the Court may examine his pleader-Gunga Narain vs. Tiluckram, 15 Ind. App. 119, p. 121.

An order made by a Judge on the Original Side at settlement of issues fixing a date for final disposal is not an order under section 156, post-R.- vs. R.-, I. L. R., 14 Mad., 88.

Allegations

from

which issues may be framed.

147. 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 or persons;

(b) allegations made in the plaint or in the written statements (if any) tendered in the suit, or in answer to interrogatories delivered in the suit;

(c) the contents of documents produced by either party.

Act VIII of 1859, section 139. This section applies to H. C.

Examination of the Parties.-If both parties appear, so that the Court can ascertain from them the points in dispute, issues should be recorded; but if either plaintiff or defendant does not appear, the Court should deal with it accordingly and is not bound to frame issues-Ameer Ali vs. Imamooddeen, 15 W. R., 145.

Pleading; Effect of not Raising an Issue: Admission.-Where a title is put forth and not denied, nor issue raised, the effect of the omission to deny may be the same as if the party omitting to deny the title admitted it. Thus, where plaintiffs claimed certain rights over tenants as sudder putneedars, and this claim was not denied, but defendants set up an intermediate tenure, but did not deny the existence of plaintiff's tenure or raise an issue upon it, it was held that the plaintiffs were not bourd to prove their title-Chundee Churn vs. Mobaruck, 12 W. R., 469; and where plaintiff claimed under certain mortgages, and the defendant confined himself to saying that "the mortgages created by those bonds are insufficient and unjust," and did not move the Court to raise an issue as their bona fides, it was held that the mortgages were bona fide transactions, Couch, C. J., said: "If the defendant really intended by this portion of his written statement to raise such a question, he might have requested the Lower Court to frame an issue upon it. The plaintiff would then have had notice of such a question being raised, and might have produced evidence upon it and satisfied the Court that the mortgages were bona fide transactions. As no such issue was raised at the first hearing, we must take it that such a case was not put forward by the defendant, so as to make it necessary for the plaintiff to give any evidence on the point. It was said by the Judicial Committee, in a suit tried before the Code of Civil Procedure (Anund Moyee Chowdrain vs. Sheeb Chunder Roy, 2 W. R., P. C., 19; 9 Moore, 301), that they cannot apply the strict rule that averments not traversed must be taken to be admitted; but where, in a suit under the Code, issues have been settled, averments upon which no issues is framed should be taken to be admitted, as the Court, before proceeding to frame and record the issues, is directed to enquire and ascertain upon what question of law or fact the parties are at issue"-Ahmedee Begum vs. Dabee Persaud, 18 W. R., 287; and see Dwarka Doss vs. Jankee Doss, 6 Moore, 88; Mohima Chunder vs. Ram Kishore, 15 B. L. R., 155; contra-Madhopersad vs. Gajudhar, I. L. R., 11 Cal., 111, p. 118. And in general it may be laid down, that only such averments should be made the subject of issues as are essential to support the cause of action and are denied by the defendant, or as are essential to support a plea and are denied by the plaintiff-Birch vs. Furzind Ali, 3 Alla., 303. But see Bhoobun Chunder Shome vs. Ram Dyal, 14 W. R., 55.

Interpretation.-In case of a vague issue the judgment may be used to interpret itKamini Debi vs. Asutosh Mookerjee, 15 Ind. App., 159, p. 163.

Estoppel, Mortgage, Redemption.-A pleading in a suit not between the same parties can never be an estoppel; it may be an admission-Mirza vs. Pidaparti, 13 Ind. App., 32, p. 42; and an admission by one defendant does not bind the others-Kali Dutt vs. Abdul, I. L. R., 16 Cal., 627. A petition asking for postponement of a sale is not an estoppel, and does not prevent the debtor pleading limitation-Mina vs. Juggat, I. L. R., 10 Cal., 196. Although the parties understood that a mortgage had been converted into a sale and admitted such in depositions and pleadings, such admissions did not operate as an estoppel or prevent the mortgagor from redeeming his property-Abdul Rahim vs. Madharav, I. L. R., 14 Bom., 78; and see Venkatratnam vs. Reddiah, I. L. R., 13 Mad.,

494. See also Ralli vs. Caramalli, I. L. R., 14 Bom., 102, p. 111. But if a company can only hold land in a certain way under Statute, they cannot plead that they became possessed of the property otherwise than by the Act-Overseers of Putney vs. London and S. W. Ry., 1 Q. B. (1891), 440; and if a plaintiff sues persons apparently liable and defendants put in a defence, and afterwards attempt to enter another defence when the suit against the proper persons is barred, he will not be allowed to do so-Steward vs. North Metn. Tram. Co., 16 Q. B. D., 556.

Issues. When a plaintiff relies on a lease, the genuineness of which is disputed, the issue must be whether it is genuine or not-Thakooranee Dossee vs. Goluck Chunder, W. R., 157; in a suit for a kaboolyat of 25 parcels of land, the defendant alleged that he only held three and those not as plaintiff's ryot, the issues were held to be: (1) whether the ryot was in possession of only three or more than three parcels in the lands in question; and (2) whether plaintiff was entitled to receive a kaboolyat for all or any of those parcels-Radha Kishore vs. Goluck Chunder, 11 W. R., 366.

Rent-Suit. Where a cultivator sued his landlord to pay less rent than had been assessed by a Sub-Collector in an order A, and to obtain a refund, and the Judge fixed an issue whether the defendant was entitled to rent at the rate specified in A, it was held that the proper issue should have been what was fair and reasonable rate of rentKutty Subramaniya vs. Chinna, 3 Mad., 25; in a suit for rent where defendant pleads a lakheraj title, the issue is not whether defendant's title is good but whether plaintiff has ever received rent-Purbooddeen Mullick vs. Molaem, 14 W. R., 149. In a rent-suit defendant denied that he held under plaintiff, and alleged that the jote belonged to two persons; that he, defendant, purchased the rights of one of them under a decree sale, and subsequently obtaining a sub-lease from the second sharer, he was liable to pay him and not plaintiff, it was held that the issues were: (1) whether defendant held in succession to the previous tenant, or the jote really belonged to two persons; (2) if so, if any decree had been passed against one of those persons under which the rights of that tenant alone could have been and were sold; (3) and whether consequently the defendant had acquired the jote or a portion of it only, and if he held the entire jote he would be liable -Missleback vs. Luchmee Narain, 17 W. R., 504.

Mortgage, Account.-In a suit by mortgagees in possession the proper issue is the terms of the mortgage and not previous possession unless limitation is raised-Khoob Chund vs. Uchul Singh, S. D., N. W., 1852, p. 87; in a suit on an account admitted as correct, the issue is whether the accounts have been admitted, and not whether they are correct-Pransookh Khan vs. Ramzan Khan, S. D., N. W., 1863, p. 300; and where A and B were sued as agents, for moneys received on behalf of their principal and they pleaded payment, the issue was whether they had paid-Bykunt Nath vs. Kalee Churn, 17 W. R., 149.

Malicious Prosecution. —A suit for instituting a suit against another, the issues are whether the former complainant acted maliciously and without probable cause-Ram Buddun Singh vs. Sirdar Dyal, 17 W. R., 101.

Against Representative.-When a suit was brought against the defendant as the representative of a person deceased, and the Courts below found that the amount was due, but that the defendant had not taken possession of any property of the deceased person: Held, the Court should have determined the further question whether the defendants were legal representatives of the deceased and entitled to his estate-Avul Khadar vs. Ardhu Set, 2 Mad., 423.

Easement.-As to the proper issues in a suit to establish an easement by prescription when limitation is pleaded under section 26, Act XV of 1877, see Achul Mahta vs. Rajun Mahta, I. L. R., 6 Cal., 812; and in case of a presumed grant, see Rajrup Koer vs. Abul Hossein, I. L. R., 6 Cal., 394; Punja Kuvarji vs. Bai, I. L. R., 6 Bom., 20.

Omission to Settie Issues.-The omission to settle issues is not fatal to the trial of the suit, if it appears that the necessary points have been raised and discussedKatchekaleyana vs. Kachivijaya, 12 Moore, 495; Muttayan vs. Sangili, 12 C. L. R., 169, p. 174; and where both parties invoked the decision of the Court upon a question raised by the pleadings and the question was argued, it was held that the judgment upon it was not ultra vires, because an issue was not framed embracing the whole question-Soorjomanee Dayee vs. Suddanand Mohapattar, 20 W. R., 377; and so, if the parties have gone to trial, well knowing what the real question is between them, and evidence has been taken, the errror is not fatal-Mitna vs. Fazl Rub, 13 Moore, 573; 15 W. R. (P. C.), 15, and especially so when this procedure has been adopted without objection-Mahomed Basircollah vs. Ahmed Ali, 22 Ŵ. R., 448; but if the case is complex, and a settlement of issues is considered necessary, the case may be remanded on appeal for a new trial after settling and recording the points in dispute-Rewun Pershad vs. Jankee Pershad, 11 Moore, 25; Jogeshur Rae vs. Doolun, 2 Alla., 183; Nilatatchi vs. Venkatachala, 1 Mad., 131; but see Anundo Lall vs. Boycauntram, 4 C. L. R., 473.

On What Fixed.-The plaint and written statements are the pleadings in a suit, and issues may be framed on them-Kissen Lall vs. Lalljeemul, 1 Ind. Jur., N. S., 361;

but the Courts are not bound rigidly to adhere to the allegations set forth in them, where the real points in dispute are often missed by bad drafting-Apaya vs. Rama, I. L. R., 3Bom., 210, but may frame the issues from the allegations made by the parties orally or otherwise-Thakur Rohan vs. Thakur Surat, 12 Ind. App., pp. 56-7; or from the statement of their pleaders-Mahomed Mahmood vs. Safar Ali, I. L. R., 11 Cal., 407; Gunga Narain vs. Tiluckram, 15 Ind. App., 119; or from the answers to the questions put by the Court to elicit the material facts-Modhe vs. Dongre, I. L. R., 5 Bom., at p. 614, although the plaint may be very informal-Petabharaian vs. Trilokonath, I. L. R., 11 Cal., 186, p. 193; or by itself disclose no cause of action-Man Gobind Sircar vs. Umbika Monee, 16 W. R., 218; Moulvie Abdoollah vs. Shaha Majeesooddeen, 15 W. R., 286; or the real facts may differ from the statements contained in the plaint or written statements, or have not appeared in them-Soonder Narain vs. Shaikh Namdar, 21 W. R., 407, and make them more general_than the answers of the pleader on specific points-Radha Prasad vs. Lal Sahab, I. L. R., 13 Alla., 53, p. 64; Kamini Debi vs. Asutosh, 15 Ind. App., p. 163; and see Gunga Pershad vs. Maharani, 12 Ind. App., 47, p. 50; provided the state of facts and equities there set up are not inconsistent with the pleadings-Bizjee Bibee vs. Monohur Doss, 2 Ind. Jur., N. S., 118; Eshenchunder vs. Shamachurn, 11 Moore, 7. Thus, where the cause of action stated in the plaint was that a document was a forgery, it was held wrong to raise an issue as to whether it had been executed under pressureMahomed Buksh vs. Hosseini, 15 Ind. App., 81; Iyyappa vs. Ramalakshamma, I. L. R., 13 Mad., 549.

Issues Agreed On. - And if a Court goes beyond the rights which are properly in issue between the parties, the decree of the Court is absolutely null and void-Robinson vs. Duleep Singh, 11 C. D., 813. If both parties have agreed to abide by certain issues, they are bound by them-Shew Sukoy vs. Wajed Ali, 13 W. R., 205; Moondur Beebee vs. Hunooman, 11 W. R., 277; Beer Chunder vs. Tarinee Chunder, 11 W. R., 20; so much so that when a defendant, pleading limitation, rested it on the fact that he had been twelve years in possession he was held barred in special appeal from saying that it did not dispose of the question of limitation-Kisto Mohun vs. Noyan Tara, 10 W. R., 389. As to the changes allowed, see note under section 53.

Co-Defendants.-No issue can be decided between co-defendants if the suit is dismissed-Bevan vs. Crawford, 6 C. D., 29, and see Degumber Milter vs. Khettur Mohun Mitter, 2 W. R., 45; and the decision of issues between plaintiff and two defendants claiming under opposite titles is not decisive as between the defendants-Kalee Kinkur vs. Kristo Mungul, 11 W. R., 462: contra-Mudhavi vs. Kelu, I. L. R., 15 Mad., 265. See under section 13, ante.

Appellate Courts.-In appeal the case must be dealt with not on the mere wording of the plaint, but on the issues settled for trial and the manner in which the case was tried by the first Court-Rup Singh vs. Baisni, L. R., 11 Ind. App., p. 155; I. L. R., 7 Alla., 1; Moung vs. Mah, I. L. R., 11 Ind. App., 109, p. 120. And where issues have not been settled, but the judgment states the points for consideration, then, although the written statement does not raise the same points, they will be looked on as the issues-Gunga Pershad vs. Maharani, 12 Ind. App., 47, p. 50.

If the first Court has fixed and tried the wrong issues, the Appellate Court should lay down the proper issues, unless the issues decided have been agreed on by the parties-Beer Chunder vs. Tarinee Chunder, 11 W. R., 20; or have been sufficient to dispose of the matters raised in the pleadings-Bhubon Mundul vs. Belas Money, 1 Shome, 138; or the new issues would be a complete departure from the case set up in the Lower Court-Punchanun Roy vs. Toyluckho, 14 W. R., 466. But see Madhopershad vs. Gajudhar, I. L. R., 11 Cal., 111, p. 113.

New Issues. Where a new and different issue is raised, it should be raised such a way as to give the parties the fullest opportunity of producing evidence upon it, because if it is at all likely that, in consequence of the issues in the first Court, the parties are induced to abstain from giving evidence, it would not be right to decide against them on account of the want of evidence-Latoo Mundul vs. Bhoobun, 17 W. R., 361; Ram Persaud vs. Kristo Mohun, 18 W. R. 297; and properly speaking, the Judge should, with some degree of formality, frame the issues and record whether the parties had desired to offer any evidence on them; but whether this is done or not, the pleaders should take care to move the Appellate Court that they may be allowed to tender evidence, otherwise the losing party may possibly be debarred from urging in special appeal that he had been misled by the issues laid down by the first Court-Eshan Chunder vs. Dhonaye, 11 W. R., 61. See, however, Latoo Mundul vs. Bhoobun, 17 W. R., 361.

In no case should an Appellate Court set aside a decision of the Lower Court on a point which, though essential, has not been raised in it, without framing an issue on the point and properly deciding it-Mahomed Rasid Khan Chowdhry vs. Jadoo Mirdha, 20 W. R., 401; and see The Official Trustee vs. Krishna Chunder, 12 Ind. App., 166; I. L. R., 12 Cal., 239.

Court may examine witnesses or documents before framing issues.

148. If the Court be 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 the issues to a future day to be fixed by the Court, and may (subject to the rules contained in the Indian Evidence Act) compel the attendance of any person, or the production of any document by the person in whose hands it may be, by summons or other process.

Act VIII of 1859, section 140. This section applies to H. C.

149. The Court may at any time before passing a decree Power to amend, add amend the issues or frame additional issues and strike out issues. on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the controversy between the parties shall be so made or framed.

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.

Act VIII of 1859, section 141. This section applies to H. C.

Power to Amend -The power of amending issues under this section is almost the same as the power of amendment given to Judges in England by section 222 of the Common Law Procedure Act of 1852-Nehora Roy vs. Radha Pershad, 4 C. L. R., 353; I. L. R., 5 Cal., 64. At any time before decree, the Court may frame an additional issue embracing matter not included in the plaint, but not inconsistent with it or with the prayer thereof-Modhe vs. Dongre, I. L. R., 5 Bom., 609.

In what Cases Exercised.-Instead of dismissing the suit for any error in the plaint, the proper plan is to amend the issues whenever it appears necessary, so as to raise the real questions in difference between the parties-East Indian Railway Co. vs. Jordan, 14 W. R., O. A., 11; Shookoomar vs. Cruise, 6 W. R., Act X, 105; and where after the evidence of both parties had been taken, the principal defendant applied to file an amended written statement which raised a new defence, it was held that the Court was bound to receive it if it embraced the real question between the parties and to have amended the issues-Bolye Meah vs. Khetoo Gorai, 20 W. R., 208; but see Baboo Lall vs. Ram Narain, Coryton, 8, where it is stated that when there has been a hearing and settlement of issues, the Court will not exercise its discretionary power to raise a new issue except on clear proof of inadvertence or mistake or the discovery of new matters affecting the merits, and that such matter was not within the knowledge of the parties at the date of the former settlement of issues. And see also Douglas vs. The Collector of Benares, 5 Moore, 220. And in Nehora Roy vs. Radha Pershad Singh, 4 C. L. R., 353, it was held that a Judge is not bound, as a matter of law, to raise an issue on a point not disclosed in the pleadings, even though it be a point of jurisdiction.

Where no issue has been laid down, and the case is complex-Rewan Pershad vs. Jankee Pershad, 11 Moore, 25, or the issue, though in terms covering the main question does not sufficiently direct the attention of the parties to the main question of fact, and a party may have been prevented from adducing evidence-Oolagappa Chetty vs. Arbuthnot, L. R., 1 Ind. App., 268; 14 B. L. R., 115, their Lordships of the Privy Council have fixed new issues and remanded the case for trial. See as to 66 AMENDMENT of PLAINT," note under section 57, ante.

Limitation of Exercise.-The Court is not bound to try the suit in the manner in which the plaint is framed, for its object is merely to bring the matter in dispute between the parties before the Court; but on the settlement of issues the Judge is to

ascertain the question-Arbuthnot & Co. vs. Betts, 14 W. R., 181; yet if a plaint and its proof lead to particular issues, the Court is bound to raise them and give relief, provided they do not come by surprise on the defendant-Obhoy Churn vs. Woomesh Chunder, 2 Hyde, 263; but see Deewan Dyashunker vs. Ameenooddeen Khan, 3 Agra, 246, and are fairly within the scope of the pleadings-Kishun Pershad vs. Bhowanee Deen, 1 Agra, 47; or not inconsistent with them-Eshan Chunder vs. Shama Churn, 6 W. R. (P. C.), 57; Sharoda Koomaree vs. Mohinee Mohun, 20 W. R, 272; Verasvami Gramini vs. Ayyasvami Gramini, 1 Mad., 471; Sidhee Nuzur Ali Khan vs. Ojoodhyaram, 10 Moore, 552; Modhe vs. Dongre, I. L. R., 5 Bom., 609, 614; Damodar vs. Parmandas, 1. L. R., 7 Bom., 155, p. 161; Narayan vs. Hari, I. L. R., 13 Bom, 664; but a plaintif will not be allowed to set up one case and having proved another ask issues to be raised to suit the proof-Obhoy Churn vs. Woomesh Chunder, 2 Hyde, 263. In some cases the Courts have gone beyond this and have allowed issues to be raised not within the scope of the pleadings, but this is a matter of discretion under the first portion of this section-Nehora vs. Radha Pershad, 4 C. L. R., 353; I. L. R., 5 Cal., 64. A Court should not record a proceeding declaring itsintention to frame additional issues, and leave the actual framing for the time of giving judgment-Kamul Kamini vs. Obhoy Churn, 15 W. R., 151; on the contrary it should frame the issues, and fix a convenient day for their trial, regard being had to the facilities which the parties may have for producing their evidence-Sreehuree Mundul vs. Judoonath, 10 W. R., 169.

Already Settled.-When a Judge at the settlement of issues has refused to raise a certain issue, the question ought not to be re-opened at the trial by the then presiding Judge-Bolye Chund vs. Moulard, I. L. R., 4 Cal., 572; see also the case of Nehora vs. Radha Pershad, 4 C. L. R., 353; I. L. R., 5 Cal., 64; and Robinson vs. Duleep Singh, 11 C. D., 813. As to when the amendment may be set aside on appeal, see Narayan vs. Hari, I. L. R., 13 Bom., 664.

First Appeal.-In a declaratory suit if an objection is not taken under section 42 of the Specific Relief Act in the first Court, the plaint may be amended in appeal and a fresh issue framed, and the same rule applies if the defendant, while denying possession, does not raise a distinct issue upon it; but the Judge finds he is in possession of a portion of the property in dispute-Abdulkadar vs. Mahomed, I. L. R, 15 Mad., 15.

Special Appeal.-If the question has not been raised in the plaint, written statement or issues of the first Court, or in the grounds of first appeal, and the evidence has not been directed to it, it should not be raised in special appeal-Ameeroonnissa vs. Abedoonissa, L. R., 2 Ind. App., 87; Sharoda Koomaree vs. Mohinee Mohun, 20 W. R., 272.

Issues Allowed.-Every matter fairly within the scope of the plaint, if important for the decision of the substantive difference between the parties, should be framed into an issue, and the duty of framing them is thrown on the Courts in order to render substantial justice, and to prevent a party suing from being remitted to a new suit, when, by a suitable order as to terms upon which amendment shall be made, the Court by framing additional issues can determine in the existing suit the real question in controversy between the parties.

Account Settled; Suit on Items.-Thus, where A sued on an account settled, and failed to prove the alleged settlement, it was held that the suit should not have been dismissed, but that the Judge should have framed issues with regard to the items composing the account which were not barred, and given judgment on the merits-Kishun Pershad vs. Bhowanee Deen, 1 Agra (F. B.), 47; Dwarka Doss vs. Jankee Doss, 6 Moore, 88; Obhoy Churn vs. Woomesh Chunder, 2 Hyde, 263.

Partners.-Plaintiffs sued as partners, and it appeared on the evidence that two of them only were partners when the cause of action arose, and the Lower Court struck out the other names, it was held that this was wrong, and that the proper course would have been to amend the issues and raise the question whether the plaintiffs were or were not partners, and if it were found on the amended issue that only two of them were partners when the cause of action arose to have decreed in their favour-East Indian Railway Co. vs. Jordan, 14 W. R. (O. A.), 11.

Misdescription of Plaintiff.-In a suit for possession of land, where plaintiff described himself as the son of B, and defendant alleged that the land never belonged to B, but had been settled in the name of an idol and was then in possession of S, under whom he (defendant) held it under a lease and mortgage-deed; and the plaintiff, on the day on which the suit was finally disposed of, petitioned that he was the son of S, and was alleged to amend his plaint,-it was held that the Court should not have disposed of the case on that day, but should have framed issues and allowed the defendants every opportunity to produce evidence--Durga Narain vs. Brojo Kisore, 23 W. R., 172.

Mis-joinder of Defendants.-And so if a suit is brought against two persons, the Court can raise an issue whether one of them is solely liable, and, on finding him solely liable, pass a decree against him--Banee Madhub vs. Bipro Dass, 15 W. R., 69.

Possession; Foreclosure. In a suit for possession, defendant pleaded limitation, but his witness unexpectedly disclosed that he was a mortgagee,-it was held that it was the