FRAMING OF ISSUES

On the importance of framing correct issues, In AIR 2001 SC 490 (Makhan Lal Bangal v. Manas Bhunia and others) the Supreme Court has held thus :

"An obligation is cast on the Court to read the plaint/petition and the Written Statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material proposition of fact or law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the Court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The Judgment, then proceeding issues-wise would be able to tell precisely how the dispute was decided".

A point alleged by the plaintiffs and admitted by the defendants cannot be said to be in issue and a decision can be given on the basis of the admission without an issue (See Order 12 Rule 6 of the Code of Civil Procedure of 1908)

When a specific plea was raised, relevant issue ought to have been framed.

A mere vague recital that the suit is not maintainable in law cannot give rise for framing of an issue as to the maintainability of the suit. Likewise mere assertion in the written statement that the defendants are in possession of the suit land-since long or for many years without any knowledge thereof to the plaintiffs and without claiming the right of adverse possession does not warrant framing of issue on adverse possession. The averments contained in the plaint which are not traversed in the written statement and as to which no issue has been asked for are to be deemed to be admitted. If the party intends to make a particular averment to be the subject matter of an issue in a suit, then it must be specifically denied. Mere non-admission could not warrant the Court to frame an issue in that regard.

It is well established that the Court is not bound to frame issues suo moto on questions of fact where the parties do not ask for the same. The omission to raise an issue on a point implies abandonment of such point by the party.

In fact, Rules 3, 4 and 5 of Order VIII of Code of Civil Procedure provides for an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If the denial of a fact is not specific but evasive, then the said fact is to be taken to have been admitted. In such an event, the admission itself being proved, no other proof is necessary and the law in that regard is well settled since the decision of the Apex Court in the matter of Badat and Co. v. Eastern India Trading Co., .

Preliminary Issues:

Sub-rule (2) of Order XIV Rule 2 C.P.C lays down that where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force.

The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna vs. Brig. F.J. Dillon AIR 1964 SC 497, and it was held as under:-

"Under O. 14 R. 2 where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit."

Though there has been a slight amendment in the language of Order XIV Rule 2 C.P.C by the Amending Act, 1976, but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the Court to try a suit on mixed issue of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.

A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order VII Rule 11(d) C.P.C would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. vs. Hanuman Seva Trust and others) decided on 8.11.2005 and it was held: -

"After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) C.P.C and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time."

Additional Issues:

Sometimes, either by oversight or for any other reason, the Court may omit to frame an issue on a relevant point even though the pleadings may justify framing of that issue. In that case, certainly the parties can ask for framing of an additional issue by taking recourse to Order 14 Rule 5 Code of Civil Procedure. The Court is required by Sub. Rule 5 of Rule 1 thereof to ascertain as to what material proposition of fact or of law, the parties are at variance and therefore frame the issues on which the right decision of the case appears to depend. Order 14, Rule 1 of C.P.C. provides that the issue arises when a material proposition of fact or of law is affirmed by the party and denied by the other. It further provides that the material proposition are those propositions of law or of fact which plaintiffs must allege in order to show a right to sue or a defendant must allege in order to constitute the defense, Thus the object of framing the issues is to shorten the arena of the dispute and to identify the points required to be determined. The courts are not expected to determine an issue which does not arise from the pleadings.