Bombay HC: The court should not frame issue on the point of tenancy if defendant has made a vague pleading in that regard

As frequently this question arises, a little caution is required to be exercised before the Court actually frames such an issue. Under Order 14 of the Code Civil Procedure an issue can only arise when a material proposition of fact or law is affirmed by one party and denied by the other. When a vague plea is made by the defendant contending that is made by the defendant contending that he is a tenant of the land, the Court should hesitate to frame such an issue on such a vague plea, unless the defendant is such able to give particulars showing the time when the tenancy was created, the person by whom it was created and the terms on which it was created. If in spite of such particulars being asked for the defendant is unable to furnish the same, the Court should not raise an issue on a vague plea that he, the defendant, is a tenant of any particular piece of land. Normally the rules of pleadings require that these particulars are the minimum particulars which a man must furnish before he can request the Court to frame an issue as regards the claim made for tenancy. {Para 3}

 IN THE HIGH COURT OF BOMBAY

Civil Revn. Appln. Nos. 492 and 495 of 1972

Decided On: 12.04.1973

Pandu Dhondi Yerudkar and Ors. Vs. Ananda Krishna Patil

Hon'ble Judges/Coram:

R.M. Kantawala, C.J.

Citation: 1974 MHLJ 548, MANU/MH/0179/1975.

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Whether Appellate court must remand the case if trial court has not framed issue on the point of readiness and willingness in suit for specific performance of contract?

4.1. Now the findings and the reasoning given by the learned Trial Court refusing to pass a decree for specific performance is concerned it appears that though there was no specific issue framed by the learned Trial Court on readiness and willingness on the part of the Plaintiff, the Trial Court has given the findings on the same and has non-suited the Plaintiff by observing that the Plaintiff was not having sufficient funds to make the full balance consideration on or before 12.01.2006. Such a finding could not have been given by the learned Trial Court without putting the Plaintiff to notice and without framing a specific issue on the readiness and willingness on the part of the Plaintiff. There must be a specific issue framed on readiness and willingness on the part of the Plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same. On the aforesaid ground the judgment and order passed by the learned Trial Court dismissing the suit and refusing to pass the decree for specific performance of the agreement to sell confirmed by the High Court deserves to be quashed and set aside and the matter is to be remanded to the learned Trial Court to frame the specific issue with respect to the readiness and willingness on the part of the Plaintiff. On remand the parties be permitted to lead the evidence on the readiness and willingness on the part of the Plaintiff to perform his part of the contract, more particularly, whether the Plaintiff was ready and willing to pay the full consideration and whether the Plaintiff was having sufficient funds and/or could have managed the balance sale consideration.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8050-8051 of 2022

Decided On: 09.11.2022

V.S. Ramakrishnan Vs. P.M. Muhammed Ali

Hon'ble Judges/Coram:

M.R. Shah and M.M. Sundresh, JJ.

Author: M.R. Shah, J.

Citation:  2022 INSC 1189, MANU/SC/1465/2022.

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Bombay HC: The Appellate court should remand the case if the trial court has given a finding on title over suit property without framing issue on that point

 In this suit though specific averment is made in plaint about title and the same has been refuted by defendant, no specific issue in that regard is framed by Trial Court. Similarly, as the question of fact and law relating to title is involved, it was not proper for First Appellate Court to record findings thereon for first time. This would have resulted into loss of the opportunity of first appeal to aggrieved party. {Para 13}.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Appeal From Order Nos. 24, 22 of 2022, Civil Application Nos. 6863 and 12966 of 2022

Decided On: 10.04.2023

Laxmibai Vs. Sandeep

Hon'ble Judges/Coram:

R.M. Joshi, J.

Citation:  MANU/MH/1396/2023.

Read full Judgment here: Click here.

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Whether the court can frame issues placing burden of proof on Municipal Corporation to prove that it has levied property taxes by following due procedure of law?

  The application filed by the petitioner/ plaintiff to

frame the additional issue, so as to cast burden upon the

defendant to prove that the defendant levied the taxes by

following due procedure of law came to be rejected. It is the

contention of the plaintiff that the defendant has not adhered to

the procedure. In para 7 of the plaint, the plaintiff has averred

that the defendant has not followed the procedure laid down in

Chapter VIII of Schedule of the Bombay Provincial Municipal

Corporations Act. It is for the plaintiff to aver and prove as to

how the procedure has not been followed. Vide the issue sought

to be framed, the plaintiff wants to cast burden upon the

defendant. It is for the plaintiff first to aver and then to lead

evidence to the effect that the defendant has not followed the

procedure as laid down in Chapter VIII and thereafter the burden

would shift on the defendant to show that the procedure has

been followed. It is the plaintiff who is seeking the relief from

the Court and against the defendant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

WRIT PETITION NO.1740 OF 2015

Marathwada Shikshan Prasarak Mandal Vs  The Municipal Corporation, Aurangabad

CORAM: S.V. GANGAPURWALA, J.

DATED: 23rd March, 2016.

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Whether the court should frame an issue regarding tenancy if the party fails to plead its details?

 Learned counsel for the appellants has relied upon three decisions in support of his contention that a vague plea does not justify an issue being framed. In this connection a reference was made to Ram Sarup Gupta Vs. Bishun Narain Inter College & Others (1987 (2) SCC 555, where the. Court has held that all necessary and material facts should be pleaded by the party in support of the case set up by it. In the absence of pleading, evidence if any produced by the parties cannot be considered. The object and purpose of a pleading is to enable the adversary party to know the case of the opponent. In order to have a fair trial it is imperative that the parties should state the essential material facts so that the other party may not be taken by surprise. The Court has, however, cautioned against a pedantic approach to the problem and has directed that the Court must ascertain the substance of the pleading and not the form, in order to determine the case. The respondent have emphasised latter observations. In the present case, however, no material in support of the plea of tenancy has been set up anywhere in any form. In the case of M/s Nilesh Construction Company & Anr. Vs. M/s Gangubai & Others (AIR 1982 BOMBAY 491), the Court observed that before a reference to the Mamlatdar for deciding the issue of tenancy under the Bombay Tenancy and Agricultural Lands Act, 1948 is made the alleged tenant must disclose in his pleadings, details about the tenancy and the exact nature of the right which is claimed by him. An issue of tenancy cannot be raised on a vague plea.

Supreme Court of India

Shri D.M.Deshpande & Ors vs Shri Janardhan Kashinath Kadam ... on 12 November, 1998

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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

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When will the cause of action accrue for filing of the suit for declaration of tenancy?

The first plea: mere filing of a suit with a particular assertion does not amount to an effective denial of Rungta's status as a tenant. The suit must have culminated in a decree. That is, the Company's assertion must have received judicial imprimatur.

19. The second plea: Rungta faced the first challenge to his possession when the trial Court appointed a receiver under Order 40, Rule 1 of CPC. The receiver took symbolic possession of the property. So that, in the alternative, has provided the right to Rungta to sue--for the first time.

 As noted by the Supreme Court in Hargovind Jasraj, while enacting Article 58 of the 1963 Act, the legislature has designedly departed from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean if a suit is based on multiple causes of action, the limitation will run from the date when the right to sue first accrues. To put it differently, successive violations of the right will not give rise to fresh causes of action; and the suit attracts dismissal if it is beyond the period of limitation counted from the day when the right to sue "first" accrued.

30. Here, the Company filed the suit in January 1990 and denied Rungta his alleged status as the tenant. It has, in fact, considered him a trespasser. So it pleaded. The landlord's hostile assertion--before a judicial forum, at that--has provided to Rungta the cause of action. Rungta did file his written statement. He denied the plaintiff's assertion that he is a trespasser; instead, he set up a counter-assertion, that he is a tenant. So one of the questions the suit could be, and perhaps is, whether Rungta is a tenant or a trespasser.

32. The second plea Rungta has taken is, if at all there is any challenge to his status as a tenant, that came for the first time when the trial Court appointed a receiver. According to him, when the court appointed the receiver, Rungta had his right to sue materialised for the first time. To support his contention, Rungta maintains that the receiver took symbolic possession of the property. From then, in three years, Rungta has filed his suit.

33. I am afraid even this plea must fail. The Company has never disputed the Rungta's possession over the property, and the receiver's taking symbolic possession is a non sequitur--beside the point. So I conclude that the trial court's appointing the receiver has not upset Rungta's scheme of things. 

That said, I must also note that with the dismissal of Rungta's suit as not maintainable on the grounds of limitation does not affect his claim to be the tenant, rather than a trespasser. 

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 634 of 2018

Decided On: 20.08.2019

SGM Properties & Investments Pvt. Ltd. Vs. Basantkumar Bilasrao Rungta and Ors.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(2) MHLJ 225,MANU/MH/2507/2019

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Whether the court must frame an issue and record evidence if the defendant takes plea of Benami joint owner of the property?

Reliance was also placed on behalf of the respondents on the verdict of this Court in Bhavna Khanna Vs. Subir Tara Singh decided on 01.02.2019 in CS (OS) No. 356/2016 with observations in para 23 thereof wherein it was observed to the effect:

"Be that as it may, the Benami Transactions (Prohibition) Act, 1988 which came into force on 5th September, 1988 i.e. much prior to the sale deed dated 16th December 2003, defined a benami transaction as a transaction in which property is transferred to one person for a consideration paid or provided by another persons. Section 3 thereof barred all persons from entering into benami transaction. Section 4 of the Act barred any defence in any suit, claim or action based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person. The claim of the defendant that out of total sale consideration of Rs. 55 Lacs, Rs. 39.5 was contributed by him but the sale deed of the property obtained in the exclusive name of his wife Dr. Rachana Khanna falls within the definition of benami transaction and which transaction was barred on the date of sale deed and the defendant is also barred from defending this suit on the plea of being the benami joint owner of the property. The said Act was, vide amendment of the year 2016, renamed as Prohibition of Benami Property Transactions Act,1988 and through there has been an overhaul of all the provisions of the earlier statute but the effect remains the same. Section 4 bars a defence in respect of any property held benami. The defence of the defendant in the present suit is thus barred by the said law and once the defence is barred, again permitted evidence to be led would be only at the cost of the valuable time of this Court and the Court ultimately after recording of evidence also will be bound to decide in accordance with law. It is for this reason that I say that the defence of the defendant of joint ownership does not raise any material proposition of fact or law for an issue to have been framed thereon."

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

Hon'ble Judges/Coram:

Anu Malhotra, J.

Citation: MANU/DE/1402/2020

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Whether the court frame issues on vague pleadings?

The proceedings in a civil suit are governed by the procedure laid down in the CPC and which provides for pleadings by the adversarial parties, framing of issues on the substantial questions of law and facts arising thereon, evidence being confined to the issues and findings in the judgment and decree in the suit being confined to the issues framed. A suit is not entitled to succeed or liable to be dismissed on a reasoning which has no foundation in pleadings and/or on which no issue has been struck. In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack De Sequeira MANU/SC/0225/2012 : (2012) 5 SCC 370 it was held that if pleadings do not give sufficient details, they will not raise an issue and the Court can reject the claim or pass a decree on admission. It was further held that on vague pleadings, no issue arises. 

IN THE HIGH COURT OF DELHI

RSA No. 394/2015

Decided On: 29.04.2020

Gopi Chand  Vs.  Geeta Devi and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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Whether court is bound to frame issue of limitation if defendant fails to plead necessary facts to show that suit is barred by limitation?

Learned Counsel for the Review Petitioners submits that it is the duty of every court to frame an issue of limitation whether or not the defendant raises it. That is not quite correct. Section 3 of Limitation Act requires the court to dismiss every suit instituted after the prescribed period of limitation, whether or not limitation has been set up as a defence. What this means is that wherever the pleadings of the plaintiff or evidence before the court show that the suit is barred by limitation, it is the duty of the court to dismiss the suit; the defendant need not raise any express plea of limitation. That, however, does not imply that whenever the question of limitation raises issues of facts, the defendant can, without joining issue with the facts stated in the plaint, require the court to frame and decide the issue of limitation. The question of limitation is ordinarily a mixed question of law and facts. When the question is purely of law, capable of determination on the facts admitted or proved before the court, the court is bound to raise the question suo motu and decide it. But where it raises issues of facts not arising from the plaint alone, the defendant must raise such question in his written statement by pleading the requisite facts. Even for an issue of facts or mixed issue of law and facts to arise on the plaint, there must be a denial in the written statement. That is the mandate of Order 8 Rule 2 and Order 14 Rule 1 of the Code of Civil Procedure. The defendant must raise by his pleading all matters which show the suit not to be maintainable including all grounds of defence, which, if not raised, would be likely to take the opponent by surprise, or would raise issues of fact not arising out of plaint. These would, in terms, include matters of limitation. As for the plaintiffs case he must admit or deny the same. The plaintiffs case, in our matter, was that the defendants had denied or refused performance of the contract (which is the starting point of limitation) only in February 2001. If it was the defendants' case that denial of performance came at any earlier point of time, it was for them to make a necessary pleading in that behalf. Only in that case the question of limitation would arise for consideration. Without such pleading, that is to say, without their having joined issues with the plaintiff, in the face of the plaintiffs expressly pleaded time of denial of performance, the courts below had no duty to frame an issue of limitation and consider it. None of the courts below has, accordingly, erred in not having framed or decided the issue of limitation.

IN THE HIGH COURT OF BOMBAY

Review Petition No. 4 of 2019 in Second Appeal No. 665 of 2016 

Decided On: 18.03.2019

 Chandrabhaga Ananda Kudle  Vs.  Proposed Sanjay Sahakari Grah Nirman Sanstha Maryadit, Sangli and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: 2019(6) MHLJ 182

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Whether it is mandatory for court to frame issues in obstructionist proceeding?

To substantiate his submissions, learned counsel for the respondents has placed reliance on the precedent law laid down by this Hon'ble Court in Smt. Shanti Devi & Ors. Vs. Chimanaram Mantri Trust & Ors., reported in MANU/RH/1173/2017 : 2017 3 DNJ 1384, particularly para 23, 24, 25, 30, 32 and 37, which read as under:-

"23. On careful analysis of the case laws referred above, this Court finds that none of the authorities cited by counsel for the petitioners enunciates that the recording of evidence and framing of issues is prerequisite for deciding an objection petition under Order 21, Rule 97 of the Civil Procedure Code or the same can be claimed as a matter of right.

24. Adverting to the judgments cited by Mr. Manish Shishodia, this Court has gone through the judgment of Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., reported in MANU/SC/0252/1998 : (1998) 3 SCC p. 723, the Hon'ble Supreme Court in para No. 14 of the report has held that the adjudication under Order 21, Rule 97 of Civil Procedure Code does not contemplate detailed enquiry or collection of evidence. The Court can make adjudication on admitted facts or even on the basis of averments made by the resister; of course, the Court can direct the parties to adduce evidence for such determination, if the Court deems necessary. For the sake of ready reference, para 14 of the said judgment is reproduced hereunder:-

"14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary."

25. A careful reading of the aforesaid judgment reveals that the Hon'ble Supreme Court has clearly held that recording of evidence is not necessary in each case. The Court in a given case, if deemed necessary, can direct the parties to adduce evidence.

30. On a careful and comprehensive reading of the judgment cited by rival counsels, this Court has discerned that framing of issues and recording of evidence in execution proceedings is not essential in each case. As far as framing of issues is concerned, the Courts can frame point of determination but such determination may or may not require recording of the evidence. If the executing Court, on the basis of material available on record, coupled with the pleadings of the parties, feels that recording of evidence or summoning of witness is needed, the same can be recorded. But, for that purpose, the applicant has to clearly indicate in his application, the reasons necessitating such order and relevance of the evidence to be recorded. Recording of evidence can neither be asked as a matter of right nor can the same be ordered as a matter of course. The applicant has to assert and give cogent reasons indicating therein the nature of dispute, the assertion of the parties and the facts which are required to be proved by oral evidence.

32. In view of the factual backdrop of the case, particularly when on the basis of the documentary evidence as placed by the petitioners, if the trial court has come to a conclusion that recording of evidence and framing of issues is not necessary, no fault can be found in the order impugned.

37. The Executing Court after considering the factual matrix obtaining in the execution proceedings, has reached to a conclusion that neither framing of the issues nor recording of the evidence is required, this Court does not feel inclined to interfere in such discretionary order, in exercise of its otherwise discretionary - supervisory jurisdiction, being guided by the principles enunciated by the Supreme Court and this Court."

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 4538/2019

Decided On: 23.04.2019

 Prem Singh  Vs.  Amari Devi

Hon'ble Judges/Coram:

Dr. Pushpendra Singh Bhati, J.

Citation: AIR 2019 Raj 114

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Supreme Court: Outer limit for filing of counter-claim is pegged till issues are framed

We sum up our findings, that Order VIII Rule 6A of the Code of Civil Procedure does not put an embargo on filing the counter-claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the Defendant to file the counter-claim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

i. Period of delay.

ii. Prescribed limitation period for the cause of action pleaded.

iii. Reason for the delay.

iv. Defendant's assertion of his right.

v. Similarity of cause of action between the main suit and the counter-claim.

vi. Cost of fresh litigation.

vii. Injustice and abuse of process.

viii. Prejudice to the opposite party.

ix. and facts and circumstances of each case.

x. In any case, not after framing of the issues.

IN THE SUPREME COURT OF INDIA

SLP (C) No. 23599 of 2018

Decided On: 19.11.2019

 Ashok Kumar Kalra Vs.  Surendra Agnihotri and Ors.

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar, N.V. Ramana and Ajay Rastogi, JJ.

Authored By : N.V. Ramana, Mohan M. Shantanagoudar

N.V. Ramana, J.

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Whether it is mandatory for court to frame issue of limitation even if defendant has failed to plead necessary facts in that regard?

 Learned Counsel for the Review Petitioners submits that it is the duty of every court to frame an issue of limitation whether or not the defendant raises it. That is not quite correct. Section 3 of Limitation Act requires the court to dismiss every suit instituted after the prescribed period of limitation, whether or not limitation has been set up as a defence. What this means is that wherever the pleadings of the plaintiff or evidence before the court show that the suit is barred by limitation, it is the duty of the court to dismiss the suit; the defendant need not raise any express plea of limitation. That, however, does not imply that whenever the question of limitation raises issues of facts, the defendant can, without joining issue with the facts stated in the plaint, require the court to frame and decide the issue of limitation. The question of limitation is ordinarily a mixed question of law and facts. When the question is purely of law, capable of determination on the facts admitted or proved before the court, the court is bound to raise the question suo motu and decide it. But where it raises issues of facts not arising from the plaint alone, the defendant must raise such question in his written statement by pleading the requisite facts. Even for an issue of facts or mixed issue of law and facts to arise on the plaint, there must be a denial in the written statement. That is the mandate of Order 8 Rule 2 and Order 14 Rule 1 of the Code of Civil Procedure. The defendant must raise by his pleading all matters which show the suit not to be maintainable including all grounds of defence, which, if not raised, would be likely to take the opponent by surprise, or would raise issues of fact not arising out of plaint. These would, in terms, include matters of limitation. As for the plaintiffs case he must admit or deny the same. The plaintiffs case, in our matter, was that the defendants had denied or refused performance of the contract (which is the starting point of limitation) only in February 2001. If it was the defendants' case that denial of performance came at any earlier point of time, it was for them to make a necessary pleading in that behalf. Only in that case the question of limitation would arise for consideration. Without such pleading, that is to say, without their having joined issues with the plaintiff, in the face of the plaintiffs expressly pleaded time of denial of performance, the courts below had no duty to frame an issue of limitation and consider it. None of the courts below has, accordingly, erred in not having framed or decided the issue of limitation.

IN THE HIGH COURT OF BOMBAY

Review Petition No. 4 of 2019 

Decided On: 18.03.2019

 Chandrabhaga Ananda Kudle Vs.  Proposed Sanjay Sahakari Grah Nirman Sanstha Maryadit, Sangli

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: 2019(6) MHLJ 182

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What is duty of party if court has not framed proper issues?

Learned counsel for the appellants has vehemently argued that the learned trial Court has not framed issue regarding the pleadings raised by the appellants that the appellants are absolute owners of part of the suit land, which has been allotted to them during consolidation. In the absence of any pleadings, the appellants have suffered serious prejudice and, therefore, the judgment and decree passed by the Courts below are not sustainable,

 10. The reliance of the learned counsel is on a Division Bench judgment of this Court in Darshan Singh v. The Hindustan Cold Stores and Refrigeration Pvt. Ltd., 1969 PLR 566. It has been held that it is the duty of the Court to read the plaint and written statement to frame issues. The said aspect cannot be disputed. The issues were framed by the learned trial Court on 4.9.1976. The matter remained pending before the trial Court for a considerable time, but the appellants have not sought modification of the issues as contemplated under Order 14 Rule 5 CPC. Even if the Court has failed to frame any issue, it was incumbent upon the appellants to draw attention of the learned trial Court to frame proper issues at the earliest. However, now in the second appeal, it is too late for the appellants to allege that the proper issues were not framed. Therefore, the judgment referred by the learned counsel provides no help to the appellants.

Punjab and Haryana High Court

(Before Hemant Gupta, J.)

Chanan Singh Vs Santokh Singh 

R.S.A. No. 492 of 1981

Decided on January 10, 2007

Citation: 2007 SCC OnLine P&H 15 : (2007) 3 RCR (Civil) 32 : PLR (2007) 147 P&H 554 : (2007) 3 ICC 511

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Whether suit dismissed on ground of res judicata will be decree even if it was passed without framing of issue?

 In terms of Section 2(2) of the Code, in case, the court adjudicating the case, conclusively determines the rights of the parties with regard to any one or more or all of the matters in controversy in the suit, the requirement of decree is satisfied. Such determination can be preliminary or final. Rejection of a plaint is deemed to be a decree Under Section 2(2) of the Code. Only two orders are excluded-(i) any adjudication from which an appeal lies as an appeal from an order and (ii) any order of dismissal for default. Order XLIII of the Code has provided for appeals from orders. The impugned order does not come under Order XLIII. The order has conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, viz., Res Judicata. True, it is not an order passed on framing an issue. But at the same time, there is adjudication on the controversy as to whether the suit is barred by Res Judicata in the sense there is a judicial determination of the controversy after referring to the materials on record and after hearing both sides.

15. The impugned order dismissing the suit on the ground of Res Judicata does not cease to be a decree on account of a procedural irregularity of non-framing an issue. The court ought to treat the decree as if the same has been passed after framing the issue and on adjudication thereof, in such circumstances. What is to be seen is the effect and not the process. Even if there is a procedural irregularity in the process of passing such order, if the order passed is a decree under law, no revision lies Under Section 115 of the Code in view of the specific bar under Sub-section (2) thereof. It is only appealable Under Section 96 read with Order XLI of the Code.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4543 of 2016 

Decided On: 13.04.2016

 Rishabh Chand Jain  Vs.  Ginesh Chandra Jain

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Citation: 2017(1) MHLJ 16 SC

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Whether defendant can raise plea of hardship in suit for specific performance of contract if he has not raised it in his written statement?

Now so far as the submission on behalf of the appellant
that if the decree for specific performance of the contract is
passed after number of years, it would cause undue hardship to

the defendant – vendor and the reliance placed upon the decision
of this Court in the case of P.R.Deb (supra) is concerned, it is
required to be noted that in the written statement the defendant
has not pleaded any hardship to be caused if the decree of
specific performance of the contract is passed against the
defendant – vendor. At this stage, the decision of this Court in
the case of A. Maria Angelena v. A.G. Balkis Bee, reported in AIR
2002 SC 2385 is required to be referred to. In the aforesaid case,
the vendor sought to raise the plea of hardship for the first time
before this Court and this Court did not permit the vendor to
raise such a plea of hardship by observing that as no plea as to
hardship if relief for specific performance is granted was raised by
the defendant – vendor in written statement nor any issue was
framed that the plaintiff – purchaser could be compensated in
terms of the money in lieu of decree for specific performance,
such plea cannot be entertained for the first time in appeal by
way of SLP, more so, when there are concurrent findings that the
plaintiff was ready and willing to perform his part of the contract
has been recorded by the lower courts. Therefore, the plea raised
on behalf of the vendor on hardship cannot be permitted to be

raised now, more particularly when no such plea was
raised/taken in the written statement.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 45374538
OF 2017

BEEMANENI MAHA LAKSHMI  Vs GANGUMALLA APPA RAO

Dated:MAY 09, 2019.
M.R. SHAH, J.

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Whether it is mandatory for court to frame issue regarding comparative hardship?

These are all the judgments which are cited before us. Having considered the arguments in depth, we are of the view that there is no statutory obligation to frame a particular issue covering the provisions of the second part of Sub-section (2) of Section 18 of the Rent Act. On the contrary when the total circumstances of a case are being considered by the Court in the light of the pleadings of the parties and the evidence led, it is enough if the Court is aware that while passing a decree for eviction against a tenant a division of the premises is] permissible and under certain circumstances it can bring about a situation where the needs of both the landlord and tenant are satisfied without there being any hardship on either of them. If the Court disposes of the case with the awareness of these provisions either by express discussion or by implication where the facts speak for themselves, the Rent Court had done its duty properly and there is no infirmity! of any kind either in the procedure or in the substantive disposal of the dispute.

25. In the case of P.A. Machiah 1975 BomLR 99 Deshpande, J. observed on pages 100 and 101 as follows:

"But whether findings on one or both parts of this Section is necessary or not, must necessarily depend on how the case is prosecuted on either side. Each one may seek to acquire or retain possession of the entire premises by establishing greater hardships to himself or seek to acquire or retain only part of the premises by proving no hardship to either. Each one may even try to bring his case under both the parts and seek relief's alternately taking no chance. This must, in turn, depend in no small measure, on the urgency and extent of the needs of both, availability of alternate accommodation, the extent of the accommodation in dispute, degree of adaptability of the parties and suitability of the portion of the premises and variety of other factors. Suffice it to note that it is not difficult to conceive of cases where mere part of the premises may not suit the requirements of the either under any circumstances, and of his own deliberate choice, each one of them may rather choose to concentrate on first part and try to acquire or retain the entire premises for proving his greater hardship than even think of pressing for any portion of the premises. It would be unrealistic to such a situation to require the Court to record any finding on the second part even when parties themselves have deliberately, due to the sheer disinterestedness, not pressed for it at any stage of the trial. There is nothing in Section 13(2) to require the Court mandatorily to record a finding on both the parts even without any plea, evidence and need. It would indeed be an idle formality."

We are in respectful agreement with the reasoning of the learned Single Judge and we think that the above observations correctly lay down the law in regard to the provisions of Section 13(1)(g) read with Section 13(2). Needless to add that we neither agree with nor approve of the view taken by Savant, J. in Bhaskar Digambar v. Bhagwan Vishwanath MANU/MH/0262/1976 : (1976)78BOMLR454 .

26. We may additionally point out that the provisions of Section 13(2) in the form in which they appear have always been there ever since the present Act of 1947 became effective from 13-2-1948. The entire litigation in this State has been conducted on the footing that there is no statutory obligation of framing any such issue. Rent litigation forms a bulk of litigation in many places. If we were now to observe that an issue, as proposed by the learned Single Judge, is a statutory necessity it may result in remanding literally hundreds and thousands of suits to the trial court without any appreciable benefit to the parties whose needs are genuine. It may give a distinct advantage to the unscrupulous tenants who have really no defence in an action of eviction against them under Section 13(1)(g) read with Section 13(2). If any instance is needed, the present litigation is gross instance of that type.

IN THE HIGH COURT OF BOMBAY

Spl. Civil Appln. No. 2618 of 1977

Decided On: 28.03.1978

 Kisanrao Madhavrao Bartakke Vs. Narayan Dhondi Shete

Hon'ble Judges/Coram:

Balkrishna Narhar Deshmukh and M.L. Pendse, JJ.

Citation: 1978 MHLJ 859,AIR 1979 Bom 74

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Whether court can restrain parties from adducing evidence in accordance with their pleading?

What is the scope of expression "defence appropriate to his character as legal representative" appearing under Order 22 Rule 4(2), is one of the questions arising for consideration in this case. Trial of a suit is confined to the issues framed in the suit. In other words, there is no trial on pleadings; trial is on issues. That is the scheme of Civil Procedure Code.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Letters Patent Appeal No. 136 of 2012

Decided On: 15.05.2012

Udit Kanoi Vs. Himachal Pradesh State Industrial Development Corporation Ltd. and Others

Hon'ble Judges/Coram:

Kurian Joseph, C.J. and Dharam Chand Chaudhary, J.

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Whether application for recasting of issues is maintainable after six years of framing of issues at stage of final argument?

 In so far as the impugned order dated 10th July 2018 passed by the learned trial Judge rejecting the application for recast of the issue no. 1 is concerned, it is not in dispute that the issues were already framed by the learned trial Judge on 15th September 2012. After framing of five issues including the said issue no. 1 which was sought to be recast by the petitioner, the petitioner had already filed an affidavit of evidence as far back as on 2nd August 2012. The said application for recast of issue no. 1 was filed after rejection of the application filed by the petitioner for seeking amendment of the plaint i.e. by an order dated 25th April 2018. Both the parties have already led evidence based on the issues framed by both the parties. The matter is now placed for final argument. Learned counsel for the respondent nos. 1 to 5 submits that he has no objection if the issue no. 1 is partly modified in so far as the issue of possession is concerned. Statement made by the learned counsel for the respondent nos. 1 to 5 is accepted.

18. A perusal of the order passed by the learned trial Judge clearly indicates that the said application below Exhibit-77 has been rejected by a reasoned order. The suit was already posted for final argument and has been adjourned from time to time on one or the other grounds. The learned trial Judge has also considered the pleadings filed by both the parties in this regard and has held that the said issue no. 1 was framed after considering the pleadings. The petitioner never raised any objection when the said issue no. 1 was framed by the trial Court as far back as on 15th September 2012 till filing of an application on 5th June 2018.

19. In so far as the submission of the learned counsel for the petitioner that the issue could be recast at any stage prior to the decree passed by the learned trial Judge under Order XIV Rule 5 is concerned, in my view, since the issue was framed properly after considering the pleadings filed by both the parties which was not challenged by the petitioner for last 6 years, the petitioner could not be allowed to file such application and after the order passed by the learned trial Judge placing the matter on board for final argument. The entire evidence is already led by both the parties based on the original issue no. 1. In these circumstances, no interference is warranted with the orders passed by the learned trial Judge in this petition under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8717 of 2018

Decided On: 10.09.2018

 Archana Ashok Amburle Vs. Arpana Shankar Dudham and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2019(2) MHLJ 67

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Whether it is mandatory for court to frame issue that suit filed without execution of power of attorney is not tenable?

 Therefore, in the present case, when the defendant has taken an objection in the written statement that Surender Kumar had no authority to sign the plaint and verification and in the cross-examination the said Surender Kumar has admitted that on the date of signing the plaint and verifying the same, he had no special power of attorney, the trial Court should have framed an issue with regard to the maintainability of the suit, which has to be decided in the first instance. Even though the trial Court has failed to frame an issue in the first instance, on the basis of the evidence adduced by DW1 that he had no power of attorney at the time of signing the plaint and verification and subsequent to the filing of the suit, the power of attorney was executed in his favour, in accordance with Rule 5 of Order 14, before passing a final decree, the trial Court has got the power to frame issues. When the defendant took an objection that Surender Kumar has no power of attorney to sign the plaint and on the other hand, though he has got letter of authority and that he is entitled to sign the plaint and verification, the trial Court should have framed an issue where one proposition of fact is affirmed by one party and denied by the other. Therefore, keeping this in mind, the trial Court should have exercised the power contemplated under Rule 5 by framing an issue with regard to authority of Surender Kumar to sign the plaint, inasmuch as this issue goes to the root of the matter. Without framing issue with regard to the maintainability of the suit and the authority of the deponent to sign the plaint and verification, trial Court should have not given a finding that deponent has got letter of authority to sign the plaint.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

CCCA No. 153 of 1987

Decided On: 30.10.2000

 Unitech Industrial Corporation  Vs. Arvind Engineering Co., Hyd.

Hon'ble Judges/Coram:

E. Dharma Rao, J.

Citation: AIR 2001 AP 177

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