' Rehmat Khan, petitioner brought a suit for declaration against Karam Ellahi, Mst. Zainib Bibi, Mst.
Nasim Akhtar, Muhammad Asghar, Muhammad Afzal, Arshad Mahmood, Muhammad Ajmal, in respect of the suit land measuring 53 kanals 2 marlas, situate in village Chhani Raiki, Tehsil Bhimber. The suit was instituted on November 2, 1983. Summons were issued to defendant- respondents for December 29. On that date, it was reported that the defendants declined to accept the service. On that report, ex parte proceedings were ordered. The plaintiff was directed to lead his evidence ex parte. Ex parte decree was passed on February 29, 1984. An application to set aside the ex parte decree was moved on July 22, 1986. In their application, the applicant- respondents denied the knowledge of institution of the suit and its hearing, on account of non- service of summons. It was averred that they came to know about the ex parte decree on July 7, when Muhammad Aslam applicant, applied for the copy of the order and decree passed against them. The application was contested by Rehmat Khan who supported the ex parte decree, including the report of the bailiff. The learned Sub-Judge directed the applicants to lead their evidence in support of their application. They produced Abdul Majid, bailiff, Abdul Rehman and produced copies of the judgment and decree passed ex parte. On conclusion of their evidence, Rehmat Khan, petitioner was asked to lead his evidence in rebuttal, if any. He produced Bashir Ahmed, Sikandar Hayat and Ghazanfar Hussain. He had to produce rest of the witnesses when attention of the Court was invited to an omission of framing of issues in the light of the pleadings of the parties. The learned Sub-Judge framed issues on March 20, 1990 and adjourned the case for evidence. This order was challenged in the present petition.
2. Mr. Riaz Alam, the learned Counsel for the petitioner argued that it was unnecessary to frame issues at the stage when eivdence of the applicant-respondents was already concluded and statements of some of the witnesses of the petitioner were also recorded. It was suggested that vide the impugned order, the trial Court put the cart before the horse and endeavoured to allow an opportunity to the opposite party to make up deficiency of its evidence at the late stage. The learned Counsel cited PLD 1971 SC 82.
3. It is accepted proposition of law that whenever parties in a civil action are not in agreement on the proposition of law and facts, it is enjoined upon the trial Court to frame issues in the light of the controversies raised in the pleadings of the parties. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the points at issue and to support their respective claims by relevant evidence. In present case, by inadvertence, the trial Court omitted to frame issues. The learned counsel for the parties equally were negligent in inviting the attention of the Court to the aforesaid procedural necessity and compliance with the provisions of the Code of Civil Procedure. It is true that evidence of the parties was recorded in absence of issues, but at the same time, the trial Court deemed it conducive and in the interest of justice to frame issues, as a safeguard against any likely prejudice to the case of the parties.
4. At this stage, we are faced with the proposition of authority of the Court to frame issues at late stage of the proceedings. It is to be ascertained as to whether the Court was empowered to frame issues at the stage when evidence of one of the parties was already closed and the other party was in the mid of its evidence. The authority cited by the learned counsel for the petitioner, as guidance, is not, relevant to the proposition under consideration. In that case, issues were not framed at all and evidence was recorded in absence of the issues. The controversies raised therein were decided in the light of the evidence led by the parties. Objection on omission to frame issues, was raised in the High Court and finally in the Supreme Court. Mr. Justice Waheeduddin, the learned Judge who delivered the verdict of the Court, settled the controversy in the following manner:- "---Mr. a Pesrarul Hussain, learned Counsel for the appellant contended that the Courts below were not justified in adjudicating upon this question as no issue was framed on this point. He further contended that this point was not even taken in the notice under section 80 of the Civil Procedure Code. This objection was also taken in the High Court and was repelled on the ground that no prejudice has caused to the appellant by not framing any specific issue on it. The parties have led evidence in support of their cases and it was on this evidence that decision has been given by the Courts below. In my opinion, the procedure adopted by the Courts below cannot be said to be illegal. If issues are not framed but allegations are made in the plaint and they are challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision on it without framing any issue."
' The aforesaid observation was given in the circumstances contrary to the very proposition under consideration. In the aforesaid case, decision was given by the Court to justify the omission to frame issues. The objection was repelled as parties were not considered to have been prejudiced in leading their evidence, in support of their respective claims. In present case, the position is just otherwise. Here, the Court rectified its omission by framing the issues. The learned Counsel for the petitioner now wants that the issues framed by the Court should be struck down and the trial Court should be directed to decide the case, without framing of issues, on the basis of evidence of the parties.
5. Rule 5, Order XIV, C.P.C. Provides an ample guideline in respect of the authority and power of the Court, to raise, amend and strike down the issues, during the trial of the civil action. It postulates that the Court may, at any stage before passing decree, amend issues or frame additional issues on such terms as it thinks fit. All such amendments or additional issues as may be necessary for the decision of matters in controversy between the parties, shall be so made and framed, to Hon'ble the Court to decide the points at issue conclusively. Sub-rule (2) of Rule 5, further empowers the Court to strike out any issue that appears to it to be wrongfully framed or introduced, at any time before passing the decree. The aforesaid scheme of procedure provides a line of guidance that the Court is vested with discretion to frame issues or to modify them or to strike out the irrelevant issues, at any stage of the proceedings before passing a decree. The aforesaid authority, in estimation of this Court, includes the authority to frame issues at any stage of proceedings irrespective of the fact that the evidence has already been recorded or not. The second object of framing of issues, as laid down in the procedure, is for the facility to let the parties understand that they have to prove their respective claims by adducing relevant evidence in their support. The procedure is introduced for safe administration of justice and to eliminate confusion and ambiguity likely to cause misunderstanding and misdirection to the parties.
In view of the aforesaid position, the order of the trial Court is not found defective for want of jurisdiction and prejudicial to the case of the petitioner. There is no force in the petition. It is, therefore, dismissed.