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:
'Where the signatures of the defts. obtained by fraud on two blank papers by Madan Singh, the brother of the pltf. & was the bond in suit forged on one of those papers. & in reality no consideration was given to the defts?'
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:
Section 115: Revision: 'The High Court may call for the record of any case which has been decided by any Court subordinate to such H. C. and in which no appeal lies thereto, & 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 jurisdiction 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 case in it thinks fit.'
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.
4. The learned counsel for appcts. has referred me to Raja Gopala Aiyangar v. Bamanuja Aiyangar, A.I.R. (10) 1983 Mad 607 ; (72 I.C.159); Mt, Dharmon v. Ransingh, A.I.R. (26) 1939 Lah. 563 : (185 I. C. 828); Ganda Bam v. Rehana, 64 I.C. 91 : (A. I B. (8) 1931 Lah. 166); Basu v. Kattara, 82 I. C. 658 : (A.I.R. (11) 1924 Rang. 349), 1938 M.L.R. 113, 1940 M.L.R. 249 and Tripura Cotton Press Co. Ltd., Bezwada v. Venkatagurunadha Ramaseshayya, A.I.R. (22) 1935 Mad. 784 : (158 I. C. 601). I have gone through all these rulings and see that none of them support the case of the appcts.
5. In Rajagopala Aiyangar v. Ramanuja Aiyangar, A.I.R. (10) 1923 Mad. 607 : (173 I. C. 459), the point was altogether a different one. In that suit, which was for the rendition of accounts of the profit of properties in the possession of the defts., the lower Ct. deviated from the usual course of procedure, and taking a wrong view of Section 163 of the Evidence Act, at once called upon the pltfs. to adduce evidence about the genuineness or otherwise of the accounts, which were produced by the defts. in response to their petn. for discovery and the genuineness of which was not admitted by them. This deviation from the usual course, which was sure to result in the unnecessary harassment of the pltf. and which was repugnant to all principles of burden of proof, was considered by the learned Judges of the Madras H.C. to be a good ground for interference in revision, in a pending trial, otherwise they were altogether unwilling to interfere in such cases as it appears from their following observation made on p. 608:
'We are of course unwilling in revision to interfere with an order passed by the lower Court in a pending trial and we should not do so in the present case, if it was not possible to insolate the point on which our interference is asked for.'
6. Mt. Dharmon v. Ransingh, A. I. R, (26) 1989 Lah. 563 : (185 I. C. 828) is not a case of revision, but of second appeal, in which it was held that if necessary issues in the case have not been tried, the appellate Court, under the provisions of Section 151, has an inherent power to frame such issues and remand the suit to the trial Court for retrial on necessary issues. In Ganda Ram v. Rehana, 64 I.C. 91 : (A.I.R. (8) 1921 Lah. 166), the revision was entertained on account of the wrong allocation of burden of proof, but it was entertained when the case was finally decided and a decree passed by the lower Court. Similar ware the cases in Rasu v. Kattara, 82 I. C. 658 : (A.I.R. (11) 1924 Bang. 349) & 1940 M. L. R. 249.
7. Tripura Gotton Press Co. Ltd., Bezwada v. Venkatagurunadha Ramaseshayya, A.I.R. (22) 1935 Mad. 784 : (158 I.C. 601) & 1938 M. L. R. 113 are two S.B. rulings which really support the case of the appcts. In both of these cases, the learned Judges interfered with the orders of the lower Ct. while the trials were still pending in those Cts. & the cases were not yet decided. In Tripura Cotton Press Co. Ltd., Bezwada v. Venkatagurunadha Ramaseshayya, A.I.R. (22) 1935 Mad. 784 : (158 I. C. 601), the reason given for the interference was that the matter was one of considerable importance to companies. With all respect to the opinion of the learned Judge I, do not agree with him in the respect that in matters of importance the H.C. can interfere & in others not. Law is the same for all sorts of matters. In 1938 M.L.R. 113, the learned Judge of Jodhpur Chief Court, Mr. Sukhdeo Narain, did not give any reason for his interference at this stage. Perhaps the point was not seriously & strenuously agitated before him. Whatever may be the cause, the view that interlocutory orders in pending trials can be interfered with by this Court on the revisional side, is not acceptable to me, and therefore, I dismiss the application with costs.