Sunday, 28 March 2021

Whether the court should frame an issue if a party takes the vague plea in the plaint or written statement?

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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