1. ' This is an application under Order XIV, rule 5 read with section 151, C. P. C. h arises under the following circumstances.
2. ' On 19-1-1980, the suit came up before this Court when the following consent issues were filed by the Advocates on behalf of the parties:- "(1) Whether the defendant's liability would be confined only to 100 per case ?
(2) Relief ?"
3. ' However, the following issues were framed "(1) What was the value of the consignment ? (2) Relief ?"
4. ' The reasons given for framing the above issues were as follows : "Mr. Ibrahim Pishori relies on clause 24 or the Terms and Conditions of the Bill of Lading and claims that the defendant is liable to pay 100 for the case which has not admittedly been delivered. The relevant clause reads as follows :- "24. Claims.-Subject to the provisions of the rules referred to in Clause A above as thereby made applicable to this Bill of Lading, the liability of the Carrier in case of loss of or damage to, or detention of the goods in circumstances involving him in responsibility shall be calculated on, and shall in no case exceed, the shippers net invoice cost and disbursements, or 100 per package or unit, less all charges saved, whichever shall be least. In the case of ad valorem cargo Carrier's responsibility shall not exceed the value of the goods declared before the time of shipment and inserted in this Bill of Lading."
5. ' To the same effect is the provision of Article IV, rule 5 of the Schedule to the Carriage of Goods by Sea Act, 1926 (1924). But nowhere in the written statement it is pleaded that the case has been lost or damaged. Therefore, the only issue that arises in (for) consideration is what was the value of the contents of the case."
6. ' I have heard Mr. S. Sharifuddin Pirzada in support of the application and Mr. Manzoorul Arfin in reply.
7. ' Mr. S. Sharifuddin Pirzada referred paragraph 8 of the plaint and its reply contained in paragraph 8 of the written statement and submitted that the avernments made therein show that one of the disputed facts between the parties was 'whether the consignment in the suit carried by defendant 1 in their vessel s. s. `Strathtevoir, which consists of one package declared to contain autoparts, was lost. He therefore, further submitted that an issue to that effect was required to be framed. In order to appreciate the submissions it would be convenient to reproduce hereinbelow the contents of paragraph 8 of the plaint and also of paragraph 8 of the written statement.
8. ' Paragraph 8 of the plaint reads :-- "That it is submitted that the consignment is valued at 23,059.20 and the defendants in order to take the advantage of the clause in the Bill of Lading to the effect that the claim bill will not be more than 100 per package are denying the delivery of the cargo to the consignees Messrs Midway Traders. In any case and without prejudice to the above, it is submitted that the said clause of the Bill of Lading, which is not binding on the consignees or on the plaintiff, speaks of payment of MO only in the event of loss of damage to the goods. It is denied that the goods had been lost or damaged. The defendants have failed to give the full particulars as to what happened to their inquiries when the consignment was taken on board by them in their custody, they having issued the Bill of Lading. If the defendants allege that the consignment has been lost (which is not admitted by the plaintiff) the defendants have failed to disclose as to steps taken by them in connection with the said alleged loss. It is, therefore, submitted that the said clause of the Bill of Lading is not applicable and the defendants ate bound to pay the actual cost of the goods in question."
9. ' Paragraph 8 of the written statement reads : "It is denied that the consignment was valued at 223,059.20, as alleged in paragraph 8 of the plaint.
10. It is submitted that the said value was not declared to the defendants at the time of shipment. It is vehemently denied that the defendants are denying the delivery of the consignment in order to take advantage of the clause in the Bill of Lading. It is submitted that the defendants as Carriers enjoy worldwide good reputation and resent the allegations. It is denied that the clause in the Bill of Lading limiting the Carriers' liability to 100 per package or unit is not binding on the consignee. The shipper did not repudiate the said clause or the contents thereof. The enquiries of the defendants revealed that the case was not traceable anywhere. It is submitted that the defendant's inability to trace the case cannot lead to the conclusion that the case was not lost and that the clause limiting the liability was not applicable as alleged. The defendants deny that they. Are bound to pay the alleged actual costs of the goods in question. The defendants had no knowledge of the contents of the case or of the value of the goods and made no admission about the same."
11. ' On 19-1-1980, when the case came up before me for framing of issues I had asked Mr. Ibrahim Pishori, as far as I can recall, to point out from the pleadings, whether the defendants had pleaded that the case was lost, but he was not then able to point out from the written statement any such plea. It was, therefore, not considered necessary to go through the pleadings of the parties as no other issue except the issue of relief was being raised by the learned counsel for the parties.
12. ' Therefore, the above issues were framed.
13. ' However, now when my attention is pointedly drawn to the averments made in paragraph 8 of the plaint and their reply contained in paragraph 8 of the written statement, it has become necessary to examine, whether an issue as to the loss of the consignment does arise from the pleadings of the parties or not.
14. ' It may not be totally out of place to mention that issues are framed on Saturday when I usually have more than 100 cases on my board for hearing of applications, framing of issues and orders.
15. ' On examination of pleas contained in paragraph 8 of the plaint quoted above, I find that two sentences therein deserve mentioning. It is stated therein that, "it is denied that the case has been lost or damaged" and that "if the defendants allege that the consignment has been lost (which is not admitted by the plaintiff) the defendants have failed to disclose as to what steps were taken by them in connection with the said alleged loss". In the written statement also two sentences need noticing. It is stated therein that "the enquiries of the defendants revealed that the case was not traceable anywhere", and that it is submitted that "the defendants inability to trace the case cannot lead to the conclusion that the case was not lost and that the clause limiting the liability was not applicable as alleged". There is no doubt that these pleas are not happily worded, nontheless the plea that the enquiries of the defendants revealed that the case was not traceable implies that a plea of loss of the case is being raised, which is further amplified by the sentence that the defendants' inability to trace the case cannot lead to the conclusion that the case was not lost and that the clause limiting the liability was not applicable. I am therefore, of the view that the pleadings of the parties if they are looked from the point of view of substance, they do raise an issue. 'whether the case had been lost or not'.
16. ' Here I may refer to Rajabali v. Messrs Gujrat Bus Service Karachi and another (1) to which reference was made by Mr. S. Shai ifuddin Pirzada, wherein Anwarul Haq, J. (as his Lordship then was) sitting in Division Bench, after referring to the following observations made in Lakshmi Ratan Cotton Mills Company Ltd. Kanpur v. J. K. Jute Mills Company Ltd. Kanpur (2), expressed his agreement to the same.
17. "I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded."
18. ' Although the above observations were made somewhat in different context but they can be relied upon also in support of the proposition that in framing of issues it is the substance which is to be looked into, no matter if the plea is worded clumsily or inartistically.
19. ' It was submitted by Mr. Pirzada that when the parties filed consent issues they also understood that a plea of loss of the package was raised in the written statement, otherwise the Counsel for the plaintiff would not have consented to. There is force in the argument.
20. ' In reply it was submitted by Mr. Mansoorul Arfin that the Court was not bound by the consent issues of the parties and it has to frame its own issues which arise out of the pleadings of the parties. No doubt it is so but it is also clear that the plaintiff made no mistake in understanding the pleadings of the parties as to the plea of loss of the case.
21. ' Mr. Mansoorul Arfin further submitted that by the present application the defendants in fact were seeking review of the decision made on 19-1-1980. Firstly, defendants are not seeking review of any order for no order was passed on any application, but only issues were framed and certain reasons were stated for framing of those issue. Nontheless even if framing of certain issues or framing of some issues in certain manner, or not framing of certain issues is considered to be an order, rule 5, Order XIV, C. P. C. Itself gives powers to the Court to amend the issues or frame additional issues, and in fact, second part of sub-rule (1) of rule 5 makes it imperative on the Court to frame such additional issues as may be necessary to determine the controversy between the parties.
22. ' Mr. Pirzada relied on two decisions of the Privy Council. The first case is of Shamu Patter v. Abdul Kadir Ravuthan and others (3). It was observed by Ameer Ali, J. At page 612 of the report:- "With regard to the first point their Lordships are of opinion that section 149 of the Civil Procedure Code (Act XIV of 1882) which is applicable to the proceeding, is conclusive. That section declares 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 controversy between the parties shall be so made or framed."
23. "The first part of the section leaves it in the discretion of the Courts to frame such additional issues as it thinks fit, whilst the latter makes it imperative on the Judge to frame such additional issues as may be necessary to determine the controversy between the parties. The
(1) PLD 1961 Kar. 486 (2) AIR 1957 All. 311
(3) I L R 35 Mad. 607 subordinate Judge was, therefore, fully empowered to frame the issue on which he decided the case."
24. ' I may mention here that section 149, C. P. C. (Act XIV of 1882) appears to be in similar terms as rule 5 of Order XIV of the Code of Civil Procedure, 1908.
25. ' Reference should also be made to the second case cited by Mr. Pirzada namely, Huncomanpersaud Panday v. Baboose Munraj Koonweres (4). The following observations of their Lordships therein which appear at page 410 of the report appear to be pertinent : "On the first point their Lordships think it right to observe, that it is of the utmost importance to the right administration of justice in these Courts, that it should be constantly borne in mind by them that by their very constitution they are to decide according to equity and good conscience ; that the substance and merits of the case are to be kept constantly in view ; that the substance and not the mere literal wording of the issues is to be regarded ; and that if, by inadvertence, or other cause, the recorded issues do not enable the Court to try the whole case on the merits, an opportunity should be afforded by amendment, and, if needed be, by adjournment, for the decision of the real points in dispute."
26. ' I may here re-emphasize that under the second part of sub-rule (1), rule 5, as stated by their Lordships of the Privy Council in Shamu Patter v. Abdul Kadir Ravthan and others it is imperative on the Court to frame such additional issues as may be necessary to determine the real controversy between the parties and this can be done at any time before passing a decree. Reference can also be had to Mrs. Parbati L. Sitlani and 2 others v. H. Hussain & Co. And 2 others (2) and two decisions from Indian jurisdiction namely, Trimbakdas and another v. Mt. Mathabai and another (3) and Khazana v. Surian (4). The last named case also was referred to by Mr. Pirzada. In the Nagpur case the facts are ' On 22nd November, 1925 six issues were framed by the Additional District Judge, namely Mr. Moghaonker. On 19th February 1926, he rejected an application of the defendants for recasting the issues. On 15th September, 1926, when Mr. Amraotker the new Additional District Judge took over charge of the case a fresh application was presented by the defendants for resettling the issues on the ground that the issues as framed were wrong and did not cover the entire pleadings. After hearing the pleaders of the parties, the learned Judge allowed the application by an order dated 20th December, 1926, and recast the issues as they then stood. An objection being raised to the order it was observed by the Division Bench at page 228 of the report as follows : "It cannot be denied that under Order XIV, rule 5(1), Civil P. C., the Court has got very wide powers to amend the issues or frame additional issues as may be necessary for determining the matters in controversy between the parties at any time before the passing of a decree: It is to be noted that, in the present case, the issues were remodelled before
(1) (1856) 6 M L A 393 (2) PLD 1963 Kar. 397 the bulk of the evidence was recorded. It is frankly admitted by the learned Advocate for the plaintiffs that no prejudice, in the shape of shutting out any evidence, which the plaintiffs desired to present in the case, has resulted to them by the amendment of issues.
27. ' The order passed by the lower Court on 20th December, 1926 in this matter seems to us to be perfectly just and sound as the old issues were indeed not sufficiently explicit and did not fully cover the pleadings of the parties as the remodelled issues do."
28. ' The facts of the other case from foreign jurisdiction namely, Khazana v. Surjan may be referred to in some details.
29. ' In this case 5 issues were framed on 11-6-1951, which I need not reproduce here. Thereafter, the defendant filed an application on 6-8-1951 contending that all the issues arising from the pleadings had not been framed and praying that the issues as set forth in the application should be framed. Thereafter, the subordinate Judge retained the first two and the last issues and struck out issues Nos, 3 and 4 and reframed three additional issues mentioned in the judgment. The defendant being still dissatisfied he filed another application on 13-5-1952 contending that no issue with regard to the terms of the alleged exchange and the plaintiff's possession within twelve years of the suit had been framed, and praying that the same be framed. This application, came up before another subordinate Judge who had succeeded the former subordinate Judge and on 22- 5-1952 he rejected the application on the ground that he had no jurisdiction to review the order of his Predecessor-in-office. On these facts on revision application being filed it was held by the Court, "it was not a case of review at all but of carrying out the mandatory provisions of Order XIV, rule 5 (1) of the Code, which makes it incumbent upon a Court to make all such amendments and frame such additional issues as may be necessary for determining the matters in controversy between the parties. The present Subordinate Judge should have amended the is sues and framed the additional issues of his own accord, and much more so as soon as his attention was drawn by the defendant petitioner to the erroneous issues or to the omissions".
30. ' I, therefore, hold that where the issues framed do not bring out the real point in controversy or do not cover the entire controversy, it is impera 4 tive on the Court to frame such additional issues as may be necessary an the power can be exercised at any stage prior to final disposal of the case.
31. ' Now, the question that arise for determination is what issues are required to be framed on the pleadings. In the application under consideration it is prayed to amend the issues in accordance with the consent issues which were filed or in any case frame the additional issues to the following effect.
32. "Whether the defendant's liability would be confined only to 100 per case."
33. ' However, at the time of arguments Mr. S. Sharifuddin Pirzada suggested the following issues :
(1) Whether the goods in question have been lost ?Defendants at the time of shipment ? If not, what is the effect thereof ?
(2) What is the actual value of the goods ?
(3) Whether the value of the goods was declared to the.
(4) Whether clause 24 of the Bill of Lading is binding upon the plaintiff ?
(5) What is the effect of Article IV, rule 5 of the Schedule to the Carriage of Goods by Sea Act, 1924 ?
(6) Whether the defendants' liability is confined only to 100 per case ?
(7) Relief ?
34. ' I would adopt these issues with the exception of issue No, 3 which is refrained as follows :- "Whether the value of the goods was not declared to the defendants at the time of shipment ? If so what is the effect ?
35. ' I allow the parties three months further time to apply for commission and for filing of documents, if any.