1. This is a defendant's appeal and arises out of a suit for the recovery of Rs. 5885-12-0 from the defendant appellant and his son. The plaintiff's case was that he carries on business in the name and Style of Gulluram Shankar Lal and the defendants, who are father and son, purchased chillies worth Rs. 5804-6-3 on Fagun Section 2, St. 2003 and worth Rs. 4395-7-0 on Chet B. 11, st. 2003 from the plaintiff. In addition to this amount they borrowed rupees 68-10-0 in cash. Out of this amount, Rs. 5290 were paid on different dates and a balance of Rs. 4978-4-9 remained due from them. He, therefore, prayed for the recovery of Rs. 4978 4-9 together with Rs. 906-7-6 as interest on the said amount.
2. Ram Sarup defendant did not put in an appearance and the case proceeded ex parte against him. Chiranji Lal denied the plaintiff's claim and pleaded that he made no purchase of chillies from the plaintiff's shop and was living separately from Ram Sarup, whom he had separated after paying Rs. 8000.
3. The learned Civil Judge of Dholpur, accepted the plaintiff's evidence and held that both Ram Sarup and Chiranjilal had purchased the chillies as alleged by the plaintiff and had also taken the advance of Rs. 68-10-0 in cash. He therefore, decreed the suit in full against both the defendants. Chiranjilal went in appeal to the Court of the District Judge at Bharatpur who partly accepted the appeal and modified the decree of the trial Court in that he disallowed the interest. Chiranjilal has now come in second appeal to this Court.
4. The only thing that has been argued on behalf of the appellant is that no issues were struck in the case and therefore the trial was illegal and vitiated. Reliance has been placed upon the provisions of Order 14, Rule 1 (5), Civil P. C. which runs as follows:
'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 proposition of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues on which right decision of the case appears to depend.'
It was argued that this provision is mandatory and disregard thereof must vitiate the trial.
5. On perusal of the judgment of the learned Civil Judge we regret to say that he has certainly disregarded the provisions of law in this respect. When the parties were at variance on material propositions of fact, it was his duty to frame issues. He, however, failed to frame them.
6. The question, however, is whether under the circumstances of the case an omission to frame issues vitiates the trial and the decree of the lower Court is therefore, liable to be vacated. Section 99, Civil P. O. lays down that no decree shall be reversed or substantially varied, nor shall any case be remanded, in an appeal on account of misjoinder of parties or causes of action or any error, defect, or irregularity, in any proceedings in the suit not affecting the merits of the case, or jurisdiction of the Court. No doubt a Court commits a grave irregularity in proceeding to the final hearing of the case without settling issues therein, but the mere omission to frame issues is not necessarily fatal to the trial of the suit. It is an irregularity which may or may not be a material one. If such omission has affected the disposal of the case on the merits, it will be a ground for remanding the case for a new trial. If on the other hand, the parties have not been prejudiced by the omission and substantial justice has been done in the case, notwithstanding the omission to frame issues, the decision will not be set aside and the case will not be remanded for a new trial.
7. It was held in Mt. Mitra v. Syed Fazulrah 13 M. I.A 573: (6 Beng. L. R. 148 P. C.), Satyadhayn Tirth Swami v. Raghunath Daji, A. I. R. (13) 1926 Bom. 384: (96 I. C. 827), Sat Narain v. Krishna Datt, A. I. R. (12) 1925 Oudh 383: (87 I. C. 900), Firm R.S. Hira Sinyh Attar Singh v. Mohammad Afzal Khan, A. I. R. (28) 1941 Pesh. 59 : (196 I.C. 17) and Raj Kishore v. Mohammad Qayoom, A. I. R. (29) 1942 Pat. 366 : (198 I. C. 890) that mere omission to frame issues does not vitiate the trial if no justice has been caused thereby. In. the last mentioned ruling, it was held that when evidence was given and the question was not raised in both the Courts below, the decision cannot be assailed in second appeal merely because there was an omission to frame a specific issue on the point where no prejudice has been shown, Section 99, Civil P. C. cured the defect, if any.
8. In the present case the learned counsel for the appellant has not shown what prejudice was caused to his client by the omission to frame issues. It was the duty of the defendant, when he found that no issues were framed, to ask the first Court to frame issues. Although represented by a counsel, he did not make any such request. He produced his evidence without any objection. From the evidence that he produced it is clear that he fully knew what case he had to meet. Therefore, we find that no injustice has been done to the appellant by the non-framing of the issues. The learned counsel for the appellant referred to the rulings reported in Mohammad Sulaiman v. Virendra Chandra Singh, A. I. R. (9) 1922 P. C. 405: (50 Cal. 243) and Shiv Shankar Chhaganlal v. Laxman Chiman Lal, A.I R. (30) 1943 Bom. 83 : (I. L. R. (1943) Bom 441). They have, however, no bearing on the point. All that they say is that in appealable cases the Courts below should, as far as may be practicable, pronounce their opinion on all the important matters so as to avoid the remand expense and delay. They do not lay down that merely because issues have not been framed, the trial will be vitiated, although there has been no prejudice.
9. The appeal has no force and is dismissed with coats to the contesting respondent.
10. I agree.