I have in Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine Del 1479 held that, (i) when a vague plea is taken, the Court should hesitate to frame an issue on such a vague plea unless the parties are able to give particulars in support of the plea; (ii) a bald plea unsubstantiated by any documentary evidence is not sufficient for the purpose of framing an issue;
(iii) issues are not framed on whatsoever pleas are contained in the pleadings but only on material pleadings of fact and law; (iv) a plea which has no basis in law to stand on and / or a plea qua which law is well settled cannot be said to be a material plea inviting framing of an issue thereon; and, (v) framing of an unnecessary issue invites unnecessary evidence and
arguments and which protracts the disposal of suits.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) 350/2018 & IA No.9403/2018 (u/O XXXIX R-1&2 CPC)
ANIL KUMAR Vs DEVENDER KUMAR
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Dated: 21.05.2019
1. Though the suit is ripe for framing of issues but neither counsel has proposed any issues.
2. Time available does not permit me to peruse the pleadings, to frame
the issues and especially when the plaintiff does not appear to be in any
hurry to proceed with his suit.
3. The counsel for the plaintiff states, (i) that the plaintiff has instituted
this suit for partition of several immovable properties, for permanent
injunction restraining the defendants from alienating, encumbering or
parting with possession of the said properties and for recovery of mesne
profits; and, (ii) that issues as to the entitlement of the plaintiff to the said
reliefs of partition, permanent injunction and mesne profits may be framed.
4. However that is as good as not framing any issues inasmuch as from
the plaint on record itself it is evident that the entitlement of the plaintiff to
the said reliefs is to be adjudicated. Framing such general and omnibus
issues defeats the whole purpose of framing of issues.
5. The CPC, after competition of pleadings, vide Order XIV Rule 1
requires issues to be framed in the suit. Rule 1(1) of Order XIV provides
that issues arise when a material proposition of fact or law is affirmed by
one party and denied by the other. Rule 1(2) of Order XIV provide that
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. Order XIV Rule 1(3) provides that each
material proposition affirmed by one party and denied by the other shall
form the subject of a distinct issue. Rule 1(4) provides that issues are of two
kinds i.e. issues of fact and issues of law. Thereafter, Rule 1(5) requires the
Court to, at the first hearing of the suit, after reading the plaint and the
written statement and after hearing the parties or their pleaders, ascertain
upon what material propositions of fact or law the parties are at variance and
proceed to frame and record the issues on which the right decision of the
case appears to depend.
6. Framing of omnibus issues with respect to the reliefs claimed, as
suggested, is in violation of Order XIV Rule 1(3) which requires distinct
issues to be framed on each material proposition affirmed by one party and
denied by the other. Such omnibus issues also do not cull out the material
propositions of fact or law on which the parties are at variance and do not
tell the Court the issues on which the right decision of the case depends, as
required by Rule 1(5). Framing such omnibus issues has the potential of the
trial as well as the decision, going haywire.
7. Order XIV Rule 3 of CPC provides that issues may be framed either
on the allegations made on oath by the parties or on the basis of allegations
made in the pleadings or on the basis of contents of documents produced by
either party.
8. Once issues have been framed, the Court, under Order XV Rule 3 of
the CPC, has to consider whether existing undisputed evidence in the form
of documents available on the record is sufficient to determine such issues
and if not, to give an opportunity to the parties for production of evidence as
may be necessary for decision upon such issues.
9. What falls from the aforesaid procedure is that the evidence led by the
parties is to be guided by the issues framed and not by the reliefs claimed in
the plaint. What further falls from the aforesaid procedure is, that the
determination by the Court also has to be of the issues framed and not of the
reliefs claimed in the plaint. The grant of the relief claimed in the plaint is
consequential to the determination of the issues.
10. The question, who is to lead evidence first i.e. whether the plaintiff or
the defendant and if there are more than one defendants, which of the
defendants, also depends upon the issues framed and the onus of proof
thereof. Thus, if the onus of all the issues or of the principal issue is on the
defendant and not on the plaintiff, it is the defendant who will lead evidence
first and not the plaintiff.
11. That the evidence to be led in the suit is to be guided by the issues and
not by the pleadings becomes further clear from Order XVIII Rule 3 of the
CPC which provides that where there are several issues, the burden of
proving some of which lies on the other party, the party beginning may, at
his option, either produce his evidence on those issues or reserve it by way
of answer to the evidence produced by the other party.
12. Order XIV Rule 2 of the CPC provides that notwithstanding that a
case may be disposed of on a preliminary issue, the Court shall pronounce
judgment on all issues. It further provides that where issues both of law and
fact arise in the same suit and the Court is of the 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 the jurisdiction of the Court, or a bar to the suit
created by any law for the time being in force. Order XX Rule 1(2) also
requires the Court to in the judgment return findings on each issue. Order
XX Rule 5 also provides that in suits in which issues have been framed, the
Court shall state its finding or decision, with the reasons therefor, upon each
separate issue.
13. Thus, not only the trial even the judgment is to be structured on the
issues.
14. Supreme Court in Makhan Lal Bangal Vs. Manas Bhunia (2001) 2
SCC 652 held that, (i) the stage of framing the issues is an important one
inasmuch as on that day the scope of the trial is determined by laying the
path on which the trial shall proceed, excluding diversions and departures
therefrom; (ii) the date fixed for settlement of issues is therefore a date fixed
for hearing; the real dispute between the parties is determined, the area of
conflict is narrowed and the concave mirror held by the Court reflecting the
pleadings of the parties pinpoint into issues the disputes on which the two
sides differ; (iii) the correct decision of civil lis largely depends on correct
framing of issues, correctly determining the real points in controversy which
need to be decided; (iv) the parties and their counsel are bound to assist the
Court in the process of framing of issues; (v) duty of the counsel however
does not belittle the primary obligation cast on the Court; (vi) an omission to
frame proper issues may be a ground for remanding the case for retrial
subject to prejudice having been shown to have resulted by the omission;
(vii) if the parties are at issue on some questions of law or of fact, the suit
shall be fixed for trial, calling upon the parties to adduce evidence on issues
of fact; (viii) evidence shall be confined to issues and the pleadings; (ix) no
evidence on controversies, not covered by issues and the pleadings, shall
normally be admitted, for each party leads evidence in support of issues, the
burden of proving which lies on him; (x) the object of an issue is to tie down
the evidence and arguments and decision to a particular question so that
there may be no doubt on what the dispute is; (xi) the judgment, then
proceeding issue-wise, would be able to tell precisely how the dispute was
decided; (xii) if a material proposition of fact or law is not denied or is not
specifically denied in the written statement and such tenor of the written
statement persuades the Judge in forming an opinion that there was an
admission by necessary implication for want of denial, no issue needs be
framed and there is no need for recording of evidence on those issues; and,
(xiii) valuable time of the Court would be saved from being wasted in
recording evidence on such averments in pleadings as were not in issue for
want of traverse.
15. This Court also, in I.T.C. Ltd. Vs. C.L. Anand (1995) 60 DLT 111
held that issues are framed to shorten the arena of dispute and to ascertain and pinpoint where the two sides differ so that no party to the suit is taken by surprise. It was further held that the Court should not determine an issue which does not arise on the pleadings and it is essential to the right decision of a case that appropriate issues are framed.
16. I have in Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine
Del 1479 held that, (i) when a vague plea is taken, the Court should hesitate to frame an issue on such a vague plea unless the parties are able to give particulars in support of the plea; (ii) a bald plea unsubstantiated by any documentary evidence is not sufficient for the purpose of framing an issue;
(iii) issues are not framed on whatsoever pleas are contained in the pleadings but only on material pleadings of fact and law; (iv) a plea which has no basis in law to stand on and / or a plea qua which law is well settled cannot be said to be a material plea inviting framing of an issue thereon; and, (v) framing of an unnecessary issue invites unnecessary evidence and
arguments and which protracts the disposal of suits. Reference in this
regard may also be made to Adarsh Kumar Puniyani Vs. Lajwanti Piplani
2015 SCC OnLine Del 14022, Abbot Healthcare Pvt. Ltd. Vs. Raj Kumar
Prasad (2018) 249 DLT 220 and Bhavana Khanna Vs. Subir Tara Chand
2019 SCC OnLine Del 6978.
17. If such omnibus issues, as suggested are framed, post framing of
issues when parties are relegated to trial, they do not know what to prove
and on what they are required to lead evidence, resulting in the parties often
failing to prove or disprove what they were required to prove or disprove in
support of their case and / or to defeat the case of the other. Framing such
general omnibus issues also results in the Court, required vide Order XX
Rule 5 of the CPC to state its finding or decision with reasons upon each
separate issue, also at the time of pronouncement of judgment not knowing
on what points of controversy finding or decision is required to be returned
and generally rendering a decision. This often results in the parties to the lis,
post judgment, realizing their follies in proving or disproving what they
were required to prove and taking such grounds in appeal, often resulting in
remands, for the controversy required to be adjudicated having not been
adjudicated either for the default of the parties or the Court and otherwise in
injustice being done owing to the crucial stage of framing of issues having
been neglected by the litigants and their counsels and as is more often than
not, the case. On the contrary, if the parties and the counsels and the Court,
at the stage of framing of issues bestow proper attention to the pleadings and
the controversy, it often results in, either no evidence being found to be
necessary or even if evidence if required to be led, being precise and
concise, adducing whereof does not take much time, resulting in quicker
trials and arguments with precision and early disposal of the lis.
18. I have recently in Vifor (International) Ltd. Vs. Suven Life Sciences
Ltd. MANU/DE/0887/2019, though in the context of commercial suits but
of equal relevance to other suits also, held that vagueness of such omnibus
issues with respect to the relief claimed, as the counsel for the plaintiff is
suggesting, permits all kinds of evidence being led instead of the issues
guiding the trial, with all concerned knowing precisely what is required to
be proved and non-proof whereof the consequence shall follow.
19. Thus, the counsels as well as the Court, at the stage of framing of
issues, are required to peruse the pleadings and in reference to the relief
claimed, cull out the essential ingredients which the plaintiff is required to
prove to be entitled to that relief and to see whether the defendant is
specifically denying (not vaguely denying) the same and if denying, on what
facts or grounds and thereafter consider on whom the onus of proof should
be. If the denial by the defendant of any material proposition of fact or law
is on the basis of facts which the defendant only can prove, issue qua the
said fact would be framed placing the onus thereof on the defendant. For
instance, when the denial of document claimed to be a Will is on the pleas of
valid execution thereof, an issue “whether the document is the validly
executed last Will of the deceased” with onus on the petitioner / plaintiff has
to be framed. However, when in addition to the denial of valid execution, a
defence is also taken of the deceased being incapacitated by reason of
unsoundness of mind or any other ground from making a Will, in addition,
an issue “whether the deceased at the time of executing the document
claimed to be the Will was not in a sound state of mind” with onus on the
respondent / defendant who alone can prove the unsoundness of mind or
other ground pleaded for challenging the testamentary capacity can prove
the same, has to be framed. Thereby the requirement of Order XIV Rule
1(3), of a distinct issue being required to be framed on each material
proposition affirmed by one party and denied by the other, is fulfilled.
20. It is deemed appropriate to demonstrate the requirement vide Order
XIV Rule 1 of the CPC by giving another example. Where in a suit for
partition of a house belonging to a common predecessor / ancestor, the
defendant does not dispute ownership of the common predecessor / ancestor,
but takes the defence of the common predecessor / ancestor in his lifetime
having transferred the property to the defendant, the only issue to be framed
with onus on the defendant pleading so is to be, “whether the common
predecessor / ancestor of the parties in his lifetime transferred the property
of which partition is sought to the defendant” and no other issue is required
to be framed. However while framing the said issue also the counsels and
Court are required to consider whether the plea of the defendant of transfer
constitutes a transfer by law. If there is a bare plea of transfer and which in
law can be done only by a registered document, again no issue would arise
and the plaintiff would be entitled to a decree for partition forthwith with the
shares being in accordance with the law of inheritance by which the
deceased was bound. Thus no issue “what are the shares of each of the
parties to the suit” is required to be framed in such a state of affairs.
21. For the sake of clarity it is deemed expedient to give another example.
In a suit for recovery of balance price of goods sold, where the defendant
contests the suit denying receipt of goods under a particular invoice and with
respect to goods under another invoice takes the plea of rejection of the
goods, the issues to be framed are, “Whether the plaintiff has supplied and
delivered goods under invoice dated ______ to the defendant? OPP” and
“Whether the goods sold supplied and delivered by plaintiff to defendant
under invoice dated _______ were not of the ordered quality and were
rejected by the defendant? OPD”. However it is generally found that the
lawyers propose “Whether the plaintiff is entitled to recover Rs._______
from the defendant? OPP”. The latter does not satisfy the test laid down in
Makhan Lal Bangal supra.
22. Framing issues in the manner aforesaid would at all times indicate to
the counsels, litigants as well as to the Court, what is for adjudication and
will result in only those witnesses being examined who can prove or
disprove the said disputed fact and the Court also returning finding only on
that and in accordance with the said finding either pass a decree for partition
if the defendant has failed to prove the issue or dismissed the suit if the
defendant has proved such transfer.
23. I have spoken at length on the subject, finding in my years of practice
of the profession of law, whether as a Lawyer or as a Judge, that the stage of
framing of issues is the most neglected stage. The neglect results in long
term mischief. Conversely, if there is an appropriate application of mind at
the stage of proposing and framing of issues by all concerned, the same will
go a long way in eliminating the delays for which suits are infamous.
24. The counsels are requested to on the next date of hearing propose
issues in accordance with the above.
25. List on 2nd September, 2019.
RAJIV SAHAI ENDLAW, J.
MAY 21, 2019
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