For the sake of convenience, the current topic is divided into three blog series. The content of this current blog series is based on my lecture given to newly inducted trainee judges on 3/06/25 at Rajasthan State Judicial Academy, Jodhpur.
Introduction
Issue is framing is one of the most important stages in a civil suit as it narrows down the dispute and guide the parties as to what evidence has to be given. As a trial court judge, utmost care and alertness has to be exercised while framing issues. Continuing with my habit of touching down the practical aspects of a topic, this current blog also intends to deal with the practical difficulties that arise before the judges and advocates during the course of the trial. The first blog mainly deals with the relevant provisions, types of issues, materials from which issues has to be framed, what are preliminary issues and the right time to decide preliminary issues.
Framing of issues (Order 14 Rule 1)
(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue.
(4) Issues are of two kinds: (a) issues of fact, (b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and 1 [after examination under Rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of 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.
(6) Nothing in this Rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
After the completion of all pleadings, the next stage in a civil trial is for the court to frame issues of law, and of fact. Framing of issues is a key stage in a civil suit, since the issues framed in the suit determine what evidence will be produced by either party to disburse their burden in respect of such issues, and the court’s final decision on each such issue.
Issues under the CPC are governed under Order XIV. An issue is a material proposition of fact or law which one party holds to be true, while the other denies. The role of the civil court, in such instances, is to frame a specific issue on such a proposition in order to enable the parties to prove their case by leading evidence on such an issue. If there is no specific denial, the question of framing issue does not, generally, arise.
Basically, Material propositions can be understood in sense of two aspects. Those are Proposition of fact and Proposition of law. Those propositions of fact or law which a plaintiff must specifically allege in order to show a right to sue or a defendant must specifically allege in order to constitute his defence in such suit. In Sri Nanjudchari vs The Chairman[i], it was held that ” It is mandatory on the part of the trial court to frame all necessary issues arising from pleadings i.e., material preposition of fact and law of affirmed by the one party and denied by another.
- Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
- At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of 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.
Rule 1(4) of Order XIV divides issues into two – issues of fact and issues of law. Both issues of fact and issues of law are ascertained by the court based on the pleadings of both parties, and the submissions made by their lawyers in support of each party’s case. The court will also look at the documents produced by both parties, and any answers in response to interrogatories in the suit, before framing of issues under Rule 3 of Order XIV.
Materials from which issues may be framed (Order 14 Rule 3)
The Court may frame the issues from all or any of the following materials:-
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
In Maddaa Sai Lakshmi v. Medisetti Lakshmi Narasamma[ii], 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.”
Court may examine witnesses or documents before framing issues (Order 14 Rule 4)
Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not, produced in the suit, it [may adjourn the framing of issues to a day not later than seven days] and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process.
Types of Issues
Issues of fact are based on contested factual averments in a civil case which will determine important interests such as right of repayment of monies, assess the correct title over property, the share in a partition dispute between family members etc. What constitutes a fact, a relevant fact, and a fact in issue will be assessed in accordance with the provisions of the Indian Evidence Act 1872, specifically section 3.
Issues of law are important questions of law which will either complement the court’s adjudication of the issues of fact (called mixed questions of fact and law), or be a deciding factor in the court’s legal determination, especially in cases where there are preliminary objections raised. While questions of res judicata, limitation etc are examples where the court will assess the issue as one of both fact and law, questions on the jurisdiction of court, or a bar on the adjudication of the suit due to a prevailing law in force, can be decided as preliminary issues under Order XIV Rule 2 of the CPC.
In order to frame issues, if a court is of the opinion that it will need to examine a person or inspect further documents, it is empowered to do so under Order XIV Rule 4 of the CPC.
Court to pronounce judgment on all issues (Order 14 Rule 2)
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-Rule (2), pronounce judgment on all issues.
(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 an issue of law only, it may try that issue first if the 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,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
What kind of issues can be tried as preliminary issues
Order XIV, Rule 2, C.P.C. is a relevant provision under which an issue could be framed as a preliminary issue. Looking to the language of Order XIV, Rule 2, C.P.C. it is clear that the Legislature has left a discretion on the Court to come to the conclusion regarding framing of the preliminary issue. No doubt in doing so there is a rider on the Court that a preliminary issue should be an issue of law only and that relates to thejurisdiction of the Court, or a bar to the suit created by any law for the time being in force. Under this, the Court has been given discretion either to decide the issue of jurisdiction as a preliminary issue or decide along with other issues. (Ms. Ram Babu Singhal Enterprises (P) Ltd. v. M/s. Digamber Parshad Kirti Prashad[iii])
Order 14, Rule 2(1), C.P.C. requires the Court to pronounce judgment on all issues. However, there is an exception in sub Rule 2 of Rule 2, which empowers the Court to dispose of a suit on a preliminary issue, if such issue is an issue of law only and relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force.
Normally the Court should pronounce judgment on all issues and piecemeal trial of a suit should be avoided. In sub-Rule (2) of Rule 2, a discretion has been conferred on the Court to treat any issue of law as preliminary issue. In this regard a departure has been made from the earlier provisions and the word shall which was used in the earlier provision and which indicated that the Court was obliged to treat and decide an issue of law, as a preliminary issue has been replaced by the word may in the amended provision which indicated that it is in the discretion of the Court to try an issue of law as preliminary issue. Sub-Rule (2) also further curtails the power of the Court in the matter of the decided an issue which related to the jurisdiction of the Court or to a bar to the suit created by a law for the time being in force. This would show that the intention of legislature, in introducing the amendment in Order 14, Rule 2 of the Code is to restrict the power of the Court in the matter of decided an issue of law as a preliminary issue. (Panchayat Shri Digamber Jain Mandir, Baguwala v. Shri Chiranji Lal Patni[iv])
When to decide preliminary issue
In D. P. Maheswari v. Delhi Administration[v], the Apex Court had observed that preliminary issue should also be decided at the time of deciding all other issues, otherwise it will prolong the proceeding on preliminary issue which may be fought up to the Apex Court.
In the case of Pullaiyannan and Ors. Vs Kunjanna Gounder @ Kunji Gounder and Ors[vi], it was ruled that court may try issue relating to jurisdiction of Court or to legal bar to suit as preliminary issue but this is more in nature of discretion rather than duty and Court is not bound to try any issue despite provision contained in sub rule 2 of Rule 2 of Order XIV of CPC. Words “it may try” are clearly indicative of fact that discretion is given to Court and no duty is cast upon Court to decide any issue as preliminary issue. Provisions of Order XIV Rule 2 are part of procedural law. Such procedural law had been enacted to ensure expeditious disposal of lis and in event of setting aside findings on preliminary issue, possibility of remand can be avoided, as was language prior to unamended Order XIV Rule 2. If issue is mixed issue of law and fact, or issue of law depends upon decision of fact, such issue cannot be tried as preliminary issue. Preliminary issues can be those where no evidence is required and on basis of reading of plaint or applicable law, if jurisdiction of Court or bar to suit is made out, Court may decide such issues with sole objective for expeditious decision.
Question of Limitation and Jurisdiction (Question of limitation and jurisdiction has to be decided by the court even when it is not pleaded in the written statement)
Section 3 of the Limitation Act imposes a duty on the Court to ascertain as to whether a suit filed is within the time and empowers the Court to dismiss such suit barred by time although the limitation has not been set up as a defence. The Limitation Act, 1963 prescribes the period of limitations for filing different kinds of suits. Therefore, it is not that the question of limitation cannot be decided as preliminary issue at all. However, if in the opinion of the Court while deciding such question of limitation it requires to go into the question of fact related to the plea of limitation, the Court no doubt cannot decide such issue as a preliminary issue, the same being the mixed question of law and facts but when the averments made in the plaint is clear and from reading of such averments and by accepting the same as true, if it is evident that the suit is barred by time, the Court no doubt can decide the question of limitation as preliminary issue.(Lalchand Sha v. Kalabati Devi[vii])
The Supreme Court in the case of R. NAGARAJ (DEAD) THROUGH LRs. AND ANOTHER VERSUS RAJMANI AND OTHERS[viii], observed that a Court can dismiss a suit as time-barred, even if no specific issue regarding limitation was framed. This is because of the mandate of Section 3 of the Limitation Act, as per which a Court must dismiss any suit, appeal, or application that is time-barred, even if the defendant has not specifically raised the issue in the pleadings.
The Limitation Act,1963 restricts the right of a litigant by prescribing a time limit within which action must be initiated. Its object is to provide a time or period, within which, the action has to be initiated. The object of the Act is not to destroy a vested right available in law but to prevent indefinite litigation and therefore, only prescribes a period for initiation of the litigation.”, the court observed.
The Court stated that the purpose of framing issues is to determine the material point of disputes between the parties, for the purpose of adjudication. Also, it noted that there is no necessity to frame an issue, when the parties are not at dispute on a particular fact or law, because “when both the parties to the lis have let in evidence and rendered their arguments on a point, the decision on which is intrinsically connected to the main issue, then the Court is bound to render a finding on the point of dispute before deciding the connected issue, one way or another.”
In other words, it becomes the bounden duty of the court to render a finding on the issue intrinsically connected to the main issue, irrespective of the fact that the issue was not framed during the trial court. Though the issue relating to the limitation, even though not raised in the Appellant/defendant’s pleadings, Section 3 mandates the court to ascertain whether the suit filed was within limitation or not, and failure to frame a separate issue of limitation would not prove fatal to the judgment rendered by the trial court.
The Court added that failure to frame a separate issue of limitation, being procedural in nature, would not curtail the Court’s power to do substantial justice when a specific finding was rendered by the court on issues that were not separately framed.
“All that is required under law, is for the Court to render a finding on the particular fact or law in dispute, on the facts of the case. However, we make it clear that such evidence, in the absence of pleadings, cannot permit either of the parties to make out a new case. It is pertinent to mention here that the Courts are vested with powers to go into the question of law, touching upon either the limitation or the jurisdiction, even if no plea is raised and not in cases, where facts have to be pleaded and evidence has to be let in. The Civil Procedure Code and the law of limitation, being procedural laws, meant to assist the Courts in the process of rendering justice, cannot curtail the power of the Courts to render justice. Procedural laws after all are handmaid of justice. What is to be seen is whether any irregularity arising from a failure to follow procedure has caused serious prejudice to the parties. It is not to be forgotten that the process of adjudication is to discern the truth”, the court observed.
The provisions of this Rule came up for consideration before the Hon’ble Supreme Court in Major S. S. Khanna vs. Brig. F.J. Dillon[ix], 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 14, Rule 2 Civil Procedure Code 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. (Ramesh B. Desai v. Bipin Vadilal Mehta[x])
Rest of the topics will be dealt in Second and Third Part.
[i] 1999 (2) ALT 14.1 (DH OHC), 1999(1) CCC 265 (Karnataka)
[ii] 2006 (3) ALT 708
[iii] AIR 1988 All. 299
[iv] 1989(1) C.C.C. 395 Raj.
[v] AIR 1984 SC 153
[vi] 2023 3 Cur CC 84
[vii] 2007 SCC OnLine Gau 169 (2008) 2 AIR Jhar R (NOC 421) 158).
[viii] 2025 LiveLaw (SC) 416
[ix] AIR 1964 SC 497
[x] AIR 2006 SC 3672
Very hely for our daily practice ty sir 🌹🙏