Framing of Issues

Prepared By. Malik Zafar Khalil (Founder)

Framing of issues is one of the most important stages of the trial. Its
object is to ascertain the real dispute between the parties by narrowing down
the area of conflict and determining where the parties differ. Why the
framing of issues is so important? Its answer can be found from the
provisions of Order 18 Rule 2 CPC which provide that the parties are
required to prove the issues and not the pleadings generally. Where a matter
is not pleaded but is put in issues, the suit must be decided on issues as
framed. There is yet another provision i.e. Order 20 Rule 5 CPC obliging the
court to give a decision on each issues framed and not to decide matters on
which, no issues have been framed. Under Order 41 Rule 31 CPC, the
appellate court is also to decide the appeal on the basis of issues framed by
subordinate court.
Issues are material propositions of fact and law, which are in
controversy between the parties and the correct decision of a suit naturally
depends on the correct determination of these propositions. Utmost care and
attention is therefore needed in ascertaining the real matters in dispute
between the parties and fixing the issues in precise terms. In most cases the
main difficulty of the trial is overcome when the correct issues are framed.
The time spent by the court at this stage is time very well pent and “may
mean a saving of several days, if not weeks, in the later stages of the trial”.
STAGES OF FRAMING OF ISSUES
With filing of the pleadings, examination of the parties (Order X Rule
1 & 2) and their admissions of facts or documents made under Order XII of

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Framing of Issues
Prepared By. Malik Zafar Khalil (Founder)

CPC, the Court comes in a position to formulate the question on which the
parties are at issues.
The question of framing of issues arises when the parties are at issues
on a matter of fact or law. Where at first hearing of the suit, it appears to the
Court from the parties pleading or otherwise, that they are not at issue on
any question i.e. there is no contest between them, then, the Court may at
once pronounce judgment under Order XV Rule 1 CPC. The provisions of
Order XIV must be read along with the instructions contained in the High
Court Rules & Orders Volume-I, Chapter I-F. It would be better to re-
produce the valuable guidance regarding framing of issues as contained in
Part-I-F of the High Court Rules & Orders Volume-I Para-14:-
“14. Form of Issues-------When the pleadings have thus been
exhausted and the court has before it the plaint. Pleas, written
statements, admissions and denials recorded under Order X,
Rule 1, examination of parties recorded under Order X, Rule 2,
and admissions of facts or documents made under Order XII of
the Code, it will be in a position to frame correctly the issues
upon the points actually in dispute between the parties. Each
should state in an interrogative form one point in dispute. Every
issue should form a single question, and as far as possible
issues should not be put in an alternative form. In other words,
each issue should contain a definite proposition of fact or law
which one party avers and the other denies. An issue in the
form, so often seen, of a group of confused questions is no issue

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302-Sadiq Centre, 35-Lytton Road, Lahore. 03000047057
Framing of Issues
Prepared By. Malik Zafar Khalil (Founder)

at al, and is productive of nothing but confusion at the trial. A

double or alternative issue generally indicates that the court
does not see clearly on which side or in what manner the true
issue arises, and on whom the burden of proof should lie, and
an issue in general terms such as ‘is the plaintiff entitled to a
decree’ is meaningless. If there are more defendants than one
who make separate answers to the claim, the court should note
against each issue the defendant or defendants between whom
and the plaintiff the issue arises.”
The settlement or formulation of issues is an important part of the
court’s duty, which cannot be left to be performed by others. It has been held
by the superior courts that to leave the framing of issues to the parties or
their counsels, is illegal and the same must cease forthwith because the Code
contemplates that the Presiding Officer of the court would himself examine
the pleadings, get the point in dispute elucidated and frame the issues
thereon. (1997 SCMR 1849), (1992 MLD 1439). It does not mean that the
parties have no responsibilities in the mater. The right to begin and question
of burden of proof depend upon the correct issues and if a party was not alert
to raise objection at the earliest possible stage, it will not be later heard to
complain that no issue or no proper issue was framed or that the burden of
proof was wrongly placed upon it, particularly when both the parties have
led evidence. (PLD 1997 SC 302).
Although primary responsibility of framing the correct issues is that of
the court, yet Rule 6 Order XIV permits the parties to agree as to the a

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302-Sadiq Centre, 35-Lytton Road, Lahore. 03000047057
Framing of Issues
Prepared By. Malik Zafar Khalil (Founder)

question of fact or of law to be decided between them and to state the same
in the form of an issue and enter into a agreement in writing as to the
consequences of the decision of such an issue. If the court is satisfied that
the agreement was duly executed in good faith, it shall proceed to try the
issue and state its findings or decision on the issue as if the issue had been
framed by the court itself and pronounce judgment accordingly. (Rule 7
Order XIV)

Material for the issues

The material from which issues may be framed is stated in Rule 3 of
Order XIV. The material consists of;
a) The pleadings and interrogatories if any;
b) Statements of the parties and their pleaders; and
c) The contents of documents produced by either party.
Issues of law as preliminary issues.
Issues both of facts and law may arise. Ordinarily, all the issues
should be framed at the same time and tried together. But Rule 2 of Order
XIV requires the court to frame and try those issues of law as preliminary
issues the decision of which will dispose of the suit. In such a case the court
may postpone the formulation of issues of fact to a date after the decision of
such question of law.
Under Rule 2 the court is not required and need not to distinguish
between a question of law which required evidence and a question of law
which does not require evidence for its decision. For example, “A” files a

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Framing of Issues
Prepared By. Malik Zafar Khalil (Founder)

suit in Islamabad against “B” in respect of a property which he claims to be

situated in Islamabad, but which according to “B” is situated in Rawalpindi.
This raises a question of territorial jurisdiction and if its decision is against
“A” the plaint will have to be returned for being presented at Rawalpindi.
The fact that it requires evidence for its decision should not deter the court to
try this issue as a preliminary issue. Similarly, suppose that in a suit relating
to landed property the value of the suit is market value of the land which is a
disputed question of fact. It is plain that the court must decide it first for if
the market value be the one stated by the defendant, its effect may be to
deprive the court of its pecuniary jurisdiction. It is obvious that the court has
to record evidence on the correct market value.
To be more explicit, I would say that where an issue of law going to
the root of the case and capable of being decided without recording evidence
is raised, the court is bound to decide such issue first. (190 MLD 2049),
(1996 MLD 55). This rule is mandatory in the sense. Even where issue of
law and fact have both been framed, the court may at a subsequent stage
under Order XV Rule 3 may decide only such issues which will dispose of
the whole suit first. A preliminary issue should be decided first and no
reserved for arguments at the conclusion of the trial of the suit. The
following are the instances of preliminary issues:-
(i) An issue regarding the jurisdiction of the court
(1990 MLD 1794)
(ii) An issue regarding court fee (PLJ 1975 LHR 305)
(iii) An issue regarding absence of cause of action.

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Framing of Issues
Prepared By. Malik Zafar Khalil (Founder)

(iv) Question relating to limitation provided that the

facts are not disputed (1990 MLD 1794 & 2049)
(v) An issue regarding res-judicate (1989 CLC 1718)
Issues of fact
Under Order XIV Rule 1 CPC, the court has to frame issues on all
disputed facts which are necessary for the decision of the suit. We have seen
that issues arise when a material proposition of fact is affirmed by one party
and denied by the other. Material propositions of fact are those propositions
which a plaintiff must allege in order to show that he has a right to sue or a
defendant must allege in order to constitute his defence. (Order XIV Rule
1(2) CPC). Issues so recorded are issues of facts; they are like other issues,
recorded in interrogative form. The subject matter of an issue of fact is
always a fact in issue and what is in the language of Qanoon-e-Shahadat
Order, 1984, Article 24, a “fact in issue” becomes, in the language of the
CPC, a “issue of fact”. Order XIV Rule 1(2) CPC is, therefore, merely a
paraphrase of the definition of “fact in issue” as used in Article 24 of the
Qanoon-e-Shahadat Order, 1984.
Burden of proof
The provision in the Qanoon-e-Shahadat Order 1984 on burden of
proof are to be found enacted in Part-III Chapter IX, Article 117 to 129.
The relevance of these provisions at this point of hearing lies in this
that, unlike a criminal cases, in civil cases the court is required not only to
reduce the disputed questions of fact and law in the form of issues, but also

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Framing of Issues
Prepared By. Malik Zafar Khalil (Founder)

to determine on which of the opposing parties the burden to prove each issue
shall rest.
Meaning of burden of proof
Whoever desires the court to give judgment as to any legal right or
liability depending on the existence of facts which he asserts must prove that
those facts exist. When a person is bound to prove the existence of any fact,
it is said that the burden of proof lies on that person. (Article 117). The
burden of proof in a suit or proceeding lies on that person who would fail, if
no evidence at all were given on either side. (Article 118). The burden as to
any particular fact lies on that person who wishes the court to believe in its
existence, unless it is provided by any law that the proof of that fact shall lie
on any particular person. (Article 119). When any fact is especially within
the knowledge of any person, the burden of proving that fact is upon him.
(Article 122). When the question is whether persons or partners, landlords
and tenants, or principal and agent, and it had been shown that they have
been acting as such, the burden of proving that they do not stand or have
ceased to stand to each other in those relationships respectively, is on the
person who affirms it. This is based on the presumption of continuity of
things, enacted in Article 129, Clause (d) of Qanoon-e-Shahadat Order,
1984. (Article 125). When the question is whether any person is owner of
anything of which he is shown to be in possession, the burden of proving
that he is not the owner is on the person who affirms that he is not the
owner. This is based on the principle that possession is nine points of
ownership. (Article 126). When there is a question as to the good faith of a

Jinnah Judicial Academy

302-Sadiq Centre, 35-Lytton Road, Lahore. 03000047057
Framing of Issues
Prepared By. Malik Zafar Khalil (Founder)

transaction between the parties, one of whom stands to the other in a

position of active confidence the burden of proving the good faith of the
transaction is on the party who is in a position of active confidence. (Article
127). The fact that any person was born during the continuance of a valid
marriage between his mother and any man not earlier than the expiration of
six lunar months from the date of the marriage, or within two years after its
dissolution, the mother remaining unmarried, shall be conclusive proof, that
he is the legitimate child of that man unless the husband refuses to own the
child etc. (Art. 128).
There are then general presumptions enacted in Article 129, the
source of these presumptions are Article 129 itself says being (a) the
common course of natural events; (b) the common course of human conduct
and (c) the common course of public and private business.
The relationship between burden of proof and presumptions is that the
rules of burden are no more than statements of rebuttable presumptions of
law. When a party comes to court and asks for certain relief in the basis of
certain facts, the onus of proof of those facts has to be on him, for the relief
prayed for cannot be granted unless the court is able to hold the existence of
those facts proved. But the law makes provision for certain presumptions
and any party on whom a burden is cast by Article 117 and 118 of Qanoon-
e-Shahadat Order, 1984 may shift the onus of proving any fact to the other
party by showing that that fact should be presumed to exist. Article 117 and
118 are to be read subject to these presumptions. Rules as to rebuttable
presumptions are no more than rules of burden of proof. When the court

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302-Sadiq Centre, 35-Lytton Road, Lahore. 03000047057
Framing of Issues
Prepared By. Malik Zafar Khalil (Founder)

presumes the existence of a fact, the burden of proving its non-existence is

on the party that asserts its non-existence. Thus, these presumptions play an
important role in determining the burden of proof and the court while
framing issues must bear them in mind.

Jinnah Judicial Academy

302-Sadiq Centre, 35-Lytton Road, Lahore. 03000047057