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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VIZAG

CIVIL PROCEDURE CODE

NAME: SHASHI RANJAN KUMAR


ROLL ID: 2014109
SEM: V SEMESTER
FACULTY: Mrs. N. BHAGYALAKSHMI
TOPIC: TRIAL OF CIVIL SUIT

ACKNOWLEDGEMET
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I take immense pleasure in thanking my constitutional law ii teacher for giving me this
opportunity to give a project on TRIAL OF CIVIL SUIT
I thank my faculty Mrs. N. BHAGYALAKSHMI, for extending his support in
completion of this project finally, this project would be incomplete without thanking
the almighty who has showered his blessings.

SHASHI RANJAN KUMAR


2014109
V SEMESTER

CONTENT
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ABSTRACT
INTRODUCTION
INSTITUTION OF SUIT
FRAMING OF ISSUES
GENERAL SUGGESTIONS FOR FRAMING ISSUES
IMPORTANCE OF ISSUE IN SUIT PROCEEDINGS
CASE ANALYSIS
CONCLUSION
BIBLIOGRAPHY

INTRODUCTION:

The Code of Civil Procedure (CPC) is a procedural law; it neither creates nor takes away
any right. It is intended to regulate the procedure to be followed by civil courts. In other
words, the CPC regulates the functioning of civil courts. Civil case is such that it is not
criminal in nature. It is generally on property, business, personal domestic problems,
divorces and such types where ones constitutional and personal rights are breached. In
brief, it lays down the: Procedure of filing a civil case; Powers of court to pass various
orders; Court fees and stamps involved in filing of a case; Rights of the parties to a case
(plaintiff & defendant); Jurisdiction and parameters of civil courts functioning; Specific
rules for proceedings of a case; Right of Appeals, review or reference. In fact, the first
uniform Code of Civil Procedure was enacted in 1859. The present Code of Civil
Procedure was enacted in 1908. The object of the Code is to consolidate and amend the
laws relating to procedure of Civil Judicature. CPC is designed to further the ends of
justice and is not a penal enactment for punishments and penalties. The CPC can be
divided into two parts: (a) the main body of the CPC containing 158 sections; and (b) the
First Schedule, containing 51 Orders and Rules. The Sections deal with matters of a
substantive nature laying down the general principles of jurisdiction, while the First
Schedule relates to the procedure and the method, manner and mode in which the
jurisdiction may be exercised. The body of the CPC containing sections is fundamental
and cannot be amended except by the legislature. The First Schedule of the CPC,
containing Orders and Rules, on the other hand, can be amended by High Courts. The
CPC has no retrospective operation.
INSTITUTION OF SUIT:
SECTION 26 of the Civil Procedure Code says that every suit must be instituted by
presentation of a plaint or in other prescribed manner. In every plaint, the facts must be
proved by affidavits. Plaint is a private memorial submitted to court in writing in which
the person presents his cause of action. Only the person who has got cause of action or his
authorized representative can institute a suit.
Suit must always be instituted by the presentation of the plaint only, and hence any civil
proceeding commenced by means of an application or otherwise does not become a suit.
As per Order 4, Rule 1, the plaint must be submitted in duplicate to the court. Further
every plaint must comply with the rules contained in Order 6 and 7.The plaint must show
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in what capacity the plaintiff sues the defendant. While submitting the plaint, the Court
fee for the service of the plaint along with the summons must be paid. As per Rule 2 of
Order 4, the particulars of every suit must be entered in the court register called Register
of civil suits. The entries are serially numbered in every year according to their order of
admission of plaints.1
Court in which suits to be instituted
Every suit shall be instituted in the Court of lowest grade competent to try it. Here
competency refers to pecuniary jurisdiction, which shall be determined by High Court
from time to time.
To reduce the burden of the higher Courts
Afford convenience to the parties and witnesses who may be examined by them in such
suits.
The District Judge and Sub-Ordinate Judges all have jurisdiction over all Original Suits.,
cognizable by the Civil Court subject to the condition suits are to be instituted in a Court
of lowest grade competent to try it.
Suits to be instituted where subject matter situate
Subject to pecuniary and other limitations prescribed by any law, suits for:
Recovery of immoveable property with or without rents and profits,
Partition of immoveable property,
Foreclosure, sale, redemption in cases of mortgage or charge upon immoveable
property,
Determination of any other right or interest in immoveable property,
Compensation of wrong to immoveable property,
Recovery of moveable property actually under attachment, Shall be instituted in
Court, within the local limits of whose jurisdiction the property is situate. It is also
provided that when suit is filed It obtain relief respecting or compensating any
wrong to any immoveable property,
And relief can be entirely obtained through personal obedience.
In above case, the suit can be instituted either at
Court within whose local limit the property is situated.
1 https://www.scribd.com/doc/91703415/Institution-of-Suit
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Court within whose local jurisdiction the defendant voluntarily resides or conducts
business or trade.
Anand Bazaar Patrika V Biswanath Prasad2
Held a suit for Specific performance for, contract of sale with possession, it has to
be instituted in the Court in whose jurisdiction the property is situated and can not
be filed where cause of action arises.
Seetha Rama Chetty V Kamala Amma
In a suit filed in Bangalore for a property located in Tamilnadu, to determine right
and interest in the immoveable property, Court held that as long as the defendant
is residing within the jurisdiction of Bangalore Court, where the suit is instituted,
the suit was maintainable under S.16(d) read with the proviso.
Suits for immovable property situate within jurisdiction of different Courts
Where the subject matter of the suit, immoveable property, is situated within the local
jurisdiction of two or more different Courts, the suits may be instituted in any Court,
within whose local jurisdiction, a portion of the property is situated, and Court is
competent to adjudicate over entire suit property, not just portion situated in its
jurisdiction.
Place of institution of suit where local limits of jurisdiction of Courts are uncertain
When it is uncertain as regards under which of the two or more Courts, the territorial
jurisdiction falls into, and one of such Courts has also ascertained such uncertainty, then it
may proceed to entertain and dispose the suit related to the property; after recording the
existence of such uncertainty.3

ISSUE OF SUMMON
2 29 November, 1984,AIR 1986 Pat 57, 1985 (33) BLJR 88
3 http://studentlawnotes.blogspot.in/2012/12/place-of-suing-s15-to-21-cpc.html
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A summon is a legal document that is issued by a Court on a person involved in a legal


proceeding. When a legal action is taken against a person or when any person is required to
appear in the court as a witness in a proceeding, to call upon such person and ensure his
presence on the given date of the proceeding, summons are served.A summon is served when
a suit has been initiated by the plaintiff against the defendant, the court directs to issue
summons to the defendant as this ensures a fair trail. If the summons are not duly served then
no action can be taken against the defendant.If on serving of the summon and the person
against whom it had been issued does not appear in the court then this will be taken as a
Contempt of Court and shall be punished accordingly.The summons is the descendant of the
writ of the common law.Section 27 and Order 5 of the Code of Civil Procedure deals with
the service of summons to the defendant and in the Code of Criminal Procedure, from section
61 to 69 deals with the topic of summons.
WRITTEN STATEMENT IN CIVIL SUIT.
The defendant shall, within thirty days from the date of service of summons on him, present a
written statement of his defence.Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall be allowed to file the same on such
other day, as may be specified by the Court, for reasons to be recorded in writing, but which
shall not be later than ninety days from the date of service of summons.
Procedure when party falls to present written statement called for by Court.- Where any
party from whom a written statement is required under rule 1 or rule 9 fails to present the
same within the time permitted or fixed by the Court, as the case may be, the Court shall
pronounce judgement against him, or make such order is relating to the suit as it thinks fit and
on the pronouncement of such judgement a decree shall be drawn u

EXAMINATION OF PARTIES BY THE COURT


1. Ascertainment whether allegations in pleadings are admitted or denied
At the first hearing of the suit the Court shall ascertain from each party or his pleader
whether he admits or denies such allegations of fact as are made in the plaint or written
statement (if any) of the opposite party, and as are not expressly or by necessary

implication admitted or denied by the party against whom they are made. The Court shall
record such admissions and denials.
2. Oral examination of party, or companion of party
(1) At the first hearing of the suit, the Court(a) shall, with a view to elucidating matters in controversy in the suit examine orally
such of the parties to the suit appearing in person or present in Court, as it deems fit; and
(b) may orally examine any person, able to answer any material question relating to
the suit, by whom any party appearing in person or present in Court or his pleader is
accompanied.
(2) At any subsequent hearing, the Court may orally examine any party appearing in
person or present in Court, or any person, able to answer any material question relating to
the suit, by whom such party or his pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course of an examination under this rule
questions suggested by either party.
3. Substance of examination to be written
The substance of the examination shall be reduced to writing by the Judge, and shall form
part of the record.
4. Consequence of refusal or inability of pleader to answer
(1) Where the pleader of any party who appears by a pleader or any such person
accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any
material question relating to the suit which the Court is of opinion that the party whom he
represents ought to answer, and is likely to be able to answer if interrogated in person, the
Court may postpone the hearing of the suit to a future day and direct that such party shall
appear in person on such day.

(2) If such party fails without lawful excuse to appear in person on the day so appointed,
the Court may pronounce judgment against him, or make such order in relation to the suit
as it thinks fit.

Facts
Kapil Corepacks filed a suit against Harbans Lal for recovery of money, alleging that while
Harbans Lal had executed an agreement to sell it an industrial property and had further
received payment towards the agreement, it had refused to convey the property and disclose
adequate documentation regarding the property's proof of title.
Harbans Lal had meanwhile filed a criminal complaint against Kapil Corepacks alleging that
the purported signatures on the agreement were forged. Harbans Lal had additionally filed its
written statement denying the claim and alleging that it had never signed the agreement and
that the signatures were, in fact, clever forgeries.
In the course of the suit proceedings a second appellant, the managing director of the first
defendant, was examined under Order 10, Rule 2(1) of the Code of Civil Procedure and
shown a copy of the agreement where only the rubber stamp and the signature on the
document was visible and the rest of the document was covered by blank paper. The High
Court judge made an order (confirmed by the Division Bench of the High Court on appeal)
that the second appellant had admitted to his signature on the agreement, as well as the
company's rubber stamp, and was, as such, liable for prosecution under Section 340(2) of the
Code of Criminal Procedure with Section 195(3) of the Penal Code.
Questions for determination
The case related to the scope of Rule 2 of Order 10 of the Code of Civil Procedure and the
correctness of invoking Section 340 of the Code of Criminal Procedure in regard to answers
given by a party in an examination by the court under the rule. The Supreme Court was
specifically concerned with the following questions arising for its consideration:
What is the scope and ambit of Order 10, Rule 2 of the code?

In an examination under Order 10, Rule 2, can a court confront a defendant with only

the signature portion of a disputed unexhibited document filed by the plaintiff (by covering

the remaining portions of the document) and require him or her to identify the seal/stamp and
signature?

On the basis of the answer given by a party in response to a question under Order 10,

Rule 2, can the court prosecute the individual under Section 340 of the Code of Criminal
Procedure read with Section 195 of the Penal Code?
Decision
Scope and ambit of Order 10, Rule 2
Laying down the difference between the scope of Order 10, Rule 1 and Order 10, Rule 2 of
the code, the Supreme Court held that while Rule 1 enables parties to a court proceeding to
admit or deny any counter allegations that may not have been expressly or implicitly admitted
or denied in the pleading itself, Rule 2 is concerned with the broader objective of elucidating
any particular matter that may be controversial in the suit.
The court highlighted that the object of oral examination under Rule 2 is not to record
evidence, inasmuch as the statement made under the aforesaid provision is not under oath nor
intended to be a substitute for a regular examination under oath. The court further clarified
that the purpose of Rule 2 was not to elicit any admissions, which are merely contemplated:

in the pleadings (express or constructive under Order 8, Rule 5 of the code);

during examination of a party by the court under Order 10, Rule 1;

in answers to interrogatories under Order 11, Rule 8;

in response to notice to admit facts under Order 12, Rule 4;

in any evidence or in an affidavit, on oath; and

when any party voluntarily comes forward during the pendency of a suit or

proceedings to make an admission.


The court held that the power under Order 10, Rule 2 cannot be converted into a process of
selective cross-examination by the court, calling on any party to admit a document, before the
party has an opportunity to put forth its case at the trial.
Documents

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The court observed that the object of examination under Order 10, Rule 2 was not to prove or
disprove the controversial matters, nor to seek admissions, nor to decide the rights or
obligations of parties. The court highlighted that, had the lower courts merely asked the
second appellant whether he had executed the agreement or not by showing him the
document (by marking the document for purposes of identification only and not as an
exhibit), it might have been possible to justify it as lawful examination under Order 10, Rule
2 read with Order 12, Rule 3A.(4) The attempt in this regard by the lower courts to crossexamine the party by adopting stratagems of covering portions of a document used by crossexamining counsels was strongly condemned by the court.
The court also termed the judge and the Division Bench of the High Court's decisions as
erroneous, having equated the admission by the second appellant of a signature which was
claimed to be a clever forgery by him as an admission of execution of the agreement itself.
The Supreme Court observed that the admission of a signature is not an admission of
execution of a document, and that examination of parties in such a casual manner under
Order 10, Rule 2 was nothing but an anxiety on the part of the lower courts to do justice by
speeding up the suit and ignoring the mandate of Order 10, Rule 2.

SETTLEMENT OR CONCILIATION
Section 89 of the Code of Civil Procedure, which gives the Court the power to refer the
dispute for settlement or conciliation was introduced with a purpose of amicable, peaceful
and mutual settlement between parties without intervention of the court. However, the
issue is that even after more than a decade of its implementation, the provision provided
for ADR under Section 89 suffers from many anomalies. The constitutional validity of
this section was upheld but the frequency with which ADR is utilized for resolution of
disputes remains minute, which arises due to lack of knowledge about the same or on
account

of

the

reluctance

of

the

parties. The

Law

Commission

in

its

129thReport advocated the need for amicable settlement of disputes between parties and
the Malimath Committee recommended to make it mandatory for courts to refer disputes,
after their issues having been framed by courts, for resolution through alternate means
rather than litigation/trials. The alternate forums accorded under Section 89 are
economically more viable as there are relatively lesser amount of transaction costs and
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thus, there is a need to make people aware about the same. However, the author believes
that the provision under Section 89 is right in its essence but its purpose is defeated due to
legal intricacies, draftsmens error and lack of awareness among individuals.
JUDGMENT ON ADMISSION
Where admissions of fact have been made either in the pleading or otherwise, whether orally
or in writing, the Court may at any stage of the suit, either on the application of any party or
of its own motion and without waiting for the determination of any other question between
the parties, make such order or give such judgment as it may think fit, having regard to
suchto such admissions.Whenever a judgment is pronounced under sub-rule (1) a decree shall
be drawn upon in accordance with the judgment and the decree shall bear the date on which
the judgment was pronounced.
SCOPE:
In case of Dinesh Kumar Singhania v. Calcutta Stock Exchange Association Limited
the Court observed that- From a perusal of the provisions under Order XII Rule 6 of the
Code, it appears that the scope of the rule is that in a case where admission of fact has
been made by either of the parties in pleadings whether orally or in writing, or otherwise,
the judgment to the extent of admission can be given by the Court on its own motion or
on the application of any party.The provisions of Order XII Rule 6 of the Code are
virtually modelled on identical provisions in the Supreme Court Practice.Order 27, Rule 3
talks about- Judgment on admission of facts
Where admissions of facts are made by a party to a cause or matter either by his pleadings or
otherwise, any other party to the cause or matter may apply to the Court for such judgment or
order as upon those admissions he may be entitled to, without waiting for the determination
of any other question between the parties, and the Court may give such judgment, or make
such order, on the application as it thinks fit.

FRAMING OF ISSUES:
Framing of issues is probably the most important part of the trial. If a judge correct and
accurate issues, it is it possible to come to the correct decision in the shortest possible
time. Inaccurate issues may kill the valuable time. In the case of Siddhi Chunilal Vs.
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Suresh Gopkishan 2009(6) BCR 857), it was observed that if correct and accurate issues
were not framed, it leads to gross injustice, delay and waste of the Courts time in
deciding the matter.
The duty in regard to framing of the issue is of the Court which it has to discharge
because it has to try the suit and it has to give notice to parties to lead evidence with
reference to the issues framed. Rule 5 of Order 14, C.P.C. empowers the Court to amend
issues or frame additional issues at any stage of proceedings and it does not contemplate
that the power must be exercised when application is made on the other hand it saddles on
the Court a duty to exercise power suo motu for determining the matters in controversy
between the parties if that was necessary to do so. When the question of exercise of
jurisdiction is in issue that is to be considered in appeal as to whether there was
abdication of jurisdiction or it was exercised illegally or with material irregularity4
Issues are the crux of a civil case; In C V Joshi Vs Elphinstone Spinning Mills, 2001
BomCR 57, the Honble Bombay High Court laid down that even in execution
proceedings issues come into play by way of prudence, though it is not technically
necessary to frame them.
To form a distinct issue, a material proposition must affirmed by one party and denied by
other. Unless each material proposition is affirmed by the plaintiff and denied by the
defendant, a distinct issue will not form.
At this juncture, it is not out of scope to see Rule 1 (3) of Order XIV of C.P.C, which
reads as infra: Each material proposition affirmed by one party and denied by the other
shall form the subject of a distinct issue.
In AIR 2001 Supreme Court 490 the Honble Supreme Court of India held: the stage of
framing issues is an important one in as much as on that day the scope of the trial is
determined by laying the path on which a trial should proceed excluding diversions and
departures therefrom. That the dispute between the parties is determined, aitia forfeited
Naroda and the concave mirror held by the Court the reflecting the pleadings of the
parties pinpointed the issues the disputes on which the two sides differ.

4 https://articlesonlaw.wordpress.com/2015/10/26/issues-in-civil-cases/
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The correct decision of civil lis largely depends on the correct framing of issues correctly
determining the real point in controversy which need to be decided. The scheme of Order
14 of the Code of Civil Procedure relating to settlement of issues shows that and issue
arises when a material proposition of fact or law is affirmed by one party and denied by
the other.
Each material proposition and from the one party and denied by the other to form the
subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and
the written statement/counter if any, and indigenous with assistants of the landed counsel
for the parties committed propositions of fact or law on which the parties are at variance.
Issues should be framed and recorded on with this in the case will depend In Satya
Narayan Vs Radha Mohan reported in A 1979 Raj 126 the Honble Rajasthan High
Court while holding that issues can be framed even beyond the pleadings.
The Supreme Court in its decision reported as Ramesh B.Desai Vs. Bipin Vadilal
Mehta, (2006) 5 SCC 638, (2006) 5 SCC 638, has laid down that Order 14 Rule 2 of
Civil Procedure Code, 1908 confers no jurisdiction on a Court to decide the mixed
questions of fact and law as a preliminary issue. In this ruling, it was held that Sub-rule
(2) of Order XIV Rule 2 CPC lays down that where issues both of law and of fact arise in
the same suit, and the Court is of 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 (a) the
jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in
force.
In the case of Major S.S Khanna V. Brig. F.J.Dillon, AIR 1964 SC 497, it was observed
as under:- Under O. 14 R. 2 where issues both of law and of fact arise in the same suit,
and the Court is of opinion that the case or any part thereof 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. The jurisdiction to try issues of law apart from the issues of fact may be
exercised only where in the opinion of the Court the whole suit may be disposed of on the
issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on
mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should

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be tried by the Court: not to do so, especially when the decision on issues even of law
depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.5
KINDS OF ISSUES:
If defendant makes no defence, framing and recording issue by the Court does not arise.
That too, in such a case, a Court need not frame and record a issue inasmuch as the
defendant makes no defence at the first hearing of the suit. In Desi Kedri vs. Huzurabad
CoOperative Marketing Society Ltd it was held that Issues need not be framed when
there is no dispute with regard to material averments in the plaint.
According to Rule 1(4) of Order XIV of C.P.C, issues are of two kinds.
Issues of fact,
Issues of law.
Of course, there is another aspect of mixed question of fact and law, which would be
discussed later under the heading of preliminary issue6.
IMPORTANCE OF ISSUE IN SUIT PROCEEDINGS:
The stage of framing issues is an important one in as much as on that day the scope of
the trial is determined by laying the path on which a trial should proceed excluding
diversions and departures there from. That the dispute between the parties is determined,
aitia forfeited Naroda and the concave mirror held by the Court the reflecting the
pleadings of the parties pinpointed the issues the disputes on which the two sides differ.
The correct decision of civil lis largely depends on the correct framing of issues correctly
determining the real point in controversy which need to be decided. The scheme of Order
14 of the Code of Civil Procedure relating to settlement of issues shows that and issue
arises when a material proposition of fact or law is affirmed by one party and denied by
the other.
Issues are points of contest between the parties in a suit. In other words issues are those
points raised from the pleadings which se a way for the court for entertaining a case and it
5 www.legalservicesindia.com/article/article/framing-of-issues-1180-1.html
6 https://articlesonlaw.wordpress.com/2015/10/26/issues-in-civil-cases/
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brings the court at the right conclusion of justice. The determination of issues has great
importance in the trial of a case, because it is issues and not the pleadings, which
indicates the appropriate evidence to be given. Pleadings constitutes allegations to oneside or the other, and after determination which of the allegations are material for the
purpose of the trial and which of them are admitted or denied, issues are framed and on
the basis of these issues the parties stand the test of the trial.
The object of settlement of issues is to determine the material points in controversy
between the parties. Issues arises when a material proposition of fact or law affirme by
one party and denied by other party. Issues, whether raised from allegations in the
pleadings or from other materials, should not be inconsistent with pleadings, the court is
bound to frame the proper issues arising from the pleadings.
According to order 14 rule 1, issues arise when a material proposition of fact or law is
affirmed by 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 or
a defendant must allege in order to constitute his defence. If the defendant at the first
hearing of the suit makes no defence, then according to order 14 rule 1, nothing in this
rule requires the court to frame and record issues.
Each material proposition and from the one party and denied by the other to form the
subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and
the written statement/counter if any, and indigenous with assistants of the landed counsel
for the parties committed propositions of fact or law on which the parties are at variance.
Issues should be framed and recorded on with this in the case will depend

Framing of issues is necessitated that no party at trial is put to surprise. It guides the
parties to the suit to adduce proper evidence during trial. For right decision in the matter
framing of appropriate issues is essential. Issues are the crux of the matter. Without
understanding the crux of the matter there is no direction in the preparation of the matter
or in the conduct of the matter. Incorrect and inaccurate framing of issues is possibly the
primary cause of unnecessary delay in disposing of matters before court, apart from
causing unnecessary expense to the clients in terms of time, effort and energy.

7 http://documents.jdsupra.com/0b12585b-67c4-4c0d-b39b-709fd60c0bc6.pdf
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Conversely, if issues are framed in the manner required by law, after going through all the
proceedings in the matter including the plaint, written statement and the documents as
envisaged by law, it will cut down a lot of unnecessary wastage of court time. On giving
adequate attention to framing issues correctly, we be able to focus our attention on the
correct line of thought that is required to decide a matter and hopefully it will ultimately
lead to far quicker and more efficient justice.
In Makhan Lal Bangal Vs. Manas Bhunia (AIR 2001 SC 490), the Honble Apex
Court held that Framing of issue is an important stage at which scope of the trial is
determined by laying the path on which the trial shall proceed. The duty of framing
proper issue rests with the judge himself, however the parties and their counsels are
bound to assist the court in process of framing issues8
Issues are the backbone of a suit. The framing of issues, therefore has very important
bearing on the trial and decision of a case. The main reasons are:
(i)It is the issues framed and not the pleadings that guide the parties in the matter of
leading evidence;
(ii)The Court cannot refuse to decide the point on which an issue has been framed and
evidence led by the parties, even if the point involved is not mentioned in the pleadings;
(iii)The court should not frame an issue which does not arise in the pleadings
(iv)Issue must be confined to the material questions of fact or law (facta probanda) and
not in subordinate facts or evidence by which material questions of fact or law are either
proved is disproved (facta probantia);
(v)one issue should cover only one fact or law in dispute between the parties and(vi)if the
case does go on appeal, it must be dealt with by the appellate court on the issues settled
for the trial. Final hearing held in any case without settlement of valid issues will be
regarded as unlawful and judgment provided in such cases may be overturned or
cancelled.9

8 http://ecourts.gov.in/sites/default/files/FRAMING
9 https://www.scribd.com/doc/13143638/Settlement-of-Issues-and-Disposal-of-Suit
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SUMMONS TO WITNESSES
1. List of witnesses and summons to witnesses.- (1) On or before such date as the court may
appoint, and not later than fifteen days after the date on which the issues are settled, the
parties shall present in court a list of witnesses whom they propose to call either to give
evidence or to produce documents and obtain summonses to such persons for their attendance
incourt.
(2) A party desirous of obtaining an summons for the attendance of any person shall file in
court an application stating therein the purpose for which the witness is proposed to be
summoned.
(3) The court may, for reasons to be recorded, permit a party to call, whether by summoning
through court or otherwise, any witness, other than those whose names appear in the list
referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention
the name of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be
obtained by the parties on an application to the court or to such officer as may be appointed
by the court in this behalf within five days of presenting the list of witnesses under sub-rule
(1).
CROSS EXAMINATION
As per Order 18 Rule 4 of C.P.C. the crossexamination of a
recorded

either

by

the

court

or

commissioner is not empowered to decide

by
any

witness

is

to

be

the commissioner appointed by it. A


objection

raised

during

the

crossexamination of a witness. The commissioner has to record the question objected


to, the objection and answer given by the witness. It is the court which has to decide the
objection at the time of argument. Order 18 Rule 11 provides that where any question put
to a witness is objected to by a party or his pleader and the court allows the same to be
put, the Judge shall take down the question, the answer, the objection and the name of the
person making it together with the decision of the court thereon.

The main purpose of

cross-examination of the witness is to test the veracity of the witness. So also, the
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questions in the crossexamination can be asked to discover who the witness is and what is
his position in life and to shake his credit. The leading questions are permitted during
the cross-examination. If a person wants to contradict a witness as to his
previous statement in writing, his attention must, before the writing can be proved, be
called to those parts of it which are to be used for the purpose of contradicting him.
However, he may be cross-examined on his previous statements made by him in
writing or reduced into writing without showing such a writing to him. Whenever a
witness fails to support, the party calling him can cross-examine the witness with the
permission of the Court. Production of document along with chief examination and cross
examination.

Order VII Rule 14 requires the production of documents on which

plaintiff sues or relies at the time of presentation of plaint. Order 8 Rule 1 (A) of C.P.C.
provides for production of documents by defendant alongwith written statement.

As per

order XIII Rule 1 original documents should be produced at or before the settlement of
issues. Order XIII Rule 1 Sub rule 3 has carved out following exceptions to above rule
5 (a) documents produced for the cross-examination of the witnesses of the other
party, (b) documents handed over to a witness merely to refresh his memory. Order 18
Rule 4 (1)of C. P. C. provides that in every case, the examinationin-chief of a witness
shall be on affidavit and copies thereof shall be supplied to the opposite party by the party
who calls him for evidence. Provided that where documents are filed and the parties rely
upon the documents, the proof and admissibility of such documents which are filed along
with affidavit shall be subject to the orders of the court. This rule reveals that the
documents can be filed along with the chief examination. The court will then decide
whether they are admissible and if yes, whether the document is proved properly.

It is

the intention of legislation by amending Rule 4 (1) of Order XVIII of C.P.C., to save
valuable time of the Court and the litigants. Order XVIII Rule 4 makes it clear that while
recording evidence,

the

witness

shall

file

an

affidavit,

documents which ought to be supplied to the opposite party.

produce

copies

of

To disallow the production

itself would be incorrect as observed in the case of Balkrushna S.S.Kakodkar vs. Rama
Babalvasta. In Durgashankar S. Trivedi Vs. Babubhai Bhulabhai it was observed that, it
is to be borne in mind that order XVIII Rule 4 does not deal with the provision relating to
admission and exhibition of documents in evidence. It only permits the parties
and their witnesses to produce the documents along with affidavit. In
Shankar

Ghodgaonkar

Vs.

Purshottam

Gajanan Shankar Ghodgaonkar, the Hon'ble High Court

had occasion to deal with the case wherein documents were produced
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during

the

cross-examination
during

of

the

defendant.

cross-examination

The Hon'ble

of defendant,

the

High

plaintiff

Court
sought

observed
production

that
of

documents for contradicting defendant No.1's version about the acquiring the
properties from his own income. There is distinction between a term with reference to the
parties to the suit.

Though production of documents can be allowed for cross-

examination of witness of the other party, the documents cannot be produced at the time
of crossexamination of opposite party by casting surprise upon him. Defendant
cannot be confronted by the plaintiff by producing documents for the first time
during the crossexamination and it was not open for the trial Court to allow the
production of documents to confront the original defendant. Accordingly order of trial
Court whereby the production of documents was allowed, was quashed. The
advocate

may

refer

the

documents

defence

of defendant to the plaintiff during his

crossexamination. There is no need to wait till defendant's turn comes to lead


the

evidence, because the defence side may choose not to step into witness box at all.

As far as plaintiff is concerned, he should not do so. Because, generally it is plaintiff who
begins first and he has no choice as not to enter into witness box.
JUDGEMENT

The judgment forms the concluding part of the civil suit and it determines the rights and
liabilities of the parties. Basically judgment is followed by a decree which is its operating
part. Historically, there was the distinction between judgment and decree. Common Law
adheres to the judgment while the Equity Court of Law deals with the decree. But later on
Judicature Act was passed in U.K. which merged the distinction between judgment and
decree. In U.S. also, distinction between judgment and decree has lost its relevance but in
India, the distinction between judgment and decree has still maintain its position from the
initiation of the old Code of Civil Procedure, 1859. The present Code of Civil Procedure,
1908 also recognizes this distinction.
In this legal world, judgment given by any court followed by its decree play an important role
to define the scope and limitations of any individual. Apart from the statutory rules and
regulations, one also has to adhere to the decision given by the court to keep oneself away
from the clutches of the court room drama.

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Daily various judgments are pronounced and decree following it took place in the courts of
our country. Various civil cases are also being disposed off each working day. These
judgments are important as they act as precedents for future declarations, so it is very
necessary that they stick to the judicial reasoning without bringing their own discretionary
power blindly. After so many judgments and backing it up with the decree also, certain issues
do arises which tends to confuse us. Civil Procedure Code, 1908 has been drafted very nicely
but then also certain loopholes are there providing leeway for the creeping of unnecessary
elements. As no law seems to perfect for us but then also effort should be made to take them
somewhere close to the shell of perfect ness.
Decree is the operating part of the judgment and it has to be in harmony with the judgment.
Section 33 of the Civil Procedure Code, 1908 says decree is followed by the judgment. Under
the Civil Procedure Code, 1908 (hereinafter referred as C.P.C.) judgment and decree has been
defined in the section 2 of the C.P.C. and provisions related to it are given in the Order 20 of
this Act. Certain specific issues arise while dealing with this Order such as the time frame for
the pronouncement of the judgment; power to amend the decree; reasons for each decision
etc.
Pronouncement of Judgment
Crystallizing judges intention into a formal shape in an open court leads the judgment to its
final destination. Rule 1 of Order 20 deals with the pronouncement of judgment. It talks of
specific time frame for the declaration of the judgment in the open court. But there was no
time limit prescribed for the pronouncement of judgment prior to the amendment in 1976
which led to a persistent demand all over India for the imposition of a reasonable time frame
for the declaration of judgment after the hearing of the case gets over . In this regard,
observation of the Supreme Court in R.C. Sharma v. Union of India is worth noting;
The Civil Procedure Code does not provide a time limit for the period between the hearing of
arguments and the delivery of a judgment. Nevertheless, we think that an unreasonable delay
between hearing of arguments and delivery of a judgment, unless explained by exceptional or
extraordinary circumstances, is highly undesirable even when written arguments are
submitted. It is not unlikely that some points which the litigant considers important may have
escaped notice. But, what is more important is the litigants must have complete confidence in
the results of litigation. This confidence tends to be shaken if there is excessive delay

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between hearing of arguments and delivery of judgments. Justice, as we have often observed,
must not only be done but must manifestly appear to be done.
Accordingly amendment was introduced providing a time limit for the declaration of the
judgment. If it is not possible to pronounce the judgment at once, it should be declared within
thirty days from the day of conclusion of the hearing and in case some extreme situation
arises then the provision is also there to extend this declaration of pronouncement till the
sixtieth day from the conclusion of hearing. Thus judge have a discretionary power for the
pronouncement of judgment for these sixty days but after that declaration becomes
mandatory on the part of the judge.

But what happens if the judgment is not pronounced within sixty days also. Supreme Court
has strongly deprecated the action of the High Court in the case of Anil Rai v. State of Bihar,
where the judgment was pronounced after two years. Remarks of the honourable court in this
case are just next to the truth and are worth noting down:
The Constitution did not provide anything when High Court judges do not pronounce
judgments after lapse of several months presumably because the architects of the Constitution
believed that no High Court judge would cause long and distressing delays. Such expectation
of the makers of the Constitution remained faultless during the early period of the post
Constitution years. But unfortunately, the later years have shown slackness on the part of a
few judges of the superior Courts in India with the result that the records remain consigned to
hibernation. Judges themselves normally forget the details of the facts and niceties of the
legal points advanced. Sometimes the interval is so long that the judges forget even the fact
that such a case is pending with them expecting judicial verdict.

CASE ANALYSIS
MAKHAN LAL BANGAL VS. MANAS BHUNIA & ORS. 2001 AIR (SC) 490
FACTS:

22

Elections for the legislative seat of No.216, Sabang Legislative Assembly Constituency in
the district of Midnapore, West Bengal were held in May, 1996. There were four
candidates in the fray. The appellant secured 60453 votes. The respondent no.1 secured
59628 votes. The other two candidates received 594 and 453 votes respectively. On
12.5.1996 the appellant was declared elected by a margin of 825 votes over his nearest
rival, the respondent no.1. On 17.6.1996, the respondent no.1 filed an election petition
laying challenge to the election of the appellant and seeking a declaration that the result
of the election was void. A declaration that the respondent no.1 was duly elected was also
sought for. On trial the High Court has allowed the election petition and set aside the
election of the appellant declaring the same to be void. No other direction has been made.
ISSUES:
Whether election of the respondent no.1 being the returned candidate from Sabang
Legislative Assembly Constituency is void? Importance of stage of framing of issues?
JUDGEMENT
Considering all aspects of the matter the bench was of the view that corrupt practice
under Sections 123(2), 123(4) and 123(7) of the Representation of the People Act, 1951
by the respondent no.1 and/or his agents has been proved in this case. Accordingly it is
declared that the election of the respondent no.1 being the returned candidate from
Sabang Legislative Assembly Constituency is void. Their were several parties in the case
which were not made parties is the case . In view of the bench , the High Court has failed
in discharging its statutory obligation cast by Section 98 and 99 of the the RPA resulting
in vitiating the judgment.10
Further court held thatFraming of issue is an important stage at which scope of the trial
is determined by laying the path on which the trial shall proceed. The duty of framing
proper issue rests with the judge himself, however the parties and their counsels are
bound to assist the court in process of framing issues. the stage of framing issues is an
important one in as much as on that day the scope of the trial is determined by laying the
path on which a trial should proceed excluding diversions and departures therefrom. That
the dispute between the parties is determined, aitia forfeited Naroda and the concave
10 www.westlaw.com
23

mirror held by the Court the reflecting the pleadings of the parties pinpointed the issues
the disputes on which the two sides differ.11
CONCLUSION
Framing of issue is commencing point in trial which ends with judgment. When clarity
appear in understanding the dispute, the inputs such as necessary evidence to prove the
disputed fact and legal position on the disputed fact could very well be analysed in the
process of writing judgment. Therefore for effective judgment writing it is imperative to
frame proper issues.
Framing of issues guides the parties to the suit to adduce proper evidence during trial. For
right decision in the matter framing of appropriate issues is essential. Issues are the crux
of the matter. Without understanding the crux of the matter there is no direction in the
preparation of the matter or in the conduct of the matter. Incorrect and inaccurate framing
of issues is possibly the primary cause of unnecessary delay in disposing of matters
before court, apart from causing unnecessary expense to the clients in terms of time,
effort and energy.

11 Lawmantra.co.in/case-brief-makhan-lal-bangal-vs-manas-bhunia24

BIBLIOGRAPHY:
WEBSITES:
WWW. WESTLAW.COM
WWW.INDIANKANOON.COM
WWW. LAWMANTRA.CO
WWW.SCRIBD.COM
ARTICLESONLAW.WORDPRESS.COM
WWW.LEGALSERVICESINDIA.COM
BOOKS:
ANDHRA LAW HOUSE, PRO. DR. REGA SURYA RAO, LECTURES ON CODE
OF CIVIL PROCEDURE AND LIMITATION ACT, 2015

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