Failure to frame an additional issue does not invalidate a trial absent demonstrated prejudice.

The plaintiff sought ₹7,20,000 in compensation for damage to his house, alleging that road cutting and an inadequately constructed protection wall caused the damage.

The defendants denied negligence, asserted that ₹1,75,000 had already been paid, and attributed the damage to rain and the plaintiff’s reconstruction of the house without technical approval.

The trial court decreed the claim with interest at 7.5% per annum, finding that the defendants had caused the damage.

The defendants appealed, arguing principally that additional issues should have been framed concerning the protection wall and the plaintiff’s reconstruction of the house.

Whether, after participating in the trial without seeking amendment or addition of issues under Order XIV Rule 5 CPC, and without challenging the relevant testimony, the defendants could obtain additional issues and remittal under Order XLI Rule 25 CPC

Whether the trial court’s findings on causation and compensation were unsupported by the evidence or otherwise warranted appellate interference

Under Order XIV Rule 5 CPC, a trial court may amend or add issues before passing a decree.

Under Order XLI Rule 25 CPC, an appellate court may frame and refer an omitted issue where it is essential to deciding the suit on its merits; the provision does not warrant remittal merely because a more particular issue could have been framed.

Non-framing of an issue is not fatal where the parties knew the controversy, had an opportunity to lead and challenge evidence, and suffered no prejudice.

A party’s failure to cross-examine on a material point or to adduce evidence does not ordinarily justify a second opportunity on appeal.

Under Sections 101 and 103 of the Evidence Act, the party asserting a particular defence bears the burden of proving it.

The defendants’ proposed issues concerned matters already within the pleaded dispute over the cause of the damage.

They could have sought additional issues before decree, cross-examined the plaintiff’s witnesses on the alleged substandard construction and unauthorised reconstruction, or called technical evidence, but did not do so.

The plaintiff’s evidence that road cutting and the ineffective protection wall caused the damage was not materially challenged, and the defendants led no evidence to establish their alternative explanation or the alleged prior payment.

The omission to frame more specific issues therefore caused no demonstrated prejudice and did not meet the conditions for a reference under Order XLI Rule 25 CPC.

The assessment of ₹7,20,000 by the Assistant Executive Engineer was also not effectively challenged or rebutted.

On reappreciation, the evidence supported the findings that road cutting and failure of the protection wall caused the damage and that the claimed loss was proved.

The appeal was dismissed, and the trial court’s decree for ₹7,20,000 with interest at 7.5% per annum from institution of the suit until realisation was affirmed.

No order as to costs.