PAPER PRESENTATION ON

FRAMING OF ISSUES AND JUDGMENT WRITING

BY
N. LAVANYA,
SPL. JFCM, FOR PROH & EXCISE OFFENCES
KADAPA
 Acknowledgements

I am most Thankful to the Honorary Principal District Judge, Sri.

Raghava Rao Garu for giving me a chance to prepare this topic. And

for his valuable guidance, encouragement and co-operation during

preparing this topic.

I am also thankful to my colleagues and friends for the co-

operation and help received from them which is gratefully

acknowledged.

9-10-2015 N. LAVANYA,
Kadapa SPL. JFCM, FOR PROH & EXCISE OFFENCES
KADAPA
 FRAMING OF ISSUES

Introduction: The creation of Focus.

The purpose of this short article is to create focus on a very

important and neglected area of the law: viz. the framing of issues

I have chosen this topic for a start, as I feel that the framing of

issues is probably the most important part of the trial; and only on

laying down the foundation of the case with correct and accurate

issues, is it possible to frame the right questions, go along the

right lines and come to the correct decision in the shortest possible

time that is humanly possible.

The framing of issues is a very vexed problem and I must say

that incorrect and inaccurate framing of issues is possibly the

primary cause of unnecessary delay in disposing of matters before

the Court, apart from causing unnecessary expense to the clients

in terms of time, effort and energy. Conversely, if issues are framed

in the manner required by law, after going through all the

proceedings in the matter including the plaint, written statement

and the documents as envisaged by law, it will cut down a lot of

unnecessary court time. I feel it is very unfortunate, with the

deepest respect to the learned counsel, and to the Judiciary, that

issues are being framed most mechanically after taking draft

issues from both the sides and giving a only a cursory hearing in
the matter.

On giving adequate attention to framing issues correctly, we be

able to focus our attention on the correct line of thought that is

required to decide a matter, and hopefully it will ultimately it lead to

far quicker and more efficient justice. As stated before, there are

several areas in the conduct of a trial framing of issues probably

occupies the highest and most special place, as it is the very

foundation of the case and if it is properly handled it will lead to

quicker and a better quality of justice.

Before I start I would like to find out as to how many believe

that issues spring out of pleadings, and how many believe that

issues spring from the law applicable to that particular genre or

type of cases. As expected, it appears generally, that most of us

mechanically feel that issues are rise and ought of pleadings which

are averred by one party and denied the other, without having an

adequate grasp of the relevant law applicable to cases of that

particular kind.

In this little write up, I shall take you through what the Apex

Court and what several High Courts have said with regard to the

importance and method of framing of issues sharply and correctly.

Thereafter, I shall suggest a method or methodology of framing the

correct issues and issue set, that can be used in every single matter

that comes before the Court. I do nor claim that it will be a perfect

method, but I have put in a lot of effort in it and I hope it will be

worth the while. However, I shall always be grateful for suggestions.

Issues come into play in every area civil, criminal, revenue,

taxation & others

• Issues are the crux of the matter

• Without understanding the crux of the matter there is no

direction in the preparation of the matter or in the conduct of

the matter
• Importance of asking the right questions

In C V Joshi Vs Elphinstone Spinning Mills reported in

2001(supp 2) BomCR 57 the Hon'ble Bombay High Court laid

down that even in execution proceedings issues come into play by

way of prudence, though it is not technically necessary to frame

them.

ISSUES FROM THE CODE OF CIVIL PROCEDURE.

The primary difficulty in understanding issues as stated

hereinbefore, is that the term ‘issues’ in our mind is controlled of by

the first part of Order 14 of the Code of Civil Procedure, which deals

with issues, which we take as a complete and exhaustive exposition

of the law on the subject. The word material is defined thereafter

and separately in sub clause (2) of the Order, but even though it is

of utmost importance, it is often sidelined while framing issues.

Kindly note the word “material” which occurs in the said Order

14 (1) and (2) of Code of Civil Procedure

The word material in Order 14 can only relate to the cause of

action in that particular type of cases

 The word ‘material’ is of prime importance in Order 14 but

somehow it is relegated to the background and this is probably the

main reason why there is much confusion in relation to framing of

issues. The word material in the above Section can only have

reference to the Cause of Action in the matter. Without this

interpretation it loses all its meaning. But what is cause of action.

What is meaning of ‘Cause of Action’?

The Apex Court has laid down in the below mentioned case as to

what is cause of action.

Rajesh Coach Builders .Versus Nagindas Machchram & Sons.

It is well settled that a cause of action means every fact,

which, if traversed, it would be necessary for the Plaintiff to prove in

order to support his right to a judgment of then of the Court. In

other words, it is a bundle of facts which taken with the law

applicable to them, gives a Plaintiff a right to relief against the

Defendant. It must include some act done by the defendant since in

the absence of such an act no cause of action can possibly accrue.

It is not limited to the actual infringement of the right sued on but

includes all the material facts on which it is founded. It does not

comprise evidence necessary to prove such facts, but every fact

necessary for the Plaintiff to prove to enable him to obtain a decree.

Everything which if not proved would give the defendant a right to

immediate judgment must be part of the cause of action. But it has

no nexus whatsoever to the defence which may be set up by the

defendant nor does it depend on the character of the relief prayed

for by the Plaintiff.

What exactly is meant by the term ‘issues’ Do issues arise

primarily from the law or from the pleadings:

It is important to understand while conducting a matter, as to

exactly what is meant by the term ‘issues’. If you go only by the

provisions laid down by the Civil Procedure Code we are apt to

make errors because like what is stated hereinafter, it is not a

complete exposition of the law on the point. A more apt description

and nomenclature would probably be: ‘the questions to be

considered by the Court’ rather than what are the issues in the

matter. The related question which we shall consider hereinafter is

issues arise from the law or from pleadings.

Let me give an example. In a case under the Civil Law, even if

both the sides have not looked into the question of limitation

though the matter is barred under the law of limitation on the face

of the record, ordinarily an issue will not be raised by the Court if it

goes purely by the principles of the Code of Civil Procedure; because

in Order 14 of the Code of Civil Procedure, only those material

propositions of law which have been challenged by that other side

can be matters of issues. However, the Court is duty-bound to

decide the matter as time barred. In fact, it is the duty of the Court

to dismiss the matter under Section 3 of the Limitation Act if it is

time barred, even if neither side has opened this question.

Similarly, in case of a Special Court like the Debt Recovery

Tribunal, a party might, due to oversight or otherwise, not agitate

the question of inherent jurisdiction even if the matter did not fall

within the four corners of the law entitling the Debt Recovery

Tribunal to try the matter.. I feel the first question any special

Court should ask before entertaining or deciding a matter, is

whether that transaction as seen from the face of the plaint falls

within the four corners of the governing section of the particular

act, i.e. Section 17 of the DRT Act, which decides whether or not the

Tribunal has jurisdiction to try the matter. In the aforesaid

circumstances, if the Tribunal at any time finds that it has no

jurisdiction to try the matter, the Tribunal is duty-bound to stop at

that point and send the matter back to the Civil Court or otherwise

proceed as per law. Here again the question is if the matter is

looked into as an issue as envisaged under the Civil Procedure

Code, no issue can be framed because the parties have not opened

this question or denied the same.

Can the issues go beyond the pleadings?

In Satya Narayan Vs Radha Mohan reported in A 1979 Raj 126

the Hon'ble Rajasthan High Court while holding that issues can be

framed even beyond the pleadings held as follows:

This question has been clarified by the above Court in clear

terms as given below:

1. The learned Munsiff is not agreeable to delete it. It is true that so

far as Order XIV, Rule 1 of the Civil P. C. is concerned, issues arise

when a material proposition of fact or law is affirmed by one party

and denied by the other. the said rule, however, does not lay down

the negative that an issue cannot arise otherwise from the formal

pleadings of the parties. Any lawyer familiar with the practice of

Matrimonial Courts in this country will bear out that issues like

issue as to whether there is collusion between the parties or not,

arising out of Section 23, Hindu Marriage Act, are framed by the

matrimonial court no matter whether or not the parties have

pleaded the necessary facts in their pleadings. This is because the

court is forbidden to grant relief under Sections 10 and 13 of the

said: Act unless it is satisfied that the petition under Section 10 or

13 is not presented or prosecuted in collusion with the Respondent.

It is generally considered safe and helpful to frame an issue on the

point so that the Petitioner may not be taken by surprise, by the

courts subsequent to grant of relief to him despite proof of the

ground or grounds on which such relief was claimed, merely

because the Court discovered from other chance material on the

record that the petition was presented or prosecuted in collusion

with the Respondent.

2. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950,

as amended to date, 'provides another instance of a statute

containing a provision which would justify an issue even, if the

pleadings do not contain a specific averment and denial of such

averment in a formal manner. Section 14 (2) of this Act lays down

that no decree for eviction on the ground that the premises are

required reasonably and bona fide by the landlord, shall be passed

if the court is satisfied that having regard to all the circumstances

of the case including the question whether other reasonable

accommodation is available to the landlord or the tenant greater

hardship would be caused by passing the decree than by refusing to

pass it. Now it is obvious that, whether the parties plead or not a

duty is cast on the court to determine the possible consequences of

a presumptive decree for eviction in terms of comparative hardship

to the parties. The issue stated above was framed by the trial Court,

in view of the provisions of subsection (2) of Section 14.No

legitimate objection can, therefore, be taken to the framing of the

issue.

Issues can therefore be said to arise primarily from the law and

not from the facts alone.

The importance of framing issues correctly and accurately:

Issues are the very foundation of the case and if they are not

framed with accuracy and skill it leads to defects in the entire trial

leading to an incorrect judgment

This interesting case which came before the Bombay High

Court, in which the on Hon’ble Court came down heavily upon the

trial Court as the trial Court had passed a decree not against the
defendant/s but against the Plaintiff himself, even though there

was no cross suit or a counter claim filed against him. This case

has been reported in 2009(6) BCR 857 in Siddhi Chunilal Vs.

Suresh Gopkishan. It appears in this case, correct and accurate

issues were not framed, leading to gross injustice, delay and waste

of the Court's time in deciding the matter. It appears that the

Hon’ble Trial Court had passed a decree against the Plaintiff even in

the absence of the cross suit or a counterclaim and decided various

questions which were not material and relevant to the matter.

In 2004 Supreme Court SCW 4205 it was held that where the

Plaintiff is in settled possession of the property; he is entitled to

protect his possession even though he failed to prove his ownership

or title. Even a true owner cannot dispossess such a trespasser

except otherwise than in due course of law and grant of injunction

is proper.

The correct issues ought to have been in conformity with the

above Supreme Court judgment.

Only issues relevant to that genre/type of cases need be

framed.

This case is also illustrative on the question that each type of

cases or rather, each genre of cases has a specific and fixed set of

issues that have to be decided, and the Court ought not to be

misled into going beyond that basic set of issues. For instance, as

stated in the above mentioned case, in cases of perpetual

injunction, the only question is whether there was settled

possession by the Plaintiff, and further if the defendant was

committing breach of the same. It the Hon’ble trial Court had

appreciated this and framed the issues or set of issues in relation

to the aforesaid type/class of cases, then the entire set of issues

relating to the Plaintiff or the defendant’s property being HUF

property and whether the Defendant was addicted to vices, and

that he sold the property not for necessity, could have been

conveniently sidelined and ignored, leading to a quick disposal of

what actually was a very simple routine case.

It may also be noted that the above case not only have erroneous

issues have been framed, but the essential issues have not been

framed at all leading to gross distortion of the entire trial and to

delay and injustice to the parties. .

Object of framing issues

In AIR 2001 Supreme Court 490 the Hon’ble Apex Court has laid

down:

“the stage of framing issues is an important one in as much as on

that day the scope of the trial is determined by laying the path on

which a trial should proceed excluding diversions and departures

therefrom. That the dispute between the parties is determined, aitia

forfeited Naroda and the concave mirror held by the Court the

reflecting the pleadings of the parties pinpointed the issues the

disputes on which the two sides differ. The correct decision of civil

lis largely depends on the correct framing of issues correctly

determining the real point in controversy which need to be decided.

The scheme of Order 14 of the Code of Civil Procedure relating to

settlement of issues shows that and issue arises when a material

proposition of fact or law is affirmed by one party and denied by the

other. Each material proposition and from the one party and denied

by the other to form the subject of a distinct issue. An obligation is

cast on the Court to read the plaint/petition and the written

statement/counter if any, and indigenous with assistants of the

landed counsel for the parties committed propositions of fact or law

on which the parties are at variance. Issues should be framed and

recorded on with this in the case will depend”

Is the usual procedure of framing issues adopted while framing

issues correct? What is the duty of the Court while framing

issues.

The usual procedure that is being usually adopted by the Courts

has been criticized by the Hon’ble Bombay High Court in the

following words:

In Board of Trustees of the port Vs. VM Salgaokar & brothers

it has been laid down:

Duty of court - draft issues submitted by one party should not

be mechanically adopted by the court as it is primarily the duty of

the judge to frame the issues in the cases. Therefore, the judge is

bound to apply his mind to pleadings of the parties before framing

the issues “It is needless to say that it is primarily the duty of the
Judge to frame the issues in the case. Therefore the Judge is bound

to apply his mind to the pleadings of the parties before framing the

issues. It cannot be forgotten that framing of the issues has a very

important bearing on the trial and decision of the case.

As observed by the Supreme Court in (J.K. Iron & Steel Co. Ltd.

Kanpur v. The Iron & Steel Mazdoor Union, Kanpur)1. A.I.R

1956 S.C. 231 the only point of requiring pleadings and issues is to

ascertain the real dispute between the parties, to narrow the area of

conflict and to see just where the two sides differ." This is precisely

what was expected of the learned Judge. From the record it is clear

that after the parities had submitted their draft issues they were

not heard. This position is not disputed even by the learned

Counsel for the Plaintiffs. Therefore, the issues were finalized even

without hearing the parties. From the perusal of the issues it is also

clear that the learned Judge has not taken into consideration the

pleadings of the parties. Shri Presswala the learned Counsel

appearing for the petitioners, has taken me through certain issues

which clearly indicate that they did not arise out of the pleadings of

the parties, namely the differences or real dispute between the

parties. J= satisfied that the issues have been framed by the

learned Judge before me that even when the Order 23rd March,

1988 was passed the learned Judge had not perused the pleading

nor has given proper opportunity to the defendants to point out as

to how the various issues are not necessary or that the burden has

been wrongly cast upon the Defendants”.

Again the Gwalior Bench of the MP High Court has laid down:

In Bhagwan and Ors. vs. Sachi Chandra Jain and Ors.

(07.08.1991 - M...) the Hon’ble Madhya Pradesh High Court has

laid down

I am also very clear in my mind that the duty in regard to

framing of the issue is of the Court which it has to discharge

because it has to try the suit and it has to give notice to parties to

lead evidence with reference to the issues framed. Reference to

Court's "satisfaction" in Prasad's case also implies that duty. I,

therefore, find no force in the contention of Shri Lokendra Gupta

that because the Plaintiff did not apply for framing of issue in

regard to adequacy of consideration, Court's default in that regard

is condonable. Rule 5 of Order 14, C.P.C. empowers the Court to

amend issues or frame additional issues at any stage of

proceedings and it does not contemplate that the power must be

exercised when application is made on the other hand it saddles on

the Court a duty to exercise power suo motu “for determining the

matters in controversy between the parties” if that was necessary to

do so. When the question of exercise of jurisdiction is in issue that

is to be considered in appeal as to whether there was abdication of

jurisdiction or it was exercised illegally or with material irregularity.

Since the framing of issues if the primary duty of the judge,

taking the draft issues of both sides, and framing issues without

following the correct procedure; and to the law applicable to that

type of cases and the pleadings of both sides, and the material
before it would be incorrect. However it was held that there was no

harm in taking help from Advocates of both the sides

Can the Court recast the issues at any stage?

After the amendment of 2002 in the Code of Civil Procedure,

Order 14 Rule 5 which was deleted by earlier amendment, and

brought back, the Courts again have wide powers to amend or

strike out any issues framed at any stage before passing the decree.

Further, the Court has been given powers to amend or frame

additional issues as may be necessary for determining the matters

in controversy between the parties.

As stated earlier, in Bhagwan and Ors. vs. Sachi Chandra Jain

and Ors the MP High Court has laid down that Issues can be

framed at any stage, and it is in fact the duty of the Court to frame

issues at any stage if it comes to the conclusion that the correct

issues have not been framed in the matter.

What happens if proper issues are not framed: The danger of not

clearly comprehending the case and not framing the correct issues

was brought out in Venkataswamy vs. Narayana A. and Ors.

(25.01.2002 - KARHC) where the Karnataka High Court was

pleased to lay down as follows:

“On going through the impugned judgment and pleadings of the

parties, , 1 find that the Trial Court is not clearly comprehended the

disputed factual issues and legal questions that emerge out of

them.
 In a suit filed for bare injunction when the pleadings of the

parties warrant framing of an issue regarding title any adjudication

of the suit only from the stand point of possession without

addressing to the question of title would be only a superfluous

approach and would not be a meaningful and effective

adjudication, further giving rise to multiplicity of proceedings.

Therefore, keeping in view the legislative purport and intent of the

provisions of Section 26 it was just and necessary for the Trial

Court to have framed an issue with regard to the title on the basis

of the averments made by the defendant in the written statement.

In that view of the matter, I find that the Trial Court ought to have

framed an issue with regard to the title to the property and should

have called upon the Plaintiff to pay Court fee on one-half of the

market value.

For the reasons aforesaid, it was imperative on the part of the

Trial Court to have framed an issue with regard to the title as

observed above and to have given a fair opportunity to both the

parties to adduce evidence with regard to the nature of the property

as to whether it is exclusive property of the Plaintiff or otherwise

depending upon the answer to the question the Plaintiff would be

entitled to the final relief.”

SUGGESTED METHOD OF FRAMING ISSUES

General:

The primary questions to be determined, as stated earlier,

relating to limitation, jurisdiction and the like, which may not be

necessarily pleaded by any of the parties, nevertheless cast a duty

on the Court to frame an issue and decide the same before

proceeding with the matter.

Each genre/type of cases has a certain set of issues that can

arise, and that depends on the law and not on the facts. Therefore

the first question would be to see what law is applicable in the

matter to get the decision that the plaintiff wants. All possible

questions that may arise or may have to be determined from that

particular area of law ought to be before the Court while drafting

the issues. It is on the basis of these questions and only on the

basis these questions, can the Court proceed to draft issues. The

aforesaid ‘questions to be determined’ form the backdrop within

which the plaintiff and defendant can plead their case. In other

words if the pleadings of the parties are outside this set of issues,

then they are not relevant to the decision of the case and ought not

to be allowed to become a matter of an issue. The first set of issues

as stated earlier this come from the law, and I have for convenience,

given them the nomenclature of broad basic issues which ought to

cover all the possible issues in that type of cases.

 The next question the Court must have before it, is if the plaintiff

has drafted his pleadings in such a way so as to cover all the

relevant points for determination in order to get the judgement that

he prays for. If these pleadings have not been made, then they are

defective and incomplete, and the Court may proceed either to

dismiss the case under Order 7 Rule 11 or otherwise proceed as per

law. Similarly, if looking to the written statement the Court finds

that all the points for determination have not been brought out in

defence, the Court has to proceed to pass the judgement or

otherwise proceed as per law. It is only after this stage can the

Court proceed to cast issues in the manner as we know it.

In case the Plaintiff has pleaded the facts which fall within one of

these questions for determination, then the Court can look into

whether the defendant has accurately, and as expected in law, and

as expected in the law of pleadings, denied what is stated by the

Plaintiff, so as to form the basis of an issue. If there is no proper

pleading or denial as envisaged by law, and by the law of pleadings,

no issue can be framed on the point. If the Plaintiff has pleaded his

case as per law and the defendant has denied it as envisaged by

law, an issue can be framed on that particular point.

In cases where the ‘point for determination’ is partly admitted by

the other side, such a party would only be required to prove only

that part of the ‘point for determination’ which is not admitted by

the other side and not the point in its entirety. In other words, if the
facts that support a point for determination consist of two parts A

and B, and the other side admits either of them, the issue should

be narrowed down from the broad basic issue to only that part that

the other side is denying. More often than not, this is not done and

the party is obliged to prove the entire issue even though part of it

is plainly admitted by the other side. This leads to great expense

and unnecessary delays

The next step is the correct casting of the burden on the right

party. This has become more or less academic because the Court,

when both sides have led evidence in the matter, has to go by

probabilities rather than by the technical mode of burden of proof.

However, when the weight of evidence is evenly matched it assumes

significance. In criminal cases where the prosecution has to prove

the matter beyond all reasonable doubt, it has its own importance.

The Evidence Act has laid down several rules to decide the question

of burden of proof. I have found it very convenient to use the

following integrated rule for putting the burden on a party:

"The burden of proving something is on the party who asserts the

same, unless the other side would fail is no evidence is given, or

unless the best evidence lies in the hands of the opposite party” It

be may noted here that it is only the person having the best

evidence can produce it, and all the various laws and sections on

burden of proof will be subject to the rule that the person who has

the best evidence has to prove the same, because probably no one

else will be in a position to prove the same however hard he tries.

 After putting the burden of proof on the correct party, one is to see

the interplay of the issues and make the adjustment accordingly.

Some types of cases have an intricate play of issues probably partly

due to bad drafting on part of the draftsmen who have drafted the

law. If a party proves some law or fact, then the other side might in

defence have to prove some legal position or fact which again

obliges the first party to prove some other legal question or fact and

so it goes on. This can sometimes be complicated, but if this is not

done at the start of the case either party may not put in material he

might have otherwise have put in evidence

After this stage is over, the Court can then see whether on the

basis of the issues framed the party can obtain an order related to

the prayers he has made in the plaint or complaint or if the other

side can successfully defend the action.

That I think should give a picture of the stage of framing issues in

a clear sense, as without a correct understanding of the points for

determination and framing of issues, the very foundation of the

case becomes defective leading to gross distortion in the legal

process and injustice and delays in the matter.

Some issues are the prime duty of the Court whether pleaded or

not

• When issues are a prime duty of the Court, the niceties of

pleadings become irrelevant. Only the attention of the Court has to

be drawn to the question.

• Note issues relating to limitation, jurisdiction and inherent

jurisdiction, when they are evident on the face of the record, where

the Court is obliged to dismiss or reject the matter if the matter is

clearly time barred or beyond jurisdiction of the Court.

• Also note issues relating to special areas when the Court gets

jurisdiction to try a matter in appeals and second appeals. In

appeals the Court gets jurisdiction only if there is a defect in the

judgment or order. In second Appeals the mandatory issue is if the

Appellant has raised a substantial question of law.

• When the matter does not disclose a cause of action it is the

duty of the Court to dismiss the same and ensure that it does not

occupy the time of the Court.

In matters relating to Special Courts and Tribunals, the Court

gets jurisdiction to entertain the matter if the plaint transaction

prima facie falls within the four corners of the Section giving the

Special Court its jurisdiction. If it does not, then Court ought to

return the plaint or take such other steps in the matter.

Preliminary Issues

The Court can try the matter as a preliminary issue on pure

questions of limitation, jurisdiction or a bar under any law but not

otherwise. In 2006(5) BomCR 574 the Hon’ble Supreme Court has

laid down “ a Court can try an issue as a preliminary issue if it is a

purely question of law e.g. want of jurisdiction or a bar created by

any other statute; but not in cases which involve mixed questions of

facts and law”

And conversely under Order 15 Rule 3 of the Code of Civil

 Procedure a Court is entitled to decide a preliminary issue if

findings thereon could be sufficient for the decision and it can be

pronounced accordingly. In 2006(1) BomCR 873 the Bombay High

Court has decided accordingly.

A careful perusal and use of the above can cut down the

litigation time and cost enormously.

Order 7 Rule 11

It is well settled that if a matter does not disclose any cause of

action it should be rejected under the provisions of Order 7 Rule 11

of the Code of Civil Procedure. As stated by the Supreme Court

such matters ought not to occupy the time of the Court but ought

to be dismissed”

After the aforesaid preliminary questions have been sorted out

then the main exercise can be proceeded with.

Detect the Broad basic issues that arise in that type/genre of

cases before examining pleadings.

First note the nature and type of case

• Note and frame the ‘issue set’ for cases of that type. It is more

or less a set of directions or a programme of action in that

particular type of cases.

• In Appeals, the first and primary issue is as to “what is wrong

with the Judgment/order”, while in second appeals an issue

relating to the substantial question of law has to be framed which is

the primary issue in the matter.

Narrow basic Issues: Depending on the law of pleadings, and

also referring to those pleadings of opposite side which admit

pleadings of the Plaintiff in part.

Now look to and frame the issues on the factual and legal

questions pleaded and denied and/or admitted either fully or

partially and pare down the issue to its barest essentials.

When framing an issue advert to the strict requirements of

the laws of pleadings both on the part of the Plaintiff and on the

part of the Defendant.

To form the basis of an issue there are requirements of the

pleadings of the Plaintiff and requirements of the denials in the

pleadings of the Defendant and issues can be framed only if the

tests are satisfied.

E.g. In cases of fraud, in res judicata and the like, when the

law of pleadings requires that there have to be specific pleadings,

failing which no issues can be framed on that point.

With reference to the law of pleadings

Vague Pleadings: Where the pleadings are vague and do not fall

within the parameters and the law related to the laws of pleadings

in the Code of Civil Procedure, then issues may not be framed.

in AIR 1979 Bom 52, Bombay High Court has laid down:

“However, when inspite of particulars being asked for, a vague

plea 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 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”

In 2000(4) BomCR 508, the Bombay High Court laid down the

law relating to specific denials in the Written Statement thus:

“A mere vague issue recital that the suit is not maintainable in

law cannot give rise for framing of an issue as to the maintainability

of the suit. Likewise mere assertion in the written statement that

the Defendants are in possession of the since long or for many

years without any knowledge thereof to the Plaintiffs and without

claiming the right of adverse possession does not warrant framing

an issue on adverse possession. If the party intends to make a

particular averment to be the subject matter of an issue in a suit

then it must be specifically denied. Mere non admission could not

warrant the court to frame an issue in that regard. It is well settled

that the Court is not bound to frame issues suo moto on questions

of fact where the parties do not ask for the same. If the denial is not

specific but evasive then the said fact is to be taken to have been

admitted. In such an event the admission itself being proved, no

other proof is necessary and the law in that regard is well settled

since the decision of the Apex Court in AIR 1964 Supreme Court

538”. With reference to the application of the law relating to

burden of proof and presumptions, to the draft issues

• Even though the this area of burden of proof is now academic,

as the court, when both parties have led evidence on an issue, has
 to go by the preponderance of probabilities rather than by the

question of strict burden of proof, it still has its uses when the

evidence is finely balanced.

The integrated principles to put the burden on the correct party

The integrated principle: the burden of proving an issue lies on the

person who alleges a fact, unless the other would fail if no evidence

is given, or the best evidence lies in the hands of the other side.

Alternate lines of issues

In some cases issues have to be framed in the alternative, for

example in cases of Specific Relief they may be one set and line of

issues relating to the specific performance of the contract, and in

the alternative there may be another line and set of issues relating

to grant of compensation case the relief of specific performance is

not granted.

Final and accurate issues [Final Check]

Just by way of illustration in the reported in 2009(6) BCR 857

in Siddhi Chunilal Vs. Suresh Gopkishan. (supra) in which

Borkar J passed his Judgment, the required issue stated with

accuracy when viewed in this context ought to have been:

Does Plaintiff prove that he is in settled possession of the premises?

And Not

Does Plaintiff prove that he is in lawful possession of the premises?

In the latter case it will cause confusion, as the question of title

might then crop in leading to obfuscation of the matter.

CONCLUSION

In conclusion, I hope I have brought into focus the importance of

framing the issues correctly, accurately, with skill and finesse. I

hope I have made you aware of the importance of the said

questions, and the law relating thereto, and give it the importance it

deserves.

Issues have to be understood at every stage, right from the

drafting of the pleadings right to the stage of final arguments. If

properly applied, the law relating to issues can be used to cut down

the litigation time enormously, and to get reasonably good reliefs for

your clients in a much shorter time and with far lesser effort.

‘Issues’ probably form the most important part of the trial,

and if adequate importance is given to the framing of issues, it may

be one single factor leading to quick, affordable and a good quality

of justice.

I earnestly hope that you find the above write up useful to us.

I expect his analysis will help all of our colleagues will help to frame

issued
 In my sincere endeavour to disseminate and transmit this

Information to our respected colleague judicial officers these are some

guidelines which I secured from various sources and this suggestion

might prove useful to you all in due discharge of your judicial

obligations. If anything found irrelevant please excuse that I feel you

are at good heart.

It is most Thankful to the Honorary Principal District Judge,

Sri. Raghava Rao Garu for giving me a chance to prepare this topic.

Thank you