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Bhaskar Ganguly Vaskar Ganguly & Anr. v. Sujit Kumar Gupta .
Factual and Procedural Background
The plaintiff-respondent, a building contractor based in Ranchi, sued the defendants-appellants for recovery of Rs. 54,414.77 with interest at 11% per annum, alleging completion of repair and reconstruction work of Ratna Talkies performed at the request of defendant nos. 1 and 2 under the supervision of architect M.D. Birnawe. The work was to be done according to drawings, designs and plans supplied by the defendants. The plaintiff alleged that despite completion of work the defendants failed to pay.
The defendants contested the suit, asserting it was a lump-sum contract for Rs. 1,40,000 and alleging the plaintiff breached the contract by taking unreasonable time, failing to comply with specifications and performing poor workmanship; they claimed a set-off of Rs. 22,067.73 in their favour. At trial four issues were framed: (1) whether the suit was maintainable; (2) whether there was a cause of action; (3) whether the plaintiff was entitled to a decree; and (4) whether the claimed relief could be granted. Issue No.1 was not pressed; Issues Nos.2–4 were contested.
The trial court decreed the suit; it noted that none of the defendants testified and concluded the contract was not an oral lump-sum contract. The defendants' first appeal to the learned Single Judge was dismissed, the Single Judge awarding the plaintiff Rs. 54,414.77 with interest. The present Letters Patent Appeal (LPA) is preferred by the defendants against the Single Judge's judgment and decree.
Legal Issues Presented
- Whether the issues were correctly framed, and if not, whether the absence of properly framed issues prejudiced the appellants and what the effect of such prejudice would be.
- Whether the trial court and the learned Single Judge were justified in drawing an adverse inference against the defendants-appellants because none of the defendants entered the witness-box to support their case.
Arguments of the Parties
Appellants' Arguments
- The issues framed were incorrect or incomplete; the trial court and the first appellate court therefore misdirected themselves.
- The evidence on record was not correctly appreciated; undue emphasis was placed on the fact that the defendants did not testify.
- An additional issue should have been framed to determine whether the plaintiff or the defendants were responsible for the unsatisfactory work.
- Accordingly, the judgments of the trial court and the learned Single Judge deserved to be set aside.
Respondent's Arguments
- The issues were correctly framed; if the appellants felt otherwise they could have sought reframing while the case was pending in the trial court.
- No prejudice was caused by the framing of issues; the parties knew each other's case and led evidence accordingly.
- The presumption/inference drawn was correctly founded on Section 14 of the Evidence Act (as stated in the record).
- The trial court and the learned Single Judge properly appreciated the evidence; the findings are factual and do not warrant interference on appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kameshwarama v. Subba Roy, A.I.R. 1963 SC 884 | Omission to frame an issue is not fatal where parties went to trial and led evidence; such omission does not necessarily prejudice the parties. | Relied upon to support the proposition that failure to frame an additional issue did not vitiate the trial or cause prejudice because both parties understood the case and led evidence accordingly. |
| Kunju Kesavan v. M.M. Philip, A.I.R. 1964 SC 164 | Similar to Kameshwarama: omission to frame an issue is not fatal where the record shows parties tried the case on the issues and led evidence. | Cited alongside Kameshwarama to reinforce that the omission to frame a particular issue did not require reversal where substantial justice had been done and no party was prejudiced. |
| M.V. Vali Pro. v. Fernendeo Lopez (Judgements Today: 1989 (4) SC 10 ; (1989) 4 SCC 671 ; AIR 1989 SC 2206) | Procedural rules are instruments to achieve justice; procedure is the hand-maid of justice and should be construed to promote justice rather than frustrate it. | Applied to justify a flexible approach: procedural defects (such as omission to frame an issue) should not defeat justice where no prejudice is caused and the court can still do substantial justice between the parties. |
| Desh Bandhu Gupta v. N.L. Anand, 1993 (5) Judgements Today 313 | Reaffirmation of the proposition that procedure must serve justice; procedure is the hand-maid of justice. | Used to support the court's view that framing of issues pertains to procedure and that procedural irregularities should not be fatal if they do not affect the merits or cause prejudice. |
Court's Reasoning and Analysis
The court structured its analysis in two principal branches corresponding to the primary questions: (1) correctness and effect of the framing of issues, and (2) permissibility of drawing an adverse inference from the defendants' non-appearance as witnesses.
On framing of issues, the court reviewed the governing provisions: Order 14 Rule 1 of the Code of Civil Procedure (issues are framed in respect of material facts alleged and either denied or not admitted), Order 10 Rule 2 (statements recorded for clarification form part of pleadings), and Order 14 Rule 3 (materials from which issues are framed). The duty to frame correct issues rests with the court, and Rule 5 of Order 14 permits framing or amendment of issues if parties so apply.
After examining the pleadings, the court concluded that the four issues framed were adequate for resolving the dispute. The court observed that the defendants did not seek reframing or amendment under Order 14 Rule 5 during trial; hence they cannot now contend prejudice. The court emphasized that even if an additional issue (for example, whether the plaintiff or defendants were responsible for incomplete or unsatisfactory work) might have been appropriate, the defendants had the procedure available to seek it but failed to avail themselves of it.
The court then addressed whether omission to frame an issue would be fatal. It applied the established principle (as reflected in cited precedents) that omission is not fatal if both parties tried the case on the understanding of the points in dispute and adduced evidence accordingly; substantial justice being done renders such omission non-prejudicial. Section 99 of the Code was invoked to show that appellate courts should not reverse or remand merely on account of procedural errors or irregularities that do not affect the merits or jurisdiction.
On the question of adverse inference from non-appearance of defendants as witnesses, the court relied on Section 114 of the Indian Evidence Act which permits courts to draw such inferences where a person withholds evidence expected to be adverse to their case. The court held that the trial court and the Single Judge were justified in drawing the inference that, had the defendants testified, their evidence would not have supported their case. The court found no error in drawing that inference.
Synthesizing these strands, the court concluded that the issues as framed were sufficient, the defendants were not prejudiced by any omission, procedural defects (if any) did not affect the merits, and the adverse inference drawn under the Evidence Act was permissible. Accordingly, there was no basis to interfere with the concurrent findings of fact reached at trial and on first appeal.
Holding and Implications
Core Ruling: Letters Patent Appeal dismissed.
Direct consequences: The decree of the trial court (affirmed by the learned Single Judge) in favour of the plaintiff for Rs. 54,414.77 plus interest stands. The Letters Patent Appeal is dismissed without any order as to costs.
Broader implications: The opinion applies established principles that procedural irregularities in framing issues are not fatal where no prejudice is caused and substantial justice has been done, and that courts may draw adverse inferences under the Evidence Act when a party withholds testimony. The opinion does not purport to lay down any new precedent beyond applying those principles to the facts of this case.
B.L Yadav, A.C.J:— 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 Ratna 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. 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 workmanship. 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.
3. The trial court framed four issues.
4. 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 hearing 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 deserved to be set aside.
8. The learned counsel for the appellants indicated that an issue must have been framed as to whether the defendants or plaintiff was to be blamed for unsatisfactory work. Learned 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 issues framed while the case was pending before the trial court. In any case no prejudice has been caused by improper framing of issues. The presumption has correctly been drawn under Section 14 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 submissions of respective parties the moot questions for our determination are as to whether issues were correctly framed and if not in the absence of proper and correct issues whether appellants could be said to be prejudiced and if so its effect, the next question is whether the trial court and the learned Single Judge were justified in drawing an inference against the defendants-appellants, simply because either of the defendants failed to enter the witness-box to support their case.
10. As regards the first question, as to whether proper and correct issues were framed, if not its effect and whether any prejudice has been caused to the appellants and its result on the trial of the suit. There could be no two opinions about the fact that issues are framed in view of Order 14 rule 1 of the Code of Civil Procedure, 1908 (compendiously ‘the Code’). Issues are framed only in respect of those material facts which have been alleged by one party and either denied or not admitted by the other party. In this regard it may be stated that the statements of parties or their counsel recorded under Order 10 rule 2 of the Code or under any other provisions with a view to clarify the points in dispute are as much part of the pleadings as the plaint or written statement.
11. Normally issues are framed for a right decision of the controvery between the parties. This is with a view to pinpoint the real and substantial points of difference. The materials from which issues have to be framed are indicated under Order 14 rule 3 of the Code. These materials are three fold, i.e, allegations made on oath by the parties, made by the pleaders of parties and the allegations made in pleadings and contents of documents produced by either party. While framing, the court has to bear in mind that the determination in a case should be founded on an averment made in pleadings. The duty to frame correct issues rests on the Court. Therefore, four issues framed, i.e, is the suit as framed maintainable, if the plaintiff has any cause of action, is the plaintiff entitled to get decree and if the plaintiff was entitled to a relief as claimed. We have perused the pleadings of the parties and in our opinion the issues were correctly framed. In case the defendants felt that issues were not correctly framed, it would have reframed under the provisions of rule 5 of Order 14 of the Code. But the defendants did not do so.
12. The issues framed, in our opinion, were sufficient for the correct disposal of the suit, even if as suggested by the defendants-appellants an additional issue to the effect whether the plaintiff or the defendant was responsible for the incomplete repair and reconstruction of the work, was to be framed, in that event the defendant if feels aggrieved from the issues already framed, could have made an application or suggested the court under Order XIV rule 5 of the Code to amend or to frame an additional issue. But the defendant-appellants failed to do so. In this way our considered opinion is that the trial court correctly framed the issues and by those issues the defendants-appellants could not be said to be prejudiced.
13. The other question emanates from the first one as to whether assuming that improper issues were framed, would that be said to be fatal to the case or that would be said that there was a mis-trial. In such matters the broad principle is that both the parties went to the trial on understanding the case set up by the opposite parties and led the complete evidence in reply to the same, even if there was omission to frame an issue that can not be said to be fatal to the case. On that account of omission to frame an issue the defendants-appellants cannot be said to be prejudiced. There can be only one conception whether on examination of the record or the evidence led the court is satisfied that on a particular issue framed no evidence was adduced or on account of improper framing of the issue the party can not lead sufficient evidence. That is such matter when substantial justice has been done between the parties whether omission to settle an issue would not prejudice either of the parties. (See Kameshwarama v. Subba Roy, A.I.R 1963 SC 884 and Kunju Kesavan v. M.M Philip, A.I.R 1964 SC 164.)
14. What is to be emphasised is that section 99 of the Code provides that no decree shall be reversed or substantially varied nor any case shall be remanded in appeal on account of mis-joinder or non-joinder of the parties or cause of action or any error, defect or irregularity in any proceeding in the suit not affecting the merit of the case or jurisdiction of the court. In this view of the matter a decree can be reversed or varied or a judgment can not be set aside or modified simply because even some defects or irregularity is assumed unless the same, of course affects the merit of the case or the jurisdiction of the court. In case defect or irregularity was of some importance as to affect the merit of the case or the jurisdiction of the court only in that event it becomes a material irregularity justified inference by the court.
15. As a matter of fact framing of the issues pertains to the domain of the procedure and the elementary rules of interpretation in respect of the procedure are that these are not an end in themselves but they are means to achieve justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the court to do justice in myriad situations, all of which can not be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to serve and not to rule the cause of justice. (See Owners and Parties interested in M.V Vali Pro. v. Fernendeo Lopez (Judgements Today: 1989 (4) SC 10 : (1989) 4 SCC 671 : AIR 1989 S.C 2206), per J.S Verma, J., (Paras 18 & 19). Similarly in Desh Bandhu Gupta v. N.L Anand, 1993 (5) Judgements Today 313 on page 318 it has been held by the Apex Court that procedure is the hand-maid justice. Applying these principles to the framing of the issues or the insufficient issue it can very well be said that the rules of procedure required that if justice has been done and no party is prejudiced, in that event the issues framed must be permitted to remain. But, in case the court feels that some prejudice is caused or some party could not lead sufficient evidence as the issues were not properly framed, in that event the court can direct the proper issues to be framed. In such matters the provisions of section 99 of the Code have to be kept in mind. Reverting to the last question as to whether by non-appearance of the defendant-appellant inference could have been made by the trial court as well as by the learned Single Judge that as the defendant did not come in the witness box, hence if he would have appeared, he would not have supported his own case. In such matters the legislature in its wisdom enacted Section 114 of the Indian Evidence Act wherein it has been provided that a Court can draw inference in case a person did not enter the witness box or if somebody withholds evidence to be led in the Court. In that event the Court can draw inference that the defendant did not appear as in case he would have entered the witness box, he would have deposed against himself. Quite consistent with his principle the Court has drawn inference that as the defendant-appellant did not come in the witness box to support his case, hence inference was that in case he would have entered the witness box he would not have supported his own case. In our opinion, neither the trial court nor the learned Single Judge could be said to have committed any error in drawing inference against the appellants.
16. In view of the premises aforesaid the Letters Patent Appeal fails and the same is dismissed without any order as to costs.
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