S. 146 CHAPTER XI. OF THE SETTLEMENT OF ISSUES. 146. Issues arise when a material proposition of fact Framing of issues. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue. Each material proposition affirmed by one party and denied by the other must form the subject of a distinct issue. 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 such examination of the parties as may appear necessary, ascertain upon what material propositions of facts 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 the Court to depend. When issues both of law and of fact arise in the same suit, and the Court is of opinion that the case 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. Nothing in this section requires the Court to frame and record issues when the defendant at the first hearing of the suit makes no defence. Of the framing of issues.-The plaint and written statement in a suit are called pleadings. Section 58 of the Evidence Act enacts that no fact need be proved at the hearing which a party has admitted by his pleadings. Issues are to be framed in respect of those facts only which are not admitted, and which are in dispute between the parties. Issues, however, will not be framed on all points in dispute between the parties, but those points only on which the right decision of the case depends. When an issue is framed as to a proposition of fact, it is said to be an issue of fact; when an issue is framed as to a proposition of law, it is said to be an issue of law. Thus if A sues B for damages for breach of a contract, and B pleads in his written statement (1) that the contract is void as being against public policy, (2) that no damages have been sustained by A by reason of the breach, (3) that the Court has no jurisdiction to try the suit, and that the claim is time-barred, the following issues will be framed :— (1) Whether the agreement is a valid and subsisting contract? S. 146 (2) Whether A has sustained any damages by reason of the breach of (3) the contract? Whether the Court has jurisdiction to entertain the suit? and (4) Whether the claim is barred by limitation? Of the above issues, the first two are issues of fact, and the last two are issues of law. No issue will be framed as to the breach of the agreement, as the breach is virtually admitted by B. Object of framing issues.-The object is to direct the attention of the parties to the principal questions on which they are at variance, as also to bring such questions clearly before the Court, so that the Court may know which questions it has to determine to decide the case. Besides this, there is another advantage that attaches to the system of framing issues, namely, the exclusion of irrelevant evidence. As stated by their Lordships of the Privy Council, "whatever system of pleading may exist, the sole object of it is that each side may be fully alive to the questions that are about to be argued, in order that they may have an opportunity of bringing forward such evidence as may be appropriate to the issues" (a). All evidence must be relevant to the issues. No evidence will be admitted that is foreign to the issues. Hence care should be taken in framing issues. They must not be too general, and they must be framed in such a way that the attention of the parties may be sufficiently directed to the main questions of fact necessary to be decided, so that it may not be open to them to say that they were prevented from adducing evidence by the form of the issues (b). Where a material allegation in the plaint is "not denied" in the written statement, and no issue is framed in respect thereof.—A material fact alleged in a plaint may be either (1) admitted, or (2) denied, in the written statement, or (3) it may neither be admitted nor denied. If it is admitted, no issue is to be framed on it. If it is denied, the Court must frame an issue upon it. If it is neither admitted nor denied—and this is the subject-matter of the present paragraph-it is not necessarily to be taken as admitted (c). In such a case it is the duty of the Court trying the suit to examine the defendant, and ask him if he admits or denies the fact. If he denies the fact, the Court must frame an issue as to that fact (d). If the Court omits to frame the issue, and a point is made of it in appeal, the appellate Court may under s. 566 frame the issue, and refer it for trial to the lower Court (e). But though, as a general rule, averments not traversed must not be taken to be admitted, there are cases in which the Court will be justified in holding that what is not denied must be taken to be admitted. Those are cases in which the line of defence taken by the defendant is such that the Court can safely presume that the defendant did not intend to deny facts not denied by him in the written statement or put in issue at the hearing. A sues B for obstructing him in the enjoyment of a piece of land, alleging that he has been in possession for the last fifteen years. The defence is that the land belongs to B, and that B, and not A, has been in possession. [Such being the defence] The allegation of obstruction is not denied by B in his written statement, nor is any issue raised by him as to obstruction. The Court may not under the circumstances frame any issue as to obstruction, and taking the non-denial as an admission, may dispense with proof of obstruction. (a) Sayad Muhammad v. Fatteh Muhammad, Hence if a decree is made for A, it Sheeb Chunder, 9 M. I. A. 301; Madhopersad v. Gajudhar, 11 Cal. 111, 118, 11 I. A. 186. (b) Oolagappa v. Arbuthnot, 14 B. L. R. (d) (e) (c) Natha v. Jodha, 6 All. 406; Anundmoyee v. Ganoo v. Sidheshwar, 26 Bom. 360. Ahmedabad Advance Co. v. Luxmishanker, 30 Bom. 173. will not be a good ground for appeal that the Court did not frame any issue as to obstruction, and that the obstruction alleged was not proved (ƒ). Where a material allegation in the plaint is "denied" in the written statement, but no issue is framed in respect thereof. In such a case, the Court must frame an issue on the fact denied. What is the consequence if no issue is framed on the fact? The answer depends on the following considerations. If, though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the Court, and the Court decides the point, as if there was an issue framed on it, the decision will not be set aside in appeal on the ground simply that no issue was framed on the fact. The reason is that mere omission to frame an issue is not fatal to the trial of a suit (g). But if the point denied in the written statement is not tried at all, or where it is tried, it is tried imperfectly so as to cause failure of justice, the case will be remanded on appeal for a re-trial after framing the necessary issue (h). In other words, omission to frame an issue is an irregularity which may or may not affect the disposal of the suit on the merits. If it does, the appellate Court will remand the case for a new trial to the lower Court after framing the necessary issue. If it does not, the appellate Court will not remand the case (s. 578). Thus in Mitna v. Syud Fuzl (i), their Lordships of the Privy Council said: "In this case the omission to raise the issues was brought before the notice of the appellate Court; the appellate Court expressed its regret, and their Lordships are glad to observe that it did express its regret that the Principal Sudder Ameen had omitted to settle the issues. The (appellate) Court, however, .nevertheless conceived that it was not under any positive obligation to remand the case; but seeing that the parties had gone to trial knowing what the real question between them was, that the evidence had been taken, and that the conclusion had been in the opinion of the appellate Court correctly drawn from that evidence, they thought it within their competence to affirm that decision without sending the case back for a re-trial. Their Lordships sitting here are not prepared to say that the Court had not power to do so under the 354th section (now section 566) of the Civil Procedure Code. Their Lordships think that, under all the circumstances of the case, substantial justice having been done, there has not been that fatal mis-trial of the cause which vitiates all the proceedings and renders a new trial necessary." Wrong issue.-If the first Court has fixed and tried the wrong issues, the appellate Court should lay down the proper issues, and remand the case for a new trial (j). It is, however, different where the first Court frames a wrong issue for decision, but it appears from the judgment that there is a finding on the point which would have been raised if the correct issue had been framed. In such a case the appellate Court will not remand the case (k). Issue where case disclosed in evidence is different from that disclosed in plaint.—If a case not alleged by the plaintiff in his plaint is disclosed in the evidence at the hearing, the Court ought not to allow the plaintiff to set up such new case without raising a specific issue on it, and giving the defendant an opportunity of meeting it (7). But the case disclosed in the evidence must not be inconsistent with the case set up in the plaint. The same procedure should be followed, when a point not taken in the plaint is raised by the plaintiff during the hearing (m). S. 146 Ss. 147-149 from Allegations frame the 147. The Court may 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. Issues must not be inconsistent with pleadings.- Issues may be framed from the following materials : (a) Pleadings. (b) Allegations made on oath by the parties or made by their pleaders, answers to interrogatories, and contents of documents produced by the parties. It is a fundamental rule of law that the decision in a suit "should be founded upon a case either to be found in the pleadings, or involved in or consistent with the case thereby made." And since the decision in a suit proceeds upon the findings of issues in that suit, it follows that the issues must in all cases be consistent with the pleadings. Where issues are framed from the pleadings themselves, there is no danger of the issues being inconsistent with the pleadings (n). It is in framing issues from source (b) that care has to be taken that the issues are not inconsistent with the pleadings (o). Thus if A sues B to set aside a document on the ground that it was not executed by him, and that it is a forgery, the Court will not be justified in raising an issue as to whether the document was executed under pressure. The latter issue pre-supposes that the document was executed, while the plaintiff's case as set up in the plaint is that it was not executed by him at all (p). 148. If the Court be of opinion that the issues cannot be correctly framed without the examiCourt may examine witnesses or documents nation of some person not before the Court, before framing issues. 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. 149. The Court may at any time before passing a dePower to amend, cree amend the issues or frame additional issues on such terms as it thinks add and strike out is sues. (n) Eshenchunder v. Shamachurn, 11 M. I. A. (0) Modhe v. Dongre, 5 Bom. 609; Nehora v. (p) Wali-ul-lah v. Muhammad, 10 All. 627; Mahomed Buksh v. Hosseini, 15 Cal, 684, 15 I. A. 81. 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. Power to frame additional issues.-The occasion to frame additional issues arises particularly when facts transpire at the hearing which were not before the Court when the issues were first framed. Thus certain facts which are material to the determination of the suit may not have been set forth in the pleadings, and they may turn up in the evidence (note the words "allegations made on oath by the parties" in s. 147). In such a case, the Court may in its discretion frame additional issues, but it is not bound to do so (q). It will be a proper exercise of discretion, if the framing of additional issues enables the Court to determine in the existing suit the real questions in controversy between the parties But if the new issue comes by surprise on the opposite party, the hearing must be adjourned, so that he may have an opportunity of giving evidence on that issue, and otherwise meeting it (r). A Court may not frame additional issues so as to convert a suit or defence of one character into a suit or defence of a different and inconsistent character. Thus if A sues B for damages for wrongful occupation of his land, treating B as a trespasser, he will not be allowed to raise an additional issue claiming rent of the land from B, treating him as his tenant (s). 150. When the parties to a suit are agreed as to the Questions of fact or law may by agreement be stated in form of issues. agreement in writing (a) that, upon the finding of the Court in the affirma- (b) that upon such finding some property specified in (q) Nehora v. Radha, 5 Cal. 64. der, 2 Hyde, 263. (r) Ahmedabad Municipality v. Manilal, 19 (8) Narayan v. Hari, 13 Bom. 664. Bom 212; Objoychurn v. Womeshchun 58. 149-150 |