Thursday, 27 December 2018

Whether court can frame issue at the time of final argument?

Mr. Das, learned counsel for the petitioner contends that the impugned order of the learned trial Judge is not only illegal, but it is vitiated on account of material irregularity in exercise of jurisdiction. After the evidence had been closed and the parties were proceeding with the argument, the learned trial Judge had no jurisdiction to direct an additional issue to be raised and further evidence to be taken.

Order 14, Rule 1 C. P. C. provides--

"(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) x x x

(4) x x x

(5) 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 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) x x x "

Rule 5 provides:--

"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."
5. Thus it is clear that the duty to frame issues is put on the court and power inheres in the court to amend existing issues or frame additional issues on such terms as the court thinks fit. In exercise of this power, the court while the arguments had begun, framed an additional issue and thought it fit to allow parties to lead evidence on the additional issue as it was necessary for determining the matter in controversy. The jurisdiction exercised by the court is in terms of Rule 5 (1) of Order 14 of the Code.

IN THE HIGH COURT OF ORISSA

Civil Revn. No. 377 of 1969

Decided On: 21.09.1970

Kishorelal Gupta Vs. Devilal Kalwar alias Gowalla

Hon'ble Judges/Coram:
Ranganath Misra, J.

Citation: AIR 1971 Orissa 191


1. The opposite party has instituted Money Suit No. 8 of 1968 against the petitioner. That suit is for a decree for Rs. 500/- as damages for defamation.

2. Issues were struck in the suit and the trial began from 28th October, 1969. Witnesses for the parties were examined. On 3-11-1969, the evidence was closed. The learned trial Judge passed the following order:

"Further hearing resumed. Examined and cross-examined D. W. 2 Lambodar Lakra and D. W. 3 Gangadhar Rana. Exts. A to A (2) are marked. Evidence of defendant is closed as he declines to adduce further witness. Since the plaintiff is entitled to adduce rebuttal evidence on Issue No. 5 Bisa Boi and Sindhu Kumari are examined and cross-examined as P. Ws. 2 and 3. Since they want to argue further on point of law, call on 4-11-1969 for further arguments."
3. The matter was adjourned on the 4th November, 9th and 11th November, 1969 and on the further adjourned date of 15-11-1969, the plaintiff made an application to add an issue on the publication in Kansar locality. The learned trial Judge heard parties on that prayer and passed an order on 27-11-1969. Ultimately he directed another issue to be raised to the following effect:--

"Whether the publication of defamatory words in Kansar locality made by the defendant impeaching the plaintiff is true ?"
and directed parties to lead further evidence on that issue.

The defendant, aggrieved by that order, is the petitioner.

4. Mr. Das, learned counsel for the petitioner contends that the impugned order of the learned trial Judge is not only illegal, but it is vitiated on account of material irregularity in exercise of jurisdiction. After the evidence had been closed and the parties were proceeding with the argument, the learned trial Judge had no jurisdiction to direct an additional issue to be raised and further evidence to be taken.

Order 14, Rule 1 C. P. C. provides--

"(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) x x x

(4) x x x

(5) 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 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) x x x "

Rule 5 provides:--

"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."
5. Thus it is clear that the duty to frame issues is put on the court and power inheres in the court to amend existing issues or frame additional issues on such terms as the court thinks fit. In exercise of this power, the court while the arguments had begun, framed an additional issue and thought it fit to allow parties to lead evidence on the additional issue as it was necessary for determining the matter in controversy. The jurisdiction exercised by the court is in terms of Rule 5 (1) of Order 14 of the Code.

6. Order 18, Rule 2 has been amended in this Court by adding the following at the end of Rule 2:--

"Explanation:--

Nothing in this rule shall affect the jurisdiction of the Court to direct any party to examine any witness at any stage, for reasons to be recorded by the court in writing."

The net effect of this amended provision read with the relevant provisions in Order 14 already referred to, is that the Court had jurisdiction to pass the order in question and no objection can be taken to the same. There is an initial hurdle in the path of the petitioner. I reserved that aspect to the last because I considered it proper to make the position in law clear.

Section 115, C. P. C. provides:

"The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court ......"
The impugned order is not a case decided. Recently, their Lordships of the Supreme Court in the case of Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd. MANU/SC/0489/1969, laid down--

"But it was not decided in Major S.S. Khanna's case MANU/SC/0020/1963 that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of the Code of Civil Procedure."
7. The impugned order in this case cannot be said to be a case decided. No matter in controversy in the litigation was disposed of by the impugned order.

8. I think, a revision in the facts and circumstances of this case is not maintainable. Even if it was maintainable, there is no case made out calling for interference with the impugned order.

9. The revision fails and is dismissed. The opposite party shall be entitled to his costs. Hearing fee of Rs. 32/-.


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