The main legal point established in the judgment is the court's interpretation of the provisions of Order 41, Rule 22 and the court's power to implead any person in the appeal as a respondent under the provisions of Order 1, Rule 10(2) read with Section 107, Civil P.C.

Abdur Rahman, J.

1. A suit for possession and injunction was filed by one Guzulu Devendra Iyer against Muthu Chettiar as defendant 1 and Venkateswara Iyer as defendant 2 in July 1931 in the Court of the District Munsif at Melur in which the tenant was also imp leaded as defendant 3. Certain mesne profits were also claimed by the plaintiff in the suit. While filing his written statement, defendant 1 raised a number of contentions in which ha attacked the locus standi of the plaintiff to maintain the suit on the ground that he was not an occupancy tenant and asserted that the othi (Ex. A-l) was invalid. It was admitted by him that he was the landholder but alleged that defendant 2 was in possession of the lands in suit and that the land was rightfully sold to him in a revenue auction for arrears of rent. It was also pleaded on his behalf that he was an unnecessary party to the suit. A number of issues were then framed by the lower Court, but the objection raised by defendant 1 that he was an unnecessary party did not form the subject matter of an issue at all.

2. It is true that as contended on behalf of the respondent, the duty of framing issues has been cast by the Civil Procedure Code on Courts. But it must not be forgotten that at least on a technical matter like this, it is essential for the parties also to draw the attention of the Court to such an omission. In view of serious contentions raised on behalf of defendant 1 on the merits of the claim, it appears to me that the issue in regard to defendant 1 as being an unnecessary party was not pressed on his behalf deliberately when the issues were being framed and must in the circumstances be held to have bean waived by him. This inference is further strengthened by the fact that the trial proceeded for about an year and a half and yet nothing was said or done by or on behalf of defendant 1 who would have drawn the attention of the Court to such an omission, although another issue was subsequently added by the trial Court. In fact, the result of the case in which a decree for possession was passed against defendant 1 in addition to defendant 2 shows very clearly that there was no merit in that objection and must be necessarily, although impliedly, taken to have been decided against defendant 1.

3. An appeal was filed by defendant 2 against the judgment and decree of the ferial Court passed on 30th January 1933 to the District Court Judge at Madura to which defendant 1 was naturally imp leaded as a respondent. Having been served with a notice of appeal on 14th July 1933, he filed cross-objections on 14th August 1933. The only ground which was raised in these objections was that he should not have been held liable for the costs of the suit. When the matter came up for hearing, all the grounds urged by the appellant (i.e., defendant 2) failed but strangely enough the Subordinate Judge found that defendant 1 was an unnecessary party. He same to this finding on the grounds that defendant 1 had first of all disclaimed possession and the relief asked for by the plaintiff was one in which defendant 2 was alone interested. It was apparently overlooked that the plaintiff had in this case asked for possession against both defendant 1 and defendant 2. The allegation in the plaint alone should have been looked into in order to come to a finding whether defendant 1 was or was not a necessary party. If the plaintiff had failed do establish his allegations, the suit should Java been dismissed against him on the merits. This was however not done. The finding arrived at by the Subordinate Judge J.B. all the more surprising when one finds that this ground was not even taken by defendant 1 in his cross-objections.

4. Aggrieved by the judgment and decree of the lower Appellate Court, defendant 2, filed a second appeal and since defendant 1 was held to be an unnecessary party by the Subordinate Judge, he was not imp leaded. The plaintiff has now filed cross-objections in which he prays that a de