' MEHMOOD MAQBOOL BAJWA, J.---Suit for possession and perpetual injunction was instituted by respondent No.3 against the present petitioners claiming the possession of the land measuring 2- marlas 187 sq.Ft. Being Khasra No.3372 forming part of property No.S-76-R-29-A, situated at Lytton Road, Lahore contending that the same is owned by it which is in illicit possession of the present petitioners. The suit was contested by the petitioners being defendants on legal as well as factual premises. After casting issues, the adversaries concluded their evidence and when the case was fixed for arguments an application under Order XIV, Rule 5 of The Code of Civil Procedure, 1908 was made for casting two additional issues contending that the said issues arises out of the pleadings of the parties but the same were not framed. After calling the written reply, the learned trial Court dismissed the application of the petitioners vide order dated 10-11-2011 which order was assailed by the petitioners by filing revision petition which too met with the same fate vide judgment dated 19- 3-2012.
2. The learned counsel for the petitioners while making reference to the contents of the written statement maintained, that the issues proposed in the application arises out of the pleadings of the parties and as such it was the duty of the learned trial Court to frame issues. Submitted that omission to frame the issues has seriously prejudiced the case of the present petitioners which aspect was not taken into consideration by both the learned courts below. Maintained that opinion of both the learned courts below is erroneous. Further submitted that the delay in making the application which fact also influenced both the learned courts below by itself was not sufficient to dismiss the application keeping in view the provisions of Order XIV, Rule 5 of The Code of Civil Procedure, 1908.
' The learned counsel for respondent No.3 while defending the impugned order and judgment maintained that the issues already cast sufficiently reflect the controversy between the parties.
Further maintained that the petitioners remained in slumber for a period over, years to years which by itself is sufficient to question their bona fides. Alternatively, it was pleaded that the petitioners being defendants have also produced evidence as is evident from the statements of witnesses produced by petitioners. Argued that the petitioners being conscious of their stance adduced evidence and at this stage framing of issues in the circumstances is not essential.
3. According to Order XIV Rule 5 of The Code of Civil Procedure, 1908 the court may at any time before passing a decree amend the issues or frame additional issues, if any, for determining the matters in controversy between the parties.
4. Rule 1 of Order XIV of The Code of Civil Procedure, 1908 discloses the yardstick which has to be kept in view while casting issues, according to which issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. In the same rule "material proposition" has been defined as proposition 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. The same rule further provides that, material proposition affirmed by one party and denied by the other shall form the subject- matter of a distinct issue.
5. Keeping in view the provisions of Rule 1, Order XIV of The Code of Civil Procedure, 1908 respective contentions of the parties are required to be examined in order to determine whether issues cast by the learned trial Court reflects the real controversy between the parties.
' Perusal of para-2 of the application made by the petitioners under Order XIV, Rule 5 of The Code of Civil Procedure, were proposed by the, petitioners. Issue 1908 suggests that two additional issues A No.1-b was proposed raising preliminary objection to the effect that the suit is bad for non-joinder of necessary parties. Perusal of the contents of written statements, on legal as well as factual premises does not suggest that any such objection was raised by the petitioners being defendants in the written statement A either in the preliminary objection or controverting the assertion of respondent No.3 on merits and as such the said issue does not arise at all from the pleadings of the parties.
5A. Issue No.1-a, was proposed to the effect that the space measuring 2-Marla 182 sq.Ft. Situated between the Plot Nos.11 and 12 is a separate property and reserved for a public place in the approved scheme plan by the Lahore Improvement Trust or not.
' Perusal of para-2 of the written statement on merits reveals that it is the case of the petitioners being defendants that the property subject matter of the suit measuring 2-marlas: and 187 sq.Ft. Is a public place not owned by respondent No.3 being plaintiff. As many as four issues were cast keeping in view the factual as well as legal controversy between the parties. Admittedly the' issue was not cast keeping in view the stance taken by the petitioners in para-2 of the written statement on merits. Keeping in view issue No.1, the onus of which was placed upon respondent No.3 being plaintiff, there can be no two opinions that the issue referred to is sufficient to cover the controversy between the parties because it is the case of respondent No.3 that the petitioners are in illegal occupation of the same and controverting the same assertion, they introduced that the property subject-matter of the suit is a public place. Assertion of respondent No.3 regarding illicit possession of the petitioners being defendants could have been conveniently controverted by producing evidence at the instance of petitioners by adding that the said property is a public place shown in the master plan prepared by the Lahore Improvement Trust now succeeded by L.D.A. In the attending circumstances issue Nb.1, covers the controversy between the parties. Though stance was taken by the petitioners in written statement but was introduced in defence and as such, it was well within the right of the petitioners to produce evidence in rebuttal negating the claim of respondent No.3.
6. Even if it is presumed that issue No.1, does not reflect the real controversy by itself would not be sufficient to set at naught order as well as the judgment impugned for the simple reasons that the petitioners being defendants led evidence in respect of the allegations as referred by the learned counsel for respondent No.3 during the course of arguments which could not be questioned by the learned counsel for the petitioners. Since a specific stance was taken by the petitioners being defendants in para-2 of the written statement on merits and evidence was also led accordingly, therefore, there can he no two opinions that the petitioners being defendants conscious and cognizant of their stance taken in the written statement led evidence accordingly, B therefore, there is no need at all to cast issue proposed in the application as the controversy can be conveniently decided by the trial Court while taking into consideration the evidence led by the petitioners being defendants in order to substantiate their stance contained in para-2 of the written statement on merits.
7. Revisional jurisdiction can be exercised in case of "Non-assumption", "Illegal assumption" or "exercise of jurisdiction illegally or with material irregularity".
8. Pursuant to above discussion, the learned counsel for the petitioners failed to point out any jurisdictional defect within the meaning of section 115 of The Code of Civil Procedure, 1908 in the order impugned as well as judgment assailed and as such writ petition being devoid of force is dismissed but without any order as to costs.