' This order will dispose of Civil Revisions Nos. 1024 and 1026, both of 1979, which arise out of orders dated the 14th of May, 1979 passed by the learned trial Judge in two suits thereby allowing the plaintiff's application for framing of an additional issue.
2. Briefly stated the facts are that in suits for joint possession filed by the plaintiff, eleven issues, arising out of the pleadings of the parties, were framed on the 22nd of June, 1977. The parties led evidence which was concluded except the plaintiff's statement. He put in an application for permission to produce additional evidence but it was turned down by order dated the 4th of June, 1978. Thereafter he filed another application under Order XIV, rule 5, C. P. C. For framing an additional issue. This application was allowed by the impugned orders.
3. The learned counsel for the petitioner-defendants has argued that the provisions of Order XIV, rule 5, C. P. C. Are the enabling provisions which are subject to the provisions of Order XIV, rule 3. C.
P. C., and since the impugned orders are beyond the scope of the latter provision, they are bad in the eyes of law. He next contended that the issues initially framed contemplated the real dispute between the parties and there was no occasion to recast them. According to the learned counsel, the object of moving the application was nothing but to get an opportunity to adduce additional evidence which had earlier been declined by the learned trial Court. Reference was made to Surajmull Nagovemull v. Triton Insurance Company Ltd. (1), Chartered Bank of India v. Imperial Bank of India (2), M. K. Srinivasan and others v. Watrap S. Subramanian Aiyer (3) and Shah Muhammad Khan v. Ghulam Qadir (4).
4. The learned counsel for the respondent, on the other hand, argued that it is the duty of the Courts to frame proper issues which arise out of the pleadings of the parties. And since in the instant case issue No, 10, as initially framed, did, not reflect the real controversy between the parties, the Court had no option but to recast the issues nder powers which it possessed by virtue of rule 5 of Order XIV, C. P. ., and were exerciseable at any stage. In support of his contention th learned counsel cited Mst. Nur Jehan Begum v. Muhammad Ahsan Ullah Khan (5).
5. For facility of reference the original issue may be reproduced as follows : - "Whether the mutation No,----dated--------is void, illegal and is inoperative on the rights of the plaintiff ?" {{FOOT NOTE}}
(1) AIR 1925 P C 83 (2) AIR 1930 Cal. 534
(3) AIR 1932 Mad. 100 (4) PLD 1971 B J 9
(5) PLD 1960 Lah. 181 {{FOOT NOTE}} ' With the assistance of the learned counsel for the parties I have gone through the impugned orders and find that the reason given by the learned trial Court for framing the additional issue was that his predecessor had omitted to make mention of the number and date of the mutation. He was further of the opinion that a distinct issue for material proposition of law or fact, affirmed by one party and denied by the other, was to be framed which had not been done. He, therefore, framed the following additional issue :- "Whether the mutation in dispute is a product of fraud and misrepresentation?"
6. I have heard the learned counsel for the petitioner at some length and agree with him that the provisions of rule 3 of Order XIV, C. P. C. Regulate the provisions as contained in rule 5 of Order XIV, C. P. C. But at the same time. a plain reading of the provisions of rule 5 of Order XIV would show that Courts enjoy unqualified powers to frame issues at any stage of the suit, the only condition being that it must arise out of the pleadings of the parties and such proper material as referred to in rule 3 of Order XIV, C. P. C. In the impugned orders the learned trial Court has made a reference to paragraph 4 of the plaint where allegations of fraud and misrepresentation have been levelled.
This material controversy was not covered by any issue initially framed and the trial Court was justified in framing the additional issue. Besides that I am of the considered view that law favours adjudication on merits and this principle cannot be sacrificed for technicalities.
7. There is no force either in the contention of the learned counsel for the petitioner that the object of moving the application was to get an opportunity to adduce additional evidence for which he had earlier made unsuccessful attempts. Earlier there was -no issue on fraud and misrepresentation and I do not think that in the absence of any specific issue on the subject, the Court could grant any application for adducing additional evidence on this point. It is admitted principle of law that evidence is led and received only on those points which have been formulated in the shape of issues.
8. The authorities cited by the learned counsel for the petitioner are distinguishable from the facts, of the present case.
9. For the reasons given above, there is do force 'in either of the civil revisions which are dismissed with costs.