Improper framing of issues does not necessarily render a trial void if the parties have not been prejudiced and substantial justice has been done.

B.L.Yadav, J.

1. This is a defendants Letters Patent Appeal preferred under Clause X (ten) of the Patna High Court Rules in a suit filed by plaintiff-respondent, a building contractor, for recovery of a sum of Rs. 54, 414.77 paise plus interest @ 11% per annum from the defendants-appellants.

2. The factual matrix of the case is that on the request of defendant Nos. 1 and 2, plaintiff-respondent completed a work of repairs and reconstruction of Ratan Talkies under the supervision of Mr. M.D. Birnawe (Architect). There was an agreement that the work was to be done regarding drawing and designing and plan supplied by the defendants. The plaintiff, a contractor of repute has his business in the town of Ranchi. Even after completion of the work the amount was not paid to the plaintiff, hence the suit aforesaid giving rise to present Appeal was filed.

3. The suit was contested by defendant Nos. 1 and 2, the appellants, who denied the averments in the plaint and pleaded that it was a lump-sum contract for a sum of Rs. 1,40,000/. The plaintiff himself committed a breach of contract, inasmuch as he neither completed the work within time rather took unreasonable time and failed to comply with the specifications given to him, as a result of which defendants suffered substantial loss. To the extent the work was completed it reflected poor workmen ship. The plaintiff was entitled to no relief rather he was liable to pay Rs. 22067.73 paise to defendant Nos. 2 and 3, as set off. The suit was liable to fail.

4. The trial court framed four issues. First was, whether the suit, as framed, was maintainable and second was whether there was cause of action for the suit, Third was whether plaintiff was entitled to decree and Fourth was whether relief, as claimed, could be granted.

5. Issue No. 1 was not pressed before the trial court. Issue Nos. 2, 3 and 4 were, pressed before the Trial Court. The suit, however, was decreed. The trial court noticed that either of the defendants did not come in the witness box. It was held that it was not an oral contract and not lump-sum. This was also considered in First Appeal by the learned Single-Judge. The learned single Judge dismissed the First Appeal of the defendants holding that the plaintiff was entitled to a sum of Rs. 54,414.77 paise along with interest.

6. The defendants preferred the First Appeal before this Court and the learned Single Judge after heating the arguments of both the sides dismissed the appeal. This Present L.P.A. has been filed against the judgment and decree of the learned single Judge of this Court.

7. Learned Counsel for the appellants urged that correct issues were not framed. The entire evidence on the record has not been correctly appreciated and unnecessarily much emphasis was given on the fact that the defendant himself did not enter the witness box. The learned Counsel urged that the judgments of the learned single Judge and of trial court deserve to be set aside.

8. The learned Counsel for the appellants indicated that as issue must have been framed as to whether the defendants or plaintiff was to be blamed for unsatisfactory work. Leaned counsel for the respondents, on the other hand, urged that correct issues have been framed and in case the defendants-appellants have any grievance they could get correct issue framed while the case was pending before the trial court. In any case no pejudice has been caused by improper framing of issues. The presumption has correctly been drawn under Sec. 114 of the Evidence Act. The parties knew the case set up by the otherside and led evidence to prove the same, hence there was no error even if proper issues were not framed. The trial court and the first appellate court have correctly appreciated the evidence on record. The findings are findings of fact and no interference is called in this appeal.

9. Having given our attentions to the submission of respective parties the moot questions for our determination are as to whether issue