[Advocate's Diary] Essentials of a civil suit: Framing of issues

Advocate's Diary is a project aimed at addressing the dearth of literature on court practice and litigation advocacy. To this end, we aim to create a repository of columns on the essentials of court practice – ranging from civil suits to criminal trials, from ADR procedures to enforcement of decrees and judgments, and more.

The guest columns in the series aim to develop a conversation channel with seasoned practitioners, senior advocates, arbitrators and judges.

After the completion of all pleadings, the next stage in a civil trial is for the court to frame issues of law, and of fact. Framing of issues is a key stage in a civil suit, since the issues framed in the suit determine what evidence will be produced by either party to disburse their burden in respect of such issues, and the court’s final decision on each such issue.

In this column, we shall discuss how issues are framed in a civil suit by the court, and what factors shape the court’s decision of determining which issues are relevant for the dispensation of justice. We will discuss the differences between issues of fact and issues of law, the consequences of the failure to frame a particular issue by the court, and the power of a court to decide on questions falling outside the issues framed. We will also delve into the changes brought by the Commercial Courts Act, and the introduction of the case management conference in commercial cases, which sets a timeline for the parties to complete the trial within.

Issues under the CPC are governed under Order XIV. An issue is a material proposition of fact or law which one party holds to be true, while the other denies. The role of the civil court, in such instances, is to frame a specific issue on such a proposition – in order to enable the parties to prove their case by leading evidence on such an issue. Rule 1(4) of Order XIV divides issues into two – issues of fact and issues of law. Both issues of fact and issues of law are ascertained by the court based on the pleadings of both parties, and the submissions made by their lawyers in support of each party’s case. The court will also look at the documents produced by both parties, and any answers in response to interrogatories in the suit, before framing of issues under Rule 3 of Order XIV.

Issues of fact are based on contested factual averments in a civil case which will determine important interests such as right of repayment of monies, assess the correct title over property, the share in a partition dispute between family members etc. What constitutes a fact, a relevant fact, and a fact in issue will be assessed in accordance with the provisions of the Indian Evidence Act 1872, specifically section 3.

Issues of law are important questions of law which will either complement the court’s adjudication of the issues of fact (called mixed questions of fact and law), or be a deciding factor in the court’s legal determination, especially in cases where there are preliminary objections raised. While questions of res judicata, limitation etc are examples where the court will assess the issue as one of both fact and law, questions on the jurisdiction of court, or a bar on the adjudication of the suit due to a prevailing law in force, can be decided as preliminary issues under Order XIV Rule 2 of the CPC.

In order to frame issues, if a court is of the opinion that it will need to examine a person or inspect further documents, it is empowered to do so under Order XIV Rule 4 of the CPC.

Even after the framing of issues, Order XIV Rule 5 of the CPC allows the court, either by itself or through an application by either party, to amend, add or strike off any of the issues on record, if it believes that it is necessary to determine the controversy between the parties. Order XIV Rule 5 of the CPC illustrates the underlying principle that the civil court is ultimately entrusted with the duty to do substantive justice. And in doing so, it should have the power to frame additional issues, or remove irrelevant/repetitive issues.

If the court does not frame a specific issue on a contested point of fact or law, that does not affect the overall validity of the trial, or vitiate the trial. In Nagubai Ammal v B. Shama Rao, the Supreme Court held that the framing of a wrong, improper or defective issue does not vitiate the trial, as long as the parties entered the trial knowing the other side’s case in full, and led evidence in respect of the question which the court decided upon.  

A court should not decide upon a question of law which was not pleaded by either party, and in respect of which no specific issue was framed after the completion of pleadings as well. A party approaching a civil court claims specific reliefs and lays down its position in its pleadings. The court’s framing of issues on the competing factual averments contextualises the real controversy between the parties. Therefore, if an issue is not framed by the court, since no pleading or relief was claimed towards such an issue by either party, the court cannot determine such a question and pass a decree based on the same, since the parties have had no chance to address such an issue in the first place.

The Supreme Court in Bhagwati Prasad v. Chandramaul and Ram Sarup Gupta (through his LRs) v. Bishun Narain Inter College has emphasised that in the absence of pleadings, if it appears that the suit was decreed on a specific issue which was not framed or in the knowledge of the counterparty – thereby preventing the party from leading any evidence on such an issue - the decree passed by the court would be unsustainable. This was reiterated in Bacchaj Nahar v. Nilima Mandal and another, where the Supreme Court held that in a suit which concerned issues of the title over property, the determination of an unrelated issue of easementary right over the property (which was neither pleaded by either party, nor an issue framed) would render the decree unsustainable in law.

Through the Commercial Courts Act 2015, Order XV-A was added to the provisions of the CPC. It provides for a case management conference before the commencement of formal trial in a commercial suit. Under Order XV-A of the amended CPC, after the filing of the statement of admissions and denials in a commercial suit by both parties, the court shall conduct a case management conference and set out the dates for trial. The conference sets out dates for filing of witness statements, chief and cross-examination of parties, and for oral and written arguments to be made by the pleaders. Order XV-A Rule 3 also provides a strict six-month time period for completion of the trial and arguments from the date of the conference. As part of its order fixing dates for trial in the commercial Suit, the court will first frame issues under Order XIV of the CPC. Order XV-A is thus a tool to realize the goals for expeditious determination of commercial disputes under the Commercial Courts Act, since it:

i) Allows the Court to direct both parties to file witness statements and affidavits simultaneously, instead of allowing the defendant to file its affidavit after the completion of the plaintiff’s evidence;

ii) Sets strict timelines for oral and written arguments by both parties; and

iii) Only allows for adjournments in very limited circumstances, thus preventing any dilatory tactics by parties which intend to prolong the suit.

Tanvi Dubey is an independent practitioner at the Supreme Court of India, with a diverse practice ranging from civil, commercial and constitutional disputes to service matters before the Supreme Court and other fora in Delhi.

Sumit Chatterjee is a civil and commercial dispute resolution lawyer at Arista Chambers, practicing before the Karnataka High Court, trial courts and a wide array of tribunals in Bangalore.

The authors would like to acknowledge the efforts of Karun Gandhi, Khushi Telkar and Gaurika Grover for their research assistance on this column.