P L D 1980 Karachi 412 (PLP)

"I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded." Although the above observations were made somewhat in different context but they can be relied upon also in support of the proposition that in framing of issues it is the substance which is to be looked into, no matter if the plea is worded clumsily or inartistically. It was submitted by Mr. Pirzada that when the parties filed consent issues they .also understood that a plea of loss of the package was raised in the written statement, otherwise the Counsel for the plaintiff would not have consented to. There is force in the argument. In reply it was submitted by Mr. Mansoorui Arfin that the Court was not bound by the consent issues of the parties and it has to frame its own issues which arise out of the pleadings of the parties. No doubt it is so but it is also clear that the plaintiff made no mistake in understanding the pleadings of the parties as to the plea of loss of the case. Mr. Mansoorul Arfin further submitted that by - the present application the defendants in fact were seeking review of the decision made on 19-1-1980. Firstly, defendants are not seeking review of any order for no order was passed on any application, but only issues were framed and certain reasons were stated for framing of those issue. Nontheless even if framing of certain issues or framing of some issues in certain manner, or not framing of certain issues is considered to be an order, rule 5, Order XIV, C. P. C. itself gives powers to the Court to amend the issues or frame additional issues, and in fact, second part of sub-rule (1) of rule 5 makes it imperative on the Court to frame such additional issues as may be necessary to determine the controversy between the parties. Mr. Pirzada relied on two decisions of the Privy Council. The first case is of Shamu Patter v. Abdul Kadir Ravuthan and others (3). It was observed by Ameer Ali, J. at page 612 of the report: "With regard to the first point their Lordships are of opinion that section 149 of the Civil Procedure Code (Act XIV of 1882) which is applicable to the proceeding, is conclusive. That section declares that 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 amendments or additional issues as may be necessary for determining the controversy between the parties shall be so made or framed." "The first part of the section leaves it in the discretion of the Courts to frame such additional issues as it thinks fit, whilst the latter makes it imperative on the Judge to frame such additional issues as may be necessary to determine the controversy between the parties. The subordinate Judge was, therefore, fully empowered to frame the issue on which he decided the case." (1) P L D 1961 Kar. 486 (2) A I R 1957 All. 311 . (3) 1 L R 35 Mad. 607 I may mention here that section 149, C. P. C. (Act XIV of 1882) appears to be in similar terms as rule 5 of Order XIV of the Code of Civil Procedure, 1908. Reference should also be made to the second case cited by Mr. Pirzada namely, Humomarepersaud Panday v. Baboom Munraj Koonweres (4). The following observations of their Lordships therein which appear at page 410 of the report appear to be pertinent "On the first point their Lordships think it right to observe, that it is of the utmost importance to the right administration of justice in these Courts, that it should be constantly borne in mind by them that by their very constitution they are to decide according to equity and good conscience ; that the substance and merits of the case are to be kept constantly in view ; that the substance and not the mere literal wording of the issues is to be regarded ; and that if, by inadvertence, or other cause, the recorded issues do not enable the Court to try the whole case on the merits, an opportunity should be afforded by amendment, and, if needed be, by adjournment, for the decision of the real points in dispute." I may here re-emphasize that under the second part of sub-rule (11, rule 5, as stated by their Lordships of the Privy Council in Shamu Patter v. Abdul Kadir Ravthan and others it is imperative on the Court to frame such additional issues as may be necessary to determine the real controversy between the parties and this can be done at any time before passing a decree. Reference can also be had to Mrs. Parbati L. Sidani and 2 others v. H. Hussain do Co. aid 3 others (2) and two decisions from Indian jurisdiction namely, Trimbakdas acrd another v. Mt. Mathabai and another (3) and Ahazana v. Surian (4). The last named case also was referred to by Mr. Pirzada. In the Nagpur case the facts are: On 22nd November, 1925 six issues were framed by tire Additional District Judge, namely Mr. Moghaonker. On 19th February 1926, he rejected an application of the defendants for recasting the issues. On 15th September, 1926, when Mr. Amraotker the new Additional District Judge took over charge of the case a fresh application was presented by the defendants for resettling the issues on the ground that the issues as framed were wrong and did not cover the entire pleadings. After hearing the pleaders of the parties, the learned Judge allowed the application by an order dated 20th December, 1926, and recast the issues as they then stood. An objection being raised to the order it was observed by the Division Bench at page 228 of the report as follows "It cannot be denied that under Order XIV, rule 5(11 Civil P. C., the Court has got very wide powers to amend the issues or frame additional issues as may be necessary for determining the matters in controversy between the parties at any time before the passing of a decree. It is to be noted that, in the present case, the issues were remodelled before the bulk of the evidence was recorded. It is frankly admitted by the learned Advocate for the plaintiffs that no prejudice, in the shape of shutting out any evidence, which the plaintiffs desired to present in the case, has resulted to them by the amendment of issues. (1) (1856) 6 M L A 393 (2) P L D 1963 Kar. 397 (3) A I R 1930 Nag. 225 (4) A I R 1953 Bil. 33 The order passed by the lower Court on 20th December, 1926 in this matter seems to us to be perfectly just and sound as the old issues were indeed not sufficiently explicit and did not fully cover the pleadings of the parties as the remodelled issues do." The facts of the other case from foreign jurisdiction namely, Khazana v. Surjan may be referred to in some details. In this case 5 issues were framed on 11-6-1951, which I need not reproduce here. Thereafter, the defendant filed an application on 6-8-1951 contending that all the issues arising from the pleadings had not been framed and praying that the issues as set forth in the application should be framed. Thereafter, the subordinate Judge retained the first two and the last issues and struck out issues Nos. 3 and 4 and refrained three additional issues mentioned in the judgment. The defendant being still dissatisfied he filed another application on 13-5-1952 contending that no issue with regard to the terms of the alleged exchange and the plaintiff's possession within twelve years of the suit had been framed, and praying that the same be framed, This application came up before another subordinate Judge who had succeeded the former subordinate Judge and on 22-5-1952 he rejected the application on the ground that he had no jurisdiction to review the order of his Predecessor-in-office. On these facts on revision application being filed it was held by the Court, "it was not a case of review at all but of carrying out the mandatory provisions of Order XIV, rule 5 (1) of the Code, which makes it incumbent upon a Court to make all such amendments and frame such additional issues as may be necessary for determining the matters in controversy between the parties. The present Subordinate Judge should have amended the issues and framed the additional issues of his own accord, and much more so as soon as his attention was drawn by the defendant. petitioner to the erroneous issues or to the omissions". I, therefore, hold that where the issues framed do not bring out the real point in controversy or do not cover the entire controversy, it is imperative on the Court to frame such additional issues as may be necessary aril the power can be exercised at any stage prior to final disposal of the case. Now, the question that arise for determination is what issues are required to be framed on the pleadings. In the application under consideration it is prayed to amend the issues in accordance with the consent issues which were filed or in any case frame the additional issues to the following effect. "Whether the defendant's liability would be confined only to 100 per case. " However, at the time of arguments Mr. S. Sharifuddin Pirzada suggested .be following issues (1) Whether the goods in question have been lost ? (2) What is the actual value of the goods ? (3) Whether the value of the goods was declared to the defendants at the time of shipment ? If not, what is the effect thereof ? (4) Whether clause 24 of the Bill of Lading is binding upon the plaintiff ? (5) What is the effect of Article IV, rule 5 of the Schedule to the Carriage of Goods by Sea Act, 1924 ? (6) Whether the defendants' liability is confined only to 100 per case ? (7) Relief ? I would adopt these issues with the exception of issue No. 3 which is reframed as follows "Whether the value of the goods was not declared to the defendants at the time of shipment ? If so what is the effect ? I allow the parties three months further time to apply for commission and for filing of documents, if any. M.A.K Order accordingly.