objection therein that the respondents-plaintiffs have filed the suit alleging therein that they are a partnership firm duly registered with the Registrar of firms, therefore, the suit is not maintainable in view of the mandate of Section 69(2) of the Partnership Act as all the partners of the alleged firm are not registered with the Registrar of Firms. The Trial Court on the basis of the pleadings of the parties framed a preliminary issue,

"Whether the suit of the plaintiff is not maintainable in the present form because the firm of the plaintiff is not registered in accordance with Law. OPD"

2. The Trial Court relying upon the judgment of Delhi High Court reported in AIR 1982 page 482, decided the issue by the impugned order made on 28-05-1993 in favour of the respondents-plaintiffs holding the suit maintainable. The petitioner-defendant has challenged the order dated 28-05-1993 passed by the learned Sub-Judge (C.J.M.) Jammu in the revision petition on the grounds taken in the memorandum of revision petition,

3. I have heard the learned counsel for the parties and perused the record.

4. Before I deal with this legal question, I may observe that it is seen from the pleading of the parties that the Trial Court has resorted to framing of issues when the parties appear to have been not at issue. The cause of action is gathered from the plaint and the respondents-plaintiffs have averred in paras 8 and 9 of the plaint as under: -

"8. That in case the defendant succeeds in his attempt to evict the plaintiffs forcibly and without adopting due course of law as provided under the provisions of Jammu & Kashmir Houses and Shops Rent Control Act, the plaintiffs shall suffer an irreparable loss and injury.

9. That the cause of action has accrued to the plaintiffs for filing this suit on 30-12-1989 when the defendant finally threatened the plaintiffs."

5. The Petitioner-defendant has replied the above averments in the written statement which reads,

"8. That para 8 of the plaint is also incorrect. A detailed reply has been submitted in para No.7 above. The defendant never intended or threatened to eject the plaintiffs or Mr. Tara Chand forcibly or otherwise than in due course of law as alleged. The suit is false and frivolous, hence this para is denied.

9. That para No. 9 of the plaint is incorrect. The plaintiffs have no cause of action against the defendant. Hence this para is denied."

6. Taking into consideration the pleadings of the parties to the suit, the defendant has stated in his written statement that he has not threatened the plaintiffs (tenants in whatsoever status) for their dispossession as alleged. The defendant is the owner of the premises and can evict the plaintiffs adopting due course of law. The Trial Court should have recorded the statements or the parties under Order 10 CPC and in case the defendant states before the court as pleaded in para 8 of the written statements that he will not evict the plaintiff without due course of law, in view of such a statement of the defendant, the parties are not said to be at issue and the Trial Court could have disposed of the suit adopting recourse to the recording of the statement of the parties, as observed above, for the cause of action thereafter does not survive for adjudication.

7. Coming to the real legal question as to whether the suit of the plaintiffs is maintainable, the Trial Court had decided the issue in favour of the plaintiffs placing reliance on a judgement delivered by the Delhi High Court reported in AIR 1982 page 482. The facts of case are different to that of the present in hand. The dispute in that case was with regard to Trade names" of two

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