RAJASEKARAN Vs. BHUVANESWARI

JUDGEMENT

(1.) It is not for the parties to dictate terms as to the framing of issue in a suit. A suit is one which is actually instituted in a Court of law and it is resisted by either side and as such when the parties have put their case in the form of pleadings on going through the pleadings and written statements, it is for the Court to frame issues and not the parties to dictate terms are to how the issue should be framed. The Court has to see as to what actually the suit is, the nature of the prayer, the relief asked for by way of prayer as well as the ambit within which the suit lies and the character of that suit. These factors have to the actual subject matter of discretion and judicial discretion of course to be exercised by the Court in framing issues and as such, the independence of the judicial discretion should not be interfered with at the instance of the parties. Ultimately on the decision arrived at regarding the final result of the suit whether the same has to be decreed in terms of the prayer that had been asked for or to be dismissed because of certain reasons that are cogently given in the judgment, the judgment is rendered.

(2.) Order XIV Rule 5, is the provision under which the application Interlocutory Application No. 578 of 1981 had been filed in Original Suit No. 175 of 1980 where in the prayer that had been made by the Defendant is that the Court had not properly appreciated the boundaries of the property in question, as well as the ownership of the same together with the possession and ownership of certain jewels. The trial Court had framed as many as eleven issues in the suit and issue No. 1 alone was deleted by the order in revision and the other issues were retained holding that the same were properly framed by the Court and there was no necessity to recast any one of them. The power to amend and strike out issues is dealt with under Order XIV Rule 5 , Code of Civil Procedure. The Court has got ample power to delete an issue framed, if the Court finds that it is unnecessary. It was so held in Chikkaveeragowda Devgowda 1 Court finding an issue irrelevant can delete the same. It was so held in Poovamy Poojari v/s. Narayana Bhat, I.L.R. (1974) Kant. 1405. But when an issue is raised which is compulsorily referable to another tribunal, such power to delete cannot be exercised. It was so held in B.S. Kamli v/s. G.N. Mohite : A.I.R. 1970 Guj. 148 Order XIV, Rule 2 deals with framing of issues Order XIV Rule 2 deals with the Court to pronounce judgment on all issues Order XIV, Rule 3 deals with materials from which issues may be framed, Order XIV, Rule 4 deals with the Court's power to examine witnesses or documents before framing issues and Order IV, Rule 5 as seen above deals with power to amend and strike out issues. In the instant case, the application had been died as already seen, under Order IV, Rule 5 It is relevant in this Connection to note that this petition which has been field under Sec. 11, Code of Civil Procedure can be allowed only if there is any infirmity in the order in question namely interlocutory Application No. 578 of 1981 in that the lower Court had not followed the principles laid down in the above provision available in the Code of Civil Procedure relating to the power to amend and strike down issues. In the instant case the suit was laid for the relief of declaration in respect of A to C schedule properties. It is contended that the onus is on the Plaintiff -Respondent herein. This is not the stage at which the onus has to be determined. The suit is only in the stage wherein issues had teen framed by the trial Court. The specific attack on the order under revision is that the lower Court erred in casting the burden of proving on the Defendant. It is relevant in this connection to note that in whatever way the issue may be framed yet it is ultimately on the evidence that is going to be let in with a specific reference to the pleading that the Court will have to decide the case. Either the suit will be decreed or dismissed, according to the, merits in relation to the prayer which will determine the nature of the suit, it is of course by considering the nature of the suit on its pleadings that have to be actually gone into by the application of the mind of the Court in which the case has been instituted. Therefore whether it is a suit of any legal proceeding that gives a rise for the decline from a Court, it is for the Court to apply its mind and frame issues, Merely because the issues read in a manner which may seem to the aggrieved party as if they were the determining factor, nothing is going to borne out at the stage finally, unless evidence is let in both oral and documentary, or as the case may be, only oral or only documentary; but even as a matter of fact the documents by themselves cannot prove, is the law and that even a document by consent has to be proved by a witness, is the present law and as such, it is after considering the evidence on record that a Court gives the remedy as per the prayer. Therefore, the issues are only enabling the Court to determine the various features that are exhibited by the pleadings in question.

(3.) Under the circumstances, in the instant case, the trial Court has applied its mind on various contentions raised in the petition and bad found that apart from the first issue, the other issues do not require any modification and the first issue alone was deleted. Whether the first issue was deleted or any other issues deleted in the course of formulation of issues, that do not affect the finality that has to be arrived at, because it is only on the merit of the case on the basis of admissible evidence available on record both oral and documentary, the finality has to be arrived at. Therefore, the importance is not on the issues that are framed and as such the law regarding this aspect as laid down in the decisions quoted above which requires no further elucidation. There is nothing infirmity in the order in question so as to interfere Under Sec. 115 of the Code of Civil Procedure. There is no merit in this revision petition and it is accordingly dismissed. However, there will be no order as to costs.