CHAPTER XI. OF THE SETTLEMENT OF ISSUES. 146. (139). Framing of issues. Issues arise when a material proposition of fact or law is affirmed by the 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. Each material proposition affirmed by one party and denied by the other must form the subject of a distinct issue. Issues are of two kinds: (a) issues of fact, (b) issues of law. At the first hearing of the suit, the Court shall, after reading the plaint and thet written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to the Court to deSee p. 95, pend. (a). *Ss. 48. &c. +S. 40. § S. 121. ПAct I. 1872, Ss, 118, &c, When issues both of law and of fact arise in the same suit, and the Court is of opinion that the case may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. Nothing in this section requires the Court to frame and record issues when the defendant at the first hearing of the suit makes no defence. Allegations from which issues may be framed. 147. 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 or persons; (b) allegations made in the plaint or in the written statements (if any) tendered in the suit, or in answer to§ interrogatories delivered in the suit; Court may examine witnesses or documents before framing issues. (c) the contents of documents produced by either party(b). 148 (140). If the Court be 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 the issues to a future day, to be fixed by the Court, and may (subject to the rules contained in the Indian Evidence Act) compel the attendance of any person or the production of any document by the person in whose hands it may be, by summons or other process. CHAPTER XI. Issue, EXITUS, a single, certain, and material point issuing out of the allegations or pleas of the plaintiff and defendant. In his minute on the Bill, one of our ablest Judges lays to the charge of the Courts in the N.-W. P. that they generally fail in framing issues, one of the most important functions of a Court. "The issues framed are not confined to material averments, and often do not include all the material averments on which the parties are at issue. They are frequently of a complex character, embracing more than one material averment.' What then is an issue, and how should it be framed? The answer is, that it is the point in question, at the conclusion of the pleadings, between contending parties in a suit or action, when one side affirms and the other denies. The cause is then fit for trial in order that a decision may be made in the matter. The issue must be material, single, and certain in its quality. An issue is either an issue in fact or an issue in law. The Calcutta, Madras, Panjab, Oudh and Central Provinces Courts have all given ample directions to Courts how to proceed when they have reached this stage in a trial. These directions are well worth careful study, and, save those for Madras e, infra, will be found in the appendix under the head " Issue," as they are too long for reproduction here. We shall see in this and in the next chapter that some suits can be decided without framing an issue at all. Wherever, however, the parties are at issue, issues must be framed, Reman Parshad v, Janki Parshad, Moocre's I. A., XI. 25. This Code provides that where issues of law and of fact both arise in a case, the Court may, if it think the case can be decided upon the issues of law. postpone settlement of issues of fact until those of law have been decided. Issues may be framed from three sources of material only : (1) Allegations made on oath by the parties, their pleaders, or persons present on behalf of the parties. (2) Allegations made in plaint, written statements, or interrogatories. (3) Contents of documents produced by either party. Additional issues may be framed at any time up to passing of a decree, and wrong issues struck out. Questions of fact or law may, by mutual agreement, be stated to a Court in the form of an issue, and the Court proceed to decide upon them. Madras Rules on Issues. 1. At the first hearing of a suit, if the provisions of secs. 110, 118, 119, 138, 139, 146 and 147 are properly attended to, the Court will have before it the parties or their pleaders or recognized agents, any written statements which may have been put in, and all the documentary evidence adduced in the case. 2. The course to be pursued is to examine the parties (or their pleaders or recog nized agents) orally for the purpose of ascertaining upon what questions of law or fact the parties are at issue, in order that the evidence to be afterwards adduced may be confined to such questions alone, and that the time of the Court may not be wasted in hearing evidence upon matters which are not disputed. 3. The Court should commence by reading out the allegations of the plaintiff, as appearing upon the face of his plaint and written statement, if any, and should then enquire of the defendant how far he admits or denies the truth of the plaintiff's averments. The same course should afterwards be pursued with respect to the pleas of the defendant, the plaintiff being called upon to state how far he admits, or denies, the truth of any of the facts pleaded by the defendant. 4. The result of this examination will necessarily be, that certain matters will have been affirmed on the one side and denied on the other, showing the real questions on which the parties are at issue. 5. Upon the disputed points thus elicited, the Court is to frame the issues, by which is meant that the Court is to set out in clear and concise terms, for the guidance of the parties in the production of their evidence, the real matters upon which the judgment of the Court is required. 6. Thus, in a suit to recover money due under a bond, if the instrument be admitted, and it be merely pleaded that the bond has been discharged, no evidence will be required to prove the execution of the bond, and the only question on which an issue will be necessary, will be the question whether or not the bond has been discharged. 7. And in a suit by a Hindu to obtain a share of ancestral property, if it be merely contended that the property is the self-acquisition of the defendant, and the fact of the family being undivided, as well as the relationship of the plaintiff, be not disputed, Power to amend, add, and strike out issues, 149. (141) 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 controversy between the parties shall be so made or framed. (c) 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. 150. (142) When the parties to a suit are agreed as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and enter into an agreement Questions of fact or law may by agreement be stated in the form of an issue. in writing, (a) that upon the finding of the Court in the affirmative or the negative of such issue, a sum of money specified in the agreement, or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to some right or subject to some liability specified in the agreement, (b) that upon such finding some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct, or (c) that upon such finding one or more of the parties shall do or abstain from doing some particular act specified in the agreement, and relating to the matter in dispute. (d) Court if satisfied that the agreement was executed in good faith may pronounce judgment. (a) 151. (143) If the Court be satisfied, after making such enquiry as it deems proper, (a) that the agreement was duly executed by the parties, (b) that they have a substantial interest in the decision of such question as aforesaid, and (c) that the same is fit to be tried and decided, it may proceed to record and try the issue, and state its finding or opinion thereon in the same manner as if the issue had been framed by the Court; and may, upon the finding or decision on such issue, pronounce judgment according to the terms of the agree ment; and upon the judgment so given, decree shall follow and may be executed in the same way as if the judgment had been pronounced in a contested suit. no evidence will be required to prove the plaintiff's right to the share he claims, and the only question on which an issue will be necessary will be, whether the property is ancestral or the self-acquired property of the defendant. 8. It will not be necessary to specify the parties by whom the matters set out in the issues are to be proved or disproved. If the oral and written statements be duly considered, and the issues carefully framed, the parties cannot fail to discover the evidence which it is material for them respectively to adduce upon each issue. 9. No depositions are to be taken at the time of settling the issues; but, under sec. 118 (see, however, sec 148) the substance of the oral examination conducted by the Court is to be reduced to writing. This should be done by the Judge with his own hand, and duly entered on the record. 10. The order of the Court at the time of settling the issues should be in the handwriting of the Judge as soon as the oral examination of the parties is concluded, and it is to be considered a material paper in the suit, to be transmitted to the appellate Court in the event of an appeal being preferred from the decree of the Court of first instance.. (13th March 1863). 11. When the issues are being framed, the documents filed with the plaint should be admitted or denied. In the order of the Court, the fact of such admission or denial should invariably be recorded. (5th July 1866). (a) Where an issue, though in terms covering the main question in the cause, does not sufficiently direct the attention of the parties to the main question of fact necessary to be decided, and a party may have been prevented from adducing evidence, a fresh issue may be directed to try the principal question of fact.-Oolagappa Chetty v. Hon. D. Arbuthnott, I. A., I. 268. When neither the plaint nor issues directly raise certain points, and when no evidence has been taken relating thereto, the Privy Council held that the High Court were wrong in looking as they did, in the case of Ameeroonissa Khatoon v. Abedoonissa Khatoon I. A. I. pp. 87, 88, into the fact that certain agreements had been executed by an infant and under uudue influence. The issues should raise matters fairly in controversy between the parties, even though the pleadings may be defectively drawn. Vijaya Liyar v. Vijaya Regunada Rungasamy Singapalliar. Mad. H. C. Rep. VIII. 114. (b) A plaintiff will not be allowed to set up one case, and having proved another, to ask for issues to suit the proof. Obhoy Charan Mateh v. Ganesh Chandar Pal, Hyde II. 263. When a statement was prefixed to the issues, to the effect that the vakils of the parties accept the following issues, it is not competent, after such a consent, to object on special appeal that a material issue was omitted. Musst. Sabita Mani v. Madho Sudan Singh, Marsh 519. At the settlement of issues a defendant paid money into Court. This the plaintiff took out in part satisfaction of his claim, and raised an issue as to damages. Subsequently the plaintiff accepted the sum paid in full satisfaction, and withdrew the suit: Held he was entitled to his costs up to and including those of settlement of issues. Ardasir Limji v. Sorabji Pestonji, &c., Bom. H. C. R. I. 70. (c) This will also be found laid down in Arbuthnott v. Betts, where the Chief Justice remarks that what the Act directs, and what the whole procedure of the Code requires, is that the real question in controversy between parties shall be determined. In order to determine that, the Court is authorized to frame such issues and to make such amendments as may be necessary. B. L. R., VI. 277, (d) This should bear a stamp of 8 annas, see Act XVIII. 1859, Sch. II. 11. *S. 68. CHAPTER XII. DISPOSAL OF THE SUIT AT THE FIRST HEARING. 152 (144) If at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judg If parties are not at issue on any question of law or fact. 153. Where there If one of several defen dants be not at issue with ment. are more defendants than one, any one of the defendants is not at issue with the plaintiff on any question of law or fact, the Court may at once pronounce judgment for or against such defendant, and the suit shall proceed only against the other defendants. 154. (145) When If parties are at issue on questions of law or fact. the parties are at issue on some question of law or of fact, and issues have been framed by the Court as herein before provided, if the Court be satisfied that no further argument or evidence than the parties can at once supply is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and if the finding thereon is sufficient for the decision, may Court may determine issue and pronounce judgment. pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit: Provided that, where, the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them object. If the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires. M. 155. (155) If the summons has been issued for the If either party fails to pro- final disposal of the suit, and either duce his evidence, Court may party fails without sufficient cause pronounce judgment. (a) to produce the evidence on which he relies, the Court may at once pronounce judg ment, or may, if it thinks fit, after framing and recording Procedure where Court issues under section 146, adjourn cannot pronounce judgment the suit for the production of such at first hearing. evidence as may be necessary to its decision upon such issues (a). |