Bombay High Court
Board Of Trustees Of The Port Of Mormugao vs V.M. Salgaokar And Brothers Pvt. Ltd. ... on 6 October, 1988
Equivalent citations: 1989(2)BOMCR23
JUDGMENT C.S. Dharmadhikari, J.
1. This revision application is filed by the original defendants against the Order passed by the learned District Judge, South Goa, dated 23rd March, 1988, rejecting their application for amendment or modification of issues. The plaintiffs filed a suit for declaration that the notification issued by the Government of Goa, Daman and Diu in exercise of powers conferred under Chapter IV of the Major Port Trusts Act 1963, dated 25th October, 1983, is void and illegal. The plaintiffs have also claimed a relief for recovery of the amount. The defendants filed their written statement. Thereafter it seems that the learned Judge framed the issues on 15th April, 1987. Since it was realised that the issues were not framed in accordance with law and particularly as per the provisions of Order XIV, Rule 1, the defendants filed an application for amendment and modification of the issues which came to be rejected by the aforesaid order.
2. Shri Presswala, the learned Counsel appearing for the petitioners, contended before me that without any application of mind to the pleadings of the parties or without even hearing the parties concerned, the learned Judge only adopted the draft issues as submitted by the plaintiffs without even altering a coma, or a word. Thus, in substance, the learned Judge abdicated his function of framing of issues and had acted with material irregularity which has resulted in miscarriage of justice. It is his case that the defendants are asked to prove even the pleadings and the documents of the plaintiffs. The issues are framed on the basis of the documents which are not disputed. According to him even the documents written by the plaintiffs and on which the plaintiffs want to rely are made subject-matter of the issues and there also the burden is thrown upon the defendants to prove it. The issues are framed without giving any opportunity of being heard to the defendants and that way practically denying fair opportunity to the defendants to forward their case.
3. On the other hand it is contended by the first respondent that the draft issues submitted by the plaintiffs were not objected to by the Counsel appearing for the defendants. The issues were framed by the Court after perusing the pleading of the parties. Even at the later stage when the present application for amendment of issues came to be filed the learned District Judge again applied his mind to the pleadings of the parties and came to the conclusion that the issues framed are necessary for adjudication of the dispute. In substance it is the contention of the learned Counsel that no error of jurisdiction has been committed by the learned District Judge. Therefore this is not a fit case warranting any interference in the revisional jurisdiction of this Court under section 115 C.P.C. With the assistance of the learned Counsel appearing for both sides. I have gone through the relevant material, including the issues framed by the District Court. From the records it appears that ultimately the issues framed by the District Judge are in tune with the draft submitted by the plaintiffs. It is needless to say that it is primarily the duty of the Judge to frame the issues in the case. Therefore the Judge is bound to apply his mind to the pleadings of the parties before framing the issues. It cannot be forgotten that framing of the issues has a very important bearing on the trial and decision of the case. As observed by the Supreme Court in J.K. Iron & Steel Co. Ltd. Kanpur v. The Iron & Steel Mazdoor Union, Kanpur. the only point of requiring pleadings and issues is to ascertain the real dispute between the parties, to narrow the area of conflict and to see just where the two sides differ." This is precisely what was expected of the learned Judge . From the record it is clear that after the parities had submitted their draft issues they were not heard. This position is not disputed even by the learned Counsel for the plaintiffs. Therefore, the issues were finalised even without hearing the parties. From the perusal of the issues it is also clear that the learned Judge has not taken into consideration the pleadings of the parties. Shri Presswala the learned Counsel appearing for the petitioners, has taken me through certain issues which clearly indicate that they did not arise out of the pleadings of the parties, namely the differences or real dispute between the parties. I am satisfied that the issues have been framed by the learned Judge mechanically without proper application of mind. A grievance is made before me that even when the Order 23rd March, 1988 was passed the learned Judge had not perused the pleading nor has given proper opportunity to the defendants to point out as to how the various issues are not necessary or that the burden has been wrongly cast upon the defendants. If the pleadings of the parties are properly perused, to say the least, it is quite obvious that the certain issues purported to have been framed by the learned Judge are not based on the area of conflict or the dispute raised by the parties. To say the least therefore, the learned Judge had acted with material irregularity in framing the issues and in also rejecting the application for amendment or modification of the issues. The whole procedure followed by the learned Judge is contrary to Order XIV, Rule 1 of the Civil Procedure Code. In substance therefore, the learned Judge has acted with material irregularity in rejecting the application filed by the defendants. Hence, the rule is made absolute and the learned Judge is directed to re frame the issues after hearing both sides. Since the suit is pending long the learned Judge is directed to frame the issues as expeditiously as possible. However, in the circumstances of the case there will be no order as to costs.