SETTLEMENT OF ISSUES
Stress on framing correct issues—The trial of a suit falls into two broad divisions—the first 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 laws which are in controversy between the parties and the correct decision of a suit naturally depends on the correct determination of these propositions. 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 trial is overcome when the correct issues are framed. A few hours spent by the Court at the outset in studying and elucidating the pleading, may mean a saving of several days, if not weeks, in the later stages of the trial.
Framing of issues by counsel—In some Courts, the framing of issues is left to the pleaders
for the parties concerned. This practice is illegal and must cease. The Code contemplates that the Presiding Officer of the Court should himself examine the pleadings, get the points in dispute elucidated and frame issues thereon.
Elucidation of pleadings for framing issue—The main found-ation 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 Order X, XI and XII of the Code and in most cases it is essential to do so, before framing the issues.
Elucidation of pleadings for 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 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, Rule 1).
Examination of parties—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 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 1, 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 fact 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.
Examination of oath—From Order XIV, Rule 3, of the Code, it will appear that every allegation of fact made by any person other than a pleader should be on oath or solemn affirmation. Unlike a pleader, a mukhtar is not empowered to state the pleas of a party in a suit.
Personal attendance of parties—When a pleader for a party or his agent is unable to state the facts to the satisfaction of the Court, the Court has the power to require the personal attendance of the party concerned (Order X, Rule 4, Civil Procedure Code). It may also be noted here that the Court can require the personal attendance of the defendant on the date fixed for the framing of issues by an order to that effect in the summons issued to him. (Order V, Rule 3).
Examination should be detailed—In examining the parties of their pleaders, the Court should insist on a detailed and accurate statement of facts. A brief or vauge oral plea, e.g., that the suit is barred by limitation or by the rule of 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, mis-joinder, estoppel, etc., is pleaded, the facts on which the pleas are based should be fully elucidated. Any inclination on a party or his pleader to evade straightforward answers to make objections or pleas, which appear to the Court to be frivious, can be promptly met, when necessary, by an order for a further written statement on payment of costs. The party concerned should also be warmed that he will be liable to pay the costs of the opposite party, on that part of the case at any rate, if he failed to substantiate his allegations.
Personal examination of the parties—Examination of the parties in person is particularly useful in the case of illiterate litigants. Much hardship to the people will be prevented, if the Presiding Officers examine the parties personally and sift the cases thoroughly at the outset.
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 initialled by the party concerned. If any mis-joinder or multifariousness is discovered the Court should take action to have the defect removed.
Forms prescribed for examination of parties—In order to ensure due compliance with these instructions as regards the examination of parties, the High Court has prescribed forms on which such examination should be recorded. Appellate Courts should see that the forms prescribed are used and should not fail to take notice of subordinate Courts which neglect to follow the directions here given.
(i) Discovery and inspection etc.—The provisions of Orders XI and XII of the Code with regard to discovery and inspection‘ and admissions‘ are very important for ascertaining precisely the cases of the parties and narrowing down the filed of controversy. A proper use of these provisions should save expense and time of the parties and shorten the duration of the trial. The parties should be warned that if they fail to avail themselves of these provisions they will not be allowed cost of proving facts and documents, notice of which could have been given. When hearing evidence the Court should made a note whether the parties have made use of these
provision, and if they have not done so, should ordinarily disallow costs incurred in proving such facts and little de-documents in passing final orders. As these provisions are little understood and are not used as much as they should be, it has been considered necessary to mention them briefly here.
(ii) Court can move suo motu—Section 30 of the Code authorises the Court when it appears reasonable, to other, suo motu, the delivery and answering of interrogatories, the admission of documents and facts and the discovery, inspection, production, etc., of documents or other articles producible as evidence. The power should be freely exercised in long and intricate case or where the number of documents relied upon by the parties is large and it may appear that a long time would be taken up in formally proving the facts and the documents.
(iii) Interrogatories—Rules 1 and 2 of Order XI deal with discovery interrogatories. Leave to deliver interrogatories should be given to such only of the interrogatories as the Court may consider necessary for disposing fairly of the suit or for saving costs. The party to whom interrogatories are delivered shall made answer by affidavit with the time prescribed in Order XI, Rule 8 and may therein raise objections as provided in Order XI, Rule 6. Interrogatories may also be set aside or struck off by the Court, if these are unreasonable or vexatious or are prolix, oppressive or scandalous (Order XI, Rule 7). The answer to the interrogatories may be objected to only on grounds of insufficiency (Order XI, Rule 10). When a party omits to answer or answers sufficiently, the Court may on the application of the other party, require the former to answer or answer further by affidavit, or by viva examination. (Order XI, Rule 11).
(iv) Discovery of documents—A party may also move the Court for discovery of documents which are or have been in possession or power of any other party to the suit, and which relate to any matter in question in the suit. The other party shall made answer on affidavit in Form 5, Appendix C to the Code and must made a full and complete disclosure along the lines indicated in this Form (Order XI, Rules 12 and 13). The production of documents can be resisted on three grounds; viz. (i) that these are evidence exclusively of the party‘s own case or title, (ii) that these are privileged; and (iii) when the party called upon to produce being a public officer considers, that a disclosure would be injurious to public interest. The affidavit shall be treated as conclusive to the existence, possession and the grounds of objection to the production of the document, unless the Court is reasonably certain that the objection is misconceived and the document is of such a nature that the party cannot properly make the assertions contained in the affidavit. The Court can also examine the documents to decide the claim about privilege. The Court can order the production of the documents at any stage of the trial and a party can serve notice on the other party for the inspection of any of the documents mentioned in the pleadings or the affidavit of the other party (Order XI, Rules 14 and 15). The failure to comply with such order or notice does not justify the striking out of the defence, though the party at fault shall not afterwards be at liberty to put such document in evidence, except with the leave of the Court and on such terms as to costs as the Court thinks fit. Section 163 and 164 of the Indian Evidence Act may also be read in this connection. The party on whom notice to produce or allow inspection is served, shall within ten days serve a counter notice, starting a time within three days after the delivery thereof offering inspection by the other party at his pleader‘s office, of such documents as he offers to produce (for forms of notices see No. 7 and 8, Appendix C). Where no such counter notice is given, the Court may on the application of the party and if of the opinion that it is necessary for disposining fairly of the suit or for saving costs make an order for inspection at a time and place fixed by the Court.
(v) Business Books—In the case of business books the Court may in the first instance, instead of ordering inspection of original books, order that copies of relevant entries verified to be correct by the affidavit of a person who has seen these books, may be furnished. Such affidavit shall state whether in the original books there are any and what erasures, interlineations and alterations, etc. The Court can still order inspection of the original books, and can look up the document to decide a claim regarding privilege.
(vi) Penalty for disobedience of order—Under Rule 21 of Order XI, when a party disobeys valid orders of the Court to answer interrogatories or for discovery and inspection of documents he can, on the application of the other party, if a plaintiff have his suit dismissed for want of prosecution, and if a defendant have his defence, if any, struck out by the Court. The Courts should pass orders against a party only as a last resort and when the default is wilful 9(But before making an order on application for ―non-compliance with order for discovery‖ the Court must (a) serve the notice to the party; and (b) provide an opportunity of being heard. After the order dismissing the suit under sub-rule (1) of Rule 21 of Order XI, is made the party is precluded from bringing a fresh suit on the same cause of action). This rule has been interpreted to be applicable only where an order passed under Rule 21 had remained uncomplied with and not where orders under Rules 1, 12 and 18 of Order XI were disobeyed.
Notice to admit documents or facts—(i) Order XII of the Code makes provisions for admission of facts and documents. Any party can serve on the other party a notice to admit facts of any document within fifteen days from the date of service of notice. Rule 2A newly inserted provides that documents are to be deemed to be admitted if not denied specifically or by necessary implication within a period of fifteen days from the date of service of notice unless the Court require any document so admitted to be provided otherwise than by such admissions. The person failing unreasonably to admit such document may be burdened with penal costs. Rule 3A now enables the Court to call upon any party to admit any document at any stage of the proceeding whether or not notice to admit the documents has been given. The failure or neglect of that other party to admit documents or facts entails only this penalty that the cost of proving the fact or the document has to be borne by that other party, whether be the final result of the suit. A notice to admit facts should be served at least nine days before the day fixed for hearing; the other party may then admit the fact within six days of service of notices otherwise he incurs liability for the costs of proving the fact.
(ii) Part Judgment on Admissions—Where a part of the case is admitted in the pleading whether orally or in writing, the Court may at any stage of the suit suo motu or on the application of the party may pass judgment or order in respect of the part admitted, and a decree is to be drawn accordingly.
Form of 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 admissions 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 an interrogative form one point in dispute. Every issue should form a single question, and as far as possible issue should not be put in 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 question 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.
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.