To read first part, click here: https://lawgicalhs30.in/part-i-framing-of-issues-its-importance-and-practical-difficulties-surrounding-it/
To read second part, click here: https://lawgicalhs30.in/part-ii-framing-of-issues-its-importance-and-practical-difficulties-surrounding-it/
In the last part of three-part blog series I will be discussing Order 14 R.5, a provision that gives vast powers to the court to amend, add and strike out issues at any time before passing of decree, whether parties will be allowed to adduce evidence after addition or amendment of issues, failure of civil court to frame an important issue, whether court can decide the questions arising outside the scope of issues framed and lastly how to correctly frame and put onus of proof on issues.
Power to amend and strike out, issues (Order 14 Rule 5)
(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.
The application to frame an additional issue which arises on the basis of the pleadings cannot be disallowed on the ground that the plaintiff has already led his evidence. Rule 5 of Order 14 is clear that the issue can be framed at any time before the passing of the decree. (Hari Chand v. Krishan Kumar[i])
While framing additional issue, a party cannot compel the Court for the same. It is purely discretion of the Court which is to be exercised in a judicial manner. However additional issue should not be framed to convert the nature and character of the suit., (Jitta Anji Reddy & Anr. v. Ahmed Ali Khan & Anrs.,[ii])
The amendment or striking of an issue since as already observed cannot be read in parlance to framing of a new issue, the provision under Order 14 Rule 5 of CPC, in itself leaves it absolutely a prerogative with the Trial Court and that is why it has used the word “may.” “Amend or frame additional issues” on such term and conditions “as it thinks fit.”
The word “may” which is not mandatory and is discretionary in nature, it has been left exclusively at the prerogative of the Trial Court to amend or frame an additional issue as may be necessary for the purposes of effectively determining the matter. The word “shall” used in the concluding part of sub Rule(1) of Rule 5 of Order 14, should not be misunderstood to override the effect of the word “may”, as used in the first part of Rule 5 of Order 14.
Whether parties to be provided with opportunity to adduce evidence and opportunity to argue their case after the issues are added or amended
In Abdul Karim vs. Ashok Das[iii], the issues were recasted by the trial Court while writing the judgment. The parties were not given an opportunity to adduce evidence or advance arguments on the recasted issues. The Court held that Court has wide powers to amend or frame issues but this power cannot be exercised without giving an opportunity of hearing to the parties. Decision on such issues cannot be made on the basis of the evidence already produced.
In S. Gause Mohideen vs. M. Sivalingam[iv], the Trial Judge, suo motu recasted the issues in the judgment without informing parties and judgment was pronounced on the basis of evidences already available. It was held that it was not open for the Trial Court to recast issues after posting the matter for judgment and that too without giving an opportunity of hearing to the parties.
In Md. Abdul Majeed Khan vs. Mohd. Abdul Jaleel Khan[v], the Trial Court recasted the issues in the judgment without notice to the parties and dismissed the suit on consideration of the issues. Appeal was filed before District Court which set aside the judgment on the ground that after recasting of issues parties were not given an opportunity of hearing. The appellant filed an appeal against order of the District Court contending that although the issues were recasted, the issues were substantially similar to the issues framed earlier. The High Court held that there are no reasons in the judgment of the trial Court as to why the issues were recasted. The Court owes a duty to bring to the notice of the parties the issues which are recasted and give them an opportunity to adduce evidence if they choose to do so and then pronounce the judgment on merits.
Again, in Santhi vs. Sigaman[vi] the trial Court had recast the issues after the matter was posted for judgment without putting the parties on notice. The High Court observed that once the issues were recast, the proper course was to reopen the case and pronounce verdict after eliciting the responses of the parties.
The Supreme Court in Mahadeva vs. Tanabai[vii], set aside the judgment of the High Court on the ground that HC had framed questions during the course of writing the judgment in departing from the issues originally framed.
In M/s. Soni Hospital vs. Arun Balakrishnan Iyer[viii] by reason of the recasted issues in the judgment, the burden of proof that was originally on the plaintiff shifted upon the defendants. The Madras High Court observed that when the issues originally framed, are recast or issues are added, the parties should not only be put on notice, but also be given an opportunity to forthwith evidence.
Failure of a civil court to frame an issue
If the court does not frame a specific issue on a contested point of fact or law, that does not affect the overall validity of the trial, or vitiate the trial. In Nagubai Ammal v B. Shama Rao[ix], the Supreme Court held that the framing of a wrong, improper or defective issue does not vitiate the trial, as long as the parties entered the trial knowing the other side’s case in full, and led evidence in respect of the question which the court decided upon.
Power of the court to decide on questions outside the issues framed
A court should not decide upon a question of law or fact which was not pleaded by either party, and in respect of which no specific issue was framed after the completion of pleadings as well. A party approaching a civil court claims specific reliefs and lays down its position in its pleadings. The court’s framing of issues on the competing factual averments contextualises the real controversy between the parties. Therefore, if an issue is not framed by the court, since no pleading or relief was claimed towards such an issue by either party, the court cannot determine such a question and pass a decree based on the same, since the parties have had no chance to address such an issue in the first place.
The Supreme Court in Bhagwati Prasad v. Chandramaul[x], and Ram Sarup Gupta (through his LRs) v. Bishun Narain Inter College, has emphasised that in the absence of pleadings, if it appears that the suit was decreed on a specific issue which was not framed or in the knowledge of the counterparty, thereby preventing the party from leading any evidence on such an issue, the decree passed by the court would be unsustainable.
This was reiterated in Bacchaj Nahar v. Nilima Mandal and another, where the Supreme Court held that in a suit which concerned issues of the title over property, the determination of an unrelated issue of easementary right over the property (which was neither pleaded by either party, nor an issue framed) would render the decree unsustainable in law.
Exception to the above rule
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[xi], where it was observed that Defendant pleading perfection of title by adverse possession. Issue not framed. However evidence 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[xii], it was held that ” Both parties have led 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[xiii], it was observed that issues were not framed and therefore, the matter remitted back to trial court to frame issues as indicated and give reasonable opportunity to the parties to lead evidence etc.
“The object of framing an issue is to determine the material point of disputes between the parties, for the purpose of adjudication. Issues can be framed on a question of law or fact or a mixed question of law and fact. The decision on the issue settles the lis in favour of either of the parties. A distinct issue is to be formed when a material proposition of law or fact is affirmed by one party and denied by another. Also, there is no necessity to frame an issue, when the parties are not at dispute on a particular fact or law. At times, despite pleadings, when a specific issue is not framed, but 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 that case, it becomes the duty of the Court to analyze the evidence before it and render a decision on all disputed questions of fact or law, directly or indirectly in issue, so as to put an end to the lis.
Can issues be framed in Negative form
In Laxman Bapu Berad vs Sudhakar Nanasaheb Jawale[xiv], it was held that it is not necessary to over emphasis the well established proposition that negative issues should not normally be framed. The relationship of the tenant and the landlord is a positive fact and will have to be proved by the positive evidence by the party who alleges it.
“Does defendant prove that there is no relationship as tenant-landlord between himself and the plaintiff?”
Even if the defendant denies it, it does not mean that defendant should be cast with the burden of proving that there is no such relationship. Any evidence adduced by such party would be only in rebuttal of the evidence which the plaintiff may lead in discharge of his initial burden. Therefore, apart from the directions of the lower Appellate Court to frame the additional issue in respect of ownership of the suit house. I direct the learned trial Judge to re-frame this issue in the positive manner casting burden on the plaintiff to prove this relationship.
In C. Vellaisamy vs C. Chinnakannu[xv], it was stated by the court that, what is revealed is that it is suit filed by the appellant herein for declaration of his title to the suit property and for delivery of possession, but this Court is able to find that the trial court has not even framed an issue to decide the delivery of possession, so as to allow the parties to let in evidence on that part of the relief sought for by the appellant/plaintiff. From the issues framed by the trial court, it comes to be known that the first issues pertaining to declaration is framed in the negative form, whether the plaintiff is not entitled to the suit property since the plaintiff has come forward to file the suit claiming that he is entitled to the suit property. Looking at the case of the plaintiff from the angle of the defendant, the trial Court has framed the first issue regarding title in the negative from thereby causing a confusion as to whose burden it is to prove, whether it is the burden cast on the plaintiff to positively prove that he is entitled to the suit property or whether it is the burden cast on the defendant to prove that the plaintiff is not entitled to the suit property. Therefore, even while framing the first issue itself, the trial Court has committed a legal blunder, which is unacceptable in law. Issues, to the extent possible, must be in the simpler and positive form so as to make it clear as to whose burden it is to prove so far as that issue is concerned in spite of the fact being that it is the preponderance of probability that ultimately decides the whole case. Improper issues framed are susceptible to cause much confusion in deciding the matter ultimately.
Gaurav Goel vs Ramji Dass & Ors.[xvi]
In this case the court was dealing with a trial court judgment where the following issues were framed:
- Whether suit of the plaintiff is not within time? OPD
- Whether plaintiff has no locus standi to file the present suit? OPD
- Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD
- Whether suit is bad for non-joinder and mis-joinder of necessary parties? OPD
Order 14 Rule 1 CPC provides that the Court would frame issue on each material proposition of law or fact which a plaintiff alleges in order to show a right to sue or a defendant alleges in order to constitute his defence.
This Court has come across various orders passed by the Courts below wherein the issues are framed only on the basis of the prayer made in the suit. This is not the requirement of Order 14 Rule 1 CPC. The issues are to be framed on the basis of the assertions made by the parties in the pleadings. The issues have to reflect the application of mind and the controversy involved in the suit. The issues are never framed placing negative onus on the party. Whichever party is asserting the particular right or fact or position of law, the onus has to be on that party to prove such fact. A look at the amended issues framed by the trial Court clearly show that the Court placed a negative onus on the plaintiff. These positive assertions were being made by the defendants.
[i] 1999(3) C.C.C. 67 (P&H).1998 SCC On Line P&H 504
[ii] AIR 1992 NOC 4 (A.P.
[iii] 2004 SCC OnLine Gau 381
[iv] 2010 SCC OnLine Mad 3380
[v] MSA No. 561 of 2010
[vi] CMP No. 4145 of 2017
[vii] (2004) 5 SCC 88
[viii] OSA No. 391 of 2003
[ix] 1956 AIR 593, 1956 SCR 451
[x] AIR 1966 SC 735
[xi] 1997(2) ALT 625 (D.B) = 1997(2) APLJ 220
[xii] 1997 (4) CCC 304 (Orissa) = 1998(4) ALT 1.5 (DN OHC) = 84 (1997) C.L.T. 534
[xiii] 1998(3) An.W.R.340
[xiv] 1998 (2) BomCR 259, 1998 (1) ALLMR 667
[xv] 2000 0 Supreme (Mad) 941, 2000 3 MLJ 767
[xvi] 2017 0 Supreme(P&H) 2749, 2017 5 Law Herald 112