PLJ 2024 Lahore 253 (DB)
Present: Shahid Bilal Hassan and Masud Abid Naqvi, JJ.
ABDUL RAHMAN and others--Appellants
versus
MUHAMMAD FAROOQ and others--Respondents
R.F.A. No. 14953 of 2022, heard on 20.02.2024.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, (V of 1908), O.XIV R.1, O.XX Rr. 1, 2 & 5, O.XX R.5--Pleadings of parties were in juxta-position--Non-framing of issues as per real controversy--Suit for declaration--Dismissed--Suit property was leased out--Default in payment of rent--Refusal to returned possession of suit property--Direction to--When pleadings of parties had been gone through and had been put in juxtaposition with issues framed it had been found that proper issues, keeping in view real controversy between parties had not been framed and only stereotype issues had been formulated--Issues were not according to pleadings of parties-- The issues framed by trial Court did not covered real controversy--Appeal allowed. [Pp. 257 & 260] A, G & H
PLD 2003 SC 184 and PLJ 2010 SC 530 ref.
Issue--
----Term “issue” in a civil case means a disputed question relating to rival contentions in a suit--For a correct and accurate decision in shortest possible time in a case, it is necessary to frame correct and accurate issues-- Issues mean a single material point of fact or law in litigation that is affirmed by one party and denied by other party to suit and that subject of final determination of proceedings.
[P. 257] B, C & D
Civil Procedure Code, 1908 (V of 1908)--
----O.XIV Rr. 1 to 6, O.XV R. 1, O.XVIII R. 2, O.XX R. 5, O.XLI R. 31--Duty of Court--Framing of issues--It is duty of Court to frame issues from material propositions--To frame issues, Court is to find out questions of fact, questions of law and mixed questions of fact and law from pleading of parties and other materials, which are produced with pleading and parties are to produce their evidence to prove or disprove framed issues. [P. 258] E
Discretionary power--
----Regarding amendment of framed issues, Court possesses discretionary power--Court can exercise this power when no injustice results from amendment of framed issue on that point, which is not present in pleading(s)--However, it cannot be exercised when it alters nature of suit, permits making of new case or alters stand of parties through rising of inconsistent pleas. [P. 259] F
Syed Muhammad Usman Tirmizi, Advocate for Appellants.
Mr. Asif Siddique Chaudhry, Advocate for Respondents.
Date of hearing: 20.02.2024.
Judgment
Shahid Bilal Hassan, J.--Succinctly, the appellants instituted a suit for declaration with subsequent relief along with recovery of mesne profit against the respondents with respect of the suit property measuring 178-Kanals 15-Marlas, situated at Mauza Maryuin Kalan, Tehsil and District Gujranwala, as per Record of Rights for the year 2014-15 contending therein that due to the permanent residence of the plaintiffs in District Lahore, they leased out the suit property to Defendant No. 13 who was son-in-law of their sister namely Zubaida Bibi, brother-in-law of plaintiff No. 1, but Defendant No. 13 always remained reluctant in payment of rent and most of the time he failed to pay the amount of Thaika” but the appellants tolerated this conduct of Defendant No. 13 due to the above said relationship. Ultimately on demand of plaintiffs, Defendant No. 13 refused to return the possession of suit property and this controversy led to registration of FIR No. 1/2016. Due to the above said litigation and the permanently living of appellants in Lahore, the appellants, on the offer of Defendant No. 1 became ready to enter into a fake and fictitious agreement with Defendant No. 1 who assured them that the said agreement would be merely to show the Defendant No. 13 and he being influential person would be in the better position than the appellants to litigate and deal with the Defendant No. 13 in the Courts and out of the Courts. Defendant No. 1 further persuaded the appellants that as soon as they would get the possession of suit property, they would settle all the matters with respect to their agreement and meanwhile preferred to write the agreement on the stamp paper valuing Rs. 100/-. Therefore, vide fictitious agreement dated 15.04.2016 with respect to suit property measuring 178-kanals 15-marlas in total consideration of Rs. 4 crores, 46-lacs, 87 thousand i.e. Rs. 2,000,000/- per acre on the stamp paper valuing Rs. 100/- penned down. At that time, it was also disclosed to the buyers that the appellants were in litigation with Zubaida Bibi with respect to her share in the suit property. The appellants claimed in the plaint that the price of land was much higher at that time but due to the dispute with Defendant No. 13, the appellants opted to show the low-price of their shares in the suit property. In the said agreement, fake payment of Rs. 2,500,000/- was also and to the extent of remaining payment, the target date was fixed as 15.01.2017. As a matter of fact, the payment was merely mentioned in the agreement to pressurize the Defendant No. 13 so that the possession of suit property could be restored to the appellants and it was orally settled down that the duration of agreement to sell and schedule for payment of consideration amount shall be settled down after taking the possession from Defendant No. 13. However, even after the attempt of sale agreement, Defendant No. 13 could not be refrained from his activities and continued to interfere into the suit property in one way or the other. Meanwhile, the appellants also moved an application for the correction of entries in “Khasra Girdawry” with respect to suit property and Defendant No. 13 also filed a suit for specific performance against the appellants and their sister. As a result of mutual settlement between the appellants and Defendant No. 1, the Defendant No. 1 pursued the suit for specific performance and appellants used to ask him about the status of their cases, the reply of the Defendant No. 1 always satisfied the appellants. However, on the demand of Appellants No. 1 and 2, ultimately in March, 2017, the Defendant No. 1 paid an amount of Rs. 1.8 million through cheque to the Appellants No. 1 and 2 and likewise in April, 2017, further consideration amount Rs. 1.3 million was paid, so in this way the outstanding amount towards the Defendant No. 1 remained Rs. 41,587,500/-. Ultimately, the Defendant No. 1 showed his failure to compel the Defendant No. 13 and also showed his inability to spend upon the litigation and also to further pay the remaining consideration amount, therefore, he suggested the appellants to enter into the fresh agreement with the Defendant No. 2 while reiterating his promise to pursue the above said litigation to get restored the possession and forthwith payment of remaining consideration amount. Like past, the appellants again trusted the words of Defendant No. 1 and on 06.11.2017, Appellants No. 1 & 2 entered into a new agreement with respect to the suit property with Defendant No. 2 in consideration of Rs. 44,687,500/-. Defendant No. 2 also caused to get mentioned the earnest amount as Rs. 17,500,0000-/ while explaining that it was necessary to intimidate the Defendant No. 13. In November 2017, further amount of Rs. 4,500,000/- in the shape of cheques was paid to the Appellants No. 1 & 2 with the commitment that all the litigations/cases would be concluded and the possession would also be restored to the appellants. Therefore, in this way, only the amount of Rs. 7.6 million was paid by the Defendants No. l & 2 to Appellants No. 1 & 2 and still huge amount was outstanding towards the Defendants No. 1 & 2. Meanwhile redemption amount of Rs. 425,000/- was also paid by the Defendants No. l & 2. In April 2018, Defendant No. 2 informed the Appellants No. 1 & 2 about the decision of their cases of ejectment and rent in their favour and assured them that soon they would be able to get the possession of suit property. As the Appellants No. 1 & 2 were weak persons, they opted to remain behind the scene to get the possession of the suit property. At that time there was great atmosphere of mutual trust between the parties to agreement after winning the litigation from the Defendant No. 13 and again appellants on the opinion of Defendant No. 2, signed the sale deed and also affixed their thumb impressions to further pressurize the Defendant No. 13. In April the amount of Rs. 2-million was paid to Defendant No. 2 and in this way, the amount of Rs. 346,500/ remained outstanding towards Defendant No. 2. After that, the Appellants No. l & 2 were informed by Defendants No. 1 & 2 that litigation before Anti-corruption has also been concluded in favour of Appellants No. 1 & 2 and as soon as they would get the possession of the suit property the remaining payment shall be made. Then appellants got the knowledge about the alienation of suit property in favour of Defendant No. 13, they forthwith contacted the Defendant No. 2 who became furious and thereafter Appellants No. 1 & 2 also came to know that in violation of impugned agreement, the suit property had been transferred in the name of Defendants No. 2 to 12 through misrepresentation and without knowledge and paying the remaining consideration amount. Since then, Appellants No. 1 & 2 have been asking for remaining consideration amount and for cancellation of impugned sale deed in favour of Defendants No. 2 to 12 along with mesne profits. They also alleged that due to the dishonesty on the part of Defendant No. 2, appellant No. 2 also passed away due to the cardiac arrest. Therefore, the appellants claimed Rs. 30,000,000/- too on account of general damages. The appellants also referred video recording as a proof of residual amount.
2. Written statement was submitted on behalf of Defendants No. 1 to 12 jointly. They raised certain preliminary and factual objections and termed the impugned transactions correct after fulfilling all the necessary ingredients of sale and ultimately prayed for dismissal of the suit.
3. The divergence in pleadings of the parties the learned trial Court framed following issues:-
1. Whether the plaintiffs are entitled to the decree for declaration along with permanent injunction as prayed for? OPP
2. Whether plaintiffs have come to the Court with clean hands and they have locus standi to file the instant suit against the defendants? OPP
3. Whether the suit of the plaintiff is false, frivolous and vexatious and the same is liable to be dismissed? OPD
4. Relief.
Both the parties adduced their oral as well as documentary evidence. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 11.01.2022 dismissed suit of the appellants; hence, the instant appeal.
4. Heard.
5. In this case, when the pleadings of the parties have been gone through and have been put in juxtaposition with the issues framed it has been found that the proper issues, keeping in view the real controversy between the parties have not been framed and only stereotype issues have been formulated. In this regard, it is observed that the term “issue” in a civil case means a disputed question relating to rival contentions in a suit. It is the crucial point of disagreement, argument or decision. It is the point on which a case itself is decided in favour of one side or the other, by the Court. Framing of issues is probably the most important part of the trail of a civil suit. For a correct and accurate decision in the shortest possible time in a case, it is necessary to frame the correct and accurate issues. Inaccurate and incorrect issues may kill the valuable time of the Court. According to the dictionary meanings, “issue” means a point in question; an important subject of debate, disagreement, discussion, argument or litigation. Issues mean a single material point of fact or law in litigation that is affirmed by one party and denied by the other party to the suit and that subject of the final determination of the proceedings.
As per the Order XIV Rule 1(4) of the Code of Civil Procedure, 1908, issues are of two kinds: (1) Issues of fact, (2) Issues of Law. Issues, however, may be mixed issues of fact and law. Rule 2(1) of Order XIV provides that where issues: both of law and fact arise in the same suit, notwithstanding that a case may be disposed of on a preliminary issue, the Court should pronounce judgment on all issues, but if the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates to: The jurisdiction of the Court; or A bar to the suit created by any law for the time being in force. For that purpose, the Court may, if it thinks fit, postpone the settlement of the other issues until the issues of law have been decided. The main object of framing of issues is to ascertain the real dispute between the parties by narrowing down the area of conflict and determine where the parties differ. An obligation is cast on the Court to read the plaint and the written statement and then determine with the assistance of the learned counsel for the parties, material propositions of fact or of law on which the parties are at variance. The issue shall be formed on which the decision of the case shall depend. The object of an “issue” is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment then proceeding issue-wise would be able to tell precisely how the dispute was decided.
It is duty of Court to frame issues from material propositions. To frame issues, Court is to find out questions of fact, questions of law and mixed questions of fact and law from pleading of parties and other materials, which are produced with pleading and parties are to produce their evidence to prove or disprove framed issues. Following are the relevant provisions in this regard:-
i. Order XIV Rule 1 to 6 of CPC 1908
ii. Order XVIII Rule 2 of CPC 1908
iii. Order XX Rule 5 of CPC 1908
iv. Order XLI Rule 31 of CPC 1908
v. Order XV Rule 1 of CPC 1908
Matters to be considered before framing of issues are:-
i. Reading of the plaint and written statement, the Court shall read the plaint and written statement before framing an issue to see what the parties allege in it.
ii. Ascertainment whether allegations in Pleadings are admitted or denied, Order X Rule 1 permits the Court to examine the parties for the purpose of clarifying the pleadings, and the Court can record admissions and denials of parties in respect of an allegation of fact as are made in the plaint and written statement.
iii. Admission by any Party. If any party admitted any fact or document, than no issues are to be framed with regard to those matters and the Court will pronounce judgment respecting matters which are admitted.
iv. Examination of material proposition. The Court may ascertain, upon what material proposition of law or fact the parties are at variance.
v. Examination of witnesses. The Court may examine the witnesses for purpose of framing of issues.
vi. Consider the evidence. The Court may also in the framing of issues take into consideration the evidence led in the suit. Where a material point is not raised in the pleadings, comes to the notice of the Court during course of evidence the Court can frame an issue regarding it and try it.
vii. Examination of any witnesses or documents under Order XIV Rule 4. Under this rule any person may be examined and any document summoned, for purposes of correctly framing issues by Court, not produced before the Court.
The Court may frame the issues from all or any of the following materials.
i. Allegations made on oath. Issues can be framed on the allegations made on oath by the parties or by any persons present on their behalf or made by the pleader of such parties.
ii. Allegations made in Pleadings. Issue can be framed on the basis of allegations made in the pleadings.
iii. Allegations made in interrogatories. Where the plaint or written statement does not sufficiently explain the nature of the party’s case, interrogatories may be administered to the party, and allegations made in answer to interrogatories, delivered in the suit, may be the basis of framing of issues.
iv. Contents of documents. The Court may frame the issue on the contents of documents produced by either party.
v. Oral examination of Parties. Issues can be framed on the oral examination of the parties.
vi. Oral objection. Issues may be framed on the basis of oral objection.
Furthermore, at any time before passing of decree, Court can amend framed issues on those terms, which it thinks fit. However, such amendment of framed issues should be necessary for determination of matters in controversy between parties. Moreover, at any time before passing of decree, Court can strike out framed issues especially when it appears to Court that such issues have been wrongly framed or introduced. Regarding amendment of framed issues, Court possesses discretionary power. Court can exercise this power when no injustice results from amendment of framed issue on that point, which is not present in pleading(s). However, it cannot be exercised when it alters nature of suit, permits making of new case or alters stand of parties through rising of inconsistent pleas. Regarding amendment of framed issues, Court also has mandatory power. In fact, Court is bound to amend framed issues especially when such amendment is necessary for determination of matters in controversy, when framed issues of do not bring out point in controversy or when framed issues do not cover entire controversy. When the lower Court omitted to frame an issue before trying a matter in controversy, the appellate Court can frame the issue and refer it for trial to the lower Court. There is no need to remand the entire case. Then the lower Court should try such issues and return the evidence and its decision to the appellate Court.
6. However, in this case, the issues are not according to the pleadings of the parties. It seems that the learned trial Court was not acquainted with the real myth of framing of issues, because the parties have to lead evidence keeping in mind the burden of proof placed upon their shoulders while formulating issues. The issues framed by the learned trial Court do not cover the real controversy, meaning thereby the provisions of Order XIV, Rule 1 of the Code of Civil Procedure, 1908 have been defiled. Evidence is led after framing of issues. The stage of framing of issues is very important in trial of civil suit because at that stage the real controversy between the parties is summarized in the shape of issues and narrowing down the area of conflict and determination where the parties differ and then parties are required to lead evidence on said issues. The importance of framing correct issues can be seen from the fact that parties are required to prove issues and not pleadings as provided by Order XVIII, Rule 2, CPC. The Court is bound to give decision on each issue framed as required by Order XX, Rule 5, CPC. Therefore, the Courts while framing issues should pay special attention to Order XIV of CPC and give in depth consideration to the pleadings etc. for the simple reason that if proper issues are not framed, then entire further process will be meaningless, which will be wastage of time, energy and would further delay the final decision of the suit. In the present case, as observed supra, the learned Trial Court did not ponder upon the pleadings of the parties while framing issues and could not sum up the real controversy into issues; thus, further proceedings are of no use. In this regard reliance is placed on Muhammad Yousaf and others v. Haji Murad Muhammad and others (PLD 2003 Supreme Court 184) wherein it has been held:
“The provisions as contained in Order XIV, Rule 5, C.P.C. were not kept in view and ignored completely by the learned trial Court while framing the issues as a result whereof controversy regarding removal of household articles could not be set as naught. There is no cavil to the proposition which was settled decades ago and still hold field “that 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 questions of fact, necessary to be decided, and the parties may have been prevented from adducing evidence, or fresh issue may be directed to try the principal question of fact”. (Olagappa v. Arbuthnot (1875) 14 BLR 115-142, 14/268, 316. “The duty of raising issues rests under the Code of Civil Procedure on the Court and it would be unsafe to presume from the failure of the Court to raise the necessary issues an attention of the defendant to admit the fact, which the plaintiff was bound to prove.” (Ganou v. Shri Devsidhes War, 1902 AIR 26 Bom. 360-361).”
Further reliance in this regard is placed on Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others (PLJ 2010 SC 530), wherein it has been held that:
“It is the duty of the Court to frame issues correctly primarily on pleadings of the parties, because the issues framed by the Court correctly reflect the controversies arising from the pleadings of the parties and the Court thus can render an effective judgment on the disputed facts and the party also know on what fact the evidence should be led.---------------------------------------------------------------------------------------, that framing of a particular issue was not pressed by party affected is no ground for condoning failure to frame necessary issue and the mandate of Order XIV, Rule 1, CPC reveals that it is incumbent upon the Court to frame issues in the light of the controversies raised in the pleadings and after examination of the parties, if necessary. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by recording evidence on all material points. It is the settled principle of law that “action or inaction” on the part of the Court cannot prejudice a party to litigation and the failure of Courts below to determine material issue amounted to exercise of jurisdiction illegally or with material irregularity.”
7. For the foregoing reasons, without touching the merits of the case, may it prejudice case of either of the side, the impugned judgment and decree dated 11.01.2022 handed down by the learned trial Court is set aside by allowing the appeal in hand and case is remanded to the learned trial Court with a direction to re-frame issues, keeping in view the above said observations by considering the pleadings of parties, record evidence and decide the case afresh on merits in accordance with law within a period of six months from the date of receipt of copy of this judgment. The adversaries are directed to appear before the learned trial Court on 07.03.2024.
(Y.A.) Appeal allowed
