Devinder Gupta ( 1 ) THIS application is moved by defendants under Order 14 Rule 5 of the Code of Civil Procedure seeking amendment in the issues framed on 26th October, 1994. The following issues were framed on 26th October, 1994:- whether the tenancy in the premises shall be deemed to be limited to the partners of Firm M/s. A. F. Ferguson and Co. as they were on 19. 5. 74, i. e. the date of creation of tenancy? ( 2 ) WHETHER the suit premises be deemed to have been abandoned by the tenants in 1988 when the partner Shri R. Subramaniam vacated the premises or when the possession was handed over by the tenant-firm to Shri R. K. Puri, in May, 1988? 3. Whether the possession of Shri R. K. Puri on the suit premises is wrongful? 4. Whether the suit is barred by Section 50 of Delhi Rent Control Act? 5. To what amount the plaintiff is entitled by way of mesne profits/damages and interest thereon? 6. Relief. ( 3 ) THE grievance of the defendants is that issues No. 2 and 5 require to be amended while issue no. 3 requires to be refrained in view of the pleadings and reply to interrogatories, which are on record. In order to appreciate the respective contentions of the parties, it is necessary to take into consideration the respective case of the parties, as disclosed in their pleadings. ( 4 ) PLAINTIFF has filed the suit for recovery of possession and mesne profits, inter alia, alleging that on the basis of a registered lease deed dated 19th May, 1974 ), the premises in question were given out on lease by the plaintiff in favour of M/s. A. F. Ferguson and Co. (hereinafter referred to as defendant no. 2 for a period of five years from 19th May, 1974 for the purpose of residence. Premises were occupied during the currency of the period of lease by Mr. Rangaswami Subramaniam along with his wife and children, who was and is a partner of defendant No. 2. The premises were not vacated on the expiry of the period of lease on 18th May, 1979 and possession thereafter is held by virtue of the protection granted under the Rent Control Legislation, namely, Delhi Rent Control Act. Rangaswami Subramaniam along with his wife and children, who was and is a partner of defendant No. 2. The premises were not vacated on the expiry of the period of lease on 18th May, 1979 and possession thereafter is held by virtue of the protection granted under the Rent Control Legislation, namely, Delhi Rent Control Act. Shri rangaswami Subramaniam continued to remain in occupation of the premises under the protection given by Rent Control Legislation. Even an eviction petition was preferred by the plaintiff under the provisions of the Delhi Rent Control Act before the Controller, seeking eviction on the ground of bona fide requirement, which was dismissed by the Additional Rent Controller on 9th February, 1989 and revision preferred was also dismissed in limine on 14th February, 1992. Even an eviction petition was preferred by the plaintiff under the provisions of the Delhi Rent Control Act before the Controller, seeking eviction on the ground of bona fide requirement, which was dismissed by the Additional Rent Controller on 9th February, 1989 and revision preferred was also dismissed in limine on 14th February, 1992. In the year 1988, Shri rangaswami Subramaniam vacated the premises and shifted to Bombay and premises were abandoned by him and so by defendant No 2 Defendant No 1 was not a partner of defendant No 2 as on 19th May, 1974 He was taken in as partner only on 1st November 1976 In May 1988 defendant No 1 alongwith his family shifted to Delhi from Bombay and assumed possession of the premises along with his wife and children In this background, the plaintiff has claimed a decree for possession alleging that non-occupation of the premises by any of the partners of defendant No 2 who were partners on the date of execution of lease, namely, 19th May, 1974, amounts to abandoning the tenancy and occupation of defendant No 1 is unauthorised ( 5 ) DEFENDANTS case is that there is no abandonment of tenancy The premises are still under occupation and control of defendant No 2 Defendant No 1 had been working as principal officer with defendant No 2 since 1st July, 1969 upto 1st November, 1976, when he was taken as a partner In para 17 of the written statement, defendants have alleged that defendant No 1 worked as a Principal officer from 1st July, 1969 and continued as such till he became a partner or 1st November, 1976 he was working in Bombay since 1st July, 1969 to 31st October, 1976 as Principal Officer and latter as a partner from 1st November, 1976 to 26th May, 1988 Premises were let out to defendant No 2 (including its partners and assigns) to use the same for residence of its partners or officers Defendant no 1 as such occupied the premises as a partner of M/s A F Ferguson and Co This occupation is not unauthorised but is authorised under the terms of lease It is also alleged that defendant No 1 being partner of defendant No 2 is entitled to continue m occupation till evicted, in accordance with the provisions of law, namely, Rent Control Legislation and smce premises are governed by the provisions of Delhi Rent Control Act, this Court has no jurisdiction to try the suit ( 6 ) LEARNED counsel for the defendants contends that issue No 2 as framed pre-supposes the fact that premises fell vacant on Shri Rangaswamy Subramanian shifting to Bombay and it was the possession which was parted with by defendant No 2 to defendant No 1 Nowhere in the pleadings, it has been stated that possession has been handed over by defendant No 2 to defendant No. 1 and thus in view of the pleadings, this issue deserves to be amended to read as:- "whether the tenancy of the suit remises be deemed to have been abandoned by the tenants in 1986 when the partner Shri R Subramanian vacated the premises or when the possession was allegedly handed over by the tenant-firm to Shn R. K. Puri in May, 1988?" ( 7 ) SIMILARLY, it is contended that issue No 3, as framed, requires amendment since it assumes that the possession was handed over by defendant No 2 to defendant No 1 and it is suggested that issue no. 3 deserves to be recast as under - "whether M/s A F Ferguson and Co (of 19 5 1974) assigned/otherwise parted with possession of the premises to Shn R K Puri?" ( 8 ) IT is further contended that issue No 5 deserves to be amended since it pre-supposes that the defendants are liable to pay mesne profits and it is suggested that issue be framed as under - "to what amount, if any, the plaintiffis entitled by way of mesne profit/damages and interest thereon?" ( 9 ) LEARNED counsel for the plaintiff has frankly conceded that issue, as framed on 26th October, 1994 do not include therein the real points in controversy, which are required to be decided and me same deserve either to be recast or amended and has raised serious objection to the submissions made on behalf of the defendants that issues deserve to be recast, in the manner, as suggested in the application according to learned counsel for the plaintiff, in view of the admitted facts in the pleadings and in answer to interrogatories, it will be for the defendants to justify that the tenants in the premises would also include such person, who became partner of defendant No 2 after 19th May, 1974 and that clause 3 (3) of the lease deed dated 19th May, 1974 authorises defendant No 2 to allow occupation of the premises in question by defendant No 1, after the expiry of the period of lease and thus he has prayed that issue be recast, in order to come to real points in controversy only ( 10 ) LEARNED counsel for the defendants has raised an objection that the plaintiff cannot be permitted at this stage to urge that the issues deserves to be recasted, since no such prayer was made by the plaintiff till the defendants moved the application and sought only minor modification in the issues, as suggested by the defendants in the application ( 11 ) I have heard learned counsel for the parties, who have taken me through the entire record ( 12 ) THERE is no manner of doubt that issues are required to be confined to the material questions of fact or law, namely, points necessary for the proper trial and disposal of the case and need not be framed with respect to the points not so necessary and no issue is to be framed on a point of law which is perfectly clear The material from which issues are to be framed would also include answer to interrogatories, given in the suit as also documents produced by either parties ( 13 ) AFTER the parties had exchanged their pleadings, interrogatories were served when plaintiff moved I A 10683/93 Reply to interrogatories was taken on record as Ext P 4. which is an answer to the interrogatories Defendant No 1 in answer to interrogatories on his affidavit it has stated that he along with his family have been residing in the suit premises since July, 1988 The questions which were required to be answered on interrogatories were three in number, namely i) Is it or it is not a fact that no person, other than Shri R K Puri his wife kamlesh and their children, has resided in the suit premies at any point of time after may, 1988? ii) If answer to Interrogatory No 1 above, is in the negative, of the 16 persons who were partners of AF Ferguson and Co. on 195 1974. who or which of them resided in the suit premises during the period 1 5 1988 till date? (If so, please give full names the period and the family members residing with them) in) What. according to the defendants, would be the value of a first floor premises comprising four bed rooms and built on a 1000 vards + plot in a south Delhi colony by was of monthly rental in 1990 and onwards (A precise answer with instances is requested. otherwise, even an approximate answer would do ) ( 14 ). Reading of the entire pleadings, as also interrogatories served upon the defendant and answer to the interrogetories one thing which is certain and cannot be agitated is that no person other than defendant No. 1, along with his wife and children has resided in the suit premises since May. 1988 and none of the partners of defendant No. 2. who were partners as on 19th May. 1974 has remained in occupation of the premises after 1st May, 1988 The factum of defendant No 2 having been granted lease of the premises in question on 19th May. 1974 by virtue of a registered deed is not in dispute. Defendants in their written statement have not. in clear terms, traversed on the proposition of law, which has been alleged in the plaint that a partnership firm is not a legal entity and the tenant would be only those persons (individuals), who were partners thereof, on the date of the lease, which in this case is 19th May, 1974; thus defendant No. 1 not being a partner on 19th May. 1974 cannot become a tenant and being in possession his possession is wrongful. 1974 cannot become a tenant and being in possession his possession is wrongful. Defendants not specifically disputing the legal proposition have merely stated that premises were let out to M/s. A. F. feruson and Co. and it is still in legal and actual possession. ( 15 ) IN view of the interrogatories and answer to the interrogatories, it has to be taken that premises in occupation remained with a partner of the firm till 1st May, 1988 and none out of the partners of defendant No. 2, who were partners as on 19th May. 1974. remained in occupation of the premises after may, 1988. During the subsistance of the lease, it was a partner of defendant No. 2, who was in occupation and on the expiry of the period of lease the said partner continued to remain in occupation by virtue of protection granted under the Rent Control Legislation. Since defendant No. 1, became a partner of defendant No. 2. inducted after the lease was granted, cannot be considered to be a tenant. Legal proposition is beyond any doubt that a partnership firm unless expressly provided for the purpose of any, statute is not a legal entity. The firm s name is only a compendious way of describing the partners of the firm. As such occupation by a firm is only occupation by its partners. Reference on this proposition can be made to a decision of the Supreme Court in Murli Dhar v. Chunilal and others, 1970 RCJ 922. Occupation of the premises by defendant No. 1 exclusively from 9th May. 1988 will have to be explained by defendant No. 2 that they by virtue of the terms of lease or otherwise have a right to allow occupation of the premises by defendant No. 1. The lease deed. as noticed above, permitted the use of premises for residence by partners of the firm. The lease expired on 18th May, 1979. Whether consent, if any of the lessor after the expiry of the lease, was or was not obtained in permitting the premises to be occupied by a person, who was not a partner of the firm on the date when lease was granted would be one of the questions of fact to be decided. In fact non-occupation of the premises by partners of defendant No. 2 (who were partners on 19. 5. In fact non-occupation of the premises by partners of defendant No. 2 (who were partners on 19. 5. 1974) also deserve to be made subject matter of issue. I find that issues already framed do not reflect the real points in controversy. arising between the parties and the same deserve to be recast. Accordingly, the issues framed on 26th october, 1994 shall stand deleted and instead the follow ing issues are re-framed, which alone will be tried and dispose of:- 1. Whether the suit premises will be deemed to have been abondoned by the tenants in 1988 on shri R. Subramaniam vacating the premises? 2. What is the effect of the exclusive occupation of defendant No. I in the suit premises with effect from 9th May. 1988? 3. Whether the plaintiff is entitled to mesne profit and interest thereon, if so at what rate and from which date? 4. Whether the suit is barred under Section 50 of the Delhi Rent Control Act for the relief of possession against the defendants? 5. Relief. ( 16 ) APPLICATION accordingly stands disposed of Parties to file their list of witnesses within two weeks Additional documents, if any be filed within two weeks Documents so filed will be admitted/ denied by putting appearance before Joint Registrar on 2nd February, 1996. ( 17 ) LIST on 11th March, 1996 for directions for fixation of dates of trial