O. Perumal Kone vs P.V. Devasia

Swamikkannu, J.—This is a case in which the Defendant had specifically contended in his written statement that each and every retreading operation is a separate transaction which gave rise to a contract and that the limitation period has to be computed only with respect to each and every retreading of a particular tyre is concerned and it is not as if that there had been any continuous transaction of handing over of bald types so as to be retrended by the Plaintiff and as such the suit is hopelessly barred by limitation. The relevant passage in the written statement filed by the Defendant as paragraph 2 in the written statement can be usefully extracted here itself, which, is rightly pointed out by learned Counsel for the Defendant Appellant herein:

This Defendant submits that the dealing between the parties are not open, mutual and current one. The suit claim is barred by time. There is no acknowledgment in writing by the Defendant for the payments.

Learned Counsel for the Plaintiff vehemently contends that it is not as if that this aspect his not been properly adverted to by the trial Court, because, the very issue that has been framed by the lower Court vis, the first issue that whether there had been dealings between 14th April 1975 to 1st October 1977 between the parties that imbecile and has in its purview the said aspect and as such there need not be any framing of any separate issue in this aspect. It is relevant, in this connection, to note that the important principle for the coming into exercise of a contract on the basis of an offer being accepted is that there should be a consensus ad idem. In other words, the concept of mutuality in contracts is a thing which has to be borne in mind while the enforceability of a contract is contemplated by a Court. In the instant case, a specific contention, mentioned above, viz., that each and every process of a bald tyre had been the subject matter of a single and independent, separate contract and the computation of the period of limitation can only be different with respect to the different contracts thus came into existence in the transactions that had been actually entertained by the parties. The lower Court ought to have applied its mind and framed the issue regarding this aspect specifically and dealt with the same in the suit. Inasmuch as the suit had been tried bereft of this aspect, which is the main point that had been raised in the written statement, this Court has got no other alternative than to remand the entire suit to be tried afresh after setting aside the judgment and decree in the suit and directing the lower Court to give both sides opportunities and to get on with the suit and dispose of within a month from the date of receipt of the records from this Court, viz., High Court of Judicature at Madras. In this view, the civil revision petition is allowed and the matter is remanded so as to be disposed of by the trail Court in the light of the observations by this Court. There is no order as to costs.

Learned Counsel for the Respondent submits that a mere non framing of the issues is not going to vitally affect when this aspect has been considered by the trial Court, there need not be any remand on that ground. I am unable to accept this contention of learned Counsel. In the instant case, when there has been a complete ignorant approach by the lower Court, in that it had not even adverted to the plea that had been specifically incorporated in the written statement that had been filed, It is thus duty of the Court before framing the issue is see that the contentions raised by the Defendant by way of defense are all forming part of the specific issues. Unless the issues are framed properly it will not be proper and just for a Court to come to some conclusion on some general Issues which are not quite germane to the dispute. If a general issue is framed it means the Court has not seized of either the case of the Plaintiff in the proper perspective as put forward in the plaint or the several contentions raised in the written statement. Therefore, the framing of the issues is one which has 188/1-25 to be done only by the Court and not at the guidance of or at the assistance by anybody. The Court is obliged to go through the plaint and the written statement several times till it fully understand the case of either side and thereafter frame the issues. It should thereafter commence the trial in a suit. That is actually what is contemplated by the procedural law of the land, and failure to do so is non compliance of the mandatory provisions in the Code of Civil Procedure. There is no order as to costs.