1. This petition arises out of an order of the District Munsif of Devakottah refusing to recast an issue in a suit and to add further issues. The suit is on a mortgage executed by defendant 1. Defendant 2 is the minor son of defendant 1. Defendant 3 is a subsequent mortgagee. The bond is not in the possession of the plaintiff; it is with defendant 3 who is the petitioner here and it bears endorsement of payment the last of which is in the handwriting of plaintiff's son (a step son) a man by the name of Ponnia Pillai. The issues as originally framed were:
(1) Was the suit bond lost as alleged in para. 5 of the plaint ?
(2) Is the discharge pleaded true ?
(3) Whether the suit debt is true and binding on defendant 2 ?
2. Defendant 3 asked the Court to recast the second issue so as to put the burden on the plaintiff and to add four other issues two of which were : (a) Is the mortgage to defendant 3 true and binding on defendant 2 (b) To what relief, if any, is the plaintiff and defendant 3 entitled The other two were : Was plaintiff benamidar for her son Ponniah Pillai as alleged in para. 3 of defendant 3's written statement; and is the suit bad for non-joinder of parties, i.e., of Ponniah Pillai These two last issues do not arise in any case and I shall not advert to them again. The Court rejected petitioner's application and the question is whether this petition is maintainable under Section 115, Civil P.C., and whether it should be granted. The first point to be decided is whether a Court in framing issues or refusing to frame issues is in the language of the section ' deciding a case.' My answer is yes, if the onus of proof is involved in the form of the issue. If a Court says A must succeed on this point if B calls no evidence that is a decision against B. The next point is whether in refusing to recast issue 2 in the suit the Court acted with material irregularity. Here too my answer is in the affirmative. When a mortgage bond is on the face of it discharged and in the possession of the obligor, surely it is irregular to make the latter prove the fact of discharge. The framing of issues prior to a trial is intended to give the parties notice of the facts which they must be prepared to prove. They must be ready with their evidence to prove these facts at the time of the trial. If a party has to prove nothing until his opponent has established some kind of case against him he may, if he thinks that no such case can be established, refrain from calling evidence at all and so save himself what may be a considerable amount of trouble and expense. If then, to cast the burden of proof on the wrong party is an irregularity, as for the above reason I think it is, the question still remains : is it a material irregularity That depends on the circumstances of the case. In this case I think it was a material irregularity.
3. The Full Bench decision of this Court in Kristama Naidu v. Chapa Naidu (1894) 17 Mad 410 limits the cases when the Courts will interfere, to cases when there is a perverse decision on a question of law or procedure, a decision being perverse when it is a conscious departure of some rule of law or procedure. And a Bench of this Court has interfered in a case Rajagopala Ayyangar v. Ramanuja Iyengar 1923 Mad 607, where the Court in a suit for accounts between partners dispensed with proof of certain accounts by the party who produced them though their genuineness had been challenged by the other party. And recently in a case against a company for non-registration of a transfer when by the Articles of Association the company reserved to itself the right of refusing any transfer if it appeared to it to be against the interests of the company a single Judge of this Court, Mockett, J., interfered when the. trial Judge had framed the issue so as to cast the burden of proof on the defendant company. I have been referred to the decisions of Curgenven, J., and Walsh, J., also in two fairly recent cases, C. E.P. No. 697 of 1926 and 699 of 1928 respectively, where these learned Judges whose opinion is entitled to the greatest respect have refused to interfere in cases where the petitioner objected to the framing of the issues in the trial Court. Curgenven, J., who is followed by Walsh, J., however cited Kristama Naidu v. Chapa Naidu (1894) 17 Mad 410 with approval and I do not think these learned Judges meant in those decisions to decide that in no case could a material irregularity be committed by a Court in the framing of the issues. Before leaving this point I must advert to the argument of learned Counsel for the respondent that since on the first issue,' was the mortgage deed lost as stated by the plaintiff,' the burden is placed on the plaintiff, therefore the petitioner is not prejudiced, since it is not till the plaintiff proves her case that the bond passed out of her possession without her consent that the petitioner will have to prove the fact of discharge. I recognise the force of this argument but must observe again that the purpose of setting out the points for decision before the trial is to 'enable the parties to know what evidence they have to produce before the Court.
4. Plaintiff in this case has to explain away the two facts, the endorsement on the document and the fact that the document is with the obligor, and by merely leading some evidence that at some time she lost the document she does not get rid of the burden of proving that the debt is subsisting. Issue 2 must be re-cast in the sense prayed for by the petitioner. As for the two new issues which I think were admissible I do not quite understand why the Court so summarily ruled them out. It is usual to decide the rights of a puisne mortgage at the trial of the suit. Learned Counsel for the respondent refers me to the fact that no notice of the amendment was given to defendants 1 and 2 and that may be why the issues were not allowed by the lower Court. But since it is desirable that these issues should be tried-to make an end of the litigation-there is no reason why when the lower Court receives this order it should not re-entertain the petition and decide it after causing notice to go to defendants 1 and 2. Petitioner has succeeded in the main. The order of the lower Court is modified in the sense indicated. Petitioner will have his costs of this petition.