Law: Civil Procedure Code (V of 1908)

Section:

(a) Civil Procedure Code (V of 1908),---- ---- O. XIV r. 1 (S) Court's duty to frame issues-Counsel of parties may submit draft issues but Court not bound to accept such draft-Plea that framing of particular issue was not pressed by party affected-No ground for condoning failure to frame necessary issue.   It is true that the usual practice in subordinate Courts is that the lawyers of the respective parties submit draft issues, but the Court is not bound to accept those draft issues.   Under O. XIV, r. 1 (5) it is the duty of the Court to frame issues on the pleadings of the parties and after examination of the parties, if necessary.   Plea that framing of particular issue was not pressed by party affected is no ground for condoning failure to frame necessary issue.   Where the plaintiff in a suit for a right of pathway in certain property, tacked on a prayer that in the event of the right not being established, the property should be partitioned, and that the plaintiffs will pay up the requisite court-fee for the relief as to partition, but the trial Court, without framing an issue on the pleading as to partition, rejected the plaintiffs' petition praying for partition :   Held, that when the prayer for partition was repeated by petition during the hearing of the suit, the Court ought to have entertained it and directed the plaintiffs to value the suit for the purpose of partition and for determining the pecuniary jurisdic tion. It was then necessary for the Court to frame a proper issue for trial.   (b) Easement---   ---Pathway-Defendants denying plaintiffs' right of way-Location of pathway should be ascertained by local investigation.   JUDGMENT   This appeal is directed against the judgment and decree, dated 27-3-58 passed by Mr. M. E. Ali, Subordinate Judge, Jessore, in Title Appeal No. 47 of 1957, reversing those of Mr. A. A. Joardar, Munsif, 3rd, Court, Narail, dated 19-3-57, in Title Suit No. 43 of 1954, and sending the case back on remand to the trial Court for a fresh trial in the light of the observations made by the Subordinate Judge.   The suit out of which this appeal arises, was one…