1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 5829 of 2006 OMPRAKASH SONI V/S THE A.D.J.N0.1,UDAIPUR & ANR. Mr. SANDEEP SHAH for Mr. PRADEEP SHAH, for the appellant / petitioner Mr. PC SINGHVI, for the respondent Date of Order : 4.10.2007 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the petitioner. Perused the impugned order. By the impugned order, the learned lower Appellate Court has dismissed the application under O. 41 Rule 25 and Order 14 Rule 5 C.P.C. Learned counsel for the respondent made available for my perusal the statements of the witnesses including that of the plaintiff, and the defendant, and I find that the evidence has already been led by the parties in accordance with the pleadings taken in the litigation. In that view of the matter, it is always open to the Court, the learned trial court, or even the learned lower Appellate Court to frame, or re-frame issues while 2 deciding the matter, and therefore, notwithstanding the impugned order, it will be open to the learned lower Appellate Court if it so thinks appropriate to frame additional issue, and decide the appeal on merits on the basis of the material available on record. The writ petition is accordingly dismissed. ( N P GUPTA ),J. /Sushil/