KANIZ FATIMA Vs. SHAH NAIM ASHRAF

JUDGEMENT

(1.) K. N. Misra, J. This first appeal was directed against the judgment and decree dt. 16-4-1969 passed by learned Civil Judge, Rae Bareli. After hearing arguments of the learned Counsel for the parties, we had allowed the appeal No. 10 of 1969, D/-10-1-1983 by a short Order for reasons to he indicated later. We now proceed to record our reasons here as under.

(2.) SHAH Naim Ashraf filed this suit in forma pauperis against Smt. Kaneez Fatima, widow of SHAH Hasan Ashraf and Maqsood Ashraf arraying them as defendants 1 and 2 respectively. The plaintiff sought a declaration to the effect that he is legally appointed Sajjada Nashin of the Sajjada of SHAH Ali Hasan Saheb and the latter's Imambara, including Khangah in its northern portion, and other movable property, detailed in list 'ba', which were attached to the said Imambara: and the residential house of SHAH Hasan Ashraf, shown in commissioner's maps, papers 147c/10 and 147c/11, are the waqf properties of the Sajjada of SHAH Ali Hasan and those are not the personal properties of defendants 1 and 2 and they have no concern with it. The plaintiff also sought a relief for possession of the aforesaid properties in case the defendants were found to be in possession of the same. The facts of the case and the pleadings of the parties, on which the plaintiff's claim was based, have been referred in detail in the judgment of the Trial Court hence the same will not be repeated and only a reference to relevant facts would be made.

(3.) IT is evident from the English proceedings that at the time of framing issues, the statements under O. 10, R. 2, Civil P. C. were recorded on 30-10-1968, wherein also specific pleadings with regard to the appointment of Sajjada Nashin of the Sajjada in question were asserted by the parties and their claims with regard to it were set up. The Trial Court, however, framed only the following four issues :- 1. Whether the plaintiff was nominated Sajjada Nashin by Shah Hasan Ashraf and was elected as claimed by the plaintiff ? 2. Whether the property in dispute is waqf property ? if so, whether defendant 1 has perfected her title to the same by adverse possession for more than 12 years ? 3. Whether the plaintiff is debarred from being Sajjada Nashin on the ground claimed by the defendants ? 4. To what relief, it any, is the plaintiff entitled ? 6-7. After taking evidence of the parties, the Trial Court decreed the suit, vide judgment and decree dated 16-4-1960, holding that the plaintiff was legally appointed Sajjada Nashin of the Sajjada of Shah Ali Hasan Saheb and that the latter's Imambara, including the Khangah in its nothern portion, shown in map paper 147c/10 and the movable properties detailed in List 'ba' at the foot of the plaint, are the waqf properties of the Sajjada of Shah Ali. Hasan Saheb and the same are not the personal properties of defendant 1, and that defendant 2 has no concern with it. The suit in respect of the residential house in dispute was dismissed, the decree for possession was accordingly passed against the defendants and in favour of the plaintiff as Mutwalli and Sajjada Nashin of the immovable waqf property and also movable in dispute detailed in List 'ba' at the foot of the plaint. 8. Learned Counsel for the appellant urged that the Court below has erred in not framing proper issues which arise out of the pleadings of the parties. He further contended that the Court below proceeded to record a finding against defendant 2 holding that he was not installed and appointed as Sajjada Nashin, without framing an issue on that point. Referring to the findings, recorded by the court below on the said point, learned Counsel for the appellant urged that the Court below acted illegally in recording a finding against defendant 2, when admittedly no issue on that plea was framed. A Perusal of the judgment of the Court below would indicate that it has been observed that no issue on the plea of defendant 2 that he was installed and appointed as Sajjada Nashin on 17-31958 was framed, but in spite of it, it proceeded to record a finding rejecting the claim by Pointing out infirmities in the evidence led by defendant 2. Simultaneously, it has been observed by the Court below that the finding an this issue (though not framed) is based on the strength of evidence produced on behalf of the plaintiff and not on the weakness of the case of the defendants. In spite of it, the learned Civil Judge rejected the claim of defendant 2 basing his findings mainly on the so-called infirmities in the evidence led by defendant 2 without making any reference to the evidence led by the plaintiff on the point. Such an approach, in our opinion, is not a correct one in dealing with the matter specially in the absence of an issue. 9. Learned Counsel for the respondent strenuously contended that the parties knew the case of each other and the plaintiff as well as defendant 2 had led the entire evidence which they liked to produce in support of their respective claims regarding their appointment, as Sajjada Nashin. In these circumstances, the absence of a specific issue on the question whether defendant 2 was installed and appointed as Sajjada Nashin or not, is not at all material. He further contended that since defendant 2 has brought his entire evidence on record, and, as such, he cannot claim to have been prejudiced by non-framing of an issue on the point, with regard to other pleas raised by defendants 1 and 2 in their written statements and in the statements recorded under O. 10, R. 2, C. P. C. , the learned Counsel for the respondent contended that all those pleas would be deemed to have been abandoned by the defendants as no issue was pressed on their behalf at the time of framing of issues in the suit. In this connection he referred to the proceedings dated 30-10-1968 wherein at the end of the issues, which were framed. IT is mentioned that "no other issue is pressed-" Referring to it, learned Counsel urged that the defendants would be deemed to have abandoned all those pleas although the same were raised in the written statements or in their statements recorded under O. 10. P. 2 of the Code. He thus urged that the Court below has committed no error in not framing issues on the points which have now been urged before this Court and the judgment and decree passed in the suit cannot be taken to stand vitiated on the ground of non-framing of relevant issues, which arise out of the pleadings of the parties, as have been urged by the learned Counsel for the appellant. 10. We have carefully considered the aforesaid arguments of the learned Counsel for the parties and have also gone through the pleadings contained in the plaint, written statements and statements recorded under O. 10. R. 2 of the Code. A perusal of pleadings indicates that the issues, which were framed do not cover all the pleadings raised by the parties on which their respective claims were based. Learned Counsel for the respondents contend that the pleas raised by the parties, which are not covered by the issues, would be deemed to have been abandoned. 11. The foremost question which crops up for consideration is as to what is the object of the framing of the issues and on whom the responsibility rests for framing accurate issues in the suit. A reference may be made to O. 14, R. 1 (5) of the Code which provides : "at the first hearing of the suit the Court shall, after reading the plaint "and the written statements if any and after examination under R. 2, O. X and after hearing the parties or their pleaders, 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 decision of the case appears to depend. " The aforesaid provision would indicate that the object of framing of issues is to direct the attention of the parties to the main questions of fact or law to be decided and the duty of framing and recording the proper issues has been placed on the Court by the Civil P. C. IT is expected that in framing the issues the Courts of law should exert themselves so as to make them sufficiently expressive of the matters which they desire to consider under such issues. The provision contained in R. 5 of O. 14 of the. Code further indicates that in case any relevant issue has been left out to be framed, the Court may, at any time before passing the 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 matter in controversy between the parties, shall be made or framed. IT is thus evident that for proper determination of the matters in controversy between the parties, a duty is cast on Court to frame proper issues before embarking upon to record a decision on the point. The court would not be justified, in the absence of a definite issue, in going into the question and recording a finding on a point, although the same may appear to be very material for recording proper decision in the case. 12. In Jagannath Prasad Bhargava v. Lala Nathimal (AIR 1943 All 17) (DB), a Division Bench of this Court observed that: "it is a very obvious legal principle that there should be no decision against a person who has not had an opportunity of being heard upon the point which is to be decided. Consequently, where in the case of an alienation of joint family property no issue as to legal necessity was framed as the question did not arise out of the pleadings, no decree can be based upon the finding that there was no legal necessity. " On a parity of reasoning, it can very well be said that where no issue has been framed on a question, which arises out of the pleadings of the parties, the Court cannot proceed to record a finding on that point and no decree can be based upon that finding. In the present case, we find that the issues which have been framed do not cover all the pleas raised by the parties and the court has proceeded to record a decision against defendant 2 by holding that he was not duly appointed as Sajjada Nashin although it has observed that no issue on the point has been framed Various other pleas were raised in the written statements and in the statement under O. 10, R. 2 of the Code, but no issues were framed covering those pleas. In that view of the matter, the judgment and decree passed by the Court below cannot be sustained. 13. Learned Counsel for the respondents however contended that all those pleas, on which the issues were not framed would be deemed to have been given up by the parties. In support of his contention he placed reliance upon a decision in Mt. Aliya Begam v. Mt. Mohini Bibi (AIR 1943 Oudh 17) wherein it was observed that when the Court was not asked to frame any issue upon the question of undue influence which was raised in the written statement it must be taken that the plea was abandoned. This decision, no doubt, appears to lay down that a duty is cast on parties to press issues on the pleadings contained in the plaint and written statements and not on court. In our opinion, no such view can be justified on the construction put on provisions of O. 14, R. 1 (5) of the Code. 14. In Ganoo. v. Shri Dev Sidheshwar (1902) ILR 26 Bom 360 (at page 362) Fulton J. observed that "it is the duty of the Court under the Civil P. C. to see that proper issues necessary for the decision of the case are framed. " 15. In Haridas Mundhra v. Indian Cable Co. Ltd. , (AIR 1965 Cal 369) a Division Bench of that High Court observed that :- "where the defendant in his written statement merely acknowledges the execution of the letters, alleged by the plaintiff to be the letters of guarantee for payment, but does not admit the plaintiff's claim for the amount, more than one issue would arise on the pleadings and although the defendant does not take part in framing them, it is the duty of the Court to frame and settle them. " IT was further observed that :- "the refusal by the Counsel for the defendant to help in the framing of the issues does not absolve the Court from framing the issues unless it is satisfied that the defendant does not want to make any defence. " Learned Counsel for the respondents, however, referred to a single Judge decision of the Madras High Court in Gazulu Devendra Ayyar v. P. O. Muthu Chettiar, (AIR 1938 Mad 329) wherein it was held that:- "it is true that the duty of framing issues has been cast by the Civil P. C. on Courts. But it must not be forgotten that it is essential for the parties also to draw the attention of the Court to an omission in framing issues. Where therefore the issue in regard to a party as being an unnecessary party was not pressed on his behalf deliberately when the issues were being framed it must in the circumstances be held to have been waived by him. " Reference was also made to a decision Venkata Narsimha Naidu v. Bhashyakarlu Naidu (1899-ILR 22 Mad 538) wherein the question was whether the learned Vakil for the defendant was authorised to abandon an issue as to the impartibility of a certain estate. The learned Judges of the Madras High Court took the view that a Vakil appointed to conduct a case on behalf of his client has the power to ask for an issue or to abandon an issue, to get a witness summoned or to dispense with his evidence. 16. We have very carefully gone through these cases and find that all these cases were of a clear abandonment of a certain issue. There can certainly be no dispute to the view taken that the pleader's general power in the conduct of the case also includes an abandonment of any issue which in his discretion, he thinks inadvisable to press and, therefore, where any pleas raised in the pleadings has been specifically abandoned by the Counsel, the same cannot be permitted to be raised at the later stage of the proceedings or in appeal against the decree passed in the suit, unless the concession made by the Counsel, giving up a particular plea, is successfully withdrawn by motion being made in that behalf. But we are further of the opinion that where a plea has not been specifically abandoned by a party, it cannot be construed that the plea has been given up by the concerned party merely on the ground that no issue as pressed on that plea at the time of framing of issues. As already observed above, it is the primary duty of the court under Civil P. C. to see that proper issues, necessary for decision of the case, are framed. Even if the parties fail to point out relevant issues to be framed in the case or render no assistance to Court in the matter of framing issues, it would not absolve the court from discharging primary duty cast on it for framing proper issues on all the material points arising out of pleadings of the parties. If the court fails to frame proper issues covering all the pleas raised in the pleadings, the omission on the part of the Counsel for the parties to point out such omission in the framing of relevant issues, cannot be taken to mean that all those pleas, not covered by the issues framed, have been impliedly given up by the parties. In this view of the matter, we are of the opinion that the words "no other issue is pressed" recorded in proceedings dated 30th Oct. , 1968, cannot be construed to amount to abandonment of all other pleas raised by the parties on which no issues have been framed. 17. In Wali Singh v. Sohan Singh (AIR 1954 SC 263), which was referred by the learned Counsel for respondents, it was found that in English proceedings the statement of the Counsel was recorded to the effect that "there is no other point in dispute on any issue to be framed. We give it up if a mention of it is made in the pleadings. " This statement, recorded at the time of framing of the issues, was signed by the Counsel for both the parties. In these circumstances, the Hon'ble Supreme Court held that it was too late to allow the point to be raised at that stage. This case is, therefore, of no assistance to the learned Counsel for the respondents on the point and it cannot be successfully urged that when no issue has been framed on any particular plea raised in the pleadings, the same would be construed to have been abandoned by the party. In order to construe that any plea, raised in the pleadings, has been given up by a party, there should, in our opinion be specific abandonment of such plea to be found recorded in the proceedings as was the case in Wali Singh's case (supra ). Unless any particular plea, which arises in the pleadings or in the statement under O. 10, R. 2 of the Code, has been specifically given up it cannot be shut out from being raised and pressed during the course of trial or in appeal if it relates to a crucial and material question of fact or law. 18. Learned Counsel for the respondents in the end contended that since both the parties very well knew the case of each other and led evidence in support of their respective cases, the omission to frame an issue cannot be taken to have prejudiced them in any manner whatsoever and, therefore, this Court should not interfere with the findings recorded by court below. Reliance was placed on this point on a decision in Kunju Kesavan v. M. M. Philip (AIR 1964 SC 164) where in para 17 of the report it was observed that:- "the parties went to trial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagvathi Valli or not. The absence of an issue therefore, did not lead to a mis- trial sufficient to vitiate the decision. " Similar view was taken in Nagubai Ammal v. B. Shama Rao (AIR 1956 SC 593) and in Nedunuri Kameshwaramma v. Samati Subba Rao (AIR 1963 SC 884 ). 19. There is no dispute with the proposition of law laid down in the aforesaid decision but the true scope of the said rule would be that where the parties have led their entire evidence on all the pleas raised by them, they cannot be permitted to urge at the conclusion of the proceedings or in appeal that they were taken by surprise by non-framing of an issue on that particular point on which they have already exhausted their evidence. In such a case it cannot be said that the parties are prejudiced in any manner whatsoever by non-framing of an issue. But the said rule cannot be construed to cover those cases as well where the evidence was led on issues on which the parties actually went, to trial because it is well settled that the evidence adduced on any particular issue by the parties cannot be made foundation for decision of any other and different plea on which no issue has been framed, because in the absence of an issue on the point they cannot be said to have an opportunity of adducing evidence in support of it or in rebuttal of it. IT cannot be assumed that the parties have exhaustively led evidence on all the pleas raised in the pleadings. A party is supposed to lead evidence only on the issues framed in the suit. The other party can object and the Court can always refuse to record evidence which does not relate to the issues framed in the suit. Even if evidence has been led and brought on record, the court will not be justified to look into that evidence for deciding a point not covered by the issues. Thus, it cannot be said that it the parties had led evidence in the case it should be construed to cover all the pleas raised in the pleadings although no issue has been framed on that point. 20. The object of framing the issue is to direct the attention of the parties to lead evidence on that specific issue framed and if no evidence is led (one line obliterated. Ed.) drawn against the concerned party for holding that it has no evidence to support or to rebut the plea covered by the issue in question. But in the absence of proper issues covering all the pleas raised in pleadings it cannot be said that the parties have exhausted all their evidence or all the pleas raised by them although the same are not covered by the issues framed. In this view of the matter, we find that in the present case since proper issues have not been framed which arise out of the pleadings of the parties as well as in the statement of the case recorded under O. 10, R. 2 of the Code, it cannot be said that the defendants have led all their evidence which they would have led in support of the pleas which are not covered by the issues framed in the suit. The decision, recorded by the court below, therefore, cannot be sustained on the said ground urged by the learned Counsel for the plaintiff. The case, therefore, deserves to be remanded to the Trial Court for decision afresh after framing proper additional issues in the suit and giving full opportunity to the parties to lead their evidence which they may like to produce in support of their case. Learned Court below will carefully scrutinize pleadings and frame necessary additional issues. 21. Since we find that the case deserves to be remanded to the Court below for decision afresh, we do not want to express any opinion with regard to the arguments raised by the learned Counsel for the defendant appellant challenging the findings recorded by Court below. IT is, however, made clear that the court below will decide the case afresh on all issues framed in the suit, including the present one, uninfluenced by the findings recorded on the existing issues. 22. The Court below will proceed to frame issues which arise out of the pleadings of the parties and the statements recorded under O. 10, R. 2 of the Code. 23. In the result, the appeal succeeds and is hereby allowed. The decree passed by the learned Civil Judge, Rae Bareli dt. 16-4-1969 is set aside and Regular Suit No. 10 of 1961 is remanded to learned Civil Judge, Rae Bareli, for decision afresh after framing proper issues and taking evidence of the parties on the issues so framed. 24. Learned Civil Judge, Rae Bareli, is directed to decide the suit within six months from the date of receipt of the record after taking evidence of the parties which they may like to produce. 25. Learned Civil Judge, Rae Bareli, will take care that the case is not adjourned unnecessarily at the request of any of the parties. 26. In the circumstances, we direct the parties to bear their own costs of this appeal. Appeal allowed. .