The court cannot direct the parties to amend their pleadings suo motu. The issue must arise on the pleadings of the parties.

B.N.Jha, J.

1. The lower appellate Court framed the following issue:

"Is the plaintiffs sale deed dated 8th October, 1955 invalid in view of the provisions of Section 9 of the Bihar Privileged Persona Homestead Tenancy Act 1947 (hereinafter called the Act)" and remanded the case to the trial court for a finding on the above issue after giving opportunities to the parties to adduce evidence on this issue and to submit its finding to that court under the provisions of Order 41, Rule 25 of the Code of Civil Procedure, by its order dated June 24, 1967 and kept the record of the case in. its own file. The parties were also directed to get their pleadings amended on the above issue in the trial court within 15 days of that order. The plaintiff-respondents have come up in this Court against the aforesaid order of remand.

2. The main grievance of the petitioner is that the course adopted by the lower appellate court is wholly without jurisdiction. He submitted that the issue framed by the lower appellate court in this case did not arise on the pleadings of the parties. In this case, the Court below directed the parties to get their pleadings amended on the above issue in the trial court. This clearly shows that even though the lower appellate court was conscious of the fact that the proposed issue to be tried did not arise on the pleadings of the parties and the trial of the issue depended on the amendment of the pleadings of the parties, which the court directed to be done within a fortnight and as such, the remand order was unjustified. In my opinion, there is a Rood deal of force in this contention of learned counsel for the petitioner.

3. Order 41, Rule 25 of the Code of Civil Procedure reads as follows: "Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the appellate Court together with its findings thereon and the reasons thereof."

The Rule authorises the appellate court to frame an issue if in its opinion the trial court has omitted to frame or try any issue or to determine any question of fact which is essential to the right decision of the suit upon merits. This leads to the consideration whether the trial court has made some omission in framing or trying the issue. Order 14, Rule 1 provides the mode as to how an issue in a suit is to be framed. Under this provision, each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Material propositions are defined as those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence; when, a material proposition of fact or law is affirmed by one party and denied by the other, issues arise.

The Rule further lays down that at the first hearing of the suit, the Court shall after reading the plaint and the written statement, if any, and after such examination of the parties, as may appear necessary, ascertain upon what material propositions of facts or of law the parties are at variance and shall thereupon proceed to frame and record issues on which a right decision of the case appears to depend, and nothing in the Rule requires the court to frame and record issue where the defendants at the first hearing of the suit make no defence. The Rule as well is clear that the issues arise on the pleadings of the parties. If the defendant has not made any defence or has not put forward a particular defence, no issue arises therein.

The Supreme Court in its recent d