2007 PLP 143 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed the order dated 8-7-2006 passed by the learned Civil Judge, Lahore, whereby application filed by the petitioners/defendants under Order-XIV rule 5, C.P.C. was dismissed.

2. Succinctly, relevant facts are that respondent/plaintiff filed a suit for recovery of Rs.92,84,415 against the petitioners/ defendants who contested the same by filing their written statement. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence and the learned Civil Judge cognizant of the suit on 8-12-1996 framed eleven issues. Petitioners were not satisfied with the framing of issues, especially with the form of Issue No.6 and consequently, they filed an application for re-costing/re-framing of issues which on account of opposition of the respondent, remained pending for a considerable long time, approximately nine and a half years and was ultimately withdrawn. Petitioners then filed their second application with the alike prayer, which was declined through the impugned order dated 8-7-2006. Petitioners being aggrieved of dismissal of their application, filed instant revision petition and respondent in response to notice by this Court, has appeared and was represented through its counsel.

3. I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioner's defence in their written statement, inter alia, was that claim of the respondent about recovery of suit amount was not only illegal but the penalty clause in the agreement between the parties was also void. Petitioners had specifically pleaded their case to this effect in Paragraphs Nos.5 and 9 of the written statement but Issue No.6 as it was framed by the trial Court, reads as under: "Whether the claim of the plaintiff is illegal as there is no penalty clause in the agreement? OPD"

4. Above reproduced Issue No.6 was contrary to the defence taken by the petitioners in their written statement and their application for correction of issues was disallowed by the trial Court on the ground that their alike application, was earlier withdrawn by them and second application on the same subject was not maintainable at law. Law regarding framing of issues and correction thereof, is firmly settled by this time to the effect that it is primary duty of the trial Court to frame, correct/proper issues arising out of pleadings of the parties. Since it was an obligation of the trial Court to frame issues arising out of pleadings of the parties, dismissal of petitioners' first application under Order XIV, rule 5, C.P.C. could not be treated as bar to the second application, by invocation of provisions of section 141, C.P.C. For convenience/ready reference, Order XIV, rule 5(1) reads as under:-- "

5. Power to amend, and strike out, issue.

(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendment or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed."

5. Above reproduced provision of law clearly depicts that jurisdiction to frame, amend or frame additional issues, is exclusively that of the trial Court and parties to the lis could only point out error if any, therein. In these circumstances, dismissal of petitioner's first application for correction of issues should not/could not be treated as bar to invocation of jurisdiction by the trial Court and consequently their application was incorrectly declined.

6. From the above resume, since Issue No.6 was not correctly framed as the same did not correctly reflect stance of the parties, the impugned order dated 8-7-2006 being tainted with material irregularities/illegalities, cannot be allowed to be sustained.

7. For the reasons noted above, instant revision petition is accepted and impugned order dated 8-7-2006 passed by the learned Civil Judge Lahore is set aside, with the result that petitioners' application for re-casting of Issue No.6 shall be deemed to be pending and shall be disposed of by refraining/recasting of Issue No.6. There will be no order as to costs. S.M.B./A-215/L Petition accepted.