1. That the general course of the proceedings in this case has teen deplorable will to clear, when it is stated that, although they began in 1914, they still are not within measurable distance of any conclusion. We, however, are particularly concerned only with the order which we are asked to revise and which was passed on 30th October 1922.
2. The facts, shortly, are that much earlier in the case the. defendants in response to the plaintiff's petition for discovery produced certain accounts and at a later date produced further accounts, Those accounts were before the Court, and the suit being for an account of the profits of properties which had been in the possession of the defendants and their father, they would have been most material in arriving at the amount to which the plaintiffs were entitled. The plaintiff having inspected the accounts, brought to the notice of the lower Court, that they did not admit their genuineness or completeness. The case standing thus, the lower Court has held that as the accounts have been inspected by the plaintiffs, the defendants Vakil is entitled to insist on their being exhibited in spite of the objection from the other side that they are not genuine and ought not; to be exhibited without proof. The lower Court justified this with reference to Section 163, Indian Evidence Act, and, if it meant simply that the defendnts were entitled to have the accounts exhibited, subject to proof and that, as they relied on them, they would be bound to prove them, the plaintiffs being entitled to adduce counter evidence, we could find no fault. But the plaintiff in the first page of the affidavit of 31st October 1921 says (and it is not contradicted) that the lower Court at once called upon 'them to adduce evidence about the genuineness or otherwise of the said accounts. That was in no way justified by Section 163 of the Evidence Act. For Section 163 does not, in our opinion, render proof of the document to be exhibited unnecessary or alter the normal incidence of that burden. We do not think it necessary to decide in these proceedings whether Section 163 is applicable to accounts produced under the discovery procedure or only to accounts produced after the trial, has begun. It is sufficient that it includes nothing relating to the burden of proof or the necessity for the proof prescribed in the other sections of the Act. 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 were not possible to isolate the point on which our interference is asked for. Here, however, we think that, in ruling as it did, and diverting from the usual course, in accordance with which the burden of proof was on the defendants, the lower Court committed a material irregularity which we should set aside.
3. The application before us for a transfer of the case is founded on the alleged perversity of the lower Court's order and procedure and on certain oral observations which it is alleged to have made. We do not think those observations, if they were made, merit serious notice; and we can find nothing except a mistake, which there is no reason for doubting was made in good faith. There is accordingly no reason for a transfer.
4. Our attention has been invited to the memo, by defendants dated 30th October 1922, in which the first defendant declined to supplement the evidence already give a. They did so, so far as we can understand, in consequence of the lower Court's ruling just dissented from. They must be allowed, if so advised, to re-consider their refusal to adduce further evidence.
5. Civil Revision Petition No. 1 of 1923 is allowed to the extent stated. Civil Miscellaneous Petition No. 7 of 1923 is dismissed. Costs will be costs in the cause and will be provided for in the lower Court's decree.