RAM KUMAR Vs. RAM KUMAR

JUDGEMENT

(1.) THESE are six revision applications under section 115 C. P. C. filed against the orders of the District Judge, Churu dated February 17, 1978 All these revision applications have been heard together and since common questions are involved, I propose to decide all these revision applications by a single order. Ram Kumar, who is the petitioner in all these revision applications, is the defendant in the suits. Six suits were instituted against him by (i) Shri Basesar Lal, (ii) Ram Kumar, (iii) Govind Prasad, (iv) Radhey Shyam, (v) Pawan Kumar, and (vi) Deokinandan. They were registered as Civil Suits Nos. 43 of 1977 to 48 of 1977 in the court of the Additional District Judge, Churu. The details of all these suits, referred to above, are as under: ******

(2.) SUIT No. 44 of 1977 relates to the pronote dated March 18, 1972 for Rs. 5,300/- and a Rukka dated March 18, 1972 for Rs. 9,000/ -. Other suits were based on five Rukkas dated March 19, 1972; March 18, 1972; March 27, 1972; March 27, 1972 and March 21, 1972. The case of the plaintiff?, as disclosed in their respective plaints, was that the defendant had taken loans of the amount mentioned in each of the Rukkas. It has further been stated that the defendant orally agreed to pay interest @ 1% per mensem. It has also been averred that the defendant failed to repay the loans despite several demands and hence these suits were instituted for the recovery of the principal amount together with interest thereon. The defendant petitioner contested all these suits and denied to have taken any loan from the plaintiffs. He also denied to have orally agreed to pay interest @ 1% per mensem on the principal amount or that any demand for the repayment of loans was made. In additional pleas, it was pleaded by the defendant that all these Rukkas are not documents, evidencing taking of any loans, and they are only receipts of the amounts mentioned therein. The circums-tances leading to the execution of there six Rukkas were explained in detail by the defendant in the additional pleas In these revision applications, I am not concerned with the detailed circumstances,, which have been mentioned by the defendant in his written-statements. At the tims of the framing of the issues, learned counsel for the defendant-petitioner prayed that an issue relating to the advancement of loan in each of the suits be framed and the burden of proving advancement of loan be placed upon the plaintiff This request was orally made (by the learned counsel for the defendant-petitioner to the trial court. The learned District Judge, by his order dated February 17, 1978, declined to frame an issue in regard to the advancement of loan to the defendant on the ground that the execution of the Rukkas, in all the six suits, has been admitted by the defendant and, therefore, it is not necessary for him to frame a separate issue. , as suggested by the defendant. The learned District Judge framed eight issues including relief on the same date i. e. February 17, 1978. For the disposal of these revision applications, it is not necessary for me to reproduce all the issues. But I think it proper to reproduce issue No. 2. Issue Mo. 2: *** The six Rukkas, on the basis of which these six suits were instituted, are identical except one. There is slight variation in the language of the Rukka, which has been produced in Civil SUIT No. 45 of 1977 and that variation is not material. The language used in the Rukka in SUIT No. 44 of 1977 is *** and there is nothing in this Rukka to indicate that the amount was received by the defendant as loan. These Rukkas, merely, acknowledge the receipt of the amounts mentioned therein. All these Rukkas bear a revenue stamp of 10 paisa each.

(3.) MR. Bhandari, learned counsel for the petitioner, on the other hand, submits that the orders, under revisions, have occasioned failure of justice. Ha urges that the learned trial court has refused to frame a material issue arising out of the pleadings of the parties and that has prejudiced the defendant-petitioner. In this regard, he also submitted that if none of the parties lead any evi-dence on the issues so framed by the trial court, the result will be that it can pass a decree against the petitioner, for, the fact of loan has not been put in issue. According to the learned counsel, the circumstances, which have been narrated in the written-statements regarding the execution of the Rukkas, merely show that loan was not taken, therefore, contends that non-framing of the issue, as suggested by the defendant-petitioner, will result in irreparable injury. I have considered these contentions and I am of the opinion that the orders, under revisions, should not be allowed to stand, for, they have occasioned a failure of justice and further are likely to cause irreparable injury. Order XIV, r. 1 C. P. C. deals with framing of issues and Order XIV, r. 3 C. P. C. provides as to from what materials issues are to be framed. Rules of procedure have been laid down for the purpose of framing issues. While refusing to frame an issue arising out of the pleadings of the parties, as suggested by the defendant-petitioner, the learned District Judge has committed a breach of the rules of procedure laid down under Order XIV, rr. 1 and 3 C. P. C. about advancement of loan. In Chhaganmal vs. Mst. Heer Bai (4), it was held by a learned Judge of this Court that: " It has certainly committed a material irregularity in exercise of its jurisdiction in dismissing the plaintiff's suit by taking an erroneous view about the burden of proof and this Court has not only jurisdiction but also a duty to correct the mistake. " It has been held in Major S. S. Khanna vs. Brig. F. J. Dhillon (5) that: " The power given by S. 115 of the Code is clearly limited to the keeping of the Subordinate Courts within the bounds of their jurisdiction. " It was further observed therein that: " The section (section 115) is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. " In my opinion, when the trial court refused to frame an issue relating to the advancement of loan as suggested by the defendant-petitioner, it exercised its jurisdiction legally or at any rate with material irregularity. Not only that, there is a violation of rules of procedure on the part of the learned District Judge and when such is the case, it is the duty of the Court to correct the error committed by him.