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 decision in Sitaram v. Radha Bai, AIR 1968 SC 538 has pointed out that the trial Judge should not determine an issue not arising on the pleadings of the parties. Therefore, under the provisions of Order 41, Rule 25 if a particular issue arises on the pleadings of the parties which the trial Court has omitted to frame and determine and if in the opinion of the lower appellate court the decision of that issue is essential for the decision of the case on its merits, the appellate court will proceed to frame an issue and remand the case for trial under the provisions of Order 41, Rule 25 of the Code of Civil Procedure.

(4) In this case, apparently no defence was taken by the defendants that plaintiffs' vendor was a privileged tenant within the meaning of the Act and as such, the plaintiffs' sale deed is invalid. Therefore, on the pleadings of the parties this issue did not arise to be tried by the trial court in the suit. At the time of the argument this plea was raised by the lawyer of the defendants. The lower appellate Court observed in its judgment that :--

"it appears that the same was raised for the first time during the argument before the trial court. Because that plea was not taken in the pleadings, therefore, the parties had no opportunity to adduce evidence on that point. Therefore, the learned Munsif should not have accepted any evidence on that point and should not have rejected that plea on the ground of absence of evidence on that point."

The lower appellate Court has criticised the trial court on the ground that since the plea was not raised in the written statement, it should not have allowed this plea to be raised at the time of the argument. In my judgment, it is right in its criticism but the latter portion of its judgment cannot be sustained. The lower appellate court is not right in holding that the trial court should not have rejected that plea, but should have given an opportunity to adduce evidence on that point. The lower appellate court is conscious of the fact that a point of law which depended on the investigation of facts could not be allowed to be taken for the first time at the appellate stage, and it is also conscious of the fact that the application of the Act in the present case depended on the investigation of facts. But the lower appellate court having criticised the trial court that it should not have allowed the point regarding the validity of the plaintiffs' sale deed by a privileged tenant to be raised as it was not in the pleadings at the time of the argument, itself fell into a serious error in holding that it was just and proper that the trial court should not have disposed of the suit without framing a separate issue on this point which was most necessary for the decision of the suit. In its opinion, it should have asked the parties to take that plea in writing that is, to get the written statement amended by adding that plea, which was just and proper for the ends of justice to determine that plea legally and finally in a just way. For that, it relied on a decision of the Supreme Court in Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008. It came to the conclusion that in the interest of justice it was rather necessary that the trial court before whom this plea was raised to frame an issue on this point and before framing an issue on that point, the plea would have got added in the written statement by way of amendment. In view of that, it framed an issue to be tried by the trial Court after directing the defendants to amend their written statements. In my judgment, the lower appellate Court has taken a peculiar, view of the law on this point.

(5) The Civil Procedure Code does not authorise the court to ask the parties to amend their pleadings suo motu so far as the grounds of attack by the plaintiff or grounds of defence by the defendant are concerned. Of course, Order 1, Rule 10(2) authorises the court either upon or without the application of either party or on such terms as may appear to the court to be just, to order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. But so far as the amendments of the pleadings of the parties are concerned, there is no such provision which authorises the court to direct suo motu a party to amend his pleadings. Order 6, Rule 17 makes provision for the amendment of pleadings which provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Hence, for the purpose of amendment, leave to amend his pleading is to be sought from the Court by a party, and thereafter, the Court will determine whether in the circumstances of the case leave should be granted to the party for making proposed amendment in the pleadings or not and in the matter of granting leave discretion is given to the Court to allow amendment or not. But that discretion has to be exercised according to certain well-settled principles. Admittedly here, there is no applies-tion filed on behalf of the defendants for leave to amend the written statement by the insertion of a new ground of defencej that the plaintiffs' sale deed is invalid on account of the fact that it was taken from a privileged tenant, who had no right to dispose of his property. The decision of the Supreme Court relied upon fay the lower appellate court makes it clear that in that case the amendment should never have been allowed as the plaintiffs were making out a new case of fraud for which there was not the slightest basis in the plea as it originally stood. It was pointed out that the Court wanting to do justice may invite the attention of the parties to defects in tkt pleadings so that they could be remedied and real issues between the parties tried. It was never held in that case that the court itself would direct the parties to make amendment. There was no harm if the court pointed out the defects and thereafter it was open to a party to file an amendment petition or not. In this present case, the Court itself has directed the amendment of the writ-ten statement by the defendants by in-serting a new defence which was never taken in the written statement originally filed. Hence, in my judgment, the order of the court below directing the amendment of the written statement is erroneous in law and without jurisdiction. It follows, therefore, that the order of remand under the provisions of Order 41, Rule 25 of the Code of Civil Procedure by framing an issue which did not arise on the pleadings of the parties could not be sustained in law. Similar question aroie in Kanda T. Waghw, AIR 1950 PC 68. In that case, the lower appellate Court had framed an issue for trial by the trial court in these words: "The land in suit having been found to be non-ancestral, do the collaterals exclude the daughter's son according to the custom of the parties and is the gift, therefore, invalid?" This issue did not arise on the pleadings of that case. The High Court set aside that order. The Privy Council approved the decision of the High Court and observed as follows :--

"The District Court erred in framing new issue and in sending the case back to the trial Court for further hearing. As already indicated the question embodied in the additional issue was not raised in the pleadings. The appellants founded their claim on the ground that the land was ancestral and it was on that ground that they challenged the right of the widow to make the gift. Not once during the proceedings in the trial Court did they suggest that even if the land was found to be non-ancestral, the widow would still be incompetent to dispose of it."

The law on this point has been clearly and succinctly laid down by the Privy Council which applies with equal force to the facts of the present case.

(6) For the reasons stated above the application is allowed. The judgment and order of the lower appellate Court remanding the case to the trial court for a finding are hereby set aside, and the case is sent back to it for disposal according to law. Cost will abide the result.