WAJIHUDDIN AHMED, J- The brief facts in this controversy are that a suit was filed in 1980 by the applicant-plaintiff against the respondent-defendant which ultimately came to be numbered as Suit No. 101 of 1986 in the Court of the VII Civil Judge, Karachi East. It was a suit for recovery of Rs.14,468.17 an account of arrears of rent plus charges for amenities and services such as electricity, gas etc based on a tenancy between the parties which according to the applicant- plaintiff, who is an advocate, had come to an end through a compromise order passed in a rent case on 31.8.1978 but which order was not allowed to become effective by the respondent- defendant till possession was actual obtained from him through the Court Bailiff on 15.10.1980. The claim in suit pertained to the period prior to 15-10- 1980. The defence, as reflected in the written statement of the respondent- defendant, apparently, impliedly admitting the compromise dated 31.8.1978, was that in the referred rent case he had agreed to vacate the tenant-held flat before 31- 11-1978. According to such defence, perhaps, after the respondent-defendant had vacated the tenant-held, another agreement was entered into between the applicant plaintiff and son of the respondent-defendant, Tanwir Jamshed by name, where-under a fresh tenancy in favour of the latter was created. Such subsequent agreement, however, was stated to be only oral. The possession through the Court Bailiff, according to this stand, was illegally obtained not from the respondent- defendant but from his son. Pursuant thereto the said son was stated to have filed a suit of his own against the applicant-plaintiff which suit was originally numbered as Suit No.41/1980 and latter re-numbered as Suit No.206/85. Both these suits, evidently, have been pending before the same Court. The defendant also claims that the parties are interrelated.
On the foregoing pleas the trial Court on 1.4.1986 framed the following issues:-
1. Whether the suit is maintainable in law?
2. Whether the defendant vacated the rented premises and handed over vacant possession to the plaintiff as per compromise in R.C.,No.5297/74 or the plaintiff obtained the possession of the premises through bailiff in Ex. Application No. 3/80?
3. Whether the plaintiff rented out the said flat to Tanweer Jamshed on a monthly rent of Rs.800/- w.e.f. January, 1979 and also took a pugree of Rs.50,(KK)/- from Tanweer Jamshed?
4. Whether the plaintiff is entitled to the amount claimed in the suit?
5. What should the decree be?
It may here bear mention that apart from his own suit- respondent- defendant's son Tanwir Jamshed also attempted to become a party in the suit from which this revision application has emerged. Relevant application under Order 1, rule 10, C.P.C was dismissed by the trial Judge on 3.5.1982, revision against such order failed on 20-4-1985 and constitutional petition questioning such orders itself met the same fate on 23.xl989. The ratio of these orders was that another controversy between another set of parties could not be introduced in the present litigation.
2. Correspondingly, an application was moved under Order XIV, rule 5, C.P.C by the applicant- plaintiff in the suit pertaining to this revision application for striking OF issue No.3 above-quoted but that application was dismissed by the Court on 24.2.1987. Subsequently, another application, apparently, seeking the same relief and under the same provision was moved and was dismissed on 4.12.1989, solely on the ground that a previous application directed towards the same end in the LIS had been dismissed on 24.2.1987. This revision is directed against the order last mentioned.
3. At the outset, it has to be observed that when the issues were initially framed on 1.4.1986 the trial Court had before it is own order dated 3.5.1982 and the order in revision dated 20-4-1985 in both of which orders the controversy pertaining to the rights of the son of the respondent-defendant had been considered to be totally irrelevant for the purposes of the suit in question. However, oblivious of such orders, issues were framed in such manner that issue No.3 re-activated and brought to the fare the same controversy which stood closed by dismissal of the son's application under Order 1, rule 10, C.P.C. On the other had, when an effort was made by the applicant-plaintiff to have the issues properly rectified by deletion of issue No.3 such an effort failed per order dated 24.2.1987, Ex Facie, based on a mis-reading of law. As seen, yet another effort was made by the applicant- plaintiff to have issue No.3 afore-mentioned struck OF after the decision of the Constitutional Petition on 23.5.1989, pertaining to the attempted joinder of the son of the respondent-defendant in the suit germane to these proceedings. Such application also has been dismissed purely on a technical ground.
4. It is settled law that framing of issues is an exercise which is calculated to aid the administration of justice and that admission to urge a particular issue, if such fairly arises upon relevant material, as well as an objection as regard any issue improperly framed can be raised by a party at any stage, delay being of no particular relevancy. Acting upon this principle issues have been framed, reframed, modified or struck OF at every level of proceedings. Relevant case law on the point, Inter alia, as cited by the applicant, who has argued his own cas6, comprises of SHAMU PATTER VS ABDUL KADIR RAVUTHAN, (I.L.R. 35 Mad. 607), ANANTA KUMAR VS GOPAL CHANDRA (PLD 1961 Dacca 65) and WILAYAT SHAH VS SULTAN AHMAD (N.L.R. 1978 Civil 1126).
5. In the first of these cases the Privy Council upheld the framing of an additional issue by the trial Court after evidence had concluded and the matter had proceeded to arguments. In the Dacca High Court case the obligation of the Court to frame adequate issues was emphasised. The National Law Reporter case was decided in the Lahore High Court and Saad Saud Jan, J., as he then was observed that a matter even though found in pleadings need not have been put in issue if that was not necessary for adequate decision of the case.
6. It is further obvious that the learned Court continued to be in error when it did not properly and adequately address itself on the question whether or not issue No. 3 aforesaid was properly framed. Technicalities of the kind which came in the way of the Court could have little, relevance in such context. An earlier decision attracting the doctrine of Res Judicata under Section 11 C.P.C-is specific to successive suits even though the rule has been extended to orders, interim as well as final. However, interim orders, in their very nature, only cover steps in proceedings and do not attain that degree of finality which is peculiar to final adjudications. See GHULAM QADIR VS MOHD SHARIF (1979 CLC 527). On development, emergence or discovery of new or fresh facts, if otherwise warranted, interim or interlocutory orders can come up for re-examination either upon the provisions contained in the Code itself or on general principles attracting the inherent powers of the Court. Examples of the former category, INTER ALIA, would be furnished by adjudications under Orders IX, rule 7, ^XXVII, rule 3 and XXXIX, rules 1 & 2 C.P.C opening up again under Orders IX, rule 13, XXXVII, rule 4 and XXXIX rule 4, CPC respectively. See ARJUN SINGH VS MOHINDRA KUMAR (AIR 1964 S.C. 993). Where express provisions for reopening of interlocutory determinations are wanting ends of justice so require resort can be had to inherent jurisdiction of the Court under section 151 CPC.
See ALLAHRAKHI VS. RAJ BIBI (PLD 1957 Lahore 70) wherein Kaikais, J., as he then was, invoked principles analogous to powers of Review. Besides, upon final adjudication controversies can be re- agitated at the appellate or of higher levels. Quite apart from all this, in so far as the step of framing of issues is concerned, that being an obligation of the Court itself and findings on issues themselves being conceived as attaining finality under Section 11 CPC by operation of the principle of Res Judicata, such an obligation can never get foreclosed or come to an end even if an application under Order XIV, rule 5, CPC has been made on the subject by a party and determined one way or the other. The Court seized of the suit thus never loses its power to apply itself on the questions at issue and to bring the same in conformity with the dictates of the case. The rule of Res judicata can, therefore, have no application to such a situation. The second application of the applicant-plaintiff, accordingly, could not have been dismissed merely on the score of an earlier one having been so dismissed.
7. Resultantly, it comes up for consideration as to whether issue No.3 under consideration was properly framed or not. Mr. Raja Ghulam Hyder has aptly cited the case of DANDY SWAMI VS. PANDIT SRUIB (48 CWN 635) in which case it was held that issues are to be confined to the real questions in controversy and the mere fact that certain allegations were made by one side and denied by the other did not make such allegations material for framing of issues. In point also is the decision of the Bombay High Court in NARAIN GANESH VS HARI GANESH (I.L.R 13 Bom 664) wherein it was said that issues which may alter the nature of a case arc not to be framed.
8. The principle which thus emerges is that the stage of framing of issues is one of the most important stages of the suit. It is the duty of the Judge himself to frame proper issues. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. What are material propositions is explained in Order XIV, rule 1, CPC itself and such are those "propositions 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 mere fact that an allegation is made and denied does not imply that the proposition is material. The Court framing issues in a suit is to confine itself only to the material questions in controversy, is to by-pass irrelevant allegations or matters and must always remain alive Jo the nature of the suit when attending to its obligation of striking the issues.
9. In consonance with the above discussion it is patent on the record that the only dispute before the Court was whether the plaintiff-applicant was entitled to recover the alleged dues from the defendant respondent on the basis of a tenancy which, according to the averments made, was governed by a compromise in a rent case dated 31.8.1978 which compromise, on the pleas in the plaint, became effective only when possession was obtained through the Court on 15.10.1980. Ln the event the defendant disputed liability, as indeed he did, he was to prove delivery of possession to the applicant-plaintiff on a date prior to 15-10- 1980 when the Court Bailiff assumed possession allegedly from him. Such a defence had to be independently established and whether there was any agreement between the applicant-plaintiff and son of the respondent-defendant was an altogether extraneous matter which, in fact, was pending in the same forum in a. Different suit.
Such controversy would arise to be decided on its own merits. That such controversy was not relevant or material in the suit involved here became clear also from the orders passed in relation to the joinder proceedings already adverted to above. It follows, therefore, that issue No.3 above- said was wrongly struck having no bearing what soever on the controversy between the applicant- plaintiff and the respondent-defendant, such controversy being governed by the relationship of landlord and tenant independently between them and not referable to any third party dispute.
10. As already said, it is never too late to cast, re-cast, alter, modify or strike OF issues in a suit. As such, in consonance with what is observed, issue No.3 above-quoted is to be deleted on this revision being allowed and the case is referred back to the learned Court for to law. There will, however, be ro costs in this revision application.