HARJI JOGARAM Vs. HASTI SINGH

JUDGEMENT

(1.) This is an application by the defte., in a suit pending in the Court of the Munsif City at Jodhpur, for revising the order of the learned Munsif, by which he placed the burden of an issue on the defts. 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 defts. on 1-2-1948 in favour of the pltf. The defts. denied the execution, as well as the receipt of the consideration, but made an allegation in their written statement that on 16-12-1947 one Madan Singh, the brother of pltf., under pretence of giving contracts for preparing sofas, 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 'chitti' on the pltf. On 2-5-1950, an application was presented by the pltf. for the amendment of issue 1, with the prayer, that the burden should be placed on the defts. 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 5-8-1950, and placed the burden on the defts. framing the following issue:

(2.) Aggrieved by this amendment, the defts. have invoked the revisional powers of this Ct. The learned counsel for the appcts. has strenuously contended before me that the learned Munsif was wrong in planing the burden of the issue on the defts. There seems to be much force in the arguments of the learned counsel for the appcts., but the difficulty that arises in his way is that of Section 115, Civil P.C. The case is still pending in the lower Ct. & has not proceeded a step further than the stage of framing issues. The question is whether the revision is permissible under the provisions of Section 115, Civil P. C. Section 115, Civil P. C. runs as follows:

(3.) The learned counsel for the appcts. has argued before me, that wrong allocation of the burden of proof is a good ground for revision. This is right that the wrong allocation of the burden of proof constitutes a material irregularity and justifies interference of this Ct. in revision, but at what stage The discretionary powers given to the H. C. under Section 115, Civil P. C. to call for any record of any case are to be exercised only in those cases which have been decided in the lower Ct. & in which no appeal lies. A Court, framing issues in a case, or granting amendment thereof, cannot be said to have decided the case. It will be after the final decision of the case that the wrong allocation of the burden of proof will afford a good ground for the interference of the H. C. in revision. Even at that stage, if the H. C, sees that on account of the wrong allocation of the burden of proof, no injustice has taken place and none of the parties has been misled and precluded from placing the whole of its evidence before the Ct., it will not interfere. In the present case, that stage has yet to be reached. If we begin to encourage revisions at this stage, which according to law, we cannot do, there will be no end of revisional applns. In every case, there will be a revision appln. and much of the time of this Ct. will be taken away in framing the issues.