1. Necessity of framing correct issues. The trail of the suit falls into two broad divisions, --- the first part leading up to and including the framing of issues and the second consisting of the hearing of the evidence produced by the parties on those issues and the decision thereof. Issues are material propositions of facts and law, which are in controversy between the parties and the correct decision of a suit naturally depends on the correct determination of these proposition. The utmost care and attention, is, therefore, needed in ascertaining the real matters in dispute between the parties and fixing the issues in precise terms. In most cases the main difficulty of the trail is overcome when the correct issues are framed. A few hours spent by the Court at the outset in studying and elucidating the pleadings may mean a saving of several days, if not weeks, in the later stages of the trial. In some Courts, the framing of issues is left to the pleaders of the parties concerned. This practice is illegal and must cease.
In suits brought under the Punjab Tenancy Act, considerable reliance has to be placed on the revenue records, and the failure of the court of scrutinize the entries recorded in the latest jamabandi and khasra girdawari of the harvest concerned (abstracts of which are produced with the plaints) often leads to the framing of wrong issues or to laying the burden of proof on the wrong party. Such mistakes subsequently cause unnecessary delay in the disposal of cases and financial loss to the parties. It is, therefore, of great importance that the entries recorded in the columns of ownership and cultivation of the revenue records should be carefully examined before framing the issues and allotting the burden of proof.
2. Main foundation for the issues. The main foundation for the issues is supplied by the pleadings of the parties, viz., the plaint and the written statements. But owing to the ignorance of the parties or other reasons, it is frequently found that the facts are stated neither correctly nor clearly in the pleadings. The Code gives ample powers to the Court to elucidate the pleadings by different methods prescribed in Orders X, XI and XII of the Code and in most cases it is essential to do so, before framing the issues.
3. Procedure in framing issues. On the date fixed for the settlement of issues, the Court should, therefore, carefully examine the pleadings of the parties and see whether, allegations of the fact made by each party are either admitted or denied by the opposite party, as they ought to be. If any allegations of fact are not so admitted or denied in the pleadings of any party, either expressly or by clear implication, the court should proceed to question the party or his pleader and record categorically his admission or denial of those allegations (Order X, RuleI).
4. The same. Order X, Rule 2, of the Code empowers the Court at the first or any subsequent hearing to examine any party appearing in person or present in Court or any person, accompanying him, who is able to answer all material questions relating to the suit. This is a most valuable provision, and if properly used, results frequently in saving a lot of time. To use it properly the Court should begin by studying the pleas and recording the admissions and denials of the parties under Order X, Rule I, as stated above. The Court will then be in a position to ascertain what facts need further elucidation by examination of the parties. The parties should then be examined alternatively on all such points and the process of examination continued until all the matters in conflict and especially matters of facts are clearly brought to a focus. When there are more defendants than one, they should be examined separately so as to avoid any confusion between their respective defences.
5. The same. In examining the parties or their pleaders, the Court should insist on a detailed and accurate statement of facts. A brief or vague oral plea, e.g., that the suit is barred by limitation, or by the rule or res-judicata, should not be received without a full statement of the material facts and the provision of law on which the plea is based. Similarly, when fraud, collusion, custom, misjoinder, estoppel, etc., is pleaded, the facts on which the pleas are based should be fully elucidated. Any inclination of a party or his pleader to evade straightforward answers or make objections or pleas which appear to the Court to be frivolous, can be promptly met, when necessary, by an order for a further written statement on payment of costs of the opposite party, on that part of the case at any rate, if he failed to substantiate his allegations.
6. Amendment of pleadings. The examination of the parties frequently discloses that the pleadings in the plaint or written statement are not correctly stated. In such cases, these should be ordered to be amended and the amendment initialed by the party concerned. If any misjoinder or multifariousness is discovered, the Court should take action to have the defect removed.
7. Discovery ‘inspection’ and ‘admission’. The provisions of Order XI and Order XII of the Code with regard to ‘discovery and inspection’ and ‘admissions’ are also very important for the purpose of ascertaining the precise cases of the parties and narrowing down the field of controversy.
These provisions are little understood and are not utilized at present as much as they should be. The Courts should make themselves conversant with them and encourage the parties to make use of them, especially in long and intricate cases. It should be noted that under Section 30 of the Code, the Court has power to make orders suo motu, as regards delivery of interrogatories for the purpose of discovery, inspection and admission. If these provisions are properly used, they will result in a saving of considerable cost to the parties and also curtail the duration of the trial.
8. Drawing issue. When the pleadings have thus been exhausted and the Court has before it the plaint, pleas, written statements, admissions and denials recorded under Order X, Rule 1, examination of parties recorded under Order X, Rule 2, and admission of facts or documents, made under Order XII of the Code, it will be in a position to frame correctly the issues upon the points actually in dispute between the parties. Each issue should state in interrogative form one point in dispute. Every issue should form a single question and as far as possible issue should not be put in an alternative form. In other words each issue should contain a definite proposition of fact or law which one party avers and the other denies. An issue in the form, so often seen, of a group of confused questions is no issue at all, and is productive of nothing but confusion at the trial. A double or alternative issue generally indicates that the court does not see clearly on which side or in what manner the true issue arises, and on whom the burden of proof should lie, and an issue in general terms such as ‘Is the plaintiff entitled to a decree’ is meaningless. If there are more defendants than one who make separate answers to the claim the Court should not against each issue the defendant or defendants between whom and the plaintiff the issue arises.
9. Burden of proof. The burden of proof as to each issue should be carefully determined and the name of the party on whom the burden lies, stated opposite to the issue.