GOVINDA RAO D KANANAVARE Vs. DATTATRAYA NABAYAN DESAI

JUDGEMENT

(1.) The defendant in OS,275 of 1972, on the file of the First Addl. Munsiff at Belgaum, is the petitioner. The respondent is the plaintiff, and he has not appeared in this petition though served with the notice of the petition. The plaintiff filed the suit for recovery of Rs.2,500 and odd from the defendant alleging that he had paid that amount to the defendant by way of hand-loan and the defendant had promised to return that amount within six months from the date of payment. The payment off the amount had been made by means of a crossed demand draft in favour of the defendant. The defendant contended that he had received that amount from the plaintiff not by way of loan, but because the plaintiff was due to him that amount as the plaintiff had, on previous occasions borrowed money from him (defendant) and the total amounted to Rs. 2,500.

(2.) An issue was framed throwing the burden on the defendant. By this issue, the defendant was asked to establish that the plaintiff had borrowed amounts on different occasions and that amounted to Rs.2,500 and, therefore the plaintiff had re paid that amount by way of the demand draft. The defendant filed IA-I praying for deletion of the said issue "and for recasting the issue in the following manner : Whether the plaintiff proves that he has paid Rs.2,500 to the defendant as loan and he is entitled to it."

(3.) The learned Munsiff rejected IA.I and that is the order challenged in this revision petition. Sri B. R Rohidekar, the learned Advocate appearing on behalf of the petitioner, urged that there were no circumstances warranting any presumptioin of such a loan having been given by the plaintiff to the defendant and, therefore, the burden ordinarily lay on the plaintiff to, establishrhat he had advanced the sum of Rs.2,500 by way of loan to the defendant, and the defendant had agreed to re-pay the same within six months from that date, and this has been ignored by the learned First Addl. Munsiff and, hence, there is material irregularity causing serious prejudice to the defendant because the defendant would lose his valuable right of adducing rebuttal evidence.