Second appeal cannot decide newly framed questions of law without fair opportunity to lead evidence; remand is required.

An appellate court in second appeal cannot frame and decide new substantial questions of law that were neither raised nor tried below without giving the parties a fair opportunity to meet them, including by leading additional evidence where necessary. The appellate procedure under Order XLI and Order XLII CPC allows regulation of evidence and trial-related issues, but does not permit the court to build a new case for either side or decide newly introduced issues without procedural safeguards. Because the High Court framed additional questions at different stages and decided them without affording such opportunity, its judgment lacked a proper procedural foundation and had to be set aside with remand.

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Issues: Whether the High Court, in second appeal, could frame new substantial questions of law and decide the appeal without affording the parties an opportunity to lead evidence, and whether the matter was required to be remanded for fresh consideration.

Analysis: The appellate scheme under Order XLI and Order XLII of the Code of Civil Procedure permits an appellate court to frame issues for trial, seek additional evidence, and regulate the receipt of evidence in the manner prescribed by law. It does not permit the appellate court to create a new case for either party or determine newly framed issues without following the procedural safeguards applicable to appellate adjudication. Here, the High Court framed additional substantial questions of law at different stages, though those issues had not been raised or tried below, and no opportunity was given to the parties to lead evidence on them. In these circumstances, the High Court's decision was rendered without the procedural foundation necessary for a fair adjudication.

Conclusion: The remand was justified, and the impugned judgment and decree of the High Court could not be sustained; the appeal was allowed.

Ratio Decidendi: An appellate court cannot introduce and decide new issues at the second-appeal stage without granting the parties a fair opportunity to meet those issues, including where additional evidence may be necessary; if that procedure is not followed, the proper course is to set aside the decision and remand the matter.

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