PLJ 2005 Lahore 1049

Present: Mrs. Fakhar-un-Nisa Khokhar, J.

ALLAH DITTA etc.--Petitioners

versus

NOOR HUSSAIN etc.--Respondents

W.P. No. 5061 of 2004, decided on 8.4.2004.

(i) Civil Procedure Code, 1908 (V of 1908)—

----O.XIV R. 5--Power to amend and strike out issues--Held: The power of Court under this provision is inherent power to take cognizance of the question going to the root of the case at any stage. [P. 1052] A

(ii) Civil Procedure Code, 1908 (V of 1908)—

----O.XIV, Rr. 3 & 5--Held--Under R. 3, issues can be framed on the basis of material available on the allegations made on oath by the parties or allegations made in the pleading or in answers to interrogatories delivered in the suit on the contents of the document produced by either party--Further held: Rule 5 gives a discretion to the Court that proper issues must be framed and for that purpose it authorizes the Court to add, amend or strike out the issues--The second part of the rule makes it mandatory upon the Court to amend or frame issues of determining the matters in controversy at any stage of the case. [Pp. 1052 & 1053] B

AIR 1922 Patna 514 and 35 M 607 PC.

Ch. Atta Ullah, Advocate for Petitioners.

Date of hearing : 8.4.2004.

Order

Brief facts in the instant writ petition are that three suits for specific performance of agreement to sell, one filed by petitioner and two suits filed by the respondents/defendants were consolidated, following consolidated issues were formulated:--

(i) Whether the suit is not maintainable in its present form? OPD.

(ii) Whether the Punjab Province is un-necessary party to the suit, if so, its effect? OPD.

(iii) Whether this suit is time barred? OPD.

(iv) Whether the suit is bad for multifariousness? OPD.

(v) Whether the general attorney of the deceased Defendant No. 2 and Defendant No. 3 were not competent to enter into sale contract without the permission of District Collector, If so, its effect? OPD.

(vi) Whether the plaintiffs are estopped by their own words and conduct to bring this suit? OPD.

(vii) Whether the suit cannot be filed on the strength of arbitration decision/rule of the Court in view of P.O. No. 9 of the written statement? OPD.

(viii) Whether the plaintiffs have no locus-standi and cause of action to file this suit? OPD.

(ix) Whether this Court has no jurisdiction to try the suit? OPD.

(x) Whether this suit cannot proceed for non-issuance of conveyance deed? OPD.

(xi) Whether the plaintiffs are entitled to the decree for specific performance in respect of the suit land. If so, on what terms and conditions? OPD.

(xii) Whether both the suits filed by Zulifqar the Defendant No. 4 are not maintainable in their present form? OPP.

(xiii) Whether the Plaintiffs/Defendants Nos. 4 to 6 in the counter suits are entitled to special costs under Section 35/A CPC, If so, to what amount? OPP.

(xiv) Whether Zulifqar the Defendant No. 4 is estopped by his own conduct to file his suits? OPP.

(xv) Whether the agreement deeds dated 29.12.1973, 14.1.1975 and 22.10.1986 in favour of the Defendant No. 4 on the basis of which he has filed two separate suits, are false, illegal, fraudulent, collusive, fictitious, void and in-effective qua the rights of the plaintiffs? OPP.

(xvi) Whether the Defendant No. 4 is not entitled to get a decree for specific performance in view of Section 22 of the Specific Relief Act? OPP.

(xvii) Whether Zulifqar the plaintiff in Suit No. 48/91 is entitled to the decree for specific performance in respect of the land duly described therein, If so, on what terms and conditions? OPD.

(xviii) Whether Zulifqar the plaintiff in Suit No. 141/92 in regard to the land duly described therein is entitled to the decree for specific performance if so, on what terms and conditions? OPD.

(xix) Relief.

The petitioner applied for amendment in Issues Nos. 5, 15 and 16 as not correctly framed by an application under Order 14 Rule 5 CPC for correction and framing of correct issues. The learned Trial Court vide order dated 19.5.2003 dismissed the application. On revision the learned Revisional Court amended and re-framed Issue No. 5 as "whether general attorney of the deceased Defendants Nos. 1 and 2 was not competent to enter into sale contract without the permission of District Collector, if so, its effect? OPD" and in respect of Issue No. 15 the learned revisional Court observed that Issue No. 15 has been correctly framed and needs no interference. The learned Revisional Court partly accepted the revision petition, converted Issue No. 5 and refused to reframe Issue No. 15 as according to him it was correctly framed. Instant writ petition is filed to challenge the said order.

2. Arguments advanced by learned counsel for the petitioner are that Zulifqar son of Wali Dad respondent in the present petition has filed two suits for specific performance of agreements to sell dated 29.12.1973, 14.1.1975 and 22.10.1986. As such the onus to prove these three agreements was on the said Zulifqar the plaintiff in those suits. There was no need to frame separate Issues Nos. 15, 16 and 17. It could be resolved through one issue in accordance with the pleadings of the parties that whether Zulifqar plaintiff in two suits is entitled to decree for specific performance of the agreements to sell dated 29.12.1973, 14.1.1975 and 22.10.1986 in his favour and whether the same are valid lawful and whether Zulifqar is entitled to specific performance of the agreements to sell as referred to above? OPD.

3. I have heard the learned counsel for the petitioners and perused the judgments as well as the pleadings of the parties. Order 14 Rule 5 CPC provides that "The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed". Similarly in sub-section (2) "the Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced." The power of the Court under this provision is inherent power to take cognizance of the question going to the root of the case at any stage of the case "Baijnath Kuar and others vs. Brijraj Kuar and another" (AIR 1922 Patna 514) and "Shamu Patter vs. Abdul Kadir Ravuthan and others" (35 M 607 PC). But this inherent jurisdiction is subject to the term of Order 14 Rule 3 CPC, which provides that the materials, from which issues may be framed i.e. (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties, (b) allegations made in the pleadings or in answers to interrogations delivered in the suit; (c) the contents of documents produced by either party.

4. It is note worthy that suits were consolidated but no amendments were made in the suits for impleadment of parties. One suit was filed by Allah Ditta plaintiff, which was contested through written statement on behalf of Defendants Nos. 1 to 4 and later on through amended written statement on behalf of Defendants Nos. 1-A to 1-E. The second suit was filed by Zulifqar Ahmad son of Wali Dad against Noor Hussain etc. on 12.7.2000, which was contested through written statement on behalf of Defendants Nos. 3, 4 to 16 and the third suit was also filed by the plaintiff Zulifqar Ahmad against Mst. Parveen Bibi etc. for specific performance of agreement to sell dated 29.12.1973, 14.1.1975 and 22.10.1986, which was contested through written statement on behalf of Defendants Nos. 9 to 21. The Court formulated Issues Nos. 15, 16, 17 and 18, these are interconnected issues and onus of all these issues is on the plaintiff and defendant. The learned Revisional Court has amended Issue No. 5 and re-framed the same but the observation of the learned Revisional Court in respect of Issues Nos. 15, 16, 17 and 18 is that no interference is needed in these issues as they are the out come of allegations averred in the pleadings of the parties.

5. Keeping in view the observation of the learned Revisional Court and Order 14 Rules 3 and 5 CPC, issues may be framed on the basis of material available on the allegations made on oath by the parties or allegations made in the pleadings or in answers to interrogatories delivered in the suit or the contents of the documents produced by either party and the discretion exercised by the Court is subject to the provision of Order 14 Rule 3 CPC. Perusal of Rule 5 shows that first part of the provision gives a discretion to the Court that proper issues must be framed and it authorizes the Court subject to the term of Rules 3 and 5 to add, amend or strike out the issues. The second part of the rule makes it mandatory upon the Court to amend or frame issues for determining the matters in controversy between the parties at any stage of the case.

6. Since the aforesaid Issues Nos. 15, 16, 17 and 18 are interconnected the learned Revisional Court has correctly held that no interference is needed as the said issues are the out come of pleadings of the parties in all the consolidated suits and written statements, therefore, no interference by this Court is needed in the judgment passed by the learned Revisional Court. Instant writ petition is dismissed in limine.

(J.R.) Petition dismissed.