SWATANTER KUMAR,J - (1.)CHALLENGE in this revision is to the order dated 29.11.1999 passed by the learned Additional District Judge, Fatehgarh Sahib. The facts relevant for the determination of the controversy in issue in this revision are that the plaintiffs had filed a suit for declaration and permanent injunction alleging themselves to be the heirs of Karam Singh and also claimed interest in the suit property on the basis of a will in their favour by the deceased, to the exclusion of his real brother Pritam Singh.
(2.)THE suit was contested by the defendants. The learned trial Court vide the judgment and decree in the year 1995, dismissed the suit. The unsuccessful plaintiffs filed an appeal before the learned first appellate Court. During the pendency of the appeal an application was filed under order 41 Rule 27 of Civil Procedure Code on 27.10.1999 and also filed an application under Order 14 Rule 5 of the Code for framing of additional issues. Both these applications were dismissed by the learned first Appellate Court vide its order dated 29.11.1999.
Learned Counsel for the petitioners contended that in this revision the petitioners are primarily challenging the dismissal of the application filed by them before the first Appellate Court for not framing issues under Order 14 Rule 5 of the Code as prayed by the applicant. In this regard the learned first Appellate Court had held as under :-

"It is well settled that when once the party goes to trial after knowing their case well, the non-framing of the issue and even the absence on pleadings does not prejudice their case and non-framing of the issue becomes immaterial. I find support to my this view from the authorities in Nagubal v. B. Sharma Rao, AIR 1956 Supreme Court 593, Nadunari Kameswaramma v. Sampati Subba Rao, AIR 1963 Supreme Court 884, in which it was held that when once the parties go to trial knowing fully well about the case then non-framing of the issue is immaterial and in case Gurbax Singh v. Harbhajan Singh, 1990(2) SLJ 744 it was held that once the parties go to trial after knowing their case well, the absence of an issue or even of a pleading does not prejudice their case."

(3.)THE learned Counsel for the petitioners while relying upon a judgment of this court in the case of Union of India and another v. M/s Goverdhan Dass, P.A., 1973 Revenue Law Reporter 14 contended that framing of issues was obligation of the learned trial Court and in the event of non-framing of issues, the learned first Appellate Court ought to have allowed the application under consideration of that Court.