ISSUES IN CIVIL CASES
Framing of issues is probably the most important part of the trial. If a judge correct and accurate issues, it is it possible to come to the correct decision in the shortest possible time. Inaccurate issues may kill the valuable time. In the case of Siddhi Chunilal Vs. Suresh Gopkishan (2009(6) BCR 857), it was observed that if correct and accurate issues were not framed, it leads to gross injustice, delay and waste of the Court’s time in deciding the matter. The duty in regard to framing of the issue is of the Court which it has to discharge because it has to try the suit and it has to give notice to parties to lead evidence with reference to the issues framed. Rule 5 of Order 14, C.P.C. empowers the Court to amend issues or frame additional issues at any stage of proceedings and it does not contemplate that the power must be exercised when application is made on the other hand it saddles on the Court a duty to exercise power suo motu “for determining the matters in controversy between the parties” if that was necessary to do so. When the question of exercise of jurisdiction is in issue that is to be considered in appeal as to whether there was abdication of jurisdiction or it was exercised illegally or with material irregularity
1. Issues are the crux of a civil case;
2. In C V Joshi Vs Elphinstone Spinning Mills, 2001(supp 2) BomCR 57, the Hon’ble Bombay High Court laid down that even in execution proceedings issues come into play by way of prudence, though it is not technically necessary to frame them.
WHEN DOES A ” DISTINCT ISSUE” FORM ?
To form a distinct issue, a material proposition must affirmed by one party and denied by other. Unless each material proposition is affirmed by the plaintiff and denied by the defendant, a distinct issue will not form.
At this juncture, it is not out of scope to see Rule 1 (3) of Order XIV of C.P.C, which reads as infra: ” Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.”
KINDS OF ISSUES:
If defendant makes no defence, framing and recording issue by the Court does not arise. That too, in such a case, a Court need not frame and record a issue inasmuch as the defendant makes no defence at the first hearing of the suit. In Desi Kedri vs. Huzurabad Co¬Operative Marketing Society Ltd.,, it was held that ”Issues need not be framed when there is no dispute with regard to material averments in the plaint.”
According to Rule 1( 4) of Order XIV of C.P.C, issues are of two kinds.
a) issues of fact,
b) issues of law.
Of course, there is another aspect of ‘ mixed question of fact and law’, which would be discussed later under the heading of ‘preliminary issue’.
OBJECT OF FRAMING ISSUES:-
In AIR 2001 Supreme Court 490 the Hon’ble Supreme Court of India held: “the stage of framing issues is an important one in as much as on that day the scope of the trial is determined by laying the path on which a trial should proceed excluding diversions and departures therefrom. That the dispute between the parties is determined, aitia forfeited Naroda and the concave mirror held by the Court the reflecting the pleadings of the parties pinpointed the issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on the correct framing of issues correctly determining the real point in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure relating to settlement of issues shows that and issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition and from the one party and denied by the other to form the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the written statement/counter if any, and indigenous with assistants of the landed counsel for the parties committed propositions of fact or law on which the parties are at variance. Issues should be framed and recorded on with this in the case will depend” In Satya Narayan Vs Radha Mohan reported in A 1979 Raj 126 the Hon’ble Rajasthan High Court while holding that issues can be framed even beyond the pleadings.
DUTY OF THE COURT IN FRAMING OF ISSUES:-
In Board of Trustees of the Port of Mormugao Vs. V.M. Salgaokar & Brothers it has been laid down: Duty of Court—Draft issues submitted by one party should not be mechanically adopted by the Court as it is primarily the duty of the judge to frame the issues in the cases. Therefore, the judge is bound to apply his mind to pleadings of the parties before framing the issues. (Para3). As observed by the Supreme Court in (J.K. Iron & Steel Co. Ltd. Kanpur v. The Iron & Steel Mazdoor Union, Kanpur)1. A.I.R 1956 S.C. 231 the only point of requiring pleadings and issues is to ascertain the real dispute between the parties, to narrow the area of conflict and to see just where the two sides differ.
WHAT HAPPENS IF PROPER ISSUES ARE NOT FRAMED:
The danger of not clearly comprehending the case and not framing the correct issues was brought out in Venkataswamy vs. Narayana A. and Ors. (25.01.2002 – KARHC) where the Karnataka High Court was pleased to lay down that it was imperative on the part of the Trial Court to have framed an issue with regard to the title as observed above and to have given a fair opportunity to both the parties to adduce evidence with regard to the nature of the property as to whether it is exclusive property of the Plaintiff or otherwise depending upon the answer to the question the Plaintiff would be entitled to the final relief.
FRAMING OF PRELIMINARY ISSUES :-
The Supreme Court in its decision reported as Ramesh B.Desai Vs. Bipin Vadilal Mehta, (2006) 5 SCC 638, (2006) 5 SCC 638, has laid down that Order 14 Rule 2 of Civil Procedure Code, 1908 confers no jurisdiction on a Court to decide the mixed questions of fact and law as a preliminary issue. In this ruling, it was held that Sub-rule (2) of Order XIV Rule 2 CPC 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.
In the case of Major S.S Khanna V. Brig. F.J.Dillon, AIR 1964 SC 497, it was observed 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.”
The following ruling of the Hon’ble Apex Court explain the concept of ‘Preliminary issues’ in detail.
1) O.N. Bhatnagar vs. Smt. Rukibai Narsindas and others (1982) 2 SCC 244 (para 9)
2) Roop Lal Sathi vs. Nachhattar Singh Gill (1982) 3 SCC 487 (para 24)
3) Abdulla Bin Ali and others vs. Galappa and others (1985) 2 SCC 54,
4) Indian Mineral & Chemicals Co. and others vs. Deutsche Bank (2004) 12 SCC 376
5) Exphar Sa and another vs. Eupharma Laboratories Ltd. &Anr, (2004) 3 SCC 688 (para 9)
6) Popat and Kotecha Property vs. State Bank of India Staff Association(2005) 7 SCC 510
WHEN SHALL A COURT FRAME AND RECORD ISSUES?
Basically, at the first hearing of the suit the Court shall ascertain upon what material propositions of fact or law the parties are at variance. Yet, here, three essential points are to be remembered. Before framing and recording issues, firstly, the Court shall read the plaint and written statement. Secondly, examination under rule 2 of Order X is mandatory, thirdly, the Court shall hear the parties or their pleaders. At the outset, it is apt to see words in rule 1 (5) of Order XIV of C.P.C ” after reading the plaint and the written statement and after examination under rule 2 of Order X and after hearing the parties or their pleaders”. Thus, the Fundamental Functions of the Court , as to before framing and recording issues , are: 1. reading the plaint and written statement; 2. examination under rule 2 of Order X of C.P.C; and 3. hearing the parties or their pleaders; after these three essential functions, the Court, at the first hearing, shall ascertain upon what material propositions of fact or law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. In Maddaa Sai Lakshmi v. Medisetti Lakshmi Narasamma, in this case, it was held that ”Before commencement of trial, suit be posted to a specific date for hearing both sides on the issues already framed to see if they have been property framed or if any reframing of issues is needed on the core issues in dispute. Trial be commenced only after such exercise.”
GENERAL SUGGESTIONS FOR FRAMING ISSUES:-
1. Issues not to be unnecessarily wide.; Issues to be arranged in logical sequence; Issues on questions of fact must be generally be put down first; then mixed questions of fact and law and issues on pure questions of law must come last.
2. Detect the Broad basic issues that arise in that type/genre of cases before examining pleadings. Firstly, note the nature and type of case .
3. Issues must be specific. Loaded issues should not be framed.
4. Note and frame the ‘issue set’ for cases of that type. It is more or less a set of directions or a programme of action in that particular type of cases.
5. In Appeals, the first and primary issue is as to “what is wrong with the Judgment/order”, while in second appeals an issue relating to the substantial question of law has to be framed which is the primary issue in the matter.
6. Now look to and frame the issues on the factual and legal questions pleaded and denied and/or admitted either fully or partially and pare down the issue to its barest essentials.
7. To form the basis of an issue there are requirements of the pleadings of the Plaintiff and requirements of the denials in the pleadings of the Defendant and issues can be framed only if the tests are satisfied. E.g. In cases of fraud, in res judicata and the like, when the law of pleadings requires that there have to be specific pleadings, failing which no issues can be framed on that point.
8. The first question would be to see what law is applicable in the matter to get the decision that the plaintiff wants. All possible questions that may arise or may have to be determined from that particular area of law ought to be before the Court while drafting the issues.
9. If looking to the written statement the Court finds that all the points for determination have not been brought out in defence, the Court has to proceed to pass the judgment or otherwise proceed as per law.
10. In cases where the ‘point for determination’ is partly admitted by the other side, such a party would only be required to prove only that part of the ‘point for determination’ which is not admitted by the other side and not the point in its entirety. In other words, if the facts that support a point for determination consist of two parts A and B, and the other side admits either of them, the issue should be narrowed down from the broad basic issue to only that part that the other side is denying.
11. “The burden of proving something is on the party who asserts the same, unless the other side would fail is no evidence is given, or unless the best evidence lies in the hands of the opposite party”. After putting the burden of proof on the correct party, one is to see the interplay of the issues and make the adjustment accordingly.
12. Note issues relating to limitation, jurisdiction and inherent jurisdiction, when they are evident on the face of the record, where the Court is obliged to dismiss or reject the matter if the matter is clearly time barred or beyond jurisdiction of the Court.
13. Note issues relating to special areas when the Court gets jurisdiction to try a matter in appeals and second appeals. In appeals the Court gets jurisdiction only if there is a defect in the judgment or order. In second Appeals the mandatory issue is if the Appellant has raised a substantial question of law.
14. When the matter does not disclose a cause of action it is the duty of the Court to dismiss the same and ensure that it does not occupy the time of the Court.
15. Vague Pleadings: Where the pleadings are vague and do not fall within the parameters and the law related to the laws of pleadings in the Code of Civil Procedure, then issues may not be framed. See. 2008(6) BomCR. 788; AIR 1979 Bom 52; 2000(4) BomCR 508.
16. Alternate issues:- In some cases issues have to be framed in the alternative, for example in cases of Specific Relief they may be one set and line of issues relating to the specific performance of the contract, and in the alternative there may be another line and set of issues relating to grant of compensation case the relief of specific performance is not granted.
17. Final and accurate issues:- Just by way of illustration in the reported in 2009(6) BCR 857 in Siddhi Chunilal Vs. Suresh Gopkishan. (supra) in which Borkar J passed his Judgment, the required issue stated with accuracy when viewed in this context ought to have been:
Does Plaintiff prove that he is in settled possession of the premises?
Does Plaintiff prove that he is in lawful possession of the premises?
In the latter case it will cause confusion, as the question of title might then crop in leading to obfuscation of the matter.
CAN A COURT GO INTO QUESTION AND DECIDE ANY ASPECT WITHOUT FRAMING ISSUES?
Despite issue is not framed, court has power to go into that question and decide that aspect of the subject matter in case of sufficient evidence is adduced by both parties on pleadings . At this juncture, it is appropriate to refer ruling in Mohd.Kareemuddn Khan vs. Syed Aza, where it was observed that Defendant pleading perfection of title by adverse possession. Issue not framed. However, evdience adduced by both sides on the disputed matter. Court is not barred to go into that question and decide that aspect of the matter. In another case, Sunyabasi Pikra vs. Paramanand Ranasingh, it was held that ” Both parries have laid evidence, both documentary and oral touching that issue. Non¬framing that particular issue is immaterial. ” It is thus clear that if the there are pleadings and sufficient evidence is available on record, the Court can go into that question, even if issue is not framed on that question, and decide that aspect of the matter. However, in some of the cases, the matters will be remaded to the trial courts for failure to frame issues. In Syed Mahmood vs. Dr.Manik Chandra 1998(3) An.W.R.340, it was observed that issues were framed and therefore, the matter remitted back to trial court no
The principles that can be deduced from the above discussion on issues: 1. Issues may be based under Order 14 Rule 1 and 2 of the Code of Civil Procedure, but there is nothing to suggest that the above Order is exhaustive and that issues cannot be framed if there are no pleadings in the case. 2. There are a fixed set of issues for every type/genre of cases and they form the frame under which the Court should work to frame issues. Any pleading or material outside these broad basic issues is irrelevant to the matter and ought to be discarded. 3. On looking to the mandatory issues like limitation and jurisdiction if they are based only on pure law, and not on facts and not being mixed questions of law and facts, the Court may proceed to decide the same under the law after giving a hearing to both the parties. 4. If however, they are mixed questions of law and fact or questions of fact framing an issue on the same will depend on the law of pleadings 5. The Court must decide as to what is pleaded and what is not on adverting to the law of pleadings in the Code of Civil Procedure. 6. The Court must frame issues within the broad framework given above, on seeing the factual position that is pleaded by the parties. 7. The question of burden of proof is dependent on the relevant provisions of the Evidence Act, however, all rules must bend to the rule that the person with the best evidence must produce the same. 8. The burden of proof is fixed on a person and never shifts, however, the onus of proof shifts from time to time. Onus of proof cannot be a matter of issues.
CASE – LAW ON ISSUES:-
1) Seela Venkata Subbaiah v. Jinka Muni Swamy; 1997(6) ALT 654.
2) Madhabananda Ray And Anr. vs Spencer And Company Ltd. ,AIR 1988 Ori 35 ;
3) The Manager, Bettiah Estate vs Sri Bhagwati Saran Singh,AIR 1993 All 2;
4) Mannam Anjmma vs. N.Nageswara Rao; 1997(6) L 645.
5) Maharashtra State Warehousing … vs Bhujang Krishnaji Kohale , (1999) 101 BOMLR 83;
6) Mohammed Ali vs Dawood Basha on 18 October, 1995 ,ILR 1995 KAR 3420;
7) Sangli Municipal Council vs Syndicate Bank, Branch Sangli And … on 12 June, 1979 ;
8) Hanumantha Gowda vs. Gidde Gowda, 1998(2) CCC 365 (Karn.) = 1998(5) ALT 21.1 (DN OHC);
9) Naresh Chandra Das vs Gopal Chandra Das ;AIR 1991 Cal 237 ;
10) Mantu Naik vs Bankim Chandra Maity & Anr.,(1998) 3 CALLT 160 HC ;
11) Prithvi Raj Jhingta And Anr. vs Gopal Singh And Anr. , AIR 2007 HP 11;
12) Maddaa Sai Lakshmi v. Medisetti Lakshmi Narasamma 2006(3) ALT 708.
13) P.Chidambaram vs St on 14 June, 2005 ;
14) Major S. S. Khanna vs Brig. F.J. Dillon on 14 August, 1963 ;1964 AIR 497