Under Order XIV, Rules 1 and 2, C.P.C. issues are framed from the material controversies and propositions of law and fact raised in the pleadings of parties and are not limited to the issues raised in the plaint alone.

 Under Order XIV, Rules 1 and 2, C.P.C. issues are framed from the material controversies and propositions of law and fact raised in the pleadings of parties and are not limited to the issues raised in the plaint alone. Rule 1(5) of Order XIV, C.P.C. mandates that on reading the plaint and the written statement and after such examination of the parties as may appear necessary, the court shall ascertain that upon what material propositions of law or fact, the parties are at variance; and shall thereupon proceed to frame issues on which right decision of the case appears to depend. It is clear from bare reading of the provision that the material propositions of law or fact raised in the pleadings of the parties by both sides (i.e. plaintiffs and defendant) shall become subject matter of issues. Perusal of the plaint as also the written statement of respondent No. 1 in petitioners’ suit would show that the matter inter se is not restricted to one joint property alone but extends to other properties as well that either are claimed to be joint, or which are in the name of one of the petitioners but are alleged to be benami and also as such liable to the partition process. Deeper examination of the pleadings in respondent’s suit also reveals that the issues as are the subject matter of petitioners’ suit will also arise in respondent’s suit and parties in both the suits are also the same. This being so; in situation where parties are the same, the subject matter of the two suits raised in the pleadings i.e., plaint and written statement is the same, the questions for determination of issues will be the same and that it will require common evidence for decision; propriety demands that the two suits be consolidated to follow the rule of convenience for parties and to avoid contradictory decisions and unnecessary delay. It appears to be in these circumstances that an amendment was made in Order II, C.P.C. whereby Rule 6-A was added by Lahore High Court Notification No. 237/Legis/XI-Y-26, Gazette of Punjab dated 22.8.2018.

The spirit of the rule supra is that where there are more than one suits of the same nature requiring determination of common issues inter se the same parties, if the court considers it expedient for preclusion of multiplicity of litigation or conflicting judgments, it may direct their consolidation for adjudication through a single trial. The argument that the jurisdiction of court in the first suit will be limited to determination of claim qua one property subject matter of plaint and that it should ignore the respondent’s version in the written statement, possibly cannot be accepted in view of the provisions of Order XIV, Rules 1 and 2, C.P.C. which obligate cognizance of material propositions of law and fact raised in the pleadings of both the plaintiff(s) as well as the defendant(s) and their transformation and recording into issues for determination of controversy. It obviously entails that issues are framed keeping in view version of both sides and such exercise is not limited to contents of the plaint; separate trials in suchlike cases will lead to repetitious exercise of parties to produce same evidence and the anomaly of contradictory or inconsistent decisions at equivalent level could not be logically excluded which eventuality would depart from the policy imperatives underlying proper administration of justice.

Even otherwise the rule is that partial partition shall not be allowed and the entirety of the properties be included irrespective of possession.

W.P. No.21798 of 2022 Aila Azhar and
another Versus Ali Kuli Amin-ud-Din and others
09-03-2023