Non-framing of issues may not be fatal if both parties go to trial knowing the case of each other.

M.M.Kumar, J.

1. This petition filed under Article 227 of the Constitution challenges order dated 4.2.2004 passed by the Additional Civil Judge (Sr. Division), Amloh directing the closing of evidence by order in respect of the defendant-petitioners as they have already availed a number of opportunities. Another order dated 15.3.2004 has also been challenged whereby the Civil Judge has dismissed the application of the defendant-petitioners filed under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (for brevity, the Code) for farming of an additional issue.

2. Brief facts of the case as disclosed by the defendant-petitioners are that the plaintiff-respondent filed a suit for recovery of Rs. 3,50,000/- against the defendant-petitioners, the stand taken was that the plaintiff-respondent had purchased burnt bricks from the defendant-petitioner equivalent to the value of Rs. 2,70,000/- and that amount having been paid was required to be adjusted and plea of set off was raised. It was further claimed that the accounts between the parties have been mutual, current, open and were required to be adjusted. In fact the defendant-petitioners claimed an amount of Rs. 2,66,640/- placing reliance on entries in the ledger as well as in the cash book. The Court has framed the following two issues on 30.10.2000:-

"(i) Whether Smt. Shanti Devi wife of Devinder Kumar Gupta, the plaintiff issued a receipt of burnt bricks for the price of Rs. 2,50,000/- on 27.3.1999 in favour of defendants? OPD

(ii) Whether amount of Rs. 2,50,000/- is liable to be set off from the suit money? OPD

3. An application was filed by the defendant-petitioners on 8.1.2001 (Annexure P-3) with a prayer that material issues were required to be framed. It appears that the application remained pending and the case was listed for adducing the evidence of the plaintiff-respondent. The plaintiff-respondent closed his evidence and a number of opportunities were given to the defendant-petitioners but they failed to conclude their evidence. On 4.2.2004, the evidence of the defendant-petitioners was closed by order and thereafter an application was filed under Order XIV Rule 5 of the Code with a prayer for framing of additional issue (Annexure P-4). The aforementioned application has also been dismissed by the Civil Judge by recording the following order:-

"But, however, in the above noted case both the parties have gone to trial knowing the case of each other. On 4.2.2004 the instant application was filed only when the evidence of the defendants was closed by order as the defendants failed to produce any evidence despite last opportunity. The defendants earlier filed an application for leading secondary evidence to prove copy of the receipt dated 27.3.1999, allegedly issued by Shashi Bala wife of the plaintiff, which was declined by the Court vide order dated 14.9.2003. It is not the case of the defendants that by non-framing of alleged issues, the defendants have been misled or could not lead proper evidence. Rather a perusal of the case file shows that the defendants failed to lead any evidence, despite ample opportunity, and the present application has been filed when their evidence was closed by the court. The defendants simply wanted to reopen the trial de novo. It has been laid down in Sanjay Mitra v. Bhupendra Nath Bhattacharjee, A.I.R. 1994 Gauhati 31 : 1994(1) C.C.C. 617 (Gauhati), that non-framing of the issues may not be fatal if both the parties go to trial knowing the case of each other. In Abdul Rehman v. Rameshwar Dayal Prasadilal, 1994(1) C.C.C. 688 (Rajasthan), it has been held by the Honble High Court that it is settled law that in case an issue has not been framed but the parties have been alive to controversy and have led evidence and have not been prejudiced in any manner by non-framing of the issue, then the finding of the trial court on such aspect of the matter cannot be disturbed. In the instant case also the defendants were aware of the nature