MIAN SAQIB NISAR, ].- The respondent No. 1 filed a suit for the recovery of an amount of Rs.
4,37,409/-, against the petitioners, which was contested by them, In paragraph No. 4 of the written statement, the petitioners have pleaded that they are entitled to recovery Rs. 44,998/-, from the plaintiff, however, there is no specific plea of set-off in the written statement. Anyhow, issues were framed, and the parties were put to trial. The evidence of the plaintiff was completed. Number of opportunities were granted to the petitioner, but they failed to adduce their evidence, which was closed. The petitioners filed a review petition, which was dismissed and thereafter, they filed the application under Order 14, Rule 5 of CPC, for the framing of issue regarding so-called plea of set- off. This application has been rejected by the Iearned Trial Court vide order dated 3.5.2001.
2. It is contended by the Iearned counsel for the petitioners that where the plea of set-off has been taken by the petitioners in the written statement, it is incumbent upon the Court to frame proper issues, It is further contended that framing of correct issue is duty of the Court, and even if a party does not press at appropriate point for framing of a particular issue, it does not absolve the Court of its mandatory obligation.
3. I am afraid, this contention has no force. As has been observed by the Iearned Trial Court, evidence of the plaintiff has been completed. The petitioners were given number of opportunities to produce their evidence, but they failed to do so and their evidence has been closed. Issues were framed on 12.1.1998 and from that time, throughout the trial, the petitioners never agitated for the framing of any additional issue, thus the petitioners would be deemed to have abandoned their so-called claim of set off. Although it is duty of the Court to frame proper issues, but at the same time, it is also the obligation of a party to litigation to point out to the Court at earliest available opportunity, any error in this behalf. If, it is not so done at the appropriate stage, the defauIting party would be deemed to have waived his plea/claim. Particularly, in the instant case, evidence of the petitioners has been closed by the Trial Court under the provisions of Order 17, Rule 3 of CPC, thus through this indirect method of asking for the framing of an additional issue, the order of closing their evidence, cannot be put to naught, It may be pertinent to state here that even the review application filed by the petitioners against the closure of their evidence, has been dismissed by the Trial Court.
In the light of above, this petition has no merits and is hereby dismissed.