( 1 ) THE plaintiff-petitioners are aggrieved by order dated 26. 10. 95 passed by the trial court whereby their application under Order 14 Rule 5 of the Civil Procedure Code seeking framing of an additional issue has been rejected.

( 2 ) THE plaintiffs have filed a suit for declaration of title, recovery of possession and issuance of permanent preventive injunction. The suit property is 33, Tagore Park, Delhi. One of the averments made in the plaint is that the property was acquired under a perpetual sub-lease deed got executed in favour of late Smt. Inder Kaur who died on 20. 8. 89. The entire transaction was carried out by plaintiff No. 1 as well as his father late Sardar Gian Singh Sahni in the name of late Smt. Inder Kaur (wife of late Sardar Gian Singh and mother of the plaintiffs) and thus it was a benami transaction within a Hindu Joint Family. Late Smt. Inder Kaur was only a benami holder of the demised plot on behalf of plaintiff No. 1 as well as on behalf of other co-parceners of the Joint Hindu Family including the plaintiffs and the defendants. Para 1 of the plaint alleges late S. Gian Singh having paid money from his S. B. A/c. to acquire the plot in the name of his wife Smt. Inder Kaur. The averment has been denied by the defendants who, it appears, are setting up exclusive title in late Smt. Inder Kaur and devolution of title upon them by virtue of a will executed by her.

( 3 ) THE issues were framed on 22. 1. 90, but the Court refused to frame an issue on the plea abovesaid forming an opinion that the plea as to benami could neither be allowed to be raised nor an issue framed thereon in view of the provisions of Benami Transactions (Prohibition) Act, 1988.

( 4 ) THOUGH the impugned order does not in so many words make a reference to the decision of the Supreme Court in Mithilesh Kumari and Anr. VS. Prem Behari Khare AIR 1089 SC 1247, but it goes without saying that it was the decision in the mind of the learned trial court persuading him not to frame the issue.

( 5 ) THE decision of the Supreme Court in Mithilesh Kumari s case (supra) has been over-ruled by Constitution Bench of the Supreme Court in Rajgopal Reddy VS. Padmini Chander Shekharan, AIR 1996 SC 238.

( 6 ) PROMPTED by the latest law laid down by the Supreme Court, the plaintiffs moved the application which has suffered dismissal by the impugned order.

( 7 ) A perusal of the several provisions contained in Order 14 of the Civil Procedure Code would be apposite. An issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Every such proposition shall form the subject of a distinct issue. Primarily it is the obligation of the Court to frame the issues. Failure on the part of the Court may be remedied by either party inviting attention of the Court to the need of framing such an issue either by participating in the process of settlement of issues or by moving an application under Order 14 Rule 5 of the CPC. It is obligatory on the part of the Court to frame an issue once it is satisfied that an issue which should have been framed was not framed. If the trial court fails in framing an issue or fails to remedy its earlier failure then even an appellate court is vested with power of framing an issue under Rule 25 of Order 41 of the CPC.

( 8 ) IT cannot be denied that the issue which was proposed to be framed by the plaintiffs and requested to the trial court was based on the pleadings of the parties wherein a material proposition of fact was alleged by the plaintiffs and denied by the defendants. However, the prayer has been rejected by the trial court forming an opinion that the plaintiffs should have gone in revision against the order dated 22. 1. 90 or sought for a review of that order which having not been done, it did not lie with the plaintiffs to move such an application at a later stage of the proceedings. In other words, the trial court has held the prayer for framing an issue m