Issues involving mixed questions of law and fact arising from pleadings cannot be struck out before trial.

The respondents instituted a civil suit seeking annulment of a judgment and decree relating to partition and possession by metes and bounds in Ab. Hameed Ganaie & Anr. v. Mohummad Ganaie.

The petitioners, who were defendants in the suit, filed their written statement, pursuant to which the Trial Court framed issues on 6 December 2022.

On the respondents’ application, three additional issues were framed on 8 April 2023.

The petitioners thereafter sought deletion of Issues 9, 13 and 14, along with the additional issues.

By a composite order dated 22 August 2023, the learned Sub-Judge, Shopian rejected the petitioners’ application.

Invoking the supervisory jurisdiction of the High Court under Article 227 of the Constitution, the petitioners challenged the refusal to delete Issues 9, 13 and 14.

The respondents remained absent despite service and were proceeded against ex parte.

Whether Issues 9 and 14—concerning the alleged collusive decree and the validity of the oral gift—were material issues arising from the pleadings and therefore liable to be retained?

Whether Issue 13, concerning the applicability of Section 5 of the Jammu and Kashmir Alienation of Land Act, 1995, was liable to be deleted or could be determined as a preliminary issue?

Whether the Trial Court had correctly exercised its power under Order XIV Rule 5 CPC in refusing to strike out the impugned issues?

The Court applied Order XIV Rule 1 CPC, under which every material proposition of fact or law affirmed by one party and denied by the other must form the subject of a distinct issue.

It further relied on Order XIV Rule 5 CPC, which empowers the Court, at any time before passing a decree, to amend or frame additional issues necessary for determining the controversy and to strike out issues that are wrongly framed or introduced.

The Court relied on P.S. Shivakumar v. P.H. Subbarayappa, 2017 SCC OnLine Kar 2263; Abbott Healthcare Private Limited v. Raj Kumar Prasad, 2018 SCC OnLine Del 6657; and Sana Herbals Private Limited v. Mohsin Dehlvi, 2022 SCC OnLine Del 4482, for the proposition that the Court possesses wide discretionary power under Order XIV Rule 5 CPC to amend, add or strike out issues before decree.

Issues involving the application of Section 31 of the Agrarian Act, 1976, the validity of an oral gift, and the applicability of Section 5 of the Jammu and Kashmir Alienation of Land Act, 1995 were considered in the context of the pleadings and the controversy between the parties.

The High Court held that Issues 9 and 14 raised mixed questions of law and fact.

Issue 9 concerned whether the decree was collusive and had been passed in violation of Section 31 of the Agrarian Act, 1976, while Issue 14 concerned the alleged oral gift and the manner in which it was made.

Since these matters arose from the parties’ pleadings and required factual determination, they were material issues and could not be struck out at that stage.

Issue 13, relating to Section 5 of the Jammu and Kashmir Alienation of Land Act, 1995, was treated as a purely legal issue.

The Court therefore found that it need not be deleted, but could appropriately be determined as a preliminary issue by the Trial Court.

Applying the discretionary power under Order XIV Rule 5 CPC, the High Court found no legal error or jurisdictional infirmity in the Trial Court’s refusal to delete the issues.

Issues 9 and 14 were held to be material mixed questions of law and fact and were directed to remain for adjudication.

Issue 13 was also retained, but the Trial Court was directed to treat it as a preliminary issue and decide it in accordance with law after affording both parties a reasonable opportunity of hearing.