SAO 9/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The judgments and orders dated 13.7.2010 rendered by the learned Civil Judge No. 2, Kamrup, Guwahati in Title Appeal Nos. 6/09 and 7/09 interfering with the verd ict dated 26.11.2008 of the learned Munsiff No.1, Kamrup, Guwahati in Title Suit No. 258/2004 have been assailed in the present appeals. By the decisions impugn ed, the judgment and order of the learned Trial Court has been interfered with a nd the matter has been remanded to it for settlement of the issues afresh and fo r trial in accordance with law after affording opportunities to the parties to a dduce evidence, if desired. The factual backdrop in short would be necessary to better comprehend th e arguments advanced. The respondent herein as the plaintiff instituted the aforementioned sui t against the appellant praying for a decree declaring him to be a tenant of Pad umi Das (since deceased). A decree for permanent injunction against the present appellant restraining him from evicting the respondent/ plaintiff from the suit premises was also sought for. The respondent/ plaintiff inter alia contended tha t the landlady Padumi Das during her lifetime was a Government employee who used to collect rent in respect of the suit premises as and when she came to Guwahat i from Tezpur, her place of work. According to him, Padumi Das expired subsequen t thereto and that though he had paid rent for the premises upto the month of Se ptember, 2004, he could not do so thereafter as he inspite of his best endeavour s could not locate the landlady’s legal heirs and representatives. The present appellant contested the suit pleading that he was very close to Padumi Das who treated him to be her brother as she did not have any blood r elation of hers. The appellant averred that not only he had helped Padumi Das in constructing the suit house but also had repaid the amount of loan taken by her from the Bank in that regard. He insisted that he had allowed the respondent to occupy the suit house as a monthly tenant under him. According to him, the mont hly rent was fixed at Rs. 2000/- and that the respondent had defaulted in making payment thereof from the month of August, 2004. The appellant, therefore, regis tered a counter claim as well seeking eviction of the respondent from the suit p remises and also prayed for a decree for realization of arrear rent. It is submitted at the Bar that on the basis of the pleadings certain is sues were framed by the learned Trial Court, whereafter, the parties examined wi tnesses in support of their respective pleaded stands. Eventually by the judgmen t and order impugned before the Lower Appellate Court the respondent’s suit was dismissed and the counter claim of the appellant was decreed. Being aggrieved, t he respondent preferred the aforementioned appeals which by the judgments and or ders impugned herein have been allowed. Thereby, the decision of the learned Tri al Court has been interfered only on the ground that it had omitted to frame iss ues as required under the relevant provisions of the Code of Civil Procedure (fo r short, hereinafter referred to as ’the Code’) and that the exercise to that ef fect undertaken by it at the stage of the judgment and order was in violation of the principles of natural justice and it, thus, vitiated its verdict. Mr Ali has assiduously argued that the learned Trial Court having actual ly framed the issues on the basis of the pleadings of the parties and they had a dduced evidence in full, the view taken by the learned Lower Appellate Court is obviously erroneous and is liable to be interfered with. According to him, at no point of time during the progress of the suit, any objection was raised by the respondent/ plaintiff based on the purported omission in the framing of the issu es and that the plea to this effect taken in the appeal de hors any ground in th e memorandum of appeal is only an afterthought. While admitting that the issues in a civil proceeding are otherwise an essentiality, Mr Ali relying on the decis ion of the Apex Court inter alia in Nedunuri Kameswaramma -vs- Sampati Subba Rao , AIR 1963 SC 884, has urged that in the facts and circumstances of the case, no prejudice apparently having been caused to the respondent/ plaintiff, the impug ned judgments and orders are unsustainable in law and are liable to be set aside . According to Mr Ali, the evidence on record is sufficient to adjudicate the c ontroversy raised in the suit and the counter claim and, therefore, the order of remand is wholly unwarranted. As against this, Mr Bhattacharjee has argued that the framing of issues being a mandatory precondition for a valid adjudication of a civil proceeding, t he impugned judgments and orders cannot be faulted with. On being queried by thi s Court, the learned counsel has, however, admitted that the issues in fact had been framed at the appropriate stage of the suit by the learned Trial Court on t he basis of the pleadings of the parties. It is not his case as well that the is sues set out in the judgment and order of the Trial Court do not adequately comp rehend the differences highlighted by the pleadings on record. I have extended my consideration to the pleadings available and the deci sions of the learned Courts below. That in terms of Order XIV, Rule 1(5) a Court depending on the material propositions of fact or of law at which the parties a re at variance is required to frame issues so as to ensure a right decision is n ot in dispute. A power has been conferred on the Court by Order XIV, Rule 5 to a mend an existing issue or frame additional issues at any time before passing a d ecree as may be considered necessary by it for determining the matters in contro versy between the parties. Order XIV, Rule 5(2) also empowers a Court at any tim e before passing a decree to strike out any issue that may appear to it to be wr ongly framed or introduced. Thus, the legislative mandate equipping a Court unde r the Code to amend, add and strike issues is clearly discernible. The learned Trial Court in its decision had observed that though issues have been framed vide the order dated 26.5.2005, those were not available on rec ord and, thus, on the basis of the pleadings available and the evidence adduced, those set out therein had been framed. The issues so framed are as hereunder:- 1. Whether the plaintiff took the suit house in tenancy from Padumi Das ? 2. Whether the plaintiff is a tenant of Padumi Das? 3. Whether the defendant is the landlord of plaintiff? 4. Whether the plaintiff is liable to be evicted from the suit house because he has sublet his premises and because he is a derfaulter ? 5. To what reliefs, the parties or any of them are entitled to? Having regard to the nature of the competing pleadings and the factual a spects at which the parties appear to be at variance, the above issues in the co ntemplation of this Court, are sufficient enough to encompass the same. Noticeab ly, it has not been disputed before this Court that the issues in fact had been framed on the basis of the pleadings by the learned Trial Court as suggested by its order dated 26.5.2005. Though non-availability thereof cannot in any view of the matter be accepted, the same per se does not signify that such issues had i n fact not been framed. This is more so as an observation to that effect had bee n made by a Court of law with reference to its records. It would, thus, be safe enough to proceed on the premise that the learned Court below at the appropriate stage of the suit had framed issues but for some inexplicable reason those were not available at the time of reference thereto while preparing the judgment. Mr Bhattacharjee has been fair enough to submit that not only the issues had been framed on the basis of the pleadings of the parties before the trial h ad actually began, those were to their knowledge as well. Inferentially, therefo re, the parties had adduced evidence being fully aware of their pleaded cases as well as the issues already on record. As alluded hereinabove, the issues framed by the learned Trial Court at the stage of writing the judgment are comprehensi ve enough to take within their sweep the entire gamut of the controversy between the parties. The memorandum of appeal laid by the respondent before the learned Lower Appellate Court to which the attention of this Court has been drawn also does n ot in clear terms project a grievance based on non-framing of the issues by the learned Trial Court at the appropriate stage under the Code. It has not been th e case of the respondent before the Lower Appellate Court, at least as evidenced by the memorandum of appeal, that he had been prejudiced by the so called omiss ion on the part of the learned Trial Court to frame issues. That the evidence ad duced by the parties is otherwise insufficient to address the issues framed by t he Trial Court at the stage of writing the judgment has also not been highlighte d before this Court. No objection to this effect had been taken in the suit as w ell. At the first place, it passes one’s comprehension as to why the Trial Co urt would be disbelieved to conclude that no issue at all had been framed by it before the parties were called upon to adduce evidence in support of their cases . A clear reference to the order dated 26.5.2005 of the Trial Court has been mad e in endorsement of this possibility. As it is, an appeal is a continuation of a suit. The appellate forum is one empowered in law to deal with questions of fac t and law and its jurisdiction to that effect is co-terminus with that of the Tr ial Court. The Apex Court in Nedunuri Kameswaramma (supra) had been confronted with a fact situation where one of the issues framed were pleaded before it to be la cking in elaboration, thus, vitiating the decision based thereon. Their Lordship s with reference to the enjoinment of Order XIV, Rule 1 of the Code observed tha t where the parties had gone to trial fully knowing the rival case and had led a ll the evidence not only in support of their contentions but in refutation of th ose of the other side, it could not be said that the absence of an issue was fat al to the case or that there was a mis-trial vitiating the proceeding. It was he ld that the suit could not be dismissed on the narrow ground as pleaded and ther e was no need for a remit as the evidence which had been laid was sufficient to reach the right conclusion and that neither party claimed that it had any furthe r evidence to offer. In the factual premise as recited hereinabove, this legal proposition ap plies in all force to the instant case. Firstly, this Court is not inclined to p roceed on the premise that no issue at all had been framed by the learned Trial Court before the parties had adduced evidence on their behalf. Even otherwise, a s it is not pleaded before this Court that the evidence by them is insufficient vis-à-vis the issues set out by the Trial Court, the Lower Appellate Court ought to have dealt with the merit of the case instead of remanding the matter as don e. The impugned judgments and orders, therefore merit interference. Ordered accordingly. The learned Lower Appellate Court would now notify the parties and decid e the appeals on merit. This would be done as expeditiously as possible. The parties would appear before the learned Lower Appellate Court on 2.1 2.2011 for taking further orders. The appeals are allowed. No costs.