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TIPS & EXPERT ADVICE ON ESSAYS, PAPERS & COLLEGE APPLICATIONS

Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.

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. Each material proposition affirmed by one party and denied by the other forms the subject of a distinct issue.

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Kinds of Issues—fact, law and mixed:

Issues are of two kinds—(a) issues of fact and (b) issues of law.

There is yet another kind of issue, which is a mixed issue of law and fact.

Duty of Court to frame issues—Order XIV, Rule 1(5):

It is the duty of the court under sub-rule (5) of rule 1 of Order XIV, to ascertain at the first hearing of the suit, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, the material propositions of fact or law on which the parties are at variance and thereafter to frame and record the issues on which the decision of the case depends.

Issues need not be framed when no defence:

The court is not required to frame and record issues if the defendant at the first hearing of the suit makes no defence.

Alleemuddin v. Haji Bashir Ahmed:

While it is true the parties are expected to be vigilant and must see that proper issues are framed in the case but primarily it is the duty of the court and the court cannot be absolved of its responsibility merely because a party has been negligent. Even in an undefended case it is the duty of the court to frame proper issues with a view to inform the plaintiff what points he has to establish before a decree could be claimed.

Deciding of preliminary issues:

The issues of res judicata and constructive res judicata as also the maintainability of the suit could be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues.

Materials from which issues may be framed:

The court may frame the 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;

(b) Allegations made in the pleadings or in answers to interrogates delivered in the suit;

(c) The contents of documents produced by either party. (Order XIV, Rule 3).

Court may examine witnesses or documents before framing issues:

Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it [may adjourn the framing of issues to a day not later than seven days], and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process. (Order XIV, Rule 4).

First hearing:

It is the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and the documents filed by them for the purpose of framing the issues to be decided.

Power to amend and strike out issues:

(1) 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.

(2) 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]. (Order XIV, Rule 5).

Issues of law and of fact:

Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. [Order XIV, Rule 2(1)]. Where issues both of law and of fact arise in the same suit, and the court is of 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—(a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after the issue has been determined, and may deal with the suit in accordance with the decisions on that issue. (Order XIV, Rule 2). Where the decision rests in the first place on a preliminary issue of jurisdiction and the court is of the opinion that the case may be disposed of on that issue, the court has no option but to decide that issue first.

Question of limitation should be decided as preliminary issue by trial Court:

Where suit for malicious prosecution claiming damages was filed after one year and three months from the date of acquittal, i.e., beyond prescribed period. Held, that question of condonation of delay under Section 5 did not arise and no factual investigation or recording of evidence was necessary. Question of limitation was to be considered on mere perusal of averment in plaint and it should be decided as preliminary issue by the trial Court.

Power vests in Court for framing of issues at appellate stage:

Where in a suit for partition, plea was taken by defendant that land in question was purchased by him for his own son and the question as to whether he was tenant thereof or joint family was the tenant, was to be decided by framing issues in that regard and referring the matter to tenancy Court. The said plea was neither raised before the Trial Court nor prayer for framing issue in that regard was made before the Trial Court. Therefore, rejection of said prayer by appellate Court was proper.

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