HARJI Vs. HASTISINGH

JUDGEMENT

(1.) THIS is an application by the defendants, in a suit pending in the Court of the Munsif City, Jodhpur, for revising the order of the learned Munsif, by which he placed the burden of an issue on the defendants. The suit was brought against them by the non-applicant Hasti Mal for the recovery of Rs. 1076/7/- on the basis of a document alleged to have been executed by the defendants on 1. 2. 48 in favour of the plaintiff. The defendants denied the execution, as well as the receipt of the consideration but made an allegation in their written statement that on 16. 12. 47 one Madan Singh, the brother of the plaintiff, under pretence of giving contracts for preparing to far obtained their signatures on two blank papers and that they believe that the 'chitthi' in suit was forged on one of these two blank papers. On 10. 4. 1950, the learned Munsif framed the necessary issues in the case, and placed the burden of proving the execution of the 'chitthi' on the plaintiff. On 2. 5. 1950, an application was presented by the plaintiff for the amendment of issue No. 1, with the prayer that the burden should be placed on the defendants, and that they should be called upon to prove the fact that their signatures were obtained on two blank papers, and 'chitthi' in suit was prepared on one of them. The learned Munsif accepted the application on 5. 8. 50, and placed the burden on the defendants framing the following issue : - "were the signatures of the defendants obtained by fraud on two blank papers by Madan Singh, the brother of the plaintiff, and was the bond in suit forged on one of those papers, and in reality no consideration was given to the defendants?"

(2.) AGGRIEVED by this amendment, the defendants have invoked the revi-sional powers of this Court. The learned counsel for the defendants-applicants has strenuously contended before me that the learned Munsif was wrong in placing the burden of the issue on the defendants. There seems to be much force in the arguments of the learned counsel for the applicants, but the difficulty that arises in his way is that of s. 115 of the Civil Procedure Code. The case is still pending in the lower court and has not proceeded a step further than the stage of framing issues. The question whether the revision is permissible under the provisions of s. 115 C. P. C. Section 115 C. P. C. runs as follows: - S. 115: - Revision: "the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears: (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the ease as it thinks fit. "