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1950 DIGILAW 112 (RAJ)

Shankarlal v. Deenanath

1950-08-10

GUPTA

body1950
Gupta, J.—This civil revision-petition is directed against an order of the District Judge, Bikaner, dated the 14th of March, 1950. A suit had been filed on behalf of the opposite party against the petitioner for the recovery of a sum of Rs. 4684/6 on the 14th of September, 1949. After the applicant had filed his written statement in which he had denied to have received any amount from the opposite party by way of loan but alleged that he had received the sum towards satisfaction of the debt he had advanced to one Ram Singh on the plaintiff standing surety for the payment of the loan, the court framed certain issues and proceeded to try the suit. The issues that were framed were to the following effect: — (1) Had the plaintiff stood surety for the debt of Thakur Ram Singh and did the defendant receive the amount of Rs. 4268/3 towards the debt of Ram Singh ? (2) Is the defendant liable to pay the interest claimed ? 2 Not satisfied with the first of these issues in which initial burden had been cast on the defendant, he applied to the Trial Court on the 13th of January, 1950, for amendment of the issue No. 1 so as to put the burden of proof that he had advanced the sum to the defendant by way of loan on the plaintiff, opposite party. This application was rejected on the 14th of March, 1950, and he has come up to this Court in revision and it is contended by his learned counsel that the issue No.1 has been wrongly framed and unnecessary burden of proof has been put upon him. 3. The learned counsel for the opposite party raised a preliminary objection that, inasmuch as, it was not a case decided, no revision lay. This contention of the learned counsel for the opposite party is supported by the view that has been taken by the Chief Court of Oudh vide A.I.R. 1942 Oudh 431. In reply, the counsel for the applicant relied upon a contrary view taken by the Madras and the Rangoon High Courts vide AIM. 1939 Mad. 644 and 1935 Ran. 131. This contention of the learned counsel for the opposite party is supported by the view that has been taken by the Chief Court of Oudh vide A.I.R. 1942 Oudh 431. In reply, the counsel for the applicant relied upon a contrary view taken by the Madras and the Rangoon High Courts vide AIM. 1939 Mad. 644 and 1935 Ran. 131. The learned counsel for the applicant has also cited a judgment of the Chief Court of Jodhpur reported in 1940 M.L.R. 249 (Civil) in which reliance was placed on another decision reported in 1938 M.L.R. 113 (Civil) in which such an objection had been over-ruled. The Madras decisions do not appear to be consistent as would appear from another judgment of the same High Court report-ed in A.I.R. 1939 Mad. 733. Moreover, the Madras judgments are judgment of single judges and so is the judgment of the Chief Court reported in 1940 M.L.R. 249 (Civil). But the contrary view relied upon by the learned counsel for the applicants finds great support from the recent judgments of the Patna and the Nagpur High Courts vide A.I.R. 1947 Pat. 469 and A.I.R. 1948 Nag. 285. The Patna case is a division bench case and following the Madras decision reported in A.I.R. 1939 Mad. 644, it has been held that the correct placing of the onus of proof is a vital point of procedure and an incorrect placing of onus, may, therefore, amount to a material irregularity. It has been further held that where the effect of requiring the defendant to lead evidence seriously prejudices him .........and deprives him of the very valuable right of adducing evidence in rebuttal of that adduced by the plaintiff, the prejudicial effect of the procedure is not capable of remedy and the High Court ought to interfere in revision. The Nagpur case is a full bench case. Justice Radhye has, in his judgments observed as follows :— "If a court refused to frame an issue on a material proposition affirmed by one party and denied by the other, it would be guilty of not exercising jurisdiction vested in it by law requiring it at the first hearing of the suit to record issues on which the right decision of the case depends. If, on the other hand, it framed issues which do not arise out of the material proposition of law or fact affirmed by one party and denied by the other it would be acting either in excess of its jurisdiction or with material irregularity, and in either case the order of the subordinate court may be open to revision. In fact, by refusing to frame an issue which actually does arise in the case, the court shuts out a trial of a part of his case. In such a case it would be necessary for the High Court to interfere in revision and to set the matter right so as to avoid waste of time and costs." and answered the question, "Has the High Court jurisdiction to entertain revisions touching (1)......,(2)...... and (3) a question, relating to the framing of issue", in the affirmative. 4. Agreeing with this view of Just-ice Padhye, another Judge of the Full Bench, Pollock, J. has observed as follows:— "I would, therefore, say that there may be cases in which the High Court has power to interfere in revision with the lower courts interpretation of a remand order or question of a pleading or on a question relating to the framing of an issue." This opinion appears to me to be quite sound and I have no hesitation in adopting it. In the view that I have taken the objection on behalf of the opposite party has no force and is over-ruled. 5. Coming to merits, the defendant in this case had, while admitting that he had received the amount alleged by the plaintiff to have been paid to him, denied that he had received it as a loan and alleged that the same was received by him towards the payment of the amount given by him in loan to one Thakur Ram Singh on the guarantee of the plaintiff. I think it is for the plaintiff first to establish that he had advanced the amount to defendant as a loan. It would be, only after the plaintiff had discharged his onus that the defendant could be called to prove that he had received the amount not as a loan but towards the satisfaction of the amount advanced by him to one Thakur Ram Singh for whom the plaintiff had stood surety. It would be, only after the plaintiff had discharged his onus that the defendant could be called to prove that he had received the amount not as a loan but towards the satisfaction of the amount advanced by him to one Thakur Ram Singh for whom the plaintiff had stood surety. The effect of requiring the defendant in this case to lead evidence would seriously prejudice him by assuming without proof that he had received the amount as a loan and would deprive him of the vary valuable right of adducing evidence in rebuttal of evidence adduced by the plaintiff. I entirely agree with the view of the Patna and Nagpur High Courts and accept the revision because the prejudicial effect of the procedure in the lower court was not capable of remedy and it is a fit case, in my opinion, in which I ought to interfere in revision. I accept this revision and direct the lower court to frame proper issues. The applicant will get his costs from the opposite party.