JUDGMENT I am afraid both these appeals, which were heard together must be remanded under S. 151 of the C. P. C., if justice is to be done to both the parties. The pleadings were not complete, all the material facts were not stated, the trial court did not ask for further and better statements from the parties, the issues framed were perfunctory, and did not cover all the points involved, and evidence was allowed to be let in on some facts, without the pleadings having been amended and cleared in that respect. The use of the provisions contained in Orders 10, 11, and 12, C. P. O. was clearly indicated, but those provisions were not resorted to. The learned Judge, who framed the issues obviously did not discharge the duty laid on him by Or. 14 R. 1 (5), and his successor, the duty laid on him by R. 5 of the same Order. The result was that the trial, as it was bound to be in the circumstances, was not proper and suffered from errors, omissions and irregularities. I heard the counsel at great length, with the object of finding out if justice could be done without resorting to remand, but must confess that in the state already referred to, and after paying my best and anxious consideration I cannot bring myself to that view. Complicated questions of fact and law were involved and it would be dangerous to proceed in the absence of proper pleadings and facts. I am aware of the fact that the state of pleadings and the handling of cases in this part in the past have been far from satisfactory, but that cannot be a good ground for proceeding on insufficient material or data specially when complicated questions of fact and law are involved as in these suits, and when steps are possible to have the defects removed. 2 These two suits were instituted in the Court of the District Judge, Manipur by the Manipur State Bank Ltd., situated at Imphal C. S. No. 3 of 1953 against defendant Nathmal Mohata, a merchant of Imphal, and C. S. No. 4 of 1953 against him and his firm called Ganeshlall Gopalla of Imphal. The claim in the first suit was for Rs. 27,632/1/9, while in the second it was for Rs. 5,217/11/6 with interest at 6 per cent per annum till realisation. The claim in the first suit was for Rs. 27,632/1/9, while in the second it was for Rs. 5,217/11/6 with interest at 6 per cent per annum till realisation. 3 It is an admitted fact that the defendants dealt in Indian piecegoods, at the relevant time. They needed money for that business, and approached the plaintiff-Bank, and it was settled between the parties that the Bank will advance up to Rs. 5 lacs in the first instance and then additional amounts upto 3 lacs in each case i. e. to the firm and to defendant Nathmal Mohata for the purpose. These amounts were to be drawn from the current account of defendants with the plaintiff-Bank, as over-drafts and defendants executed pronotes etc. for the amounts thus over-drawn by them. Defendant Nathmall executed these documents on behalf of the firm as its proprietor. 4 It was also agreed that the defendants would pledge the piecegoods by way of collateral security with the plaintiff Bank and for that purpose it was further agreed that the Railway Receipts of piecegoods despatched from Bombay and some other places would be handed over to the Bank and the Bank would take delivery of the goods on behalf of the defendants from the Railway authorities at Dimapur, the Rail-head for Manipur and arranged to have them transported to Imphal, and then keep them in the godown of the Bank, which the Bank had hired from the defendants and which is in the premises of the defendants. The defendants were to be given delivery on payment of the price which would be credited against the over-draft account. There was also an agreement for interest, and all this was agreed orally. 5 In its turn the plaintiff Bank arranged for the taking of delivery at Dimapur (Railway Station called - Manipur Road) and for the carriage of goods with Manipur State Transport, a Government concern, which runs regular motor service by road for the carriage of passengers and transport of goods between Imphal and Dimapur both ways. The plaintiff Bank used to thus endorse the Railway Receipt in favour of the Manipur State Transport and used to incur the incidental and other necessary expenses for the taking of delivery, carriage etc. It is presumed that the Bank used to endorse the Railway Receipt in favour of the Manipur State Transport. The plaintiff Bank used to thus endorse the Railway Receipt in favour of the Manipur State Transport and used to incur the incidental and other necessary expenses for the taking of delivery, carriage etc. It is presumed that the Bank used to endorse the Railway Receipt in favour of the Manipur State Transport. 6 It is an admitted fact that the Railway failed to give delivery of some goods, but it is not clear from the pleadings whether they were goods of a whole consignment or part of it, whether whole bales or parts of it, and there was also a general allegation in the plaint that the Bank had kept the defendants informed from time to time about the non-delivery of the goods. 7 The plaintiff alleged in both suits that the transactions between the parties closed on 7-4-53 and after adjustment of account a sum of Rs. 27,632/1/9 including interest, charges and expenses was found due from the defendant Nathmal Mohata, while an amount of Rs. 5,217/11/6 was found due from the defendant firm, but they failed to pay the amounts. It is not clear whether the plaintiff meant to assert settlement by this alleged adjustment. Nor was any notice taken of this by the trial Court, with the result that the point remained unexplained. 8 The defendants among other points contended that the plaintiff Bank was responsible for the price of the goods which were not delivered by the Railway Co., as they failed, not only to inform the defendants about these nondeliveries, but also failed to obtain short delivery certificates from the Railway Company, in spite of repeated demands for the same, as a result of which neglect on the part of the plaintiff, the defendants could not give notices of claim to the Railway Company as required by and within the period prescribed under S. 77 of the Indian Railways Act. They were thus debarred from; bringing suits against the Railway Company for the said loss, which they valued at Rs. 23,859/-/9 in Civil Suit No. 3 and at Rs. 4,523/15/8 in the other suit. Something was also claimed in C. S. No. 3 for the goods that were damaged and of which defendants did not take delivery. It was also alleged that the plaintiff Bank could have itself preferred claims for the undelivered goods, but it was not done. 23,859/-/9 in Civil Suit No. 3 and at Rs. 4,523/15/8 in the other suit. Something was also claimed in C. S. No. 3 for the goods that were damaged and of which defendants did not take delivery. It was also alleged that the plaintiff Bank could have itself preferred claims for the undelivered goods, but it was not done. Again no notice was taken of this by the trial court. 9 The defendants also denied the accounts filed by the plaintiff Bank and asserted that they were highly inflated, and though the accounts consisted of numerous items it was not stated which of the items were specifically challenged except a few and for what reasons. Nor did the defendants file their own account though it was an admitted fact that the defendants have pass books, in which the Bank made entries of the transactions periodically. The defendants thus claimed a set-off for the amount of damages in respect of goods not delivered etc. under Or. 8 R. 6 and paid court fees on their claims in set-off. They thus denied the whole claim of the plaintiff. The defendant also raised certain other points which it is not necessary to state, in the view I take of the matter as a whole. 10 The learned trial Judge allowed the set-off claimed in C. S. No. 3 and also disallowed the amount on account of wharfage charges and decreed the plaintiffs claim, for the balance with proportionate costs. In the other suit, the set-off claimed by the defendants was disallowed and after reducing the claim by some amount on account of wharfage charges, the trial court decreed the claim of the plaintiff with proportionate costs. The plaintiff preferred these two appeals, claiming that decrees for the full amounts claimed may be passed. The defendants have on the other hand preferred cross-objections in both the appeals. Even though parts of the claims were only decreed it is surprising to note that the defendants have paid court-fees on the cross-objections on the full value of the two suits. 11 Now it was conceded before me on all hands, that a notice under S. 77 of the Indian Railways Act, can be given without short delivery certificates and it is not necessary that the value of the claim should be stated in the notice under S. 77. 11 Now it was conceded before me on all hands, that a notice under S. 77 of the Indian Railways Act, can be given without short delivery certificates and it is not necessary that the value of the claim should be stated in the notice under S. 77. But what was disputed was that the defendants could have filed the suits claiming damages for the goods not delivered even without giving notices, as a notice under S. 77 is necessary only in a case where there is a loss of goods by the Railway Company, that is, where plaintiff comes with an admission that the goods were lost by the Company, and reliance was placed on Estate of H. E. H. The Nizam v. Padaturi Malliah, AIR 1956 Hyd 30 (A). It was, therefore urged that it could not be said in the present case that non-delivery was due to loss of goods by the Railway Administration. Apparently, the facts necessary are absent from the pleadings and in the absence of even any certainty on the point whether all the bales consigned by a Railway Receipt, or one or more of them or part of the goods of a bale were not delivered, it is not possible even to make a presumption based on circumstances one way or the other. It appears that the point was raised in the course of arguments before the learned District Judge, who over-ruled it simply because in one of the letters (Ext. D/O), the plaintiff Bank had used the words "supposed to be lost in transit" I think it was not correct. In the absence of pleadings and evidence as to the circumstances, one may not be justified in jumping to the conclusion that the use of the words "supposed to be lost" was an admission of loss as comtemplated under S. 77 or the defendants considered themselves bound by it when their case as disclosed in the written statement was of non-delivery. I have not over-looked the fact that certain documents filed by the parties give some indication as regards the details, if the particulars are sifted and pieced together. Even then it is not possible to find out all the particulars from those documents which, in my opinion, are necessary to be established definitely either by admissions of the parties or by evidence, for the decision of the points involved. Even then it is not possible to find out all the particulars from those documents which, in my opinion, are necessary to be established definitely either by admissions of the parties or by evidence, for the decision of the points involved. It was pointed out by the learned counsel for the plaintiff, and in my opinion not without force, that in any case the defendants had received intimation of non-delivery as regards the consignment of September, 1951 in time by the letter Ext. D/N. and set-off in respect of those consignments ought not to have been allowed. But if that document is taken as relating to the consignments in dispute, then it appears that one of them was of 1-9-1951, which means that intimation was given only a day before the expiry of the period of six months laid down in S. 77. Again, there is a correction of that date in Ext. D/N. It would therefore be necessary to go into and ascertain all these doubtful points before it is possible to give a correct decision on that point. 12 Even it were to be found that notice under S. 77 was necessary the plaintiff, Bank had pleaded that they kept the defendants informed from time to time about the goods taken delivery of and it is evident on the pleadings made by the defendants themselves that they did come to know of all these non-deliveries, but then the point will be when they came to know of or were informed about each non-delivery. Whether it was before the expiry of the period prescribed by S. 77 or beyond it. It was further necessary to ascertain the following: (i) What was not delivered by the Railway Company, whether the whole of the goods despatched under one particular receipt or one or more bales covered by it or part of one or more bales. (ii) The date of that Railway Receipt, and the date on which delivery was taken. (iii) Whether plaintiff informed the defendants about it and/or defendants came to know about it, and if so whether or after the expiry of the period prescribed under S. 77. (ii) The date of that Railway Receipt, and the date on which delivery was taken. (iii) Whether plaintiff informed the defendants about it and/or defendants came to know about it, and if so whether or after the expiry of the period prescribed under S. 77. 13 These points could be established either by admission of the parties or by evidence in case of disagreement and I am definitely of the opinion that such matters on which specific and even documentary evidence was available ought not to have been left to be decided on something which more or less partakes of the character of surmises. It might be relevant to mention here that the loan application (Ext. P/H) goes to show that the goods on arrival at Imphal were to be kept in the go-down under the identification marks of the defendants. It is for this reason that I say that it was also necessary to find out when the defendants learnt about the non-delivery of goods of each consignment. 14 In this connection it may also be pointed out that there are no pleadings as to the conditions in respect of liability on which the Railway Company had agreed to carry the goods of each consignment. A correct decision of the question of the amount of set-off will, no doubt, depend on this point also. 15 It could be said only after these points were ascertained, whether the plaintiffs were responsible to account for the loss or not, that is, whether a set-off on that score could be allowed to the defendants, and that question arises separately in respect of each consignment, as there were more than one, which or out of which goods were lost. It is difficult to see how a just and fair decision can be given on this point unless the facts necessary to be proved and the proof for and against those facts are before the court. It is true that some questions were put on the subject to P. W. 1, but to that the exception taken was that the necessary documents were not on record and no reliance could be placed on such oral evidence. It is true that some questions were put on the subject to P. W. 1, but to that the exception taken was that the necessary documents were not on record and no reliance could be placed on such oral evidence. That objection was met on the plaintiffs side by the assertion that these points were not put in the issues and therefore the plaintiffs could not be accepted to know and take that care which they would otherwise take when the point is in the issues and each party knows as to the burden laid on him as regards proof of matters. In my opinion that contention is not devoid of force. Here the facts are such that it would not be unreasonable to expect that the defendants know what goods were despatched and when, and what were being received by the Bank, as they were from time to time taking delivery of those goods from the Bank for sale, and as already mentioned the terms in Ext. P/H also point in that direction. The defendants could have therefore given the particulars, and it might be said that they ought to have given these particulars in their claim of set-off, which is nothing less than a counter claim, and should contain the same particulars which will be necessary for a plaint in respect of it, if a separate suit were to be filed. The plaintiffs cannot also escape blame in this respect, since they have also not given all the necessary details in respect of each consignment. 16. Pleadings have to contain material facts on which the party relies for his claim or defence as the case may be, but not the evidence by which they are to De proved. But that does not mean that the plaint should be confined to those facts only, which constitute the plaintiffs cause of action and that the defendants written statement should be confined to those facts only which constitute his defence. But that does not mean that the plaint should be confined to those facts only, which constitute the plaintiffs cause of action and that the defendants written statement should be confined to those facts only which constitute his defence. As observed by Brett, L. J. in Phillips v. Phillips, (1878) 4 Q. B. D. 127 at p. 133 (B), the words of the rule (here R. 2 Order 6) are not "the facts which will be necessary to support the cause of action," they are, "the material tacts on which the party relies for his claims." 17 It is obvious that the defendants who are business men must have their own account. It was necessary for them to state which transactions they disputed and on what grounds, so that proper issues could be framed about those items and specific findings given after the parties had had a chance to lead evidence. But this was not done and the whole question of accounts proceeded in a vague manner. The trial Court was also responsible for this inasmuch as it did not exercise its powers under Or. 6 R. 5 in that behalf. There are some other minor matters which attract the same remarks, but I need not dwell on them. I have indicated broadly that the pleadings were not at all complete and there were no issues on the salient points in dispute. That the learned District Judge, who delivered the judgment was also aware to some extent of this being the position is evident from his own judgment. When faced with this situation the clear course which should have been followed was to re-open the case, order the necessary pleadings, re-settle the issues and to give a chance to the parties for further evidence, and then to proceed to judgment. 18. The duty of raising issues always rests on the court and it is not permissible to presume that a fact which ought to have been put in issue, but was not so put, and the burden to prove which was on one party, is admitted by the Opposite Party because it was not put in the issues. The only issue about the transactions and accounts that was framed was "is the statement of accounts attached to the plaint correct? The only issue about the transactions and accounts that was framed was "is the statement of accounts attached to the plaint correct? Similarly, the issue about the set-off was only: "Is the defendant entitled to get set-off for Rs.................?" Thus, those issues did not go beyond begging the questions. The defendants stated in their written statement that they could not follow the accounts given by the plaintiff Bank, but that cannot be a sufficient excuse and the clear course open was to have resorted to the provisions of Orders 11 and 12. 19. The result of all these omissions has been an imperfect trial in spite of the fact that an attempt was made to introduce some of the facts at the stage of evidence, and I may repeat that it would not be safe to base a decision on such an imperfect trial when as already seen complicated questions of law and fact which go to the very root of the claims made by both parties are involved. Interests of justice therefore require that there should be a remand and a fresh trial. I have examined the feasibility of a partial remand, but I am constrained to say that it is not possible as will be evident from the foregoing discussion, because the pleadings are not at all complete. 20 I, therefore, set aside the judgments and decrees of the District judge in both the suits and remand them to the District Judge for a fresh trial by him in advertence to the above remarks. The parties shall have the liberty to apply for permission to amend or to give additional pleadings which they may consider necessary and the trial court shall call for such further pleadings or particulars as may be deemed necessary under Or. 6 R. 5, and then re-settle the issues. Parties will be given a chance to adduce further evidence and to argue their cases and then the court shall proceed to judgment. Costs incurred in this court will abide the result. The appellant and the respondents will get certificates of refund of court fees paid on the memorandum of both these appeals and the cross-objections filed in them. Order accordingly.